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Published: Saturday, 6/30/2001

Smoking fight heads to U.S. District Court

It didn't take long for the legal maneuvering to begin in earnest after opponents of Lucas County's strict indoor smoking ban filed a lawsuit to stop it from taking effect.

Late Thursday afternoon, the Lucas County prosecutor's office filed a petition to move the case from the Common Pleas Court to U.S. District Court.

Now it's up to U.S. District Judge David Katz to decide if federal court is the proper forum. If he doesn't accept the suit, he could decide to send it back to Common Pleas Court.

The litigants could ask him to send it straight to the Ohio Supreme Court if he finds there's no guiding precedent on the state issues raised in the case.

On Thursday morning, a group of 27 plaintiffs, mostly bar owners, sued to have the Toledo-Lucas County board of health's smoking ban declared unlawful.

The ban, which would not allow smoking in public places such as bars, restaurants, and bowling alleys, is the strictest in Ohio and one of the toughest in the country. Barring a court order to postpone it, it's scheduled to take effect July 10.

Andy Ranazzi, an assistant county prosecutor who is helping defend the ban, said it is office policy to move cases in which federal claims are made to U.S. District Court.

“The federal court is more than competent to adjudicate the federal claim and the state claims,” he said.

Louis Tosi, an attorney for the Toledo firm Shumaker, Loop & Kendrick who is representing the plaintiffs, said he was surprised the prosecutors wanted the case moved from Common Pleas Court.

“We don't understand it, but we'll deal with it,” Mr. Tosi said.

The case had been assigned to Lucas County Common Pleas Court Judge James Bates.

The federal claim at issue is a contention by the plaintiffs that the smoking ban violates the U.S. Constitution because it constitutes a taking of property without just compensation.

The suit contends that some of the plaintiffs have made substantial investments in their businesses so they can cater to smokers.

For example, Neil McGregor, owner of Port Royal Tobacconists in West Toledo, expanded his retail store to build a cigar bar and lounge that he'd no longer be able to use if the ban is upheld, according to the suit.

The rest of the lawsuit, though, deals primarily with state issues. Smoking ban opponents claim the health board overstepped its authority because the state legislature never specifically gave it the power to regulate smoking.

An opinion by the Ohio Attorney General's office, while not specifically mentioning smoking, says health boards have “wide latitude” in deciding matters of public health.



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