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Published: Thursday, 10/11/2001

High court to review Lucas ban on smoking

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - The Ohio Supreme Court agreed yesterday to decide whether Lucas County's strict indoor smoking ban complies with or violates the state Constitution.

Without comment, the court unanimously agreed to answer four questions that U.S. District Judge David Katz of Toledo submitted after he delayed the regulation from taking effect July 8.

The smoking ban, the toughest ever passed in Ohio, would make it illegal to smoke inside such places as bars, restaurants, and bowling alleys.

The four questions that the Supreme Court will answer are:

  • Did the state legislature grant health boards the authority to prohibit smoking in all public places, as defined by the regulation?

  • If so, does that violate the state Constitution?

  • Does the regulation conflict with or is it pre-empted by existing Ohio law that governs smoking in all places of public accommodation by calling for nonsmoking areas in certain places?

  • If the regulation conflicts with an existing municipal ordinance or one that is passed in the future, which regulation would be followed?

    Both sides applauded the high court's decision.

    “We are very pleased and look forward to putting forth the regional health district's argument, and we are confident we will prevail,” said Andy Ranazzi, an assistant Lucas County prosecutor representing the Toledo-Lucas County Board of Health.

    “I am very happy they are considering it,” said Arnie Elzey, owner of Arnie's Eating and Drinking Saloon in West Toledo. “We thought these are questions that had to be answered, especially concerning the rights of unelected boards to supersede legislation.”

    Mr. Elzey is among the 27 plaintiffs, mostly bar owners, who sued to stop enforcement of the regulation, which was passed May 24 by the Toledo-Lucas County board of health.

    They have argued that a smoking ban would damage their businesses, and they have asked the courts to strike down the regulation as unlawful because the health board does not have the authority to enforce the regulation.

    Dr. David Grossman, director of the Toledo-Lucas County health department, said he had anticipated the high court would hear the case.

    “It is the right thing to do, and it will answer the concerns that some people have. We have the right and authority to enact this plan,” Dr. Grossman said.

    Judge Katz has ruled that state court judges have disagreed on whether boards of health can enact smoking bans.

    A decision by the Supreme Court is not expected until early next year.

    Lou Tosi, an attorney representing the businesses fighting the ban, said he expects both sides will finish filing their legal briefs with the Supreme Court by mid-December.

    It is up to the seven-member court whether to schedule oral arguments.

    The case is being watched closely by other counties that are weighing strict indoor smoking bans.

    “If the Supreme Court were to state that boards of health cannot do this, the matter is over,” said Mr. Ranazzi. “If the Supreme Court rules that boards of health can put forth Clean Indoor Air acts, then it goes back to Judge Katz.”

    Judge Katz then would determine if the ban adopted by the Toledo-Lucas County Board of Health is “reasonable,” Mr. Tosi said.



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