By ANDREW WELSH-HUGGINS, AP Statehouse Correspondent
COLUMBUS, Ohio (AP) - Ohio law does not give local boards of health the ability to enact comprehensive smoking bans, an attorney for a Toledo bar challenging such a ban told the Ohio Supreme Court on Tuesday.
"I just don't believe it's there," attorney Louis Tosi told the court. "There is no authority in the board of health to do this."
By a 7-1 vote, the Toledo-Lucas County Board of Health in June approved a ban that outlaws smoking in all indoor public places, including bars and restaurants.
The board of health's attorney told the court that the board has the ability to enact the ban as part of its mission to "promulgate public health."
"These regulations take the force of state law," said attorney Andrew Ranazzi.
Opponents of the Lucas County ban say a Supreme Court ruling in favor of the ban would lead to a rush of similar laws around Ohio.
Health officials disagree, saying most communities are still reluctant to impose total bans.
"I don't think there'll be any watershed change at all," Deborah McConville, executive of the Ohio Association of Health Commissioners, said Monday. "Many, many communities in Ohio are probably not ready to entertain an outright ban or take that next step."
U.S. District Judge David Katz temporarily halted the Lucas County ban from taking effect while a lawsuit attempting to overturn it was pending in the courts.
Katz has asked the Ohio Supreme Court to clarify state law on the issue.
At stake is whether health boards can impose anti-smoking rules, thus bypassing elected officials and making it easier to put smoking bans in place.
The court will determine whether Ohio law allows a local health board to prohibit smoking in all public places and, if so, whether that violates the Ohio Constitution.
The Ohio Council of Retail Merchants, which opposes such bans, predicts that a state Supreme Court ruling in favor of the Lucas County ban will mean an increase in such bans.
"They are so bent on this kind of track, I don't think they would hesitate at all, if they're seen as having this kind of sweeping power, to just go with it," said Joshua Sanders, a council spokesman.
Tobacco-Free Ohio, which supports the ban, also predicted other counties will try to follow Lucas County's example.
"I don't know if you're going to see every county in Ohio do it -- I do know there are several counties in Ohio interested in doing it," said Tobacco-Free spokeswoman Chris Schulte.
Communities have tried for years to enact smoking bans, for the most part unsuccessfully.
In 1994, five local health boards in Franklin County tried to introduce a countywide smoking ban in virtually all public buildings except bars.
Before the ban could take effect, Environmental Judge Richard Pfeiffer ruled it was improper. He said regulatory bodies such as health boards don't have authority to grant exemptions.
However, supporters of smoking bans say Pfeiffer's ruling had the effect of upholding health boards' abilities to enact comprehensive bans.
In 1999, a judge ruled that the Delaware City-County Board of Health cannot enforce a rule regulating smoking in public places.
In 1992, the Licking County Health Board required restaurants to set aside a nonsmoking section and banned smoking in most public buildings, including private stores. That ban survived federal challenges and is in place today.
Malcolm Adcock, the Cincinnati health commissioner, said health boards won't overreact.
"There are many communities and boards of health that will not consider such a ban, because community standards will not be in favor of doing so."
Duwayne Porter, director of environmental health for the Portage County Combined General Health District, said change would come slowly for his area.
"We're a relatively rural county -- that makes this kind of legislation very difficult," he said. "We're not going to jump in feet first at this time."
A bill pending in the General Assembly would require local lawmakers to approve any board of health orders regarding the use of cigarettes or other tobacco products.
The bill's fate is uncertain; Gov. Bob Taft has threatened to veto it in its current form.