Anti-Tobacco Activists Promise Fight Following Court Ruling

By ANDREW WELSH-HUGGINS, AP Statehouse Correspondent

COLUMBUS, Ohio (AP) - Anti-tobacco groups say they will take their pleas to ban smoking in public places directly to voters since the Ohio Supreme Court ruled local health boards cannot enact such bans.

The state's highest court, in its 6-1 ruling Wednesday, called the goals of anti-smoking activists well-intentioned, but said state law limits the power of health boards to enact comprehensive smoking bans.

"We grant that local boards of health are better situated than the General Assembly to protect the public health," Justice Andy Douglas wrote for the majority. "However, local boards cannot act in any area of public health without prior legislative approval."

Justice Paul Pfeifer dissented without comment.

Anti-tobacco groups will push for bans through ballot initiatives and legislation, said Tracy Sabetta, project director for Tobacco-Free Ohio.

"Smoke-free laws help protect restaurant and bar employees and patrons from the harms of secondhand smoke," she said.

Almost 500 communities nationwide have total smoking bans or comprehensive public bans with exceptions for bars and restaurants, said John Banzhaf III, executive director of Washington, D.C.-based Action on Smoking and Health.

"As the evidence continues to emerge that secondhand tobacco smoke kills nonsmokers, people are worried about their health," Banzhaf said. "They're worried about dying from everything from cancer to heart attacks."

Two states, California and Delaware, ban smoking in all public places. Utah bans smoking in all public places except membership-only restaurants and bars.

Minnesota bans smoking in all public buildings and most medical buildings, except in specifically designated smoking areas and in bars. Bans in Maryland and Maine allow smoking only in restaurants with liquor licenses.

In Massachusetts, the state's Supreme Judicial Court ruled in January 2001 that a local health board has the power to ban smoking in restaurants and bars, a key victory for the state health department.

Florida voters in November will decide whether to outlaw smoking in restaurants, except for outdoor seating areas, and in all enclosed workplaces, including employee break rooms.

In New York City, Mayor Michael Bloomberg wants to ban smoking in thousands of bars and restaurants.

The court's decision went against backers of a total ban in Lucas County, approved in June 2001 by the Toledo-Lucas County Board of Health. The ban prohibited smoking in all indoor public places, including bars and restaurants.

"We're not giving up," Health Commissioner David Grossman said. "This wasn't a one-time shot."

Arnie's Eating and Drinking Saloon, a popular sports bar near the University of Toledo, and 26 other businesses took their challenge of the ban to the high court.

"We've thought all along an unelected board shouldn't be able to enforce such stringent rules," bar owner Arnie Elzey said. "It was not just about smoking."

Louis Tosi, a lawyer for the businesses, said state lawmakers have already dealt with smoking in most public places.

"People in the General Assembly get elected, people in an agency don't," Tosi said.

A health board attorney had argued that the local boards are empowered under state law to protect public health.

Grossman said the health department likely will begin working with anti-tobacco groups to put a smoking ban on the ballot in Toledo, which had the nation's highest smoking rate according to a federal report released in December.

A vote would be easier than asking local governments to approve such a ban, he said.

"I don't think any city councils will want to touch it," he said.

Charles Blosser, executive director of the Ohio Restaurant Association, said he doubts the state will see a wave of smoking bans.

"I'm not sure city councils will be all that eager to put their necks out," he said Wednesday.

A total ban on smoking enacted in November in Meigs County won't be affected by the ruling unless someone challenges the ban, said Sandy Erb, regional policy coordinator for Tobacco-free Ohio.

But Joseph Ebel, Licking County Health Commissioner, said he believes the decision overturns a 1992 requirement that all Licking County restaurants set aside non-smoking sections. That regulation survived a previous federal challenge.

(Copyright 2002 by The Associated Press. All Rights Reserved.)