D.A.B.E. v. Toledo-Lucas Cty. Bd. of Health
| Decision Date | 28 August 2002 |
| Docket Number | No. 2001-1407.,2001-1407. |
| Citation | 773 N.E.2d 536,96 Ohio St.3d 250,2002 Ohio 4172 |
| Parties | D.A.B.E., INC., d.b.a. Arnie's Saloon, et al., Respondents, v. TOLEDO-LUCAS COUNTY BD. OF HEALTH et al., Petitioners. |
| Court | Ohio Supreme Court |
Shumaker, Loop & Kendrick, L.L.P., Louis E. Tosi, Michael A. Snyder, James O'Doherty and Thomas G. Pletz, Toledo, for respondents.
Julia R. Bates, Lucas County Prosecuting Attorney, Andrew K. Ranazzi, Lance M. Keiffer, John A. Borell, and Damian M.P. Rogers, Assistant Prosecuting Attorneys, for petitioners.
Zuckerman Spaeder, L.L.P., William B. Schultz and Carlos T. Angulo, Washington, DC, in support of petitioners for amici curiae, the National Association of Local Boards of Health, the Ohio Association of Boards of Health, the Association of Ohio Health Commissioners, the Ohio Department of Health, the Ohio Environmental Health Association, the American Public Health Association, the Ohio Public Health Association, the National Association of County and City Health Officials, the National Center for Tobacco-Free Kids, Americans for Nonsmokers' Rights, and the Tobacco Control Resource Center.
Danny R. Williams, Cleveland, Susan Jagers and Joseph L. Lanton, Cincinnati, in support of petitioners for amici curiae, American Cancer Society, Ohio Division, Inc., American Cancer Society, American Lung Association, American Medical Association, Ohio Academy of Family Physicians, Ohio State Medical Association, Ohio State Radiological Society, and Ohio State University College of Medicine and Public Health.
{¶ 1} This matter is before the court on four certified questions of state law from the United States District Court, Northern District of Ohio, Western Division. The defendants before the district court and designated petitioners in this court are the Board of Health of the Lucas County Regional Health District and the Lucas County Regional Health District itself.1 The Lucas County Regional Health District is a general health district organized pursuant to R.C. 3709.07. The district covers all of Lucas County, including the city of Toledo, and is headed by an eleven-member board of health. Each member of the board is appointed by one the political subdivisions comprised by the district. The plaintiffs in the action before the district court are the designated respondents before this court. They are 27 small business owners and trade associations in Lucas County, Ohio. Respondents are a diverse group that includes owners of bars, restaurants, a bowling alley, and a cigar lounge. The underlying action pending before the federal district court involves respondents' challenge to a regulation adopted by the board prohibiting smoking in all enclosed, indoor areas in Lucas County where members of the general public gather — including bars, restaurants, and bowling alleys — as well as in all places of employment and vehicles of public transportation. In its certification order, the district court set forth the following procedural facts and history:
{¶ 2} "On May 24, 2001, the Board adopted a regulation entitled the `Lucas County Regional Health District Clean Indoor Air Regulation' (`the Regulation'). The Board cited the health concerns from `second hand smoke' and Section 3709.21 of the Ohio Revised Code as authority for the Regulation. The Regulation prohibits smoking in all Public Areas, are defined as every enclosed, indoor area to which members of the general public are invited or in which members of the general public are normally permitted. Thus, the Regulation prohibits smoking in restaurants, tobacco shops, bowling alleys, all public areas of places of employment — in almost every indoor place in Lucas County, Ohio other than private residence private cars and private clubs. The Regulation also prohibits smoking within twenty feet of any entrance or open window of these Public Areas and in all Vehicles of Public Transportation. The Regulation provides for the criminal penalties prescribed in Section 3709.99 of the Ohio Revised Code, for both the individual who violates the Regulation, as well as the owner of any Public Area that does not enforce the Regulation within the Public Area under his or her control. By its terms, the Regulation was to go into effect on July 8, 2001.
{¶ 3} "On June 28, 2001, twenty-seven Plaintiffs, a group consisting of owners of bars, restaurants, a cigar lounge, a bowling alley, and other establishments where many patrons smoke and where patrons expect smoking, filed a Complaint in Lucas County Common Pleas Court under the Ohio Declaratory Judgment Act, seeking a declaration that the Regulation is invalid. Plaintiffs asserted five claims based on Ohio state law (essentially alleging that the Regulation was beyond the Board's legislative authority under Chapters 3707 and 3709 and related provisions of the Ohio Revised Code, that the Regulation constituted an illegal legislative act, and that the Regulation is unlawful and unreasonable as applied) and a single federal law claim that the Regulation was an unconstitutional taking. On the same day, Defendants removed this action to this court, the United States District Court for the Northern District of Ohio, Western Division, based on the federal claim.
{¶ 4}
{¶ 5} The federal district court has certified to us, and we have agreed to answer, the following questions of state law:
{¶ 6} "1. Does the Ohio Revised Code authorize or delegate to a local board of health of a general health district the authority to prohibit smoking in all public places as defined by the Regulation at issue herein?
{¶ 7} "2. If the answer to Question 1 is yes, does such a delegation of authority violate the Ohio Constitution?
{¶ 8} "3. Does a regulation adopted by a board of health of a general health district, which prohibits smoking in all public places as defined by the Regulation at issue, conflict with, or is it inconsistent with or preempted by the provisions of the Ohio Revised Code that already govern the conduct of smoking in places of public accommodation and elsewhere?
{¶ 9}
{¶ 10} With respect to these questions, the district court issued the following findings:
{¶ 11} "The Ohio Supreme Court has never specifically addressed the issue of whether a board of health of a general health district has the authority to prohibit smoking in all enclosed, indoor public areas pursuant to Section 3709.21 of the Ohio Revised Code. It appears that only three Ohio trial courts have ruled on this issue. Brewery, Inc. v. Delaware City-County Bd. of Health (July 19, 1999), Delaware C.P. No. 98-CVH-12-413, unreported; Wilson v. Knox Cty. Bd. of Health (January 11, 1986), Knox C.P. No. 95IN050086, unreported; Cookie's Diner v. Columbus Bd. of Health (Franklin Cty. Muni.1994), 65 Ohio Misc.[2d] 65 .
{¶ 12} "Also of relevance to the issues certified are various statutes regulating smoking in the State of Ohio. Among others, the most broad of these sections is Section 3791.031 of the Ohio Revised Code, which provides for `nonsmoking areas in places of public assembly.' In R.C. 3791.031, the General Assembly specifically delegated authority to designate nonsmoking sections in places of public assembly to the local fire authority, the director of administrative services of a state agency, or the person controlling the place of public assembly, depending on the type of place to be regulated.
{¶ 13} "Finally, Chapter 1779 of the Toledo Municipal Code, which was enacted by Toledo's city council in 1987, regulates smoking within the city and allows smoking to some degree in Plaintiffs' businesses." (Footnote omitted.)
{¶ 14} "Does the Ohio Revised Code authorize or delegate to a local board of health of a general health district the authority to prohibit smoking in all public places as defined by the Regulation at issue herein?"
{¶ 15} The district and the board, hereinafter "petitioners," argue that R.C. 3709.21 vests a local board of health of a general health district with a broad grant of authority to adopt regulations necessary to protect the public health. Petitioners contend that R.C. 3709.21 is a separate, independent, and complete grant of authority to address threats to the public health, whatever they may be and whenever they may arise. In petitioners' view, as long as a local health board adopted a regulation pursuant to R.C. 3709.21, and the regulation was necessary to protect the public health, reasonable, nondiscriminatory, and consistent with constitutional guarantees, the regulation would be valid and enforceable. Thus, petitioners urge us to find that they have acted within the scope of their authority in adopting the Clean Indoor Air Regulation.
{¶ 16} Respondents, on the other hand, contend that the General Assembly has not delegated to local boards of health the power to adopt any type of smoking ban. Respondents argue that R.C. 3709.21 is merely an enabling statute intended solely to confer rule-making powers on boards of health rather than a statute that grants substantive and plenary authority to local...
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