FOUND. FOR IND. LIV. v. CABELL-HUNTINGTON

• Decision Date: 02 December 2003
• Docket Number: No. 31616., No. 31120
• Citation: 591 S.E.2d 744,214 W.Va. 818
• Parties: FOUNDATION FOR INDEPENDENT LIVING, INC., A West Virginia Non-Profit Organization; Mohawk Tribe # 11, Inc., A West Virginia Non-Profit Organization; Philip Dingess and Wanda Dingess, DBA Adam's Avenue Floral; Blevin's Entertainment, Inc., DBA Blevin's Roofing Company, and Other Similarly Situated Individuals and Businesses, Plaintiffs Below, Appellees, v. The CABELL-HUNTINGTON BOARD OF HEALTH, Defendant Below, Appellant, and State of West Virginia ex rel. Kanawha-Charleston Board of Health, Petitioner, v. The Honorable Charles E. King, Judge of the Circuit Court of Kanawha County, West Virginia, and David Dryden, Respondents.
• Court: West Virginia Supreme Court

591 S.E.2d 744

214 W.Va. 818

FOUNDATION FOR INDEPENDENT LIVING, INC., A West Virginia Non-Profit Organization; Mohawk Tribe # 11, Inc., A West Virginia Non-Profit Organization; Philip Dingess and Wanda Dingess, DBA Adam's Avenue Floral; Blevin's Entertainment, Inc., DBA Blevin's Roofing Company, and Other Similarly Situated Individuals and Businesses, Plaintiffs Below, Appellees, v. The CABELL-HUNTINGTON BOARD OF HEALTH, Defendant Below, Appellant, and State of West Virginia ex rel. Kanawha-Charleston Board of Health, Petitioner, v. The Honorable Charles E. King, Judge of the Circuit Court of Kanawha County, West Virginia, and David Dryden, Respondents.

Nos. 31120, 31616.

Supreme Court of Appeals of West Virginia.

Submitted October 7, 2003.

Decided December 2, 2003.

Robert R. Fredeking, II, Paul E. Biser, Fredeking & Fredeking Law Offices, Huntington, for the Appellees Foundation for Independent Living, et al.

W. Edward ReBrook, III, Hunt & Serreno, Charleston, for the Respondent, David Dryden.

Raymond A. Nolan, Assistant Prosecuting Attorney, Cabell County, Huntington, for the Appellant The Cabell-Huntington Board of Health.

Victor Flanagan, Erik T. Engle, Pullin, Fowler & Flanagan, Charleston, for the Petitioner, Kanawha-Charleston Board of Health.

John R. Hoblitzell, Kay, Casto & Chaney, PLLC, Charleston, Debra Scudiere, Teresa J. Dumire, Kay Casto & Chaney, PLLC, Morgantown, for Amici Curiae, Local Health Association of West Virginia, et al.

ALBRIGHT, Justice.

This case began as an appeal from a declaratory judgment action involving a clean indoor air regulation adopted by the appellant, Cabell-Huntington Board of Health (hereinafter individually referred to as the "C-H Board"). The C-H Board seeks through this appeal to establish its authority to implement the regulation by requesting reversal of the February 18, 2002, order of the Circuit Court of Cabell County declaring the regulation an impermissible use of police power and granting permanent injunctive relief. The appellees in the Cabell-Huntington appeal are the Foundation for Independent Living, Inc., Mohawk Tribe # 11, Inc., Philip Dingess and Wanda Dingess d/b/a Adam's Avenue Floral, and Blevins Entertainment, Inc. d/b/a Blevins Roofing Co. and other similarly situated businesses (hereinafter referred to as "appellees"). While supporting the validity of injunctive relief in this matter, the appellees also raise a cross assignment of error claiming that the C-H Board violated the Open Governmental Proceedings Act in the process of adopting the regulation.

During the pendency of the Cabell-Huntington appeal, the Kanawha-Charleston Board of Health (hereinafter individually referred to as the "K-C Board") adopted a similar clean indoor air regulation. Mr. David Dryden challenged the implementation of the regulation in the Circuit Court of Kanawha County, which resulted in an order dated July 24, 2003, granting a preliminary injunction enjoining the K-C Board from enforcing its clean indoor air regulation in establishments possessing "private club" liquor licenses. The K-C Board sought to dissolve the preliminary injunction by petitioning for a writ of prohibition with this Court. Given the comparable issues raised, the right to intervene was granted to the parties in the Kanawha-Charleston case. Subsequently, the parties in the Kanawha-Charleston case were granted full party status and the cases were consolidated for purposes of this decision.

In addition to the record, briefs of the parties, and oral arguments presented, the Court has also considered the joint brief of the amici curiae: Local Health Association of West Virginia; West Virginia Public Health Association, Inc.; West Virginia Association of Sanitarians; West Virginia State Medical Association; West Virginia Hospital Association; Coalition for a Tobacco-Free West Virginia; Harrison County Medical Society Alliance; American Lung Association of West Virginia; National Association of Local Boards of Health; and Americans for Nonsmokers' Rights.¹ As a result of our study of the issues and relevant law, we conclude that local boards of health have the authority to develop and implement regulations to restrict smoking in enclosed public places.

I. Facts and Procedural Background

The C-H Board and the K-C Board (hereinafter collectively referred to as "Boards") are local boards of health respectively servicing Cabell County, including the City of Huntington, and Kanawha County, including the City of Charleston. For the sake of clarity, the development of the cases of the Boards are related separately.

A. C-H Board Facts

In fulfilling one of its statutory responsibilities of promoting and maintaining clean air and water,² the C-H Board adopted an order in 1995 setting forth a clean indoor air regulation for its service area. That regulation was amended and superseded by the adoption on December 12, 2001, of the "Cabell County Clean Indoor Regulation of 2001," which prohibited smoking in all enclosed public areas within Cabell County.³ Soon after the adoption of the later regulation, the appellees instituted a declaratory judgment action in the circuit court to challenge the subject regulation and obtain preliminary and permanent injunctive relief. Following a hearing on January 10, 2002, the lower court issued a preliminary injunction and set a hearing for February 14, 2002, to address the motion for permanent injunctive relief. On February 18, 2002, the lower court granted a permanent injunction invalidating the Clean Indoor Air Regulation of 2001, chiefly on the basis that the C-H Board overstepped its authority by stating in the regulation that any violation of its provisions would constitute a misdemeanor under West Virginia Code § 16-2-15 (2000) (Repl.Vol.2001). In response to the February 18, 2002, order, the C-H Board filed a Motion to Reconsider and Amend Declaratory Judgment Order or, Alternatively, to Clarify the Court's Order. This motion was denied by order entered on June 18, 2002. The C-H Board's petition for appeal was granted by this Court on February 13, 2003.

B. K-C Board Facts

The K-C Board approved similar clean indoor air regulations on April 3, 2003, to take effect on July 2, 2003. A challenge of the regulations was initiated in the Circuit Court of Kanawha County by Mr. Dryden on July 17, 2003, by filing a petition for writ of mandamus and request for injunctive relief. The lower court granted a preliminary injunction by order dated July 24, 2003, enjoining the K-C Board from enforcing its regulations in establishments possessing liquor licenses. The lower court reasoned that any establishment maintaining a liquor license was by definition in the Alcohol Beverage Control Act, West Virginia Code Chapter 60, a private club and outside the regulatory control of the local health department. The K-C Board filed a petition for writ of prohibition with this Court on July 29, 2003.⁴ Given the similarity of issues with the Cabell-Huntington case, the parties to the action in the Circuit Court of Kanawha County were granted intervenor status by this Court on August 18, 2003. Thereafter, this Court by order entered November 19, 2003, deemed the briefs and arguments of the intervenors as a response to a rule to show cause why a writ a prohibition should not issue, resulting in the consolidation of the Cabell-Huntington and Kanawha-Charleston cases for purposes of decision.

II. Standard of Review

The C-H Board's appeal from the "circuit court's entry of a declaratory judgment is reviewed de novo." Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). This level of review is warranted "because the purpose of a declaratory judgment action is to resolve legal questions." Id. at 612, 466 S.E.2d at 463. To the extent that our review of the declaratory judgment proceeding involves "any determinations of fact made by the circuit court in reaching its ultimate resolution... [we employ] a clearly erroneous standard." Id.

In the K-C Board case, we are called upon to determine whether a petition for writ of prohibition should be granted. This Court has recognized that a writ of prohibition will lie to prohibit enforcement of an injunction where the court either did not have jurisdiction or exceeded its legitimate powers in issuing an injunction. State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997). This case presents a claim that the lower court exceeded its legitimate powers by issuing an order which is clearly erroneous as a matter of law. "[T]his Court will use prohibition ... to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability ... [of reversal] if the error is not corrected in advance." Syl. Pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

In light of these standards, we proceed with our examination of issues raised.

III. Discussion

A. General Authority to Regulate

Eclipsing the resolution of the specific challenges the Boards raise to the orders of the lower courts are the general questions of the propriety and the extent of the Legislature's grant of authority to local boards of health with regard to clean indoor air regulations which restrict smoking in enclosed public places. Consequently, it is necessary to first examine relevant legislative enactments concerning authority of local health departments.

The powers and duties of local boards of health are set forth in West Virginia Code § 16-2-11 (2000) (Repl.Vol.2001), which provides in pertinent part:

(a) Each local board of health created, established and operated pursuant to the provisions of this article shall:

(1) Provide the following basic public health services and programs in accordance with state public health

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