Article published December 09, 2006
Legal attacks on smoking bans usually fail
Pattern of litigation described as fairly typical
By JENNI LAIDMAN
BLADE STAFF WRITER
Despite the whining, the last-minute lawsuits, and the general sense of smoker indignation, chances are high that six months from now Ohio will be enforcing a smoking law, and almost everyone will be toeing the line.
That's what's happened in other states where people have been told to step outside if they want to smoke. And both nonsmoking advocates and experts on tobacco litigation predict that will be the case in Ohio.
"This pattern is fairly typical," said Micah L. Berman, executive director of the Tobacco Public Policy Center at Capital University in Columbus.
"Lawsuits are filed at the very last minute, usually as a delaying tactic. They go through the challenges, and they're all rejected," Mr. Berman said.
Stanton Glantz, director of the Center for Tobacco Control Research and Education at the University of California, San Francisco, expects to see Ohio's law make it through challenges.
"I promise you, a year from now, The Blade will run an article saying the law is in force and business is on the increase," the professor of medicine said."It's quite typical. We see it all the time," said Cathy Callaway, senior field representative for the American Cancer Society, of the rush to sue in Ohio.
"It's kind of standard operating procedure for the tobacco industry and their allies in this battle," she said. And it rarely succeeds, she said.
"It's just kind of delaying the inevitable."
A similar battle is being waged in Nevada, where a voter-approved smoking ban went into effect Friday. But a legal challenge in Clark County, where Las Vegas is located, has thrown enforcement into disarray.
John Flamm, Nevada State Health Division spokesman, said because of the lawsuit, "the rest of the state's holding off. They're still going ahead with the smoking ban, but they're not enforcing it because they're afraid, legally, they may have no foundation. So they're waiting."
The Nevada ban does not cover casinos.
Ohio's smoking law remains in force despite lawsuits filed in
Franklin and Hamilton counties and a subsequent agreement reached Thursday between the litigants and the Ohio Department of Health. The agreement states that while the law remains in force, there can be no penalties for breaking it until rules are formed sometime in the next six months. But in fact, the health department said before the suits were filed that, until rules were approved, it could do no more than send letters to violators.
This confusing turn of events - Ohio Health Director Dr. J. Nick Baird published a clarification of it yesterday on the department's Web site - www.odh.state.oh.us - does create a "public relations problem," Mr. Glantz said.
"It's very important these laws get off on the right foot," he said. "It's really a war of perception. It would have been much better if the [Ohio attorney general] had not done what he did, had the health department taken a more proactive position," and stated it would use this time to phase in the law and educate businesses and the public.
"Now [pro-smoking businesses] are going to do everything they can to gum up the process. The longer they can create the public perception the law is not real, the harder it's going to be enforced later," Mr. Glantz said.
Still, Mr. Berman says the legal claims made thus far by pro-smoking forces have little chance for success. He says a Cincinnati law firm's claim that the state smoking law violates property rights has been rejected consistently by the courts, even once in a case filed in Toledo.
"Toledo has made our tobacco case law," Mr. Berman joked. But he's only half kidding. Toledo businesses filed three of the five cases in Ohio opposing indoor smoking bans.
A federal circuit judge in the Toledo case dealing with property rights wrote that the tavern owners failed to prove the smoking law denied them "economically viable use" of their properties.
"This isn't a question of taking someone's property away," Mr. Berman said, but a legitimate action on behalf of public health.
Other lawsuits challenging smoking laws for "unconstitutional vagueness" have similarly failed. An attorney representing Toledo-area bars has talked about challenging the Smoke Free Workplace law on the grounds that ballot language was unclear.
Specifically, the ballot language said private clubs would be exempt from the law, but in reality, the law defines private clubs so narrowly, not an Eagles Club, a VFW Hall, or even an Alcoholics Anonymous sobriety club could fit the definition.
"I don't think that's going to go anywhere either," Mr. Berman said. "The actual law was on the ballot. The summary language was approved by the Ohio attorney general, the actual text of the law has been public for 18 months or so. It certainly was no secret."
The state of Washington has probably the strictest anti-smoking law of the 20 state laws on the books today. Passed a year ago, the Washington law not only abolishes smoking in bars and restaurants but establishes a smoke-free zone 25 feet outside doorways as well.
In Washington, local health departments are charged with enforcing the law. So far, there have been 12 lawsuits over enforcement, said Tim Church, communications director for the Washington State Department of Health, "and every one has found in favor of the new law."
Washington and California, which has one of the oldest laws in the country, both chose to phase in their anti-smoking laws.
"The best way to approach this is to start with education, so we went heavy with that in the first few months," Mr. Church said.
But once people are familiar with the laws, enforcement has rarely been a problem.
California barred public smoking everywhere except bars in 1995, then extended the ban to bars in 1998.
"It's self-enforcing," said Colleen Stevens with the California Department of Health Services. "There's an expectation - people expect places to be nonsmoking. People like the law, and people do complain to management."
The one place where conflict seemed a natural was around Lake Tahoe, on the California-Nevada border.
But Ms. Stevens said, instead, the local health department began working with businesses in the area long before the state-legislated smoking ban, and the area went smoke-free before the rest of the state.
Unfortunately for bars in Toledo and Cincinnati, Michigan and Kentucky do not have smoking bans.
In Michigan, bills in the state Senate and the House haven't budged from committee since April of last year, when they were introduced.
Judy Stewart, manager for the Campaign for Smokefree Air in Michigan, said the bills were sent to committees that they would never get out of.
"That's where bills are sent to die," she said. "The bills should have been sent to health policy. There's clearly not been a commitment on the part of leadership."
The campaign has a grass-roots effort to push legislation through, and Ms. Stewart hopes a change in Ohio law will help push Michigan.
"The Michigan Legislature needs to stop procrastinating and make Michigan smoke free."
Contact Jenni Laidman at: jenni@theblade.com or 419-724-6507.
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