Smoking Ban Held on Court Action (Prosecutor Refuses to Enforce Pending Ruling)

Wheeling (WV) Intelligencer ^ | Aug. 17, 2002 | Jennifer Compston

[mountaineer]

Prosecuting Attorney Herman D. Lantz has announced he will not criminally enforce the Marshall County Clean Indoor Air Regulation while similar issues in other counties are pending before the West Virginia Supreme Court of Appeals.

In a statement issued Friday, Lantz stated it has come to his attention that some Marshall County businesses are complying with the smoking ban while others are not. As a result, the county health department has sought the assistance of the prosecutor's office in enforcing the regulation. In his statement, Lantz pointed out that while health department is not accountable to area citizens, the prosecutor's office is ­ prompting him to offer an explanation to the citizens of Marshall County regarding the position his office has taken on the issue.

According to Lantz, questions have been raised regarding whether the local health department and its governing body, the Marshall County Board of Health, have the authority to create such a regulation, "which has the same force and effect as law.'' He pointed out that other lawmakers and officials such as the county commissioners, state and federal legislators and the prosecutor all can be removed from office by a vote of the people if a majority of the voters have been dissatisfied with their performance. This is not the case, however, with members of the board of health, who are appointed by the county commission.

"This is called democracy,'' Lantz stated in reference to the election of lawmakers. "This is what people have given their lives for in the past and even now ... are putting themselves in harm's way to protect.''

He continued by explaining that a similar clean air regulation implemented in Cabell County currently is being contested before the state Supreme Court. He added that any court action related to enforcement of Marshall County's regulation could, as a result, be stayed until the Supreme Court rules on the Cabell County case.

"I do not know how the Supreme Court will rule on this issue, but I feel it would be premature, unfair and irresponsible to enforce a regulation that may be held unenforceable,'' Lantz stated. "It is my opinion that even if I were to choose to bring an action against violators of this regulation, the proceedings would merely be stayed until the Supreme Court has issued their opinion on this issue. Clearly this would not be the best use of judicial resources.

"Therefore, until such time as the Supreme Court issues its opinion in the case currently pending before it, as Prosecuting Attorney, I will not criminally enforce the smoking ban.''

Lantz added, however, that if the Supreme Court finds the health department has the authority to create such a regulation, it will be his duty to enforce the local regulation.

"Just as I have a duty to represent the citizens of Marshall County, I have taken an oath as prosecuting attorney to uphold the law, and I will do so,'' he stated. "I can assure you that I will proceed in enforcement in the fairest manner to the citizens of Marshall County.''

Lantz stressed that the announcement of his current position on this matter is not intended to encourage anyone to violate the regulation.

"In that respect, the citizens of Marshall County and would-be violators should be aware that, in the event the Supreme Court finds that the health department has the authority to create such a regulation, I will have no choice but to enforce the regulation as of its enactment on July 1,'' he added.

Anyone having question regarding enforcement of the smoking ban should contact Lantz's office at (304) 845-3580. Lantz noted, however, that he will be out of his office from Monday through Aug. 29 for his annual Air Force Reserve Training.

Lantz also stated he will notify the people of Marshall County as soon as possible after the Supreme Court reaches a decision.

[Gabz]

No problem, M - I wasn't taking it as criticism from you.

However, it is a common attitude of some of the more rabid anti-smokers that anyone who takes the position of myself or Great Dane is an extremist, militant addict that needs the government nannies to tell me what is best for for me.

[Great Dane]

#18....... Thank you Gabz.

[Max McGarrity]

According to Lantz, questions have been raised regarding whether the local health department and its governing body, the Marshall County Board of Health, have the authority to create such a regulation, "which has the same force and effect as law.'' He pointed out that other lawmakers and officials such as the county commissioners, state and federal legislators and the prosecutor all can be removed from office by a vote of the people if a majority of the voters have been dissatisfied with their performance. This is not the case, however, with members of the board of health, who are appointed by the county commission.

By Jove, I think he's got it!

[Max McGarrity]

Some folks seem to believe smoking is a constitutionally-guaranteed right, on a par with speech, religion and gun ownership.

Not smoking, mountaineer, private property rights and individual liberties. If you got anything else out of the smoking threads, you might want to read them again.

[Max McGarrity]

No, we were paying for the people who got sick from smoking. That is what I object to. They should have paid their own damn bills.

Smokers not only pay "their own damn bills," they pay the bills for a whole hell of a lot of nonsmokers as well. And they/we have since at least 1994 when taxes were a lot lower than now. The only way you can conclude that smokers cost society is to make the assumption that no one else ever gets sick, has an accident, or dies. You've been hornswoggled by the anti juggernaut.

[Max McGarrity]

Well said, Gabz.

[Gabz]

I take that as a high complement coming from you!!!!

[mountaineer]

private property rights and individual liberties

I don't believe the founding fathers had smoking in mind when they crafted the Constitution. Having said that, I still agree with you that governments should not prohibit smoking in bars, restaurants and - least of all - private homes, as seems to be the next step.

[Great Dane]

I don't believe the founding fathers had smoking in mind when they crafted the Constitution.

Bet there was a lot the founding fathers didn't have in mind, what they did do, was covering things in general as best they could....... the founding fathers never heard of fanatic non-smokers either, so they couldn't have had that in mind.

[SheLion]

Of course, some of the more militant smokers seem to have moved on to discussion boards other than FR. Oh well.

Oh no! We are still alive and well on Free Republic!

Just because we smoke doesn't make us any less of a Conservative!

Militant? Oh dear. Never thought of myself as a Militant. Watchdog and activist, but never a Militant. hehe!

[SheLion]

From what I understand, the court decided this about three years ago. I'm not up to speed on any new studies that would support the WHO position at this time, but if so, even those would have to undergo scrutiny.

The WHO study is the same old study, just different wording, and won’t come out until fall. From what I heard, there are no changes, except in the words. Just more spin.

[SheLion]

In fact, MY taxes, and those of every other smoker in this country, pay for others ill-advised habits such as overeating.

In 1994, the nonpartisan Congressional Research Service spent 22 months and 20 million dollars--at the request of rabid anti Henry Waxman, no less--to determine just how much money smokers cost society.

Guess what: Smokers DO NOT COST SOCIETY. We pay in to the system far more than we ever take out. You should be paying US to smoke! The New England Journal of Medicine concurs, as do economists from Yale and Harvard, and the CRS reiterated that fact in 1999.

[B4Ranch]

I am not going to pay you to smoke or do anything else. Understood? If you want money from me then you are going to have to perform something that I request. Cleaning house, painting, running my errands, etc.

While you're gone I'll smoke my own cigarettes.

[SheLion]

private homes, as seems to be the next step.

They will have to come in here with their uzzi's and SHOOT us first!

[SheLion]

While you're gone I'll smoke my own cigarettes.

CLEAN YOUR HOUSE! HEY NOW! WATCH IT! LOL!

do you do windows?

[B4Ranch]

No.

[Eastbound]

Thanks, SheLion. I knew if anyone knew, you would be the one. WHO studies should be labeled, "WARNING! BELIEVING THIS REPORT WILL CAUSE SEVERE DAMAGE TO YOUR ABILITY TO DISTINGUISH FACT FROM FICTION, BUT WILL QUALIFY YOU FOR MEMBERSHIP IN OUR SELECT GROUP OF CONTROL FREAKS."

[SheLion]

"BUT WILL QUALIFY YOU FOR MEMBERSHIP IN OUR SELECT GROUP OF CONTROL FREAKS."

Very good. NOW you got it! :)

[Max McGarrity]

Ahem...now why wouldn't we have faith in the World HEALTH Organization, Eastbound? Could it be because they allow 5500 children a day to die of bacterial diseases that could easily be stopped for less than a buck a kid but think it's their mandate to determine the lifestyles of adults in wealthier countries? Possibly because their director is Gro Harlem Brundtland, former president of the National Socialist Party who envisions a smokefree world by the year 2015, even if it strips everyone else of their rights? Or maybe it's because 75% of their $2 BILLION annual funding is provided by pharmaceutical companies who manufacture overpriced, basically worthless "smoking cessation" devices and products?

[Gabz]

Gee, Max - I can't figure out which of your questions to answer first - could it be because the answer is the same to all????