Posted on 05/12/2005 6:40:37 AM PDT by SheLion
WHEELING - The Friday, May 27 enactment date of the Wheeling-Ohio County Indoor Air Regulation is now in jeopardy as the regulation was struck down in a Wednesday court hearing.
Ohio County Circuit Court Judge Ronald Wilson ruled that the makeup of the Wheeling-Ohio County Board of Health was unconstitutional because board members did not take oaths of office when they began new terms as board members, meaning the actions they have taken are void.
"An oath needs to be taken for every term of office," said Paul Harris, the attorney representing the Ohio County Tavern and Restaurant Association. The group brought a lawsuit against the board April 29, citing the unconstitutional nature of the regulation with evidence that all the board members were not properly sworn into their positions as per the West Virginia constitution.
Wilson agreed with the premise, stating in his ruling that a health board member is a public official, and all public officials shall take proper oaths of office, according to the state constitution.
"A board member is a public official, and four members did not take the oath," Wilson said. "Therefore, the action they took to make the smoking regulation is void."
Wilson also pointed to ambiguous parts of the regulation as drafted, and he explained that he did so to prevent problems with the regulation in the future.
One such problem existed with the definition of smoking in one of the regulation subsections. Wilson said it was unclear as to whether the mere carrying of tobacco products was prohibited and needed to clarify that the regulation was referring to carrying tobacco products that are actually burning.
In addition, Wilson asked for clarification on what were "gaming areas and wagering areas that serve food located in gaming and entertainment establishments" and whether the wording referred to restaurants located in gaming establishments. He told Ohio County Prosecutor Scott Smith, who was representing the board of health at the hearing, that the wording needs to be clear in saying the areas are those primarily used for gaming or that the food should be served in another room to make the regulation more fair.
Harris said that if the board tries to pass the regulation again he hopes they will do so within the guidelines of the law.
"I hope if they try to do it again they follow the law this time," Harris said. "The judge did the parties a great favor by looking forward. He gave us all guidance if it comes up again."
Wheeling-Ohio County Board of Health Chairman Michael Caruso said the board will be moving forward with the regulation as soon as possible. In fact, Medical Director Dr. William Mercer said he hopes to have the board together for a meeting within the next few days.
"I think what we'll do is hold a board meeting, swear everybody in, make the revisions as directed by the judge and then re-vote on the regulation," Caruso said.
Mercer said the board is still planning on getting the regulation enacted by May 27, though, and he said that although the members are disappointed, they are committed to passing the regulation.
"We are hoping to have a meeting within the next few days to update the board on the ruling," Mercer said. "Then we will redo the oaths and correct some of the language, and hopefully we can push it through by the 27th."
The regulation would have prohibited smoking in all enclosed public places in the county with the following exceptions: free-standing limited video lottery rooms, private residences when not used as a child care or health care facility, designated hotel and motel rooms, bingo operations distributing more than 100 cards or sheets, retail tobacco stores and conference or meeting halls being used for private functions and gambling areas and wagering areas that serve food located in gambling and entertainment establishments.
Smoking PING!!
Yep
"private residences when not used as a child care or health care facility"
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