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Lawsuit targets smoking measure
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HUNTINGTON -- More than 50 businesses filed a lawsuit against the Cabell-Huntington Board of Health on Thursday, just four days before the county's indoor smoking ban is to spread to bars and video lottery parlors.
Huntington attorney Neil Bouchillon, who is representing 55 bars, video lottery parlors and veterans organizations, filed the two-part complaint in Cabell Circuit Court. The complaint asks the court for a preliminary injunction and a declaratory judgment hearing.
Circuit Judge Jane Hustead already has scheduled a hearing on the preliminary injunction motion for 2:30 p.m. Friday, Feb. 26.
The Cabell-Huntington Board of Health adopted a revised indoor smoking regulation in January. The only change it made to the existing regulation is that smoking now would be prohibited in bars and video lottery parlors.
Those types of businesses were not targeted when the Board of Health prohibited smoking in restaurants in December 2001. That regulation, however, was not enacted until February 2004 because of a prolonged court battle that centered on whether local boards of health have authority to adopt indoor smoking regulations.
The complaint acknowledges that the state Supreme Court has ruled local health boards have that authority, but argues that their powers are not unbridled.
The new smoking regulation is arbitrary and unreasonable because it prohibits smoking in all enclosed public places in Cabell County, according to the complaint.
The 2001 regulation was reasonable, the complaint states, because it provided an exemption for freestanding bars, or establishments whose gross alcohol sales comprise of 80 percent or more of their business.
"The 2010 Act arbitrarily and unreasonably affects the classification of alcohol-serving establishments that chose to generate revenue by concentrating on alcohol sales and permitting smoking," the complaint states. "The classification of alcohol-serving establishments that chose to generate revenue from food and alcohol are not affected in any manner."
The new smoking regulation also violates the plaintiffs' constitutional rights by denying them the economically viable use of their land, according to the complaint.
"The 2010 Act destroys the economic use of the Plaintiffs' property, which primarily relies upon patrons that are permitted to smoke at their facility," the complaint states.
The complaint cites lottery revenue figures for Kanawha and Putnam counties from the months of June and July in 2008. The Kanawha-Charleston Health Department banned smoking in bars and video lottery parlors on July 1, 2008.
Kanawha County's lottery revenues fell approximately $4.4 million in July of that year, while revenues in Putnam County, which does not have a smoking ban that covers bars and video lottery parlors, increased $600,000.
"It is not unreasonable to conclude that the reason that the revenues plummeted in Kanawha County and exploded in Putnam County in July 2008, is because of the enactment of the Kanawha County smoking act," the complaint states.
Dr. Harry Tweel, director of the Cabell-Huntington Health Department, said he had not read the complaint and declined to comment on specifics.
"When we see it, we'll deal with it," he said. "I will say that the Board of Health and Health Department are geared up to proceed and do what we need to do to enact the ordinance and execute it."
Tweel noted that similar regulations have been enacted throughout the U.S. and in 18 counties in West Virginia.
The Health Department had not retained legal representation as of Thursday afternoon, although it used the Cabell County Prosecuting Attorney's Office in the lawsuit regarding its 2001 indoor smoking regulation.
