CHARLESTON, W.Va. -- Kanawha-Charleston Board of Health members overstepped their authority when they enacted a countywide smoking ban in bars and gambling parlors, a decision that has led to a decline in state revenue from video lottery poker machines, according to a statewide group that represents the businesses.

The West Virginia Association of Club Owners & Fraternal Services is urging Kanawha County bar and gambling parlor owners to file insurance claims against the Health Department, if they can prove their profits have dropped since the expanded smoking ban took effect July 1.

The amount of money bar and gambling parlor patrons pumped into the poker machines dropped by $1.2 million from June to July in Kanawha County - a 9 percent decrease, according to state Lottery Commission data.

"The health board doesn't have the authority to completely ban smoking and destroy a business," said Jesse Bane, spokesman for the club association. "They should regulate, not legislate."

Bar and gambling parlor owners have repeatedly criticized the smoking ban, but health board members say they have no plans to rescind it. They say the criticism is premature, and that bar sales will rebound in time.

"I don't think you can say in one or two months that that these businesses have been irrevocably harmed," said Brenda Isaac, health board president. "We have an ethical and legal responsibility to protect the public's health. There's no safe amount of second-hand smoke."

The state club association fired off a five-page letter to Kanawha-Charleston health board members last week.

In the letter, Bane said the state legalized video lottery machines in 2004 to generate additional tax revenues. Kanawha County's smoking ban has decreased the taxes the state collects, Bane said.

"Only the state Legislature has the means to increase or decrease tax revenue, not the Kanawha County Board of Health," Bane said.

If the Kanawha health board can legally approve regulations that hurt businesses, then it should have the power to increase the cigarette tax or abolish cigarette sales in the county, which it cannot do, Bane said.

Under state law, the health board doesn't have the right to destroy the "economic use" of bars and gambling parlors, Bane said.

The West Virginia Association of Club Owners & Fraternal Services is urging Kanawha County bar and gambling parlor owners to file insurance claims against the Health Department, if they can prove their profits have dropped since the expanded smoking ban took effect July 1.

The amount of money bar and gambling parlor patrons pumped into the poker machines dropped by $1.2 million from June to July in Kanawha County - a 9 percent decrease, according to state Lottery Commission data.

"The health board doesn't have the authority to completely ban smoking and destroy a business," said Jesse Bane, spokesman for the club association. "They should regulate, not legislate."

Bar and gambling parlor owners have repeatedly criticized the smoking ban, but health board members say they have no plans to rescind it. They say the criticism is premature, and that bar sales will rebound in time.

"I don't think you can say in one or two months that that these businesses have been irrevocably harmed," said Brenda Isaac, health board president. "We have an ethical and legal responsibility to protect the public's health. There's no safe amount of second-hand smoke."

The state club association fired off a five-page letter to Kanawha-Charleston health board members last week.

In the letter, Bane said the state legalized video lottery machines in 2004 to generate additional tax revenues. Kanawha County's smoking ban has decreased the taxes the state collects, Bane said.

"Only the state Legislature has the means to increase or decrease tax revenue, not the Kanawha County Board of Health," Bane said.

If the Kanawha health board can legally approve regulations that hurt businesses, then it should have the power to increase the cigarette tax or abolish cigarette sales in the county, which it cannot do, Bane said.

Under state law, the health board doesn't have the right to destroy the "economic use" of bars and gambling parlors, Bane said.

"The bars will die if they don't have smoking," he predicted. "They need to leave the bars alone." 

Bane said the bars should file insurance claims against the health board because it committed a "wrongful act." The next step would be to sue health board members individually, he said.

"If they made a mistake by enacting this smoking ban and hurting these businesses, then these places should be making a claim against them," said Bane, who works as an insurance sales agent in Fayette County.

The Health Department has insurance through the state's Board of Risk & Insurance Management.

The club association also asserts that the health board's decision to ban smoking violates the equal protection provision of the state Constitution because video lottery parlors play by different rules from one county to the next. Only 19 of the state's 55 county's prohibit smoking in bars.

Putnam County rescinded its ban on smoking in bars and gambling parlors last year.

Dave Kline owns video lottery parlors in Kanawha and Putnam counties. His customers spent $25,700 less at his St. Albans store - New Orleans Coffee House - last month compared to June. Meanwhile, Kline's Putnam County gambling parlor - also called New Orleans Coffee House - saw a $28,000 increase over the same time period. 

"How can you have one rule in one county and have another in another county?" said Kline, who belongs to the club association. "I don't think the health board can regulate state revenue."

Bane predicted the state Legislature will have to look for ways to make up for the video lottery losses caused by the Kanawha County smoking ban. Kanawha County has more than 150 bars and gambling parlors with video poker machines.  

"Ask the non-smoking citizen if they want their taxes increased because bars, video lottery and fraternal patrons aren't allowed to smoke," Bane said.

Reach Eric Eyre at erice...@wvgazette.com or 348-4869.