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Statehouse beat: Smoking gets some clarifying

CHARLESTON, W.Va. -- In its 4-1 ruling in Harrison County Fraternal and Service Association vs. Harrison-Clarksburg Board of Health, the state Supreme Court appears to have clarified that health department regulations banning smoking in public places take priority over a long-misinterpreted state regulation that has permitted smoking in bingo halls and charitable raffles.

Affirming a circuit court order denying an exception to the Harrison County smoking ban for the fraternal groups, the high court appears to have corrected a 2003 decision that misinterpreted a 1993 law that was intended to require larger bingo and raffle operations to provide non-smoking sections.

In the 2003 ruling, the Supreme Court misinterpreted that law to conclude that, under state law, smoking could not be prohibited in such locations.

(In the response for the Board of Health, attorney John Hoblitzell included an affidavit from the author of the legislation, then-Delegate Debbie Phillips, stating that her intent was the exact opposite: To protect non-smokers from second-hand smoke at a time when there were no clean indoor air ordinances and when having non-smoking sections in public establishments was strictly left to the discretion of the ownership.

Phillips stated she had no intention of allowing her provision to be used to pre-empt the authority of boards of health to enact smoking bans.)

As Hoblitzell noted, the court's decision in the Foundation for Independent Living case has led to some absurdities under the law, including:

• Giving the state tax commissioner authority to set regulations that overrule public health policies, as well as state laws prohibiting smoking in public schools and places of public employment (while they are being used as bingo or raffle halls).

• Having the ultimate authority for whether to permit smoking in bingo and raffle halls rests not with public health experts, but with the gaming operators.

The attorney for the fraternals, Jerald Jones, told me it would be pointless to appeal the case to the U.S. Supreme Court, and said his clients' best hope would be to hire a lobbyist next session to try to get legislation passed to carve out a specific exemption to smoking bans for charitable bingo and raffle operations.

Good luck with that. While it's the fault of our timid Legislature that West Virginia is one of a minority of states without a statewide smoking ban, even our legislators are not likely to go against the groundswell of public opinion and indisputable scientific evidence to enact pro-smoking legislation in this day and age.

Ironically, it should be noted that the author of the 2003 opinion, Justice Joseph Albright, died of esophageal cancer caused by smoking in 2009.

***

Kanawha County assessor candidate Eddie Belcher's termination last July as the governor's office southern coalfields representative has been widely publicized -- even if the circumstances surrounding his dismissal remain a little hazy.

What wasn't widely publicized was that Belcher, who had been a hanger-on from the Manchin administration, went to work in November for Attorney General Darrell McGraw.

He was hired as a field representative -- (one of these days, I'm going to figure out just what field reps do and why constitutional officers need so many of them) -- at a salary of $35,000, or about an $8,500 pay cut from his governor's office position.

He since stepped down to run for assessor.

Speaking of Belcher, a reader spotted Division of Highways administrator Wade Crouch in front of the Cabin Creek Go-Mart last week handing out campaign fliers for Belcher.

He was using his state-assigned Ford Escape (license ST-1223) and had extra Belcher brochures on the console of his state car.

***

Finally, a reader called wanting to know why in the world the state had renamed the Greenbrooke Building on Smith Street in Charleston as the Albert T. Summers State Office Center, considering how often Summers had ripped off the state on property transactions, ranging from Morris Square to Greenbrooke.

(Knowing the late Al Summers, he would have phrased it as saying he got the better end of the negotiations ... . In his finest moment, Summers bought Morris Square back from the state for $1 million in 2001 -- 13 years after he sold it to a group of investors for $7.8 million, who then leased it to the state. The restored warehouse is now part of Appalachian Power Park.)

The reason the state named the Greenbrooke Building for Summers, I explained, is that it was a stipulation in the contract to sell the building to the state for $10.5 million.

(In the same contract, the state agreed to reimburse 80 percent of any back taxes owed on the property -- and the Legislature approved the $388,487 payment to Summers' heirs this session.)

When the reader questioned why Department of Administration officials would ever agree to the naming stipulation, I said that having seen Summers in contract negotiations, the state officials probably concluded it was easier to cave in than to fight him on that point.Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.


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