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.