Nitro Moose argues it's not liable for penalties because Kanawha health agency failed to file new rules with county clerk
The Kanawha-Charleston Health Department's 4-month-old expanded smoking ban doesn't apply to bars and gambling parlors outside Charleston's city limits because the department failed to file the regulations with the Kanawha County Clerk's office, according to a petition filed in Kanawha County Circuit Court.
CHARLESTON, W.Va. -- The Kanawha-Charleston Health Department's 4-month-old expanded smoking ban doesn't apply to bars and gambling parlors outside Charleston's city limits because the department failed to file the regulations with the Kanawha County Clerk's office, according to a petition filed in Kanawha County Circuit Court.
The Nitro Moose Lodge wants a circuit judge to compel Magistrate Jack Pauley to dismiss a misdemeanor criminal complaint filed against the club last month. The Health Department alleged that the lodge violated the smoking ban on Sept. 23.
The Health Department filed the expanded anti-smoking regulations with the Charleston clerk's office, but not the county, said Harvey Peyton, lawyer for the Nitro Moose.
"I think somebody just made a mistake," said Peyton, who is a member of the Nitro lodge.
The omission exempts the fraternal club and other bars outside the city limits from the smoking ban, according to the lodge's petition for a writ of prohibition.
The Health Department has filed misdemeanor charges against six Kanawha County bars and gambling parlors since the smoking ban took effect July 1. Three of those businesses - the Nitro Moose, Lisa's video lottery parlor in Nitro and McNalley's Pub in Cross Lanes - are outside Charleston's city limits.
If the Nitro Moose wins its case, the criminal complaints against Lisa's and McNalley's also would likely be dismissed.
Kanawha-Charleston Board of Health members said Monday that they were unaware of the Nitro Moose's smoking ban challenge.
"It sounds like some lawyer tricks," said health board President Brenda Isaac. "They can file what they want."
Board member Stephen Weber said it appears the Nitro Moose is trying to avoid complying with the smoking ban through a "hyper technicality."
"It's not a new rule. It's an amended rule," Weber said. "We'll take a look at it and deal with it in court."
CHARLESTON, W.Va. -- The Kanawha-Charleston Health Department's 4-month-old expanded smoking ban doesn't apply to bars and gambling parlors outside Charleston's city limits because the department failed to file the regulations with the Kanawha County Clerk's office, according to a petition filed in Kanawha County Circuit Court.
The Nitro Moose Lodge wants a circuit judge to compel Magistrate Jack Pauley to dismiss a misdemeanor criminal complaint filed against the club last month. The Health Department alleged that the lodge violated the smoking ban on Sept. 23.
The Health Department filed the expanded anti-smoking regulations with the Charleston clerk's office, but not the county, said Harvey Peyton, lawyer for the Nitro Moose.
"I think somebody just made a mistake," said Peyton, who is a member of the Nitro lodge.
The omission exempts the fraternal club and other bars outside the city limits from the smoking ban, according to the lodge's petition for a writ of prohibition.
The Health Department has filed misdemeanor charges against six Kanawha County bars and gambling parlors since the smoking ban took effect July 1. Three of those businesses - the Nitro Moose, Lisa's video lottery parlor in Nitro and McNalley's Pub in Cross Lanes - are outside Charleston's city limits.
If the Nitro Moose wins its case, the criminal complaints against Lisa's and McNalley's also would likely be dismissed.
Kanawha-Charleston Board of Health members said Monday that they were unaware of the Nitro Moose's smoking ban challenge.
"It sounds like some lawyer tricks," said health board President Brenda Isaac. "They can file what they want."
Board member Stephen Weber said it appears the Nitro Moose is trying to avoid complying with the smoking ban through a "hyper technicality."
"It's not a new rule. It's an amended rule," Weber said. "We'll take a look at it and deal with it in court."
The health board initially passed smoking regulations, which barred people from lighting up in public buildings, in 2000.
The Health Department filed those regulations and subsequent revisions in 2003 and 2004 with the city and county clerk offices.
The latest regulations, which expanded the smoking ban to bars, gambling parlors and the Tri-state Racetrack & Gaming Center, were filed with the Charleston clerk's office.
The filing's cover sheet includes a note that states, "Will be recorded with county clerk also."
That was never done, Peyton said.
"There is really no excuse for this omission since the Kanawha-Charleston Health Department has on at least four prior occasions complied with the law and properly filed its rules for recording in the Office of the Clerk of the County Commission," the petition states.
For now, the Health Department can't legally prosecute any bar outside the city limits for smoking ban violations, Peyton said.
"I assume they'll file the regulations with the county clerk, then start all over again," he said.
Former Kanawha County Circuit Judge Herman Canady, who was recently appointed to replace retiring Judge Charles King, will likely hear the case.
Reach Eric Eyre at erice...@wvgazette.com or 348-4869.
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I say again, this is not a law, laws are passed by the legislature.
I would prefer the few inspectors they have are checking the kitchens for food violations than the bars for ashtrays. Wait until we get an outbreak of foodborne illness.