Smoking will be banned inside all public places in Lucas County starting July 10 unless the ban is challenged in court, which supporters and opponents of the ban agree is likely.

The Toledo-Lucas County board of health approved the smoking ban yesterday, with seven board members voting for it; one member voted no, and one abstained. Two board members were absent. The regulation is the toughest passed in Ohio and one of the toughest in the country outside of the statewide ban in California. "Congratulations," Dr. John Newton, board president, said after the vote. "The board has made a significant contribution to public health in Lucas County, and we’re all very proud." Well, maybe not everyone. Arnie Elzey, owner of Arnie’s Eating and Drinking Saloon in West Toledo, has opposed the ban since it was proposed in September. Mr. Elzey has been speaking on behalf of the Northwest Ohio Restaurant Association and the Northwest Ohio Licensed Beverage Association. He said those two groups are researching their legal strategy and will hire a lawyer within the next two weeks. He said those groups probably will challenge the regulation in court soon after a lawyer is hired. "I expect [the regulation] to be stopped within 45 days with an injunction," Mr. Elzey said. Mr. Elzey said he also thinks there’s a question whether the health board’s vote yesterday was legally valid because of the way the matter was brought to a vote. Lance Kieffer, an assistant county prosecutor, said he’s confident the board followed proper procedure. In addition to bar and restaurant owners filing a lawsuit, it’s possible that the city of Maumee could file a legal challenge, according to Maumee city council President Kevin Olman. Mr. Olman said he wasn’t supporting smoking, but he and other council members are unhappy with an appointed board passing a smoking ban. He said the council could decide at its meeting June 4 whether it wants to go ahead with its own legal challenge. Mr. Elzey and Mr. Olman may be unhappy with the regulation, but it’s anybody’s guess how the average smoker and nonsmoker feels. Many health officials have assumed that because 74 percent of Lucas County residents don’t smoke, the public is overwhelmingly in support of the regulation. At lunchtime yesterday in the Board Room restaurant in downtown Toledo, a question about the ban caused one table of friends to break into a vigorous debate on the merits of the ban. "It’s not right to ban smoking just because people don’t like it," said Robbyne Schell as she smoked a cigarette. "It’s discrimination." "What! What about my rights?" asked Sue Knierium, who sat across from Ms. Schell. Ms. Knierium said she couldn’t go to many bars or restaurants now because the smoke was so thick. Lori Hartman, who sat with Ms. Knierium and Ms. Schell, agreed. "I’m definitely for the ban. I choose not to smoke because I know the health risks, and I think smokers in restaurants are forcing those risks on me. The smokers say don’t go in there [if you don’t like smoking], but that’s forcing their decision on me." Ms. Schell said she’ll just take her business to bars and restaurants outside of Lucas County that still allow smoking. Statements like that terrify bar and restaurant owners who have long said that was a major reason why they oppose the ban. Business owners upset about the ban have few supporters on the health board. The only board member to vote against the ban was Doni Miller, the executive director of the Neighborhood Health Association, a nonprofit organization that provides health care to the poor. Ms. Miller said for her the issue was about personal choice - if nonsmokers don’t want to be around smoke, they shouldn’t go into restaurants and bars that allow smoking. "I think smoking is one of the most unfortunate habits there is, but that’s why I choose not to smoke. You’re not required to go to Arnie’s, so don’t go to Arnie’s if you don’t like smoking," she said. She said she’s well aware some might perceive her vote to be unusual because she’s in charge of a health care organization. "I’m concerned professionally that somehow my commitment to health care will be tainted and people won’t listen to what I have to say," she said. But she said she believes individuals have a responsibility for their own health Arturo Quintero, an executive officer for Toledo Mayor Carty Finkbeiner, abstained from the vote because "there’s still the issue of the legality" of the regulation. Mr. Quintero raised the legality question last month shortly before the board voted on the regulation. He said then that a review by the city law department had found a potential conflict with a 1987 Toledo ordinance that permits smoking in most cases in bars and restaurants. That question confused several board members last month, and the result was a 5-4 vote - one short of the six needed for passage, but enough to accept the regulation for consideration. The board voted to reconsider that 5-4 vote yesterday to start over with the process, and the ban passed quickly with little discussion. While Mr. Quintero said he was still concerned about the legality of the regulation, the city law department has issued an opinion saying a health board regulation would supercede any city ordinance in matters of public health. Also, the Ohio Attorney General’s office issued an opinion that the health board can pass a no-smoking regulation. Board members who voted for the ban yesterday gave similar reasons for action. "My oath is to protect the public health," said board member Patricia Wilcox, who’s a nursing professor at Owens Community College. "This is the right thing to do. It’s a public health issue," added board member Robert Reinbolt, director of public service for the city of Toledo. Dr. Donna Woodson, another board member, said second-hand smoke is a carcinogen and she has no doubt it’s harmful. "I’m obliged to vote yes," she said. If the regulation survives court challenges and eventually goes into effect, Mr. Elzey predicted "there will be widespread disobedience" by smokers. As written now, the regulation would first warn owners of establishments if they continue to allow smoking. On the second offense, an owner could be fined up to $100 and could serve up to 90 days in jail. Dr. David Grossman, health commissioner and the person who proposed the ban, said if establishment owners make good-faith efforts to prevent smokers from lighting up, health department inspectors would be lenient. Dr. Grossman said going after smokers who violate the regulation would be an option. However, because the health department - not the police department - would be in charge of enforcement, Dr. Grossman acknowledged it would be difficult to prosecute smokers. For example, smokers might just refuse to identify themselves to health inspectors.

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