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Maryetta Ables,
February 22, 2005
Sutton, WV - This evening the
Braxton County Board of Health voted to amend the Zero Tolerance smoking ban to
allow smoking in bars and video lottery rooms until January 1, 2007. The
professional anti tobacco representatives there, Patricia Lake of Mountain Cap
in Sutton and Christina Mickey of The Smoke Free Initiative of West Virginia
based in Morgantown seemed most upset at this turn of events, Ms. Mickey
immediately left the meeting.
Initially a motion was made by Terry Frame to allow smoking in bars, video
lottery rooms and restaurants with "separate ventilation", but no one would
second the motion. Another motion was made by Diane Cole, President of the BOH,
for bars and video lottery rooms only and that motion passed, effective
immediately.
Discussed during the evening was the fact that the West Virginia Supreme Court
decision specifically commented that the Boards of Health had made
"considerations" for "local economies", and had the Kanawha or Cabell County BOH
not done so, the Judge would have ruled differently in that decision.
The members of the Braxton County Board of Health said the reason they did the
amendment was to give the bar owners more time to come into compliance and to
also have more time the "get the public ready" for the Zero Tolerance ban.
It was also noted in this Special Meeting that the Massachusetts Superior Court
has ruled that: "Regulation prohibiting smoking in membership associations is
unreasonable, arbitrary and capricious and exceeds the local Board's authority
and is therefore VOID and UNENFORCEABLE."
There were also two other court rulings provided to the BOH from New York
Supreme Court and a Florida court stating that: "There is no clear statutory
duty for the proprietor of an enclosed indoor workplace to take any specific
action when patrons are seen smoking in such workplace."
The implication from those decisions are that the West Virginia smoking bans are
illegal and unenforceable; as the only requirement under "Enforcement" is that
the owner, manager or employee of an establishment "shall inform" the patron
that smoking is not allowed.
A business cannot be required to act as law enforcement to prohibit smoking,
based on Federal Law; nor can any business be required to harm their own
business by requiring their customers leave the facility; nor is the business
required to refuse service if the patron is smoking.
It was noted that in all other requirements of those local smoking bans, those
businesses were in total compliance with signage and removal of ashtrays, and
that they had their customers sign a waiver that they had "been informed" that
smoking was not allowed. All fines to the businesses were canceled because they
had the signed waivers from the patrons and were in total compliance in all
other areas of their local smoking ban.
Maryetta
Ables
PO Box 54
Sutton WV 26601
304-765-5394
maryetta_ables@verizon.net |
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BRAXTON COUNTY BOARD OF HEALTH AMENDS ZERO TOLERANCE SMOKING BAN
