Smoke and ash trays in Cabell County bars and gambling parlors will soon become a thing of the past.

Cabell Circuit Judge Jane Hustead lifted a week-old temporary injunction on a new countywide indoor smoking regulation Thursday, which allows the Cabell-Huntington Health Department to enforce it as soon as the judge enters her order. The new regulation strengthens a 2001 law that prohibited smoking in all of the county’s restaurants.

Fifty-five bars, video lottery parlors and veterans organizations filed a complaint against the Board of Health last week, arguing that the regulation was arbitrary and unreasonable and would force them to close their doors.

ohn Hoblitzel, an attorney representing the Cabell-Huntington Health Department, speaks Thursday during a hearing at the Cabell County Courthouse about the countyÕs indoor smoking regulation.

While Hustead apologized to bar owners before her ruling and said she was sympathetic to their concerns, she added that the documented negative effects of secondhand smoke outweigh the alleged economic losses that the ban might impose on them.

“I have to look at the overall well-being of this community,” she said.

Hustead did not rule on the plaintiffs’ petition for a declaratory judgment, which asks that the court void the new smoking regulation. Because of scheduling reasons, the case could take 12 to 16 months, said Amy Crossan, who represents bar owners.

“For all intents and purposes, she signaled her decision on it, but that doesn’t mean we won’t go forward on the declaratory judgment action,” Crossan said. “I don’t think it would have harmed the Health Department to keep the ban in effect, but yet it will harm our clients in the interim while the judge fully decides everything on their merits.”

Dr. Harry Tweel, executive director of the Cabell-Huntington Health Department, called the ruling a victory and said that not all bar owners are discouraged by the indoor smoking regulation.

“It has been our contention all along that we were within our legal authority to proceed,” he said. “I will say many bar owners are looking forward to this happening and have told us so privately.”

Tweel said he’s glad that the Board of Health’s latest action won’t follow the same path as its 2001 indoor smoking regulation did. That regulation was not enacted until February 2004 because of a prolonged court battle that centered on whether local boards of health have authority to adopt indoor smoking regulations.

Testimony during Thursday’s three-hour hearing pitted arguments about the potential economic loss that the ban could have on bars and video lottery parlors against the health risks caused by secondhand smoke.

Phyllis Hitchcock, who owns the Same Old Place chain of gambling parlors, echoed testimony from three other bar and video lottery parlor owners by saying that 85 to 95 percent of her customers smoke. Most have already told her they will flock to Wayne or Putnam counties, which haven’t banned smoking in bars and gambling parlors, she said.

“I cater to a certain type of customer. Most are older women who smoke and are set in their ways,” Hitchcock said. “They’re going to go where they can relax. And if you’re a smoker, you’re not relaxing and enjoying yourself if you can’t light up a cigarette.”

Hitchcock said she tried running a smoke-free gambling parlor in the Frederick Building on 4th Avenue a few years ago, but the business was a failure.

“There would be days where we made less than $10,” she said. “As far as being a profitable business goes, I couldn’t even meet payroll for the employees.”

Attorney John Hoblitzell, who represented the Health Department, cited a study of gambling parlor revenue in Upshur County that showed no significant change after its countywide smoking regulation took effect. The study also showed revenue didn’t spike in neighboring counties, he said.

Most of Hoblitzell’s argument centered on the health risks with exposure to secondhand smoke, which Tweel meticulously went through during his testimony. He also read portions of a 2006 Surgeon General’s report that said smoking regulations are the only way to restrict exposure to secondhand smoke indoors. That should matter, considering the Tri-State has a high prevalence of pulmonary disease, Tweel said.

“As we all know, the CDC has listed us as the fattest city in America,” he said. “As of Feb. 5, 2010, in their Behavioral Risks Assessment Survey, they now list this region as the smokingest region in the U.S.”

The Cabell-Huntington Health Department will check for violations during routine sanitary inspections or on a complaint basis, chief sanitarian Stan Mills said. All bars and gambling parlors in the county receive a sanitary inspection every three months.

A conviction will result in a fine ranging from $200 to $1,000, according to penalties set in state law. More importantly, Mills said, a conviction also will trigger an independent investigation by the state Alcohol Beverage Control Administration, which could result in a suspension of a bar’s liquor license.

source: herald-dispatch.com

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