the court should avoid that construction which renders a provision meaningless or inoperative
How later courts described this case
- the court should avoid that construction which renders a provision meaningless or inoperative
Written by the judges who cited it.
The opinion
[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 250.]
D.A.B.E., INC., D.B.A. ARNIE’S SALOON, ET AL., RESPONDENTS, v. TOLEDO-
LUCAS COUNTY BD. OF HEALTH ET AL., PETITIONERS.
[Cite as D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172.]
Public health—Health districts—General Assembly has not indicated any intent
through R.C. 3709.21, or otherwise, to vest local boards of health with
unlimited authority to adopt regulations addressing all public-health
concerns—Administrative regulations cannot dictate public policy but can
only develop and administer policy already established by the General
Assembly—R.C. 3709.21 is a rules-enabling statute, not a provision
granting substantive regulatory authority.
(No. 2001-1407—Submitted April 9, 2002—Decided August 28, 2002.)
ON ORDER from the United States District Court, Northern District of Ohio,
Western Division, Certifying Questions of State Law, No. 3:01-CV-7334.
__________________
SYLLABUS OF THE COURT
1. The General Assembly has not indicated any intent through R.C. 3709.21, or
otherwise, to vest local boards of health with unlimited authority to adopt
regulations addressing all public-health concerns.
2. Administrative regulations cannot dictate public policy but rather can only
develop and administer policy already established by the General
Assembly.
3. R.C. 3709.21 is a rules-enabling statute, not a provision granting substantive
regulatory authority.
__________________
SUPREME COURT OF OHIO
DOUGLAS, J.
{¶1} This matter is before the court on four certified questions of state law
from the United States District Court, Northern District of Ohio, Western Division.
The defendants before the district court and designated petitioners in this court are
the Board of Health of the Lucas County Regional Health District and the Lucas
County Regional Health District itself.1 The Lucas County Regional Health
District is a general health district organized pursuant to R.C. 3709.07. The district
covers all of Lucas County, including the city of Toledo, and is headed by an
eleven-member board of health. Each member of the board is appointed by one of
the political subdivisions comprised by the district. The plaintiffs in the action
before the district court are the designated respondents before this court. They are
27 small business owners and trade associations in Lucas County, Ohio.
Respondents are a diverse group that includes owners of bars, restaurants, a
bowling alley, and a cigar lounge. The underlying action pending before the federal
district court involves respondents’ challenge to a regulation adopted by the board
prohibiting smoking in all enclosed, indoor areas in Lucas County where members
of the general public gather—including bars, restaurants, and bowling alleys—as
well as in all places of employment and vehicles of public transportation. In its
certification order, the district court set forth the following procedural facts and
history:
{¶2} “On May 24, 2001, the Board adopted a regulation entitled the ‘Lucas
County Regional Health District Clean Indoor Air Regulation’ (‘the Regulation’).
The Board cited the health concerns from ‘second hand smoke’ and Section
3709.21 of the Ohio Revised Code as authority for passing the Regulation. The
1. Upon certification, the petitioners were identified as the Toledo-Lucas County Board of Health,
the Toledo-Lucas County Health Department, and the Lucas County Regional Health District. The
petitioners have explained that although the district does use these names, the proper designation of
petitioners is as we have set forth herein.
2
January Term, 2002
Regulation prohibits smoking in all Public Areas, which are defined as every
enclosed, indoor area to which members of the general public are invited or in
which members of the general public are normally permitted. Thus, the Regulation
prohibits smoking in bars, restaurants, tobacco shops, bowling alleys, all public
areas of places of employment—in almost every indoor place in Lucas County,
Ohio other than private residences, private cars and private clubs. The Regulation
also prohibits smoking within twenty feet of any entrance or open window of these
Public Areas and in all Vehicles of Public Transportation. The Regulation provides
for the criminal penalties prescribed in Section 3709.99 of the Ohio Revised Code,
for both the individual who violates the Regulation, as well as the owner of any
Public Area that does not enforce the Regulation within the Public Area under his
or her control. By its terms, the Regulation was to go into effect on July 8, 2001.
{¶3} “On June 28, 2001, twenty-seven Plaintiffs, a group consisting of
owners of bars, restaurants, a cigar lounge, a bowling alley, and other
establishments where many patrons smoke and where patrons expect smoking, filed
a Complaint in Lucas County Common Pleas Court under the Ohio Declaratory
Judgment Act, seeking a declaration that the Regulation is invalid. Plaintiffs
asserted five claims based on Ohio state law (essentially alleging that the
Regulation was beyond the Board’s legislative authority under Chapters 3707 and
3709 and related provisions of the Ohio Revised Code, that the Regulation
constituted an illegal legislative act, and that the Regulation is unlawful and
unreasonable as applied) and a single federal law claim that the Regulation was an
unconstitutional taking. On the same day, Defendants removed this action to this
court, the United States District Court for the Northern District of Ohio, Western
Division, based on the federal claim.
{¶4} “On July 5, 2001, Plaintiffs moved for a temporary restraining
order/preliminary injunction. After a full hearing and submission of briefs, this
Court granted Plaintiffs a preliminary injunction, enjoining Defendants from
3
SUPREME COURT OF OHIO
enforcing the Regulation until Plaintiffs’ claims could be determined on their
merits. In the July 6, 2001 Memorandum Opinion, this Court noted that it was of
the opinion that the public interest would best be served by retaining jurisdiction
over this case and certifying central questions of Ohio law to the Ohio Supreme
Court.”
{¶5} The federal district court has certified to us, and we have agreed to
answer, the following questions of state law:
{¶6} 1. Does the Ohio Revised Code authorize or delegate to a local board
of health of a general health district the authority to prohibit smoking in all public
places as defined by the Regulation at issue herein?
{¶7} 2. If the answer to Question 1 is yes, does such a delegation of
authority violate the Ohio Constitution?
{¶8} 3. Does a regulation adopted by a board of health of a general health
district, which prohibits smoking in all public places as defined by the Regulation
at issue, conflict with, or is it inconsistent with or preempted by the provisions of
the Ohio Revised Code that already govern the conduct of smoking in places of
public accommodation and elsewhere?
{¶9} 4. To the extent a regulation which prohibits smoking in all public
places as defined by the Regulation at issue conflicts with a municipal ordinance
regulating the same area, which one prevails pursuant to Section 3, Article XVIII
of the Ohio Constitution (relating to home-rule)?
{¶10} With respect to these questions, the district court issued the following
findings:
{¶11} “The Ohio Supreme Court has never specifically addressed the issue
of whether a board of health of a general health district has the authority to prohibit
smoking in all enclosed, indoor public areas pursuant to Section 3709.21 of the
Ohio Revised Code. It appears that only three Ohio trial courts have ruled on this
issue. Brewery, Inc. v. Delaware City-County Bd. of Health (July 19, 1999),
4
January Term, 2002
Delaware C.P. No. 98-CVH-12-413, unreported; Wilson v. Knox Cty. Bd. of Health
(January 11, 1986), Knox C.P. No. 95IN050086, unreported; Cookie’s Diner v.
Columbus Bd. of Health (Franklin Cty. Muni.1994), 65 Ohio Misc.[2d] 65 [640
N.E.2d 1231].
{¶12} “Also of relevance to the issues certified are various statutes
regulating smoking in the State of Ohio. Among others, the most broad of these
sections is Section 3791.031 of the Ohio Revised Code, which provides for
‘nonsmoking areas in places of public assembly.’ In R.C. 3791.031, the General
Assembly specifically delegated authority to designate nonsmoking sections in
places of public assembly to the local fire authority, the director of administrative
services of a state agency, or the person controlling the place of public assembly,
depending on the type of place to be regulated.
{¶13} “Finally, Chapter 1779 of the Toledo Municipal Code, which was
enacted by Toledo’s city council in 1987, regulates smoking within the city and
allows smoking to some degree in Plaintiffs’ businesses.” (Footnote omitted.)
Question 1
{¶14} “Does the Ohio Revised Code authorize or delegate to a local board
of health of a general health district the authority to prohibit smoking in all public
places as defined by the Regulation at issue herein?”
{¶15} The district and the board, hereinafter “petitioners,” argue that R.C.
3709.21 vests a local board of health of a general health district with a broad grant
of authority to adopt regulations necessary to protect the public health. Petitioners
contend that R.C. 3709.21 is a separate, independent, and complete grant of
authority to address threats to the public health, whatever they may be and
whenever they may arise. In petitioners’ view, as long as a local health board
adopted a regulation pursuant to R.C. 3709.21, and the regulation was necessary to
protect the public health, reasonable, nondiscriminatory, and consistent with
constitutional guarantees, the regulation would be valid and enforceable. Thus,
5
SUPREME COURT OF OHIO
petitioners urge us to find that they have acted within the scope of their authority in
adopting the Clean Indoor Air Regulation.
{¶16} Respondents, on the other hand, contend that the General Assembly
has not delegated to local boards of health the power to adopt any type of smoking
ban. Respondents argue that R.C. 3709.21 is merely an enabling statute intended
solely to confer rule-making powers on boards of health rather than a statute that
grants substantive and plenary authority to local boards to regulate all public health
concerns.
{¶17} R.C. 3709.21 provides:
{¶18} “The board of health of a general health district may make such
orders and regulations as are necessary for its own government, for the public
health, the prevention or restriction of disease, and the prevention, abatement, or
suppression of nuisances. Such board may require that no human, animal, or
household wastes from sanitary installations within the district be discharged into
a storm sewer, open ditch, or watercourse without a permit therefor having been
secured from the board under such terms as the board requires. All orders and
regulations not for the government of the board, but intended for the general public,
shall be adopted, recorded, and certified as are ordinances of municipal
corporations and the record thereof shall be given in all courts the same effect as is
given such ordinances, but the advertisements of such orders and regulations shall
be by publication in one newspaper published and of general circulation within the
district. Publication shall be made once a week for two consecutive weeks and such
orders and regulations shall take effect and be in force ten days from the date of the
first publication. In cases of emergency caused by epidemics of contagious or
infectious diseases, or conditions or events endangering the public health, the board
may declare such orders and regulations to be emergency measures, and such orders
and regulations shall become effective immediately without such advertising,
recording, and certifying.”
6
January Term, 2002
{¶19} As in all cases involving statutory interpretation, we are guided by
several well-established rules. Petitioners focus on the words “public health” in
R.C. 3709.21. But words in a statute do not exist in a vacuum. We must presume
that in enacting a statute, the General Assembly intended for the entire statute to be
effective. R.C. 1.47(B). Thus, all words should have effect and no part should be
disregarded. In answering the first certified question, our attention should be
directed beyond single phrases, and we should consider, in proper context, all words
used by the General Assembly in drafting R.C. 3709.21 with a view to its place in
the overall statutory scheme.
{¶20} In examining a statute, if the language is ambiguous, a court may
consider laws upon the same or similar subjects in order to determine legislative
intent. R.C. 1.49(D). “Statutes relating to the same matter or subject, although
passed at different times and making no reference to each other, are in pari materia
and should be read together to ascertain and effectuate if possible the legislative
intent.” State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, 58 O.O. 315, 132
N.E.2d 191, paragraph two of the syllabus. Further, in reading such statutes and
construing them together, we must arrive at a reasonable construction giving the
proper force and effect, if possible, to each statute. Maxfield v. Brooks (1924), 110
Ohio St. 566, 144 N.E. 725, paragraph two of the syllabus. Thus, an examination
of the first certified question is not complete unless we consider and construe all of
R.C. Chapter 3709 together with any other relevant code sections.
{¶21} At first glance, the language of R.C. 3709.21 seems to grant
petitioners the necessary authority to enact the regulation at issue. The first
sentence of R.C. 3709.21 provides: “The board of health of a general health district
may make such orders and regulations as are necessary for its own government, for
the public health, the prevention or restriction of disease, and the prevention,
abatement, or suppression of nuisances.” In construing this section we are mindful
of certain statutory rules of construction set forth in the Revised Code. It is
7
SUPREME COURT OF OHIO
presumed that in enacting a statute the General Assembly intended a just and
reasonable result and a result feasible of execution. R.C. 1.47. In addition, R.C.
1.42 provides: “Words and phrases shall be read in context and construed
according to the rules of grammar and common usage. Words and phrases that
have acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed accordingly.”
{¶22} However, the natural meaning of words is not always conclusive as
to the construction of statutes. State ex rel. Myers v. Spencer Twp. Rural School
Dist. Bd. of Edn. (1917), 95 Ohio St. 367, 373, 116 N.E. 516. While it is a long-
recognized canon of statutory construction that the words and phrases used by the
General Assembly will be construed in their usual, ordinary meaning, that is not so
when a contrary intention of the legislature clearly appears. S. Sur. Co. v. Std. Slag
Co. (1927), 117 Ohio St. 512, 519, 159 N.E. 559. Accordingly and for the
following reasons, we find that the General Assembly has not indicated any intent
through R.C. 3709.21, or otherwise, to vest local boards of health with unlimited
authority to adopt regulations addressing all public-health concerns.
{¶23} Throughout R.C. Chapter 3709, and elsewhere, the General
Assembly has explicitly and in great detail identified specific areas where local
boards of health have substantive regulatory power to address public-health issues.
While these provisions are quite numerous and some are quite extensive, a few
examples will suffice for our purposes.
{¶24} R.C. 3714.12 provides that a board of health of a health district may
issue orders in accordance with R.C. 3709.20 or 3709.21 to a license holder or other
person to abate a violation of any section of R.C. Chapter 3714, the chapter
governing construction and demolition debris, or any rule, adopted thereunder.
R.C. 3709.085 allows the board of health of a city or general health district to
enforce on behalf of the Environmental Protection Agency regulations for the
disposal or treatment of sewage from semipublic disposal systems. R.C. 3709.22
8
January Term, 2002
requires boards of health of a city or general health district to promptly diagnose
and control communicable diseases and gives the boards the power to inspect places
where food is prepared and handled and to examine workers employed there. R.C.
3701.344 gives city or general health district boards of health the exclusive power
to inspect private water systems and administer programs of a public-health
council. R.C. 3730.03 requires local boards of health to regulate and approve
businesses that provide tattooing and body-piercing services. R.C. 3707.01
delegates to boards of health of a city or general health district the authority to abate
and remove all nuisances within its jurisdiction. R.C. 955.26 allows a city or
general health district board of health to quarantine and vaccinate dogs for rabies.
{¶25} At a minimum, enactment of the provisions cited above indicates that
the General Assembly did not intend through R.C. 3709.21 to vest local boards of
health with plenary authority to adopt any regulations that they deem necessary for
the public health. If petitioners correctly construe R.C. 3709.21 as authorizing such
regulatory authority, then entire sections of R.C. Title 37, as well as other
provisions, would be rendered superfluous.
{¶26} A basic rule of statutory construction requires that “words in statutes
should not be construed to be redundant, nor should any words be ignored.” E.
Ohio Gas Co. v. Pub. Util. Comm. (1988), 39 Ohio St.3d 295, 299, 530 N.E.2d 875.
Statutory language “must be construed as a whole and given such interpretation as
will give effect to every word and clause in it. No part should be treated as
superfluous unless that is manifestly required, and the court should avoid that
construction which renders a provision meaningless or inoperative.” State ex rel.
Myers, 95 Ohio St. at 372-373, 116 N.E. 516.
{¶27} In Johnson’s Markets, Inc. v. New Carlisle Dept. of Health (1991),
58 Ohio St.3d 28, 567 N.E.2d 1018, this court considered whether local boards of
health had been granted any regulatory authority over establishments where food is
manufactured, handled, or sold or whether the Ohio Department of Agriculture had
9
SUPREME COURT OF OHIO
exclusive authority over such areas. We held: “The Ohio Department of
Agriculture does not have exclusive authority to regulate the sanitary conditions of
food establishments. Local boards of health may also statutorily prescribe some
sanitary regulations for food establishments.” Id. at syllabus.
{¶28} Johnson’s Markets involved the New Carlisle Department of Health,
a board of health of a city health district as defined by R.C. 3709.20, which contains
language substantially identical to R.C. 3709.21. In arriving at our decision in
Johnson’s Markets, we construed, in pari materia, several related sections of the
Revised Code, namely R.C. 3709.20, 3709.22, 913.41, and 913.42. In reviewing
all of the Revised Code sections applicable therein, we concluded that R.C. 3709.20
gave city health districts authority to “ ‘make such orders and regulations as are
necessary for [their] own government, for the public health, the prevention or
restriction of disease, and the prevention, abatement, or suppression of nuisances.’
Also, in order to facilitate such rule-making powers, the General Assembly
empowered city health districts by way of R.C. 3709.22 to inspect places ‘where
food is manufactured, handled, stored, sold, or offered for sale * * *.’ ”
(Emphasis added.) Johnson’s Markets, 58 Ohio St.3d at 36, 567 N.E.2d 1018.
{¶29} Petitioners suggest that Johnson’s Markets is consistent with its
position that the authority granted to local boards of health through R.C. 3709.21
is very broad in scope and plenary. The language emphasized above clearly does
not support this contention. Had the court interpreted R.C. 3709.20 in the same
manner that petitioners urge us to construe R.C. 3709.21, the court’s reference to
R.C. 3709.22, the section authorizing the board to inspect food establishments,
would have been unnecessary. We believe, instead, that the court’s construction of
R.C. 3709.20 and 3709.22, after we construe those provisions and others in pari
materia, strengthens rather than weakens the argument that specific statutory
authorization, beyond the general power set forth in R.C. 3709.21, is required
before a local board of health can regulate in a certain area.
10
January Term, 2002
{¶30} Furthermore, we disagree with petitioners’ reliance on paragraphs
one and two of the syllabus of Weber v. Butler Cty. Bd. of Health (1947), 148 Ohio
St. 389, 35 O.O. 351, 74 N.E.2d 331, in regard to the first certified question.
Petitioners contend that Weber stands for the proposition that R.C. 3709.21 contains
a legislative mandate that boards of health have broad authority and wide latitude
to make regulations necessary to protect the public health, regardless of the nature
of the harm.
{¶31} Weber concerned G.C. 1261-42, the substantially similar precursor
to R.C. 3709.21. 108 Ohio Laws, Part I, 246. In paragraphs one and two of the
syllabus in Weber, the court found G.C. 1261-42 to be a valid and constitutional
enactment. The court found that G.C. 1261-42, despite lacking any standards for
guidance from the General Assembly, was constitutional because it was a police
regulation necessary for the protection of the public health and that adopting
specific standards for guidance would defeat the legislative objective sought to be
accomplished. Weber at paragraphs one and two of the syllabus.
{¶32} We do not dispute that R.C. 3709.21 is a valid and constitutional
enactment. However, our concern under the first certified question is not the
constitutionality of R.C. 3709.21. Our concern is whether any section of the
Revised Code authorizes a local board of health to adopt regulations that prohibit
smoking in public places. In any event, we do not view Weber as interpreting G.C.
1261-42 to confer the level of regulatory authority that petitioners contend R.C.
3709.21 does.
{¶33} The issue in Weber was whether the board of health of a general
health district had the authority to adopt a resolution with regard to the
transportation of garbage in Butler County and the regulation of hog pens and
piggeries. Although the court concluded that the resolution was infirm on other
grounds, it also found that G.C. 1261-42 did authorize the local board of health to
regulate the transportation and use of garbage for animal feeding because such
11
SUPREME COURT OF OHIO
practices tended to create nuisances. However, while not cited in the majority
opinion, there was separate statutory authority that gave local boards of health the
power to abate nuisances and adopt sanitary controls. Weber, 148 Ohio St. at 403,
35 O.O. 351, 74 N.E.2d 331 (Zimmerman, J., dissenting). G.C. 1261-26 stated:
“The district board of health may also provide for the inspection and abatement of
nuisances dangerous to public health or comfort, and may take such steps as are
necessary to protect the public health and to prevent disease.” 108 Ohio Laws, Part
II, 1088, predecessor of R.C. 3709.22. In addition, G.C. 4420 required the board
of health of a municipality to abate all nuisances within its jurisdiction.
Furthermore, G.C. 4421 authorized boards of health to “regulate the location,
construction and repair of yards, pens and stables, and the use, emptying and
cleaning thereof.” See now R.C. 3707.01. There are no such statutory provisions
that could be construed as authorizing petitioners to enact the regulation at issue
herein.
{¶34} For similar reasons, petitioners’ reliance on DeMoise v. Dowell
(1984), 10 Ohio St.3d 92, 10 OBR 421, 461 N.E.2d 1286, is unfounded. Contrary
to petitioners’ assertion, in DeMoise local boards of health were given a specific
delegation of power by the General Assembly to regulate in the subject matter area
of sanitary sewerage systems. Id. at 94-95, 10 OBR 421, 461 N.E.2d 1286.
{¶35} Petitioners also rely on Schlenker v. Auglaize Cty. Gen. Bd. of Health
Dist. (1960), 171 Ohio St. 23, 12 O.O.2d 42, 167 N.E.2d 920. In upholding the
regulation in Schlenker, the court noted that no statute explicitly authorized the
board of health to regulate pasteurization of milk. However, the court in Schlenker
did not rely solely on R.C. 3709.21 in finding that the regulation therein was a
proper exercise of the police powers of the local board of health.
{¶36} The Schlenker court specifically cited R.C. 3709.22 as allowing
boards of health to take “such steps as are necessary to protect the public health and
to prevent disease.” Schlenker, 171 Ohio St. at 25, 12 O.O.2d 42, 167 N.E.2d 920.
12
January Term, 2002
Furthermore, although this language was not reflected in the majority opinion, R.C.
3709.22 additionally authorized the board to “provide for the inspection of dairies
* * * and other places where food is manufactured, handled, stored, sold, or offered
for sale,” and required the board to “study and record the prevalence of disease
within the district and provide for the prompt diagnosis and control of
communicable diseases.” In addition, as was the case with Weber, there were other
specific grants of statutory authority to the board to regulate that specific area. See
former R.C. 3707.34, 1953 H.B. No. 1 (allowing board of health to regulate the sale
of milk and to revoke a seller’s permit if milk is kept in an “unsanitary condition”),
and R.C. 3707.04 through 3707.32 (general regulation of communicable diseases).
Thus, in each case discussed above, statutes other than R.C. 3709.21 authorized the
regulatory action taken by the local boards of health.
{¶37} In paragraph three of the syllabus in Weber, the court held that “the
board of health of a general health district has a wide latitude in making and
enforcing rules and regulations for the public health, the prevention or restriction
of disease, and the prevention, abatement, or suppression of nuisance, but when
such board passes a resolution which prohibits a business not unlawful in itself and
which is susceptible to regulations which will prevent it from becoming either a
health menace or a nuisance, such board transcends its administrative rule-making
power and exercises legislative functions in violation of Section 1 of Article II of
the Constitution of Ohio.” Weber, 148 Ohio St. 389, 35 O.O. 351, 74 N.E.2d 331.
{¶38} It is well settled that an administrative agency has only such
regulatory power as is delegated to it by the General Assembly. Authority that is
conferred by the General Assembly cannot be extended by the administrative
agency. Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 71 O.O.2d
366, 329 N.E.2d 693.
{¶39} “Such grant of power, by virtue of a statute, may be either express or
implied, but the limitation put upon the implied power is that it is only such as may
13
SUPREME COURT OF OHIO
be reasonably necessary to make the express power effective. In short, the implied
power is only incidental or ancillary to an express power, and, if there be no express
grant, if follows, as a matter of course, that there can be no implied grant.
{¶40} “In construing such grant of power, particularly administrative power
through and by a legislative body, the rules are well settled that the intention of the
grant of power, as well as the extent of the grant, must be clear; that in case of doubt
that doubt is to be resolved not in favor of the grant but against it.” State ex rel. A.
Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6.
{¶41} There is no express grant of power in R.C. 3709.21, or elsewhere,
allowing local boards of health unfettered authority to promulgate any health
regulation deemed necessary. Since there is no express delegation, it follows that
there is no implied authority for petitioners to adopt the smoking ban at issue.
Administrative regulations cannot dictate public policy but rather can only develop
and administer policy already established by the General Assembly. Chambers v.
St. Mary’s School (1998), 82 Ohio St.3d 563, 567, 697 N.E.2d 198. In
promulgating the Clean Indoor Air Regulation, petitioners engaged in policy-
making requiring a balancing of social, political, economic, and privacy concerns.
Such concerns are legislative in nature, and by engaging in such actions, petitioners
have gone beyond administrative rule-making and usurped power delegated to the
General Assembly.
{¶42} Finally, we address petitioners’ assertion that ruling in favor of
respondents would limit the broad powers conferred by R.C. 3709.21 on local
boards of health to adopt public-health regulations and would constrain if not
eviscerate their ability to respond effectively to new public-health threats as they
arise. We find that petitioners’ concerns are not well founded.
{¶43} Petitioners contend that the very purpose for which R.C. 3709.21 was
enacted was “to vest boards of health with broad authority to expeditiously and
effectively address any health threat that arises, whether previously addressed by
14
January Term, 2002
specific statute or not.” In support, petitioners rely on the decision by the Franklin
County Municipal Court in Cookie’s Diner, Inc. v. Columbus Bd. of Health (1994),
65 Ohio Misc.2d 65, 640 N.E.2d 1231. Although striking the regulation on other
grounds, the municipal court in Cookie’s Diner did conclude that the Revised Code
authorized local boards of health to regulate smoking. Central to the court’s
determination was that local boards of health need the ability to respond quickly,
without awaiting authority from the General Assembly, to address any newly
discovered health hazards or emergencies. The court reasoned: “If the General
Assembly had intended to restrict the boards’ permitted area of regulations to
specifically named matters, and only those matters, the General Assembly could
have done so. It chose not to. It chose not to, because in the words of Weber [148
Ohio St. at 396, 35 O.O. 351, 74 N.E.2d 331], ‘the nature of the problem’ (the
problem being the protection of the public health) is such that it is impossible to lay
down precise standards to define what unheard-of or newly discovered public
health hazards or diseases might be on the next horizon.” Cookie’s Diner, 65 Ohio
Misc.2d at 73, 640 N.E.2d 1231. Our response to the municipal court’s rationale
in Cookie’s Diner, and petitioners’ reliance thereon, is twofold.
{¶44} First, R.C. 3709.21 contemplates that it may be necessary at times for
local boards of health to act expeditiously to respond to any new health hazard or
disease. R.C. 3709.21 provides: “In cases of emergency caused by epidemics of
contagious or infectious diseases, or conditions or events endangering the public
health, the board may declare such orders and regulations to be emergency
measures, and such orders and regulations shall become effective immediately
without such advertising, recording, and certifying.” However, as respondents
aptly point out, the General Assembly has elsewhere delegated, through various
provisions of R.C. Chapter 3707, the authority to local boards of health to address
epidemics and dangerous communicable diseases. See R.C. 3707.04 et seq.
15
SUPREME COURT OF OHIO
{¶45} Second, we agree that the reason the General Assembly did not
impose standards on local boards of health through R.C. 3709.21 was that to do so
would have been impractical. See State ex rel. Meshel v. Keip (1981), 66 Ohio
St.2d 379, 386, 20 O.O.3d 338, 423 N.E.2d 60, citing Matz v. J.L. Curtis Cartage
Co. (1937), 132 Ohio St. 271, 8 O.O. 41, 7 N.E.2d 220. We hold, however, that
R.C. 3709.21 is a rules-enabling statute, not a provision granting substantive
regulatory authority. The authority conferred by R.C. 3709.21 is administrative
and procedural. Without this provision, boards of health of a general health district
could not function effectively, as they would be without the authority to issue orders
and adopt regulations relating to the numerous areas of public health where power
to act has been delegated. See Matz, 132 Ohio St. at 282, 8 O.O. 41, 7 N.E.2d 220.
{¶46} We grant that local boards of health are better situated than the
General Assembly to protect the public health. That is one reason why R.C.
3709.21 does not burden local boards with restrictive guidelines or standards.
Local boards need the flexibility to meet unforeseen public-health concerns and to
promptly address any problems arising from previous orders and regulations.
Moreover, local boards need the freedom to abate health hazards that are unique to
their specific locations. However, local boards cannot act in any area of public
health without prior legislative approval.
{¶47} Therefore, based on the foregoing reasons, we find that the language
of R.C. 3709.21 that “[t]he board of health of a general health district may make
such orders and regulations as are necessary * * * for the public health” does not
vest local boards of health with unlimited authority to adopt regulations addressing
all public-health concerns. Nor does any other section of the Revised Code delegate
such authority to local boards of health. Thus, petitioners did not have the authority
to adopt a regulation that would prohibit smoking in all public places in Lucas
County.
{¶48} Accordingly, we answer the first certified question in the negative.
16
January Term, 2002
Questions 2, 3, and 4
{¶49} In view of our answer to the first certified question, certified
questions two, three, and four have been obviated. Accordingly, we decline to
answer them.
Conclusion
{¶50} Our disposition of this matter turns on issues of law and not on the
deleterious effect of environmental tobacco smoke, more commonly known as
secondhand smoke. We recognize, however, that there has been long-standing,
national concern regarding the health effects of tobacco. Since the 1960s, when
warning labels first appeared on packets of cigarettes, we have been aware of the
dangers posed by tobacco use. Approximately 46 million American adults smoke
cigarettes and, more alarmingly, so do an estimated 3 million adolescents under the
age of 18.2 Moreover, members of the medical and scientific communities have
attributed to tobacco use various ailments such as chronic lung and heart disease,
and cancers of the lung, esophagus, larynx, mouth, pancreas, kidney, bladder, and
uterine cervix.3 Both the American Cancer Society and the American Lung
Association estimate that more than 400,000 Americans die each year from
tobacco-related illnesses such as cancer, respiratory illnesses, and heart disease.4
{¶51} An increasing awareness of the dangers of secondhand smoke has
inflamed an already fractious debate. Respondents may be correct in their
assessment that these dangers are speculative. We recognize, without accepting the
argument, that it can be contended that scientific determinations as to the
2. American Cancer Society, Cancer Prevention & Early Detection Facts & Figures 2001 (2001) 4,
http://www.cancer.org/downloads/STT/CPED2002.pdf, citing Centers for Disease Control and
Prevention, National Health Interview Survey (1999); Centers for Disease Control and Prevention
(“CDC”), Tobacco Use in the United States, at http://www.cdc.gov/tobacco/overview/tobus_us.
3. American Cancer Society and CDC, supra, note 2.
4. American Cancer Society, supra, note 2, at 4; see, also, American Lung Association, at
http://www.lungusa.org.
17
SUPREME COURT OF OHIO
detrimental aspects of secondhand smoke are not conclusive and that this topic is
nothing more than another politically correct trend. Nevertheless, rising incidence
of tobacco-related illnesses attributed to secondhand smoke, even if not
conclusively established, cannot be ignored.
{¶52} According to a 1986 report by the United States Surgeon General,
exposure to secondhand smoke is a cause of disease, including lung cancer, in
healthy nonsmokers.5 The Surgeon General’s report further found that
environmental tobacco smoke was associated with an increased frequency of
respiratory illnesses in young children.6
{¶53} A 1996 study conducted by the United States Department of Health
and Human Services’ Centers for Disease Control and Prevention (“CDC”)
determined that nearly nine out of ten nonsmoking Americans are exposed to
secondhand smoke.7 Secondhand smoke has been found to contain over 4,000
chemicals and 40 carcinogens.8 The United States Environmental Protection
Agency and the National Institutes of Health have classified environmental tobacco
smoke as a known human carcinogen, a designation which means there is sufficient
evidence that the substance causes cancer in humans.9 The United States
5. United States Department of Health and Human Services. The Health Consequences of
Involuntary Smoking: A Report of the Surgeon General (1986) 7, Centers for Disease Control and
Prevention, http://www.cdc.gov/tobacco/sgr_1986.htm.
6. Id.
7. Centers for Disease Control and Prevention, Exposure to Secondhand Smoke Widespread, at
http://www.cdc.gov/tobacco/research_data/environmental/etsrel.htm.
8. United States Environmental Protection Agency, What You Can Do About Secondhand Smoke
as Parents, Decision-Makers, and Building Occupants, http://www.epa.gov/smokefree
/pubs/etsbro.htm.
9. United States Environmental Protection Agency, Setting the Record Straight: Secondhand
Smoke Is a Preventable Health Risk (1994) http://www.epa.gove/smokefree/pubs/strsfs.htm; see,
also, Centers for Disease Control and Prevention (“CDC”), Exposure to Environmental Tobacco
Smoke and Cotinine LevelsFact Sheet, at http://www.cdc.gov/tobacco/research_data
/environmental/factsheet_ets.htm.
18
January Term, 2002
Environmental Protection Agency estimates that secondhand smoke causes
approximately 3,000 lung cancer deaths in nonsmokers each year.10 In addition,
according to the United States Environmental Protection Agency and scientific
studies, environmental tobacco smoke accounts for as many as 37,000 deaths from
heart disease in nonsmokers each year.11 The CDC indicates that the number of
coronary-related deaths could be as high as 62,000.12 Finally, as previously
indicated, the Surgeon General, as well as other health agencies, has concluded that
secondhand smoke impairs the respiratory health of thousands of young children.
Studies have indicated that infants and children exposed to secondhand smoke run
a higher risk of developing pneumonia, bronchitis, asthma, and middle-ear
infections.13
{¶54} Notwithstanding, however well intentioned and beneficial the
regulation adopted by petitioners may be, we refuse to extend by mere implication
the authority of local boards of health beyond clearly stated and well-defined limits.
To do so would require that we embrace policies and objectives that were not
specifically designated by the General Assembly. Within its constitutional grant of
powers, the General Assembly possesses both the authority to enact smoking
10. CDC, Exposure to Environmental Tobacco Smoke and Cotinine Levels—Fact Sheet, supra,
note 9; American Lung Association, Fact Sheet: Secondhand Smoke and Children, September 2000,
at http://www.lungusa.org/tobacco/secondkids_factsheet.htm; American Cancer Society, supra,
note 2; United States Environmental Protection Agency, Setting the Record Straight: Secondhand
Smoke Is a Preventable Health Risk, supra, note 9.
11. American Lung Association, Fact Sheet: Secondhand Smoke and Children, supra, note 10;
CDC, Exposure to Environmental Tobacco Smoke and Cotinine Levels—Fact Sheet, supra, note
11; see, also, Stanton A. Glantz, Even a Little Secondhand Smoke Is Dangerous (2001), 286
J.Am.Med.Assn.
12. CDC, Exposure to Environmental Tobacco Smoke and Cotinine Levels—Fact Sheet, supra,
note 11.
13. United States Environmental Protection Agency, Fact Sheet: Respiratory Health Effects of
Passive Smoking (1993); United States Department of Health and Human Services, The Health
Consequences of Involuntary Smoking: A Report of the Surgeon General (1986) 7, 10, 14, supra,
note 5.
19
SUPREME COURT OF OHIO
legislation such as the regulation at issue and the prerogative to delegate that
authority to local boards of health. However, unless the General Assembly or a
local municipality with home-rule power14 decides otherwise, local boards of health
are powerless to act as petitioners have acted herein.
{¶55} Power is not absolute. Today we recognize and follow the sage
observation of that great American jurist, Louis Dembitz Brandeis. “Power must
always feel the check of power.” Louis D. Brandeis, quoted in Bradley, Daniels &
Jones, Eds., The International Dictionary of Thoughts (1969) 573. In interpreting
the laws now before us, we are constrained to find as we have.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ.,
concur.
COOK, J., concurs in judgment.
PFEIFER, J., dissents.
__________________
Shumaker, Loop & Kendrick, L.L.P., Louis E. Tosi, Michael A. Snyder,
James O’Doherty and Thomas G. Pletz, for respondents.
Julia R. Bates, Lucas County Prosecuting Attorney, Andrew K. Ranazzi,
Lance M. Keiffer, John A. Borell and Damian M.P. Rogers, Assistant Prosecuting
Attorneys, for petitioners.
Zuckerman Spaeder, L.L.P., William B. Schultz and Carlos T. Angulo, in
support of petitioners for amici curiae, the National Association of Local Boards of
Health, the Ohio Association of Boards of Health, the Association of Ohio Health
Commissioners, the Ohio Department of Health, the Ohio Environmental Health
Association, the American Public Health Association, the Ohio Public Health
14. The home-rule authority of municipal corporations is set forth in Section 3, Article XVIII of
the Ohio Constitution.
20
January Term, 2002
Association, the National Association of County and City Health Officials, the
National Center for Tobacco-Free Kids, Americans for Nonsmokers’ Rights, and
the Tobacco Control Resource Center.
Danny R. Williams, Susan Jagers and Joseph L. Lanton, in support of
petitioners for amici curiae, American Cancer Society, Ohio Division, Inc.,
American Cancer Society, American Lung Association, American Medical
Association, Ohio Academy of Family Physicians, Ohio State Medical Association,
Ohio State Radiological Society, and Ohio State University College of Medicine
and Public Health.
__________________
21