Smoking ban challenge lacks real merit

Delaware County's expanded ban on smoking in bars, taverns and private clubs is set to take effect on Aug. 11, despite a lawsuit filed challenging the legality of the ordinance.

The Delaware County Licensed Beverage Association, American Legion Posts 19, 167 and 446, AmVets Post 12 and Low Bob's Tobacco filed suit against the Delaware County commissioners and the county health department, seeking to have the ban declared unconstitutional.

While we're not legal experts, we think overturning the ordinance has a slim chance of success, based on similar ordinances and court decisions in other states.
Judge Linda Ralu Wolf removed herself from hearing the case because her husband is a member of AmVets Post 12, one of the litigants. No new judge has been selected, and based on the speed of our legal system, it's likely the ban will become law before another hearing can be scheduled.

We've argued all along for a level playing field in regard to a smoking ban. Exempting bars and taverns from a ban that applied to restaurants (some serving alcohol) seemed unfair. Now the law applies to everyone (people, not businesses) which is what the 14th Amendment guarantees in the "equal protection clause." Every person who now enters a Delaware County business, club or fraternal organization is treated the same with regard to lighting up.

Some constitutional scholars have reported in similar smoking-ban challenges that plaintiffs are essentially arguing that smoking is a protected activity, something courts have been reluctant to rule in favor. It's hard to place the right to smoke on the same level as race, voting or reproductive rights.

Regarding whether bar and tavern owners "own" the air within their building, well, things get a little hazy. Government certainly can and does regulate workplace air quality or else there would be no need to protect workers engaged in removing asbestos from buildings.

Plaintiffs seem to be saying that laws don't apply within private property and they are free to engage in whatever activities they wish. That's certainly not true.

Liquor laws still apply, even inside private clubs or fraternal organizations. Food preparation and sanitation is still subject to government scrutiny. Why would regulating tobacco use be any different?

Smoking bans have been enacted in many other locations -- and have survived legal challenges. It's difficult to believe that Delaware County's ordinance will be overturned. But that's why we have a legal system, laws on the books and experts on all sides of the issue.