D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-
4172.]

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, 96 Ohio St.3d 250,
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.
__________________

DOUGLAS, J.

SUPREME COURT OF OHIO
{¶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 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

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
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
enforcing the Regulation until Plaintiffs' claims could be determined on their
3

SUPREME COURT OF OHIO
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), Delaware C.P. No. 98-CVH-12-413, unreported; Wilson v. Knox Cty. Bd.
4

January Term, 2002
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
7

SUPREME COURT OF OHIO
we are mindful of certain statutory rules of construction set forth in the Revised
Code. It is 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
8

January Term, 2002
for the disposal or treatment of sewage from semipublic disposal systems. R.C.
3709.22 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
9

SUPREME COURT OF OHIO
health had been granted any regulatory authority over establishments where food
is manufactured, handled, or sold or whether the Ohio Department of Agriculture
had 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
10

January Term, 2002
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.
{¶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
11

SUPREME COURT OF OHIO
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
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
12

January Term, 2002
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. 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.
13

SUPREME COURT OF OHIO
{¶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 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,
14

January Term, 2002
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 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.
15

SUPREME COURT OF OHIO
{¶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.
{¶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
16

January Term, 2002
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.
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

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.
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SUPREME COURT OF OHIO
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
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

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.
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.
18

January Term, 2002
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 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

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.
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.
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SUPREME COURT OF OHIO
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 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.
__________________

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.
14.
The home-rule authority of municipal corporations is set forth in Section 3, Article XVIII
of the Ohio Constitution.
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January Term, 2002

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 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.
__________________
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