D.A.B.E., INC., D.B.A. ARNIE‘S SALOON, ET AL., RESPONDENTS, v. TOLEDO-LUCAS COUNTY BD. OF HEALTH ET AL., PETITIONERS.
No. 2001-1407
Supreme Court of Ohio
Submitted April 9, 2002—Decided August 28, 2002.
96 Ohio St.3d 250 | 2002-Ohio-4172
ON ORDER from the United States District Court, Northern District of Ohio, Western Division, Certifying Questions of State Law, No. 3:01-CV-7334.
Public health—Health districts—General Assembly has not indicated any intent through
SYLLABUS OF THE COURT
- 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. - Administrative regulations cannot dictate public policy but rather 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.
DOUGLAS, J.
{¶1}
{¶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
{¶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
{¶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 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?
{¶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
{¶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
{¶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
{¶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
{¶17}
{¶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.”
{¶19} As in all cases involving statutory interpretation, we are guided by several well-established rules. Petitioners focus on the words “public health” in
{¶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.
{¶21} At first glance, the language of
{¶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
{¶23} Throughout
{¶24}
{¶25} At a minimum, enactment of the provisions cited above indicates that the General Assembly did not intend through
{¶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 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
{¶29} Petitioners suggest that Johnson‘s Markets is consistent with its position that the authority granted to local boards of health through
{¶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
{¶31} Weber concerned G.C. 1261-42, the substantially similar precursor to
{¶32} We do not dispute that
{¶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 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
{¶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
{¶36} The Schlenker court specifically cited
{¶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 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
{¶42} Finally, we address petitioners’ assertion that ruling in favor of respondents would limit the broad powers conferred by {¶43} Petitioners contend that the very purpose for which {¶44} First, {¶45} Second, we agree that the reason the General Assembly did not impose standards on local boards of health through {¶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 {¶47} Therefore, based on the foregoing reasons, we find that the language of {¶48} Accordingly, we answer the first certified question in the negative. {¶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. {¶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 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 {¶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 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 {¶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. 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.Questions 2, 3, and 4