Casino owners sue over smoking ban

WELLSBURG — Three video lottery casino owners have filed a lawsuit against the Brooke County Commission and Brooke County Health Department, alleging the department acted outside its state-given powers when it implemented a ban on smoking in the businesses.

In a lawsuit filed on behalf of Wheeling Coin LLC, Follsban LLC and Elm Room Inc., attorney Dan Guida has argued that the West Virginia Limited Video Lottery Act of 2001 establishes the state as exclusively responsible for the regulation of limited video lottery facilities.

The suit cited a provision of the act that states: “No state or local law or regulation providing any penalty, disability, restriction, regulation or prohibition for the manufacture, transportation, storage, distribution, advertising, possession of sale of any video lottery terminal, games or materials for the operation of any lottery shall apply to operations by the lottery commission or persons licensed” through the Video Lottery Act.

It cites a 2003 ruling, in response to a lawsuit by the Foundation for Independent Living against the Cabell Huntington Board of Health, saying “regulations adopted by local boards of health are analogous to municipal ordinances, which are inferior in status and subordinate to legislative acts.”

The lawsuit states the health department’s power to regulate the casinos is limited to food safety and food handler issues since the state requires them to obtain food service permits as private clubs.

It argues the ban, approved by the Brooke County Board of Health in 2014 and implemented on July 1, 2015, has adversely affected the county’s 49 casinos, resulting in a loss of about $15 million in revenue and affecting also tax dollars for education and infrastructure.

The lawsuit petitions the court to bring an end to the county’s clean air regulation and while considering that decision, to issue a preliminary injunction against it.

The casino owners seek reimbursement of attorney fees and other costs associated with the legal action and “other further and general relief as the court deems just and proper.”

A hearing has been set for 11 a.m. Wednesday to consider a motion to dismiss the suit by Brooke County Prosecutor Joseph Barki III, legal counsel.

Barki said “the commission doesn’t maintain any supervision of the department, doesn’t oversee its employees and most importantly, doesn’t participate or have to approve the enactment of any regulation pomulgated by the department.”

He said the commission’s only role regarding the department is “to replace board members from time to time as may be required and to provide the department a budget and funding” as required by state code.

Barki said the only remedy the plaintiffs may seek from the commissioners is for them to defund the department, which they can’t do.

Guida filed a response disputing that claim, saying the Jefferson County Commission was found responsible for the legal fees in a 1996 case against the Jefferson County Solid Waste Authority because the board funded and appointed members for that entity.

Asked to comment on the health board’s position, Barki said other county health boards challenged legally for their smoking bans have been upheld by the state Supreme Court, although the argument presented by the plaintiffs in this case is different from those cases.

After hearing from several business owners and social clubs with video lottery machines, the Brooke County Commission had asked the board of health to delay the ban’s implementation until the impact of a similar one in Hancock County could be measured. But county health officials sought continuity with the neighboring county and in Weirton, which sits in both counties.

The county’s clean air regulation prohibits smoking in all public places, including restaurants, bars, gaming facilities, retail stores and outdoor public places such as parks, playgrounds and other youth recreational areas and golf courses and fairs and festivals.

In approving the ban, the health board cited a desire to improve the public’s health, citing the dangers of secondhand smoke to non-smokers, delivery people and others who might enter establishments where smoking occurs.

Failure to comply with the policy could lead to a fine of $200 to $1,000.

(Scott can be contacted at wscott@heraldstaronline.com.)

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