Ohio cases. (Legal Briefs).

Several cases concerning environmental health issues were recently decided in Ohio. The first case discussed here concerns liability of a county health department for failure of an on-site sewage disposal system. In the second case, a landowner was convicted and jailed for failing to maintain his structure in a clean, safe, secure, and sanitary condition. The conviction was, however, reversed on appeal. The final case concerns the continuing health concern about second-hand smoke in public places. The validity of local nonsmoking regulations in Barnstable, Massachusetts, and Marquette, Michigan, were discussed in the July and November 2001 Legal Briefs columns. The Barnstable rules were upheld, while the Marquette ordinance was invalidated. The case discussed here has to do with nonsmoking regulations in Toledo, Ohio, that were adopted pursuant to the board of health's general grant of powers.

Case #1: County Not Liable for Sewage Failure (1)

A landowner sought damages for a replacement on-site sewer disposal system that had failed; a contractor had installed the system on her property, and a sanitarian with the Fairfield County Health Department had approved the system. The landowner complained that the sanitarian and the health department had "signed off and authorized and approved the work of Defendant Hughes" thereby condoning "Defendant Hughes' breach of contract." The sanitarian and the health department, she complained, had caused a breach of contract, causing her unnecessary mental anguish and stress. In addition, she claimed that all the defendants had conspired together to cause her damages and had violated her right to the pursuit of happiness.

In effect, the landowner's allegations against the sanitarian and health department were predicated on the allegations against the contractor. Steve Deeter, a senior sanitation engineer for the health department, testified, however, that the "discharge from the kitchen sink to the top of the ground was totally unrelated to the work performed by Bob Hughes [the contractor]." The problem of wastewater discharge came from the landowner's kitchen sink, which drained to a clay tile not connected to the sewage system. Since the wastewater discharge was separate from the main sewage system, it was unrelated to the installation work of the contractor. Therefore, the court held that the contractor was not liable, and that neither the sanitarian nor the health department was liable. A question that the health department and its environmental health staff need to consider is the extent of their liability if the contractor had been found liable.

Case #2: Landowner's Conviction Reversed (2)

A landowner was charged by the Lancaster City Health Department with failing to maintain a structure in a clean, safe, secure, and sanitary condition in violation of the city code. At trial, the state presented the testimony of one witness, Shaun Fowler, a code enforcement officer for the Lancaster City Health Department. The landowner represented himself. After the close of the state's case, the trial court asked the landowner if he wished to present any testimony

The landowner responded that he wanted to testify During his testimony, he admitted that he did not comply with the order. Thereafter, the trial court noted this admission and immediately found him guilty The trial court did not ask the landowner if he had further evidence to present and did not entertain closing arguments. The landowner did not object to this procedure. It was unclear as to whether the landowner had any additional witnesses, testimony or evidence to present.

The court entered judgment against the landowner by sentencing him to 180 days in jail, 90 days suspended on the condition of two years' good behavior, and fining him $200 plus court costs. A month later, the trial court found that the landowner had demolished the building and complied with the ordinance. Therefore, the judge suspended 87 days of the previously imposed sentence after the landowner had spent three days in jail.

The issue was whether the landowner had waived his rights to call witnesses and make a closing argument. The trial court documents did not show "an intentional relinquishment or abandonment" of the landowner's right to present a closing argument.

The appeals court found that, For a waiver of the Federal Constitutional right to closing argument to be effective, it must be plainly shown that there was an intentional relinquishment or abandonment of a known right.... A failure to object on the record is not sufficient to waive this constitutional right.

The trial record showed no effort by the trial judge to offer the defendant an opportunity to make a closing argument. Therefore, the judgement was reversed, and the case was sent back to the trial court for another trial.

Case #3: Nonsmoking Regulations Invalid (3)

A lawsuit was brought in federal court by a collection of restaurant, bar, and bowlingalley owners against the Toledo--Lucas County Board of Health. Concerned about secondhand smoke, the board had adopted regulations, pursuant to its general grant of powers, that prohibited smoking in all public areas, which was defined as every enclosed, indoor area to which members of the public are invited or in which members of the public are normally permitted. Thus, the regulations prohibited smoking in bars, restaurants, tobacco shops, bowling alleys, and all public areas of places of employment--in almost every indoor place in Lucas County, Ohio, other than private residences, cars, and clubs. The regulations also prohibited smoking within 20 feet of any entrance or open window of public areas and in all public transportation. The regulations provided criminal penalties both for the individual who violated the regulations and for the owner of any public area who did not enforce the regulations within the public area u nder his control.

The federal court sent the case to the Ohio Supreme Court because there was an unresolved, central issue of state law involved. The Ohio Supreme Court was asked to decide on the following question:

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?

The board argued that Ohio Code [section] 3709.21 vested it with a broad grant of authority to adopt regulations necessary to protect the public health. The board contended that Code [section] 3709.21 was a separate, independent, and complete grant of authority to address threats to the public health, whatever they might be and whenever they might arise. In the board's view, as long as a local health board adopted regulations pursuant to that section, and as long as the regulations were necessary to protect the public health, reasonable, nondiscriminatory, and consistent with constitutional guarantees, the regulations were valid and enforceable. Thus, the board urged the court to find that the board had acted within the scope of its authority in adopting the Clean Indoor Air Regulations.

Ohio Code [section] 3709.21 provides that 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.... 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....

That section of the Ohio Code is very similar to the general grant of authority to local boards of health in other states. Like other local boards of health, the Toledo--Lucas County Board of Health wanted to use its general grant of powers to promote community public health.

At first glance, the language of [section] 3709.21 seemed to grant the board the necessary authority to enact the nonsmoking regulations. In addition, the Ohio Supreme Court recognized

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. 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. 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.

Regardless of how well intentioned and beneficial the regulations adopted by the board might be, however, the Ohio Supreme Court refused to extend by mere implication the authority of local boards of health beyond clearly stated and well-defined limits. The court held that throughout Ohio Code Chapter 3709, and elsewhere, the General Assembly had explicitly and in detail identified specific areas in which local boards of health have substantive regulatory power to address public-health issues. In [section] 3709.21, however, the General Assembly did not indicate any intent to vest local boards of health with unlimited authority to adopt regulations addressing all public-health concerns.

To find otherwise would have required the court to 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 regulations at issue, and the prerogative to delegate that authority to local boards of health. Unless, however, the General Assembly or a local municipality with home-rule power decided otherwise, county boards of health were powerless to have nonsmoking regulations. In conclusion, the court said,

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...." In interpreting the laws now before us, we are constrained to find as we have.

Although this case is limited to Ohio law, it may be valuable in helping other local health agencies determine the extent of their authority.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at <[e-mail]>.

References

(1.) Davis v. Hughes, Case No. 02CA5 (Ohio Ct. App. 2002) http://www.loislaw.com (Sept. 25 2002).

(2.) State v. Baumgardt, Case No. 02CA7 (Ohio Ct. App. 2002) http://www.loislaw.com (Sept. 25 2002).

(3.) D.A.B.E., Inc. v. Toledo-Lucas County Bd. Of Health, 96 Ohio St. 3d 250, 773 N.E.2d 536 (2002) http://www.loislaw.com (Sept. 25 2002)