Wakim Sues Public Health Director Over Smoking Ban

September 7, 2006
Juliet A. Terry

Plaintiff accuses director of singling out the Wakims' business, Tropicana, while ignoring other businesses' compliance problems with the smoking ban.

A company owned by West Virginia Delegate Chris Wakim, R-Ohio, a candidate for the U.S. House of Representatives and a Wheeling business owner, has sued Dr. William Mercer, the director of the Wheeling-Ohio County Health Department.

In an odd twist, Foundation Corp. -- owned by Wakim and his wife, Jeannette -- has sued Mercer in his capacity as director and individually, something Mercer said never has happened before in the public health arena. The lawsuit also names the Wheeling-Ohio County Board of Health as a defendant.

"This is a first -- suing a public health director individually for doing his job," Mercer said.

Foundation Corp. does business in West Virginia as the Tropicana, a Wheeling Island bar that has received considerable attention from the health department because of noncompliance with the county's clean indoor air regulation. Wakim's wife is the company's president; he is its vice-president.

Wheeling attorney Paul Harris filed Foundation's lawsuit in Ohio County Circuit Court Sept. 1.

Messages left for Wakim were not returned at press time for The State Journal. Harris' office provided a copy of the complaint but no additional comment.

'Wrongful Conduct'

According to the complaint, Foundation is suing Mercer individually and in his official capacity "for his wrongful conduct in violating the rights of plaintiff as guaranteed by the West Virginia Constitution."

Specifically, Foundation accuses Mercer of threatening Tropicana with legal action for noncompliance and for singling the bar out among other businesses in Ohio County.

"Defendant Mercer, individually and as an agent of the Defendant Board of Health, intentionally subjected plaintiff to arbitrary treatment lacking in fundamental fairness, directly affecting the liberty/property interests of plaintiff Foundation," the complaint states.

Foundation accuses Mercer of singling out the Tropicana while ignoring other businesses' compliance problems with the smoking ban.

Mercer said the allegations are false.

"I definitely have not singled them out," he said.

Christina Mickey, project coordinator for Smokefree West Virginia, said Wakim is one of just three cases of "blatant noncompliance" with a county smoking ban in the 15 years that West Virginia counties have had clean indoor air regulations.

Mercer said he personally visited every bar and restaurant in Ohio County when the smoking ban first was being implemented.

"For him (Wakim) to say I'm singling him out, it's just false," he said.

Lottery Exemptions

When Ohio County passed its smoking ban last year, Wakim was a vocal opponent of the regulation in part because it exempted Wheeling Island Racetrack and Gaming Center and limited video lottery rooms. Mickey said the court issued a permanent injunction against Foundation requiring the bar to comply with the smoking ban.

Since then, Tropicana constructed a video lottery room that it said complies with the county ordinance, but Mercer said the club has gone beyond the definition of the free-standing video lottery room exemption within the rule.

"He's made a huge smoking room," Mercer said, explaining that Ohio County's law spells out specifically that free-standing limited video lottery rooms must be a space devoted solely to that purpose to fall under the exemption.

Mercer said Tropicana's video lottery room also contains a jukebox, pool table and other games, which is why it is considered noncompliant with the smoking ban. He said has tried to explain the definition so Tropicana can be brought into compliance, but the company refuses to meet with him.

"Foundation Corp. will not meet with me. Their lawyers say Dr. Mercer is not to have any contact with them," Mercer said. "I bring in anyone found not in compliance to explain the problem. Most say, 'We'll comply, just make sure everyone else is too.' So for him (Wakim) to go on television and say I'm bullying him is just false."

'100 Percent' Goal

Mercer said he still hopes Ohio County will be 100 percent smoke-free one day. For now, the racetrack and video lottery rooms remain exempt from the smoking ban.

Bob Marshall, Wheeling Island's president and general manager, said it makes sense to exempt racetracks or casinos from smoking bans.

"In our restaurants, you can't smoke. But you can in some gaming areas and the dog track," Marshall said. "Non-smoking and gaming don't mix. There would be a significant loss of revenue and jobs. There is proof of that across the country. For us, the exemption allows us to maintain the revenues and jobs we had before the smoking ban."

Mercer said he does not agree that casinos lose money when they must be smoke-free, but it's not a battle he is waging today.

"Our goal in Ohio County is to be 100 percent smoke-free. We're not there yet in the video lottery rooms, but we're not done. We couldn't do it all at once, so we decided to do it step-wise -- get people used to (being smoke-free) in bars and restaurants first," he said.

Mercer said he hopes Wakim's lawsuit does not deter other public health departments from continuing to enforce smoke-free regulations.

"This is the third time we're going to court over this, but this is what's best for the public," Mercer said.
Read

Bar Files Smoke Suit

9/2/2006
By MICHELLE BLUM and MARIO MUSCAR

A Wheeling Island tavern owner who feels singled out by the Wheeling-Ohio County Health Department over alleged smoking ban violations has filed suit in Ohio County Circuit Court.

Attorney Paul Harris filed the lawsuit late Friday on behalf of Foundation Corp., doing business as the Tropicana — a Wheeling Island bar.

Health department Medical Director Dr. William Mercer on Friday received a summons in connection with a lawsuit he said was filed against the agency by Chris Wakim, vice president of Foundation Corp.

The summons alleged Mercer and the health department had intentionally disregarded other violators of the clean indoor air regulation’s provisions.

While Mercer said the Tropicana has been cited for violations of the smoking ban, he could not say when that occurred. Mercer alleged the Tropicana maintains a “free-standing video lottery room” that also contains a pool table, jukebox and bowling machines.

While smoking is permitted in free-standing video lottery rooms under the regulation, the inclusion of other entertainment devices is a violation of the smoking ban.

Mercer also claimed health department officials have attempted to meet with officials of Foundation Corp., but those individuals “have refused to meet with me.”

Harris said the suit was filed on behalf of Foundation Corp. and its president, Jeannette Wakim, Chris Wakim’s wife. He said Jeannette Wakim owns 100 percent of the corporation and the Tropicana.

According to Harris, the health department filed suit against the bar about a year ago. The Tropicana and the health department later reached a settlement, with the Tropicana agreeing to enclose the video lottery room. Since then there have been a “host of inspections,” according to Harris, and the Tropicana has been found to be in compliance with the regulation on each of those occasions.

In May, the health department again alleged the Tropicana was not in compliance, Harris said. He claimed “nothing has changed in that room,” noting the department then threatened to take Jeannette Wakim to court.

In the two-count complaint filed Friday, Harris is seeking for the court to find that the Tropicana is complying with the ban. He also is seeking for the court to find that the ban violates West Virginia’s constitution, specifically due process and equal protection provisions.

“The government cannot treat people arbitrarily,” Harris said. “There is a problem with fairness with my client and with other businesses.

“My client is the victim of harassment,” he added. “The suit was filed to put a stop to that.”

Like Mercer, board of health Chairman Michael Caruso said he does not believe the Tropicana “has been singled out.” He had not received official word of the suit late Friday.

“The health department has been willing to meet with the Tropicana at any time to work through any problems, as we have done with all bars,” he said.

Caruso also said the “majority” of feedback received pertaining to the smoking ban has been positive.

Chris Wakim, a West Virginia delegate, is listed as vice president for the Foundation Corp., which runs the club, also known as “The Trop” in West Virginia Alcoholic Beverage Control Administration records. His wife, Jeannette, is listed as president, while Laura Z. Wakim is listed as secretary for the corporation.

Chris Wakim, R-Ohio, is currently challenging U.S. Rep. Alan Mollohan, D-W.Va., for the 1st Congressional District seat.

The local regulation, enacted June 17, 2005, prohibits smoking in all enclosed public places in the county with several exceptions including free-standing limited video lottery rooms, private residences when not used as a child care or health care facility, designated hotel and motel rooms, bingo operations distributing more than 100 cards or sheets, retail tobacco stores and conference or meeting halls being used for private functions and areas of gaming and entertainment establishments that are devoted to the placement of wagers and gaming.

Chris Wakim in June 2005 said he did not agree with the clean indoor air regulation.

“I have to do what I believe is right, not withstanding a dictatorial mandate from a non-elected body,” he said at the time, adding that he believed the regulation crossed out of the purview of the health board. He said while the department’s regulation of food safety, sanitation and other issues was acceptable because these are not public policy issues, the regulation of smoking in restaurants and bars steps into the realm of public policy making, in his opinion.

“It is my contention that it is an abridgment of our liberties, and if the Ohio County Board of Health chooses to regulate private businesses they are beyond their purview,” he said. “That is a decision that should be made by elected officials who are held accountable by their constituents.”
Read

Club to Comply With Smoking Ban

By BETHENY HOLSTEIN
July 19, 2005

WHEELING - After lengthy discussions in the judge's chamber Monday, the two parties involved in litigation regarding compliance with the Wheeling-Ohio County Clean Indoor Air Regulation reached an agreement that the Tropicana Club will enforce the ban.

The issue may not be over, however, as attorney Paul Harris, who represents the Foundation Corp., said a petition will be filed this week to request a city election on the issue of the smoking regulation to allow the "voters of the city to make this decision."
At an 11:30 a.m. hearing Monday in Ohio County Circuit Court, attorneys on both sides of the issue met with Judge Martin J. Gaughan behind closed doors several times, and about an hour later, the judge announced that an agreement had been reached.

"I have been advised that the parties have worked out an agreement," Gaughan said, explaining that a stipulation had been made by the Foundation Corp. saying that the regulation was being violated at the Tropicana Club.

"We do, in fact, agree that smoking was going on," said Harris. He added that the bar agrees to remove all ashtrays and hang "No Smoking" signs as well as file its smoking policy with the health department as per the regulation.

"I am issuing a permanent injunction requiring the Foundation Corp. require its officers abide by this regulation and enforce it," Gaughan said, adding that if the regulation is not followed, "in the future, the court will be free to provide sanctions, from monetary ones right up to and including incarceration."

On July 1, Wheeling-Ohio County Health Department Health Officer Dr. William Mercer filed a petition for an injunction and a motion for a temporary restraining order seeking the Tropicana Club's immediate compliance with the regulation. A hearing on the temporary restraining order motion was held July 7, but it was continued due to problems with witnesses.

"We are doing what we thought was best ... It's going to save everyone a lot of time," Harris said.

"This could have dragged on for days, and this way we solve the problem efficiently, and we are going to let it be solved democratically."

Harris said a city election on the matter would let the "people decide" if they want the smoking ban.

"These issues don't belong in the courtroom. They belong in the ballot box," he said.

Harris said that in excess of 2,000 signatures have been collected among city residents.

"This is why we have a democracy in the United States and in West Virginia," said Delegate Chris Wakim, R-Ohio, owner of the Tropicana Club.

Ohio County Assistant Prosecutor Shawn Turak, who is representing Mercer in his official capacity in this case, said that even if an election is held, she does not believe its results would override the regulation passed by the health board.

"If a municipal ordinance were placed on the ballot, it would not be effective because it would usurp the power given to the health board by the state Supreme Court," Turak said. "Ultimately, it would be a moot point."