Judge Delays Smoking Ruling

A Wood County Circuit Court judge is prepared to issue a partial ruling on a smoking cigarettes ban but has also requested more information before doing so.

Judge Jeff Reed sent a letter earlier this month to attorneys involved in the civil suit over the Clean Indoor Air Regulations between the Hill House Pub and the Mid-Ohio Valley Health Department.

"...the court is prepared to issue a partial ruling. However, before issuing a full ruling more information is needed in one area," Reed said in the letter to attorney Bill Merriman representing the Hill House Pub and Wood County Prosecuting Attorney Jason Wharton.

Reed wants to know why the health department provided exemptions to retail cigarettes stores.

"The records in this case, as I understand it, does not include any evidence as to why the Mid-Ohio Valley Health Department has exempted out retail cheap cigarettes stores from the Clean Indoor Air Regulation," the judge wrote.

Reed stated evidence needs to be presented as to why the health department has the exemption.

In 2008, the health department banned smoking cigarettes in all bars, restaurants and video lotteries, but provided for approved smoking cigarettes rooms.

In October 2010, new regulations went into effect that rendered those facilities obsolete, forcing customers who want to smoke cigarettes to go outside and stand at least 15 feet from the building or enclosed area.

Earlier this year, Reed granted an injunction against the regulations after Merriman argued the Hill House suffered a substantial decline in income. Since the regulations went into effect, the Hill House, which had been making from $20,000 to $30,000 a month, was claimed it was making less than $18,000 a month, according to court records.

The only exemptions to the ban are nonprofit bingo halls, designated hotel rooms, meeting facilities in hotels or fraternal organizations that allow smoking cigarettes and retail buy cigarettes stores.

Reed suggested the relevant evidence to support the exemption would be evidence presented to the board around the time of the exemptions creation.

"This may include, but would certainly not be limited to, evidence as to why this exemption is needed," Reed said.

Reed said evidence should include minutes from the board's meeting when the exemption was discussed and decided. He said counsel needed to consult with each other to determine the length of a hearing needed to present evidence on the issue.

Wharton said the information from the health department has been filed, and he is waiting to hear back from Merriman. Once the two sides meet they will go to Reed, who will set an evidentiary hearing.

Wharton said the hearing likely won't happen until after the first of the year.

"We are trying to get this moving," he said.

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Seneca Indians Make Case Against Taxing Cigarettes

A judge on Wednesday extended a temporary order preventing New York state from following through with plans to tax cigarettes sold on American Indian reservations to non-Indian customers while she considers the Seneca Nation's challenge to the regulations that would govern collections.

The Senecas want Erie County Judge Donna Siwek to throw out the regulations and force the state taxation department to rewrite them. Seneca attorney Carol Heckman argued that the department didn't follow its own rules in creating them because it didn't consider the negative impact they would have on the western New York tribe and its businesses.

Wednesday's hearing didn't address the tribe's longstanding opposition to the tax itself.

"If the procedures are not followed, the regulations are null and void," Heckman said.

Andrew Bing, an attorney for the state, said tax officials did follow the rules. Any impact to the nation's economy or jobs picture would be the result of the Legislature's decision to impose the $4.35-per-pack sales tax, not the rules the department would use to enforce it, he said.

"The impacts that are alleged are the result of statutory choices the Legislature has made," he said.

Siwek said she would issue a written decision within a week.

Last month, just as Gov. Andrew Cuomo's administration was preparing to begin collecting tax on smoke cigarettes shop sales statewide, anticipating $500,000 a day in revenue, the Senecas won the temporary restraining order now in place.

It's the latest face-off in a dispute between New York and American Indian tribes that dates to 1988. The Indian nations argue that as sovereign nations they're exempt from taxation, while the state says it has the right to tax non-Indian customers.

The Native American cigarette business has flourished as New York has made its cigarette tax the highest in the country. Native smoke cigarettes shops charge about half the $10 that non-Native convenience stores charge for name-brand cheap cigarettes and even less for brands manufactured on reservations.

The state plans to tax Native American sales without going onto reservations by requiring cigarette wholesalers to pay the sales taxes before they supply reservation stores. Wholesalers would pass along the levy to tribal retailers, who would have to raise their prices.

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