The attorney for restaurant owners suing the Niagara County Board of Health over smoking regulations said he would seek an injunction to prevent the rules from taking effect as scheduled March 1.
John M. Curran said he will file the motion this week in the court of U.S. District Judge Richard J. Arcara, out of concern the case may not be settled by then.
"I would like to see (the board) extend the effective date," Curran said, "but cooler heads have not prevailed.'
Curran also asserted that the county's move to drop one of the exceptions to its near-total ban on public smoking strengthens his case.
County Attorney Edward P. Perlman has recommended that the Board of Health amend the regulations to ban smoking at private social functions held in facilities where smoking would normally be banned under the regulations.
Curran claims this is further evidence of legislative intent by the appointed board.
"I think it's a very significant move by the Board of Health," Curran commented. "They have improperly legislated by balancing public and private interests. Now they're rebalancing those interests. . . . They perceive themselves as a legislature."
In the lawsuit, the restaurant owners, under the name Niagara County Citizens for Choice, are relying on a federal court precedent that dismissed smoking regulations by the Nassau County Board of Health on the grounds that the text was crafted with economic considerations, rather than health considerations, in mind.
The downstate court ruled that only an elected legislative body can balance such interests, and that an appointed health board may consider only health interests in crafting a sanitary code.
Perlman, who disclosed the planned amendment Tuesday, said it merely emphasizes the regulations' "overall philosophy," which he said is "to protect citizens from secondhand smoke, particularly children."
As the regulations now stand, smoking is to be allowed at private social functions, defined as "weddings, parties, testimonial dinners, or other similar gatherings where the seating arrangements are under the control of the organizer or sponsor of the event," not the owner of the building.
The board is expected to vote on the change at its meeting next Thursday.
Public Health Director David E. Wertman, and Dr. Jerome J. Ulatowski II, the president of the Board of Health, both declined to comment on the proposed amendment. Other members of the board said they had not been informed of it.
The regulations still allow smoking in bars, which Perlman has said is defensible because children are not supposed to be in bars. He said no move to remove that exception is planned.
Curran said he will also be filing a motion for summary judgment, which will be the trigger for the legal arguments in the case.
Perlman has said he hopes the case can be settled before March 1. He said the proceedings will likely consist of only one day of arguments before Arcara, and said the judge might even be able to rule immediately from the bench.