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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2003 Term __________ No. 31120 __________

FILED
December 2, 2003
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

FOUNDATION FOR INDEPENDENT LIVING, INC.,
A WEST VIRGINIA NON-PROFIT ORGANIZATION;
MOHAWK TRIBE #11, INC.,
A WEST VIRGINIA NON-PROFIT ORGANIZATION;
PHILIP DINGESS AND WANDA DINGESS,
DBA ADAM'S AVENUE FLORAL;
BLEVIN'S ENTERTAINMENT, INC.,
DBA BLEVIN'S ROOFING COMPANY,
AND OTHER SIMILARLY SITUATED
INDIVIDUALS AND BUSINESSES,
Plaintiffs Below, Appellees
v. THE CABELL-HUNTINGTON BOARD OF HEALTH,
Defendant Below, Appellant,


__________________________________________________ Appeal from the Circuit Court of Cabell County The Honorable John L. Cummings, Judge Civil Action No. 02-C-0005 REVERSED IN PART, AFFIRMED IN PART __________________________________________________

AND

__________ No. 31616 __________ STATE OF WEST VIRGINIA EX REL. KANAWHA-CHARLESTON BOARD OF HEALTH, Petitioner, v. THE HONORABLE CHARLES E. KING, JUDGE OF
THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA,
AND DAVID DRYDEN,
Respondents


__________________________________________________ PETITION FOR A WRIT OF PROHIBITION WRIT GRANTED, AS MOULDED _________________________________________________ Submitted: October 7, 2003 Filed: December 2, 2003 Robert R. Fredeking, II Paul E. Biser Fredeking & Fredeking Law Offices Huntington, West Virginia Attorneys for the Appellees Foundation for Independent Living, et al. W. Edward ReBrook, III Hunt & Serreno Charleston, West Virginia Attorney for the Respondent, David Dryden Raymond A. Nolan Assistant Prosecuting Attorney Cabell County Huntington, West Virginia Attorney for the Appellant The Cabell-Huntington Board of Health Victor Flanagan Erik T. Engle Pullin, Fowler & Flanagan Charleston, West Virginia Attorneys for the Petitioner, Kanawha-Charleston Board of Health

John R. Hoblitzell Kay, Casto & Chaney, PLLC Charleston, West Virginia Debra Scudiere Teresa J. Dumire Kay Casto & Chaney, PLLC Morgantown, West Virginia Attorneys for Amici Curiae, Local Health Association of West Virginia, et al.

JUSTICE ALBRIGHT delivered the Opinion of the Court.

SYLLABUS

1. "A circuit court's entry of a declaratory judgment is reviewed de novo." Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).

2. "[T]his Court will use prohibition . . . to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability . . . [of reversal] if the error is not corrected in advance." Syl. Pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

3. "The general rule, which requires an express standard to guide the exercise of discretion and applies to legislation regulating ordinary lawful activity, is subject to the exception that when it is impracticable to formulate a definite comprehensive rule or when the legislation relates to the administration of a police regulation and is necessary to protect the public health, morals, safety, and general welfare of the community, it is not essential that a specific prescribed standard be expressly stated in the legislation." Syl. Pt. 4, Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832 (1956).

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4. Clean indoor air regulations of local boards of health that place restrictions on smoking in enclosed public places (1) are consistent with the findings of the Legislature "that smoking may cause lung cancer, heart disease, emphysema and other serious health problems," (2) advance the legislatively prescribed public policy "to provide the state with a citizenry free from the use of tobacco," and (3) fall within the bounds of authority granted by the Legislature to such boards. W.Va. Code

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