Mid-Ohio Valley Health Dept old & new regs -- includes ecigs (according to HD director) (West Virginia)

[ByStander1]

My encounters with my local health department began a few months ago... View attachment mid-ohio valley health dept smoking regulations 201105.pdf

Our current Clean Indoor Air Regulations View attachment mid-ohio valley health dept smoking regulations 201105.pdf did not cover ecigs, I thought...

After speaking with the HD director, .... Wittberg, he informed me that electronic cigarettes were covered under the "smoking paraphernalia" section. He was, he said, very open to information and learning more (primarily from a "credible" source like the CDC). I planned to do exactly that a few days later before the every-other-month meeting of the Board of Health (end of November 2012). I was delayed by a wonderful group meeting at a local healthcare facility in getting the staff on vapor instead of smoke. Well, the live person I encountered at the BOH meeting that night, who had the same name and voice as the man I spoke with on the phone, was definitely NOT open to information. The details of all that followed are View attachment mid-ohio valley health dept smoking regulations 201105.pdf here.

Anyway, they had finally posted their new regulations on their website. The comment period opened on December 21st (however there was no link to actually submit a comment until I emailed twice and asked for clarification) and ends on January 21st. The tobacco control coordinator is Jamie Jacobsen. Her email address for comments is jamie.r.jacobsen@wv.gov .

As you would expect of us hillbillies, we do things a bit differently in our "neck of the woods"...

I have a shop (in an RV) in the parking lot of a local grocery store. I've been there since December 2011 after doing in-home pv training became too demanding, and we needed a central location. Our town is the county seat, and our population boasts 2300 fine souls, so a metropolis we are not. Nonetheless, I would say with confidence that we are the most concentrated area of smokers-turned-vapers on the planet. We have over 500 vapers in our immediate area. If you include the surrounding area, with a population of around 13000, the state's smoking rate (highest in the US @ 26.3%), and the number of our converts, the folks here have lowered the smoking rate by at least 10% in less than 2 years. This is in stark contrast to the state-wide (WV) decline of 0% in the past 10 years.

Daily, I hand-out information sheets for current vapers to comment online, write, go to this month's BOH meeting, etc. I hope we can get ecigs specifically exempted from all Clean Indoor Air Regulations, thus leaving no room for confusion or interpretation by health department officials.

According to their current regulations, I have been in violation since December 2011. The local health department environmental official has spoken to employees (of the grocery store where I park) that vape (and their manager) about ecigs being a violation. He has also said "that woman is telling people they can use those things..." yet, he has never come across the parking lot (30ft) in his state vehicle to say anything to me. I am a bit conspicuous: at the front entrance of the lot, big red banner says 'SmokeFree-cigarettes,' car with CASAA & I'm vaping bumper stickers, 'open' flag whipping in the wind, etc.

Who do I see regularly?

• Smokers that have just left their doctor's office and were told to come see me. One doctor regularly sends them in with tongue depressors where he writes "get vaporized."
• Employers that send their employees "on the clock" to switch to vapor. Some employers have even paid for their employees' equipment.
• Friends of friends of friends saying so and so "told me I needed to come see you."
• People that have just been told "they found a spot on my lungs."
• People that struggle to get up the steps of the RV while lugging their oxygen tank. And, yes, I do go out to cars when folks can't manage to come inside, but most want to make it on their own.

If there has ever been a place that is symbolic of all the difference this switch can make, it is here. However, we face the same problems as anywhere. Being indignant and feeling powerful in the face of "officials" are often worlds apart. Far too much fear has run rampant everywhere.

Know this, I do not enjoy addressing "officials" of any kind. I do not enjoy pointing out the obvious to anyone. I do not take any pleasure in "calling someone to task." Nonetheless, I do speak. I get nervous, and tongue-tied, etc., but fumbling along doesn't cost as much as silence.

In the face of all I've witnessed and learned since I started vaping in January 2011, I still believe the real problem is ignorance rather than malice. I further believe love is the most powerful force in all of creation. I watch love in action everyday as families rejoice together over a family member becoming free of smoke. With that in my heart, I implore all of you to free your voice and fight the voice of fear. This is about more than our latest ADV. This is about Hope and Empowerment for every vaper, smoker, and future smoker (and everyone that loves them).

I further ask that you take a moment to send your story to the Mid-Ohio Valley Health Department. We are doing what we can here, but it is impossible for there to be too many voices.

Thank you for all you do! Remember you are powerful! Freedom is a muscle. Take it out and stretch it, give it a good workout. Use it or Lose it...

May your day be filled with others as kind, generous, and caring as You!!!

--Lorie

 

[YKruss]

Our current Clean Indoor Air Regulations View attachment 167725 did not cover ecigs, I thought...

After speaking with the HD director, .... Wittberg, he informed me that electronic cigarettes were covered under the "smoking paraphernalia" section.

Lorie,

I found only one mention of "smoking paraphenalia" in Mid-Ohio Valley Health Department
CLEAN INDOOR AIR REGULATION:

E. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking
is prohibited by this regulation by the owner, operator, manager, or other person having con troll
of such area.

But their definition of smoking is:

N. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe,
plant or other smoking equipment in any manner or in any form.

I am not a lawyer but there is no way e-cigs and vaping are falling into smoking activities defined on that document.

HD director Wittberg has an opinion that electronic cigarettes were covered but it's only his opinion.
It's like "I assume my neigbor has a drinking problem" when I see him drinking something from 16 ounces glass but didn't catch the moment when he filled that glass with tap water.

 

[Vocalek]

Hmm.... Is the teakettle smoking equipment? After all, it does produce something that LOOKS like smoke.

But "tea"kettle is just a name. It doesn't have any tea in it--it's just used to heat up the water.

Likewise, an e-cigarette was invented for the purpose of replacing the type of cigarettes that are set on fire. It's just a name. It isn't really a cigarette.

Smoking equipment would describe devices used to burn something to create smoke.

 

[ByStander1]

You are both absolutely right. Steam and smoke, boiling and burning... not the same. Nonetheless, the director of the group that enforces the regulations believes the devices fall under "paraphernalia." In the new regs, a couple of things that concern me are the removal of "willful" and "knowingly" in regards to violating the regulations. What would the purpose of that be? It seems to be a way to make violating a judgment by HD personnel beyond question and not contestable...

looking for guidance here

 

[VapApe]

Oh I believe he knows e cigs are not covered. That is why he hasn't said anything to you directly.

I would get a print out and show it to the grocery store owner, so they know he is just pun intended blowing smoke.

 

[TennDave]

Hire you an attorney, or if you know someone in your vaping community who is one, solicit their help and have them draft a letter to the health department. It is soooo wrong that you are being treated this way for all the good that you are doing. Also, is there anyone in your vaping community (being as small as it is) who has a relative on that board? It would be helpful to find out!!!

 

[Byten]

I reviewed and agree with the above comments, they is no direct regulation of the use of ecigs in there. You need to print out a copy and highlight some definitions and talk with the grocery store.

 

[ByStander1]

Oh I believe he knows e cigs are not covered. That is why he hasn't said anything to you directly.

I would get a print out and show it to the grocery store owner, so they know he is just pun intended blowing smoke.

Absolutely, VapApe!

I have supplied vapers and businesses in the area with copies of the current regs for months now, some even have CASAA's "No Smoking / Electronic Cigarettes Permitted" door/window decals on display, and all agree that vaping is not covered. Still, many say things like, "they will do what they want to do." Sad, really.

 

[ByStander1]

Hire you an attorney, or if you know someone in your vaping community who is one, solicit their help and have them draft a letter to the health department. It is soooo wrong that you are being treated this way for all the good that you are doing. Also, is there anyone in your vaping community (being as small as it is) who has a relative on that board? It would be helpful to find out!!!

Thanks, Dave. Yes, we know it may come to this. Prefer to educate when possible, and I'm not giving up on this perspective yet. But, from the last BOH meeting, it seemed obvious voices would be necessary before education would be possible.

Currently, everyone is doing an inventory of who knows who, etc. Many know position-relevant people that will speak up if "push comes to shove." I so hope we never even go to the shoving stage. How beautiful if we can just get a specific ecig exemption!

Yeah, I'm hearing John Lennon, too. "You may say I'm a dreamer, but...

I'm not the only one"

 

[VapApe]

Well until he does something stupid all you can do is keep getting the word out. He doesn't have a leg to stand on he knows it.
He is just trying to scare the grocery store owner, and as long as they know its all bluster you should be good.

If he thought he had a case he would have done something by now.

 

[kristin]

Bystander,

You may want to do what they did in Virginia when the Board of Health there erroneously started telling people that e-cigs were included in the smoking ban. Their argument was that Webster's dictionary included the words "fume or vapor" in the definition of smoke, so e-cigarette vapor fell under the definition of smoking.

One of our CASAA members contacted her local legislator and requested that he ask the Attorney General for an opinion whether the BOH was correct (including information that showed exactly why it was INCORRECT, of course.) He wrote this opinion letter: http://www.oag.state.va.us/Opinions and Legal Resources/Opinions/2010opns/10-029-Peace.pdf

He wrote:

First, an e-cigarette does not involve the “inhaling, or exhaling of smoke.” Smoke is defined as “the gaseous products of burning carbonaceous materials made visible by the presence of small particles of carbon.” To be sure, one definition of smoke is “fume or vapor often resulting from the action of heat on moisture.” That, however, is not the way the term smoke is commonly understood. Statutes should be construed under their “ordinary and plain meaning.”

The same reasoning applies to "smoking paraphernalia." The term as "commonly understood" and the "ordinary and plain meaning" of "smoking paraphernalia" is papers or wrappers, pipes and hookah that allow for burning tobacco - NOT electronic devices which vaporize a nicotine solution but create no actual smoke. Also, where is the definition of "smoking paraphernalia" located? I didn't see a definition for that in either document you linked. I did see "smoking equipment," which still should be considered under common use the same as "smoking paraphernalia."

Regardless, there is a section of that ordinance that may exempt you anyhow, if they are saying you are noncompliant because people are vaping in your store. If the legal definition of "smoking paraphernalia" in your town includes ANYTHING which allows a person to smoke OR CONSUME OR INGEST any tobacco product (I've seen that in a couple California ordinances) and that is how they are including vaping, then they are officially considering e-cigarettes to be "tobacco products." In that case, according to the ordinance you posted, the definition of "Retail Tobacco Store” means a "retail store utilized primarily for the sale of tobacco products and in which the sale of other products is merely incidental. It is a facility that does not possess a food service permit." If they consider you to be selling "tobacco products," that means you are a "retail tobacco store" and retail tobacco stores are not subject to this ordinance:

WHERE SMOKING IS NOT REGULATED
A. Notwithstanding any other provisions of this Regulation to the contrary, the following areas
shall not be subject to the smoking restrictions of this Regulation:
1. “Bars”, until 10/1/2008.
2. “Free Standing Video Lottery Rooms”, until 10/1/2008.
3. Private residences, except when used as a child care or health care facility.
4. Designated Hotel and Motel rooms rented to guests.
5. Bingo halls
6. Retail tobacco stores which do not possess a food service permit.

 

[VapApe]

And this why he never said any thing directly to Bystander. He knew he didn't have a leg to stand on.

 

[ByStander1]

You may want to do what they did in Virginia when the Board of Health

The same reasoning applies to "smoking paraphernalia." The term as "commonly understood" and the "ordinary and plain meaning" of "smoking paraphernalia" is papers or wrappers, pipes and hookah that allow for burning tobacco - NOT electronic devices which vaporize a nicotine solution but create no actual smoke.

Excellent idea! We are already working on getting a legislator to propose need for clarification of "smoke" and "lighted" like was done in Virginia. I hadn't thought of doing "paraphernalia." Thank you!

Also, where is the definition of "smoking paraphernalia" located? I didn't see a definition for that in either document you linked. I did see "smoking equipment," which still should be considered under common use the same as "smoking paraphernalia."

It's located under the section on "Posting of Signs" of all places.

"... if they are saying you are noncompliant because people are vaping in your store. If the legal definition of "smoking paraphernalia" in your town includes ANYTHING which allows a person to smoke OR CONSUME OR INGEST any tobacco product (I've seen that in a couple California ordinances) and that is how they are including vaping, then they are officially considering e-cigarettes to be "tobacco products." In that case, according to the ordinance you posted, the definition of "Retail Tobacco Store” means a "retail store utilized primarily for the sale of tobacco products and in which the sale of other products is merely incidental. It is a facility that does not possess a food service permit." If they consider you to be selling "tobacco products," that means you are a "retail tobacco store" and retail tobacco stores are not subject to this ordinance:

The new regulations remove this for retail outlets.

Also, it's not our town where the problem lies. Folks all over town are vaping at work, in the stores, etc. From their website: "Mid-Ohio Valley Health Department (MOVHD) serves the City of Parkersburg, Calhoun, Pleasants, Ritchie, Roane, Wirt & Wood Counties with additional WIC offices in Jackson, Gilmer and Mason Counties. A regional health department." -- their domain covers 7 counties at least (I'm not sure how the other 3 counties are administered). Our town is a 45-minute drive from the MOVHD office, and many are even more remote. The local HD office is less than 100 yards from my shop and in direct sight interestingly enough.

Here is View attachment movhd regs 2012 2013 clean indoor air regs comparison.pdf . See what you think of the changes, please.

Lastly, Kristin... A Big Thank You for all you do... always!

--Lorie

 

[ByStander1]

And this why he never said any thing directly to Bystander. He knew he didn't have a leg to stand on.

I believe you're totally correct in this VapApe. My guess would be that he plans to visit me on the 22nd after a vote on the 21st.

 

[kristin]

OK, I didn't see a link in your first post to the new proposed regulations. But while the words "smoking paraphernalia" are in that signage section, there is still no DEFINITION for it anywhere. Since it doesn't give a legal definition that specifies/adds e-cigarettes, then the "common use" definition prevails, as the Virginia AG explained to his BOH.

I wouldn't tell them that they basically need to add the definition, but I suggest, as does our legal policy director Greg Conley, that you let this pass "as is." That way, you are LEGALLY compliant regardless of what the BOH says. Once it passes, you can argue to the West Virginia AE that e-cigarettes don't fit the common use definition of "smoking paraphernalia" and request he send a letter to the BOH stating that fact. Bringing all of this up BEFORE they pass it may result in bringing their mistake to light and there is a good chance your efforts may backfire if they decide to ADD e-cigarettes to the definitions to include them instead.

And an opinion by the AG will cover the entire state, whereas your efforts will only cover one area.

Trust us, fighting to get the definitions changed could just alert this BOH and others that their arguments aren't legally sound and they may just close the loophole. But if you let it pass "as is" they may have a tougher time coming back and changing the definition later. Does that make sense?

 

[ByStander1]

OK, I didn't see a link in your first post to the new proposed regulations. But while the words "smoking paraphernalia" are in that signage section, there is still no DEFINITION for it anywhere. Since it doesn't give a legal definition that specifies/adds e-cigarettes, then the "common use" definition prevails, as the Virginia AG explained to his BOH.

I wouldn't tell them that they basically need to add the definition, but I suggest, as does our legal policy director Greg Conley, that you let this pass "as is." That way, you are LEGALLY compliant regardless of what the BOH says. Once it passes, you can argue to the West Virginia AE that e-cigarettes don't fit the common use definition of "smoking paraphernalia" and request he send a letter to the BOH stating that fact. Bringing all of this up BEFORE they pass it may result in bringing their mistake to light and there is a good chance your efforts may backfire if they decide to ADD e-cigarettes to the definitions to include them instead.

And an opinion by the AG will cover the entire state, whereas your efforts will only cover one area.

Trust us, fighting to get the definitions changed could just alert this BOH and others that their arguments aren't legally sound and they may just close the loophole. But if you let it pass "as is" they may have a tougher time coming back and changing the definition later. Does that make sense?

Yes, Kristin, that does make sense, and Thank You!

That's what we'll do. I'll spend the upcoming week getting everyone notified that we should take a hold pattern and continue with all efforts at the state level.

Again, a huge "Thank You" to you and Greg for all you do... Always!

--Lorie

I was wondering though... Does CASAA maintain a bail fund? ;-)

 

[Vocalek]

Yes, Kristin, that does make sense, and Thank You!

That's what we'll do. I'll spend the upcoming week getting everyone notified that we should take a hold pattern and continue with all efforts at the state level.

Again, a huge "Thank You" to you and Greg for all you do... Always!

--Lorie

I was wondering though... Does CASAA maintain a bail fund? ;-)

For you, my dear, we would start one!

 

[ByStander1]

For you, my dear, we would start one!

You're such a lovely woman, Elaine. You just warm my heart. Tell your adorable husband I said, "Hi!"

I will admit, the avoiding educating and not sharing information parts of this strategy are extremely counter intuitive for me, but I do see the rationale behind it.

On a happier note... 7 new vapers today!!!



Oh yes, and...How does one become a "vaping advocate?"