These provisions invite another question, that is, could a member of a county board, sitting as a member of the board of health, be legally compelled to act to eliminate exposure to secondhand smoke?
Frankly, we think this would be a stretch. It is true that the wording of the provisions cited above is mandatory. The use of the word “shall” normally means that an official does not have discretion to do otherwise. In this case, however, any argument that board members have no choice is undermined by the subjective nature of defining what is and is not a “public nuisance.” In the absence of a specific statute or ordinance, there is no fixed standard for determining what is or is not a nuisance. Courts say this decision is always relative and depends on the facts of a specific situation, which must be weighed to decide whether the condition in question substantially interferes with the health, safety or other interests of the public. Because there is currently no law defining a smoking section in a restaurant as a public nuisance, it is up to the board of health to decide what is and is not a nuisance. While there is overwhelming evidence that secondhand smoke is indeed a health hazar
