A lawsuit filed by a restaurant and a VFW post over state health
department rules restricting smoking in some establishments should
properly be heard in Oklahoma County District Court rather than
Creek County, an Oklahoma Supreme Court referee was told Wednesday.
Gary Gardenhire, general counsel for the department, told Chief
Referee Wayne Snow that the high court has previously assumed
original jurisdiction over cases involving challenges of agency
Under the rules, restaurants with a capacity of 50 or more could
be designated as entirely smoking, entirely smoke-free or could
allow smoking in separately ventilated rooms to shield other
customers from the effects of secondhand smoke. Other types of
businesses and workplaces would be affected by similar regulations.
In July, Creek County District Judge Donald Thompson issued a
statewide temporary injunction against enforcement of the smoking
regulations. Thompson refused to stay his ruling while appeals run
The department contends that the proper venue for hearing a case
of this magnitude is the county where the health department and Gov.
Frank Keating reside. Gardenhire said that the case involves the
governor's authority to approve such rules.
An action against a public officer must be brought in the county
where the cause arose.
Under state law, Gardenhire said, the validity of a rule may be
determined in a declaratory judgment action in the district court of
the county of the residence of the person seeking relief or in the
county where the rule is sought to be applied. However, he stressed,
the latter is available as an optional venue only if it is alleged
the rule interferes with or impairs or threatens to interfere with
or impair, the legal rights or privileges of a plaintiff.
Gardenhire said that Thompson improperly issued a sweeping order
affecting not just the two plaintiff establishments, or even all
restaurants, but other types of businesses not a part of the
"It's clearly a matter of statewide application," he said. "We
think it far exceeded the venue power and the subject matter
jurisdiction issues before the court. We think this is an important
case that needs to be decided."
Gardenhire said that Thompson's injunction should be dissolved
and the case transferred to Oklahoma County or retained and
consolidated with a pending appeal.
Snow asked the department attorney what difference it makes
whether the case is heard in Creek County or Oklahoma County.
"What's so magical about Oklahoma County?" the referee asked.
Gardenhire said that Oklahoma County is the county of residence
of the public officers involved, and of the agency. He also told
Snow that Thompson's ruling should be limited to the two entities
who brought the suit.
"The court exceeded its jurisdiction," he said.
Sen. Mike Morgan, D-Stillwater, attorney for the two restaurants,
said that following Gardenhire's reasoning, everyone aggrieved by a
particular regulation would have to file their own lawsuit rather
than being able to rely upon decisions with statewide application. …