A Sullivan's Island town councilman told our reporter last week that the town has an offer of a free legal defense team when its ban on smoking in restaurants goes into effect this week. Those lawyers may well be needed. Absent action by the state Legislature, the courts ultimately may have to resolve this issue.

While smoking-ban proponents in the General Assembly say they have reason to be encouraged, so far the Legislature has declined to clearly turn control over smoking restrictions to local governments. Lancaster Sen. Chauncey K. Gregory notes that his bill to give local governments the right to make smoking-ban decisions did get out of committee this year but died on the contested calendar. It will be re-introduced next year, and the senator believes a recent surgeon general's report on the dangers of second-hand smoke has greatly increased its chances of passage.

While he isn't happy about it, Sen. Gregory agrees with S.C. attorney general opinions that say, in effect, the Legislature has precluded local governments from setting restrictions on smoking by imposing statewide restrictions in the "Clean Indoor Air Act." The first opinion was issued in 1990 and a second - given several months ago to the town of Mount Pleasant - reaffirmed the 1990 conclusion. The fact that restaurants weren't included in the statewide ban, which includes such facilities as public schools, says they were intentionally omitted, according to the opinions.

As a result, according to the 1990 opinion, local governments are pre-empted from "further regulation of smoking in public indoor places." Sen. Gregory believes that local governments' hands were further tied by 1996 legislation that he says was "rushed through" to prohibit those governments from superseding the state on the regulation of tobacco products.

But Richland Rep. Todd Rutherford isn't ready to accept the attorney general's opinion as the final word. He believes towns such as Sullivan's Island should proceed under their home rule authority while he continues to push his statewide restaurant smoking ban. The lawmaker noted that the legislation came close to passage in the House during the last session, failing by only three votes.

No question there is growing sentiment among local governments for a restaurant smoking ban, including a push in some communities to outlaw all public smoking. But Mount Pleasant recently dropped its consideration of the ban after receiving the attorney general's opinion. Indeed, Mayor Harry Hallman said "it should be a countywide thing if we are going to do it." The city of Spartanburg actually was the first municipality in the state to pass restrictions on restaurant smoking, but the ordinance was never enforced after officials were made aware of the cloud over local anti-smoking laws.

We continue to believe that anti-smoking advocates should focus their efforts on the Legislature, which has the final word on whether the ban on restaurant smoking will be statewide or left up to each county, each political subdivision or to the owners of private property. Regardless of what a court might decide in the Sullivan's Island case, it's only part of a larger issue that the Legislature needs to resolve.