Some keep urging the city of Charleston to proceed with smoking restrictions that exceed state regulations. We're more convinced than ever that would be a waste of time and legal fees unless the Legislature gives that home rule option its clear approval.

Actually, that home rule legislation moved ahead last week by narrowly passing the Senate Judiciary Committee. Sen. John Hawkins of Spartanburg, who favors tougher smoking restrictions, was quoted by The Associated Press as noting that existing state law doesn't allow local governments to regulate smoking.

The city of Spartanburg tried just that about a decade ago. The city's attorney, Spencer King, tells us that the state prohibition against anti-smoking laws involving private property was discovered after the ordinance was passed. The Spartanburg law prohibited smoking in restaurants that would seat more than 100 people along with a ban on smoking in retail establishments. That ordinance is still on the books, but it isn't enforced, according to Mr. King.

The city of Charleston's legal staff has been asked to draft several ordinances, including one that would ban smoking in most restaurants. While a 1990 attorney general's opinion said the state's "Clean Air Act" -- which dealt primarily with public buildings -- pre-empted local governments from passing their own laws on indoor smoking, the city's legal staff believes a subsequent S.C. Supreme Court opinion gives local governments more latitude.

However, there is acknowledgement that another section of state law could be more difficult to overcome. That's the section that says persons who own or control private property have control over whether tobacco can or can't be used on that property.

Those who want to see municipalities have the right to ban smoking in private establishments should first concentrate on the Legislature. Absent a change in state law, the passage of a local anti-smoking ordinance would simply signal another long and contentious court battle.

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