High court in Ohio upholds state smoking ban

Ohio's statewide smoking ban is constitutional, the state Supreme Court ruled unanimously on Wednesday. The court rejected claims by a Columbus tavern owner that argued the fines it was charged for violations were an illegal taking of property, violating the state's legitimate police powers. Ohio Justice Judith Ann Lanzinger, in authoring the opinion, wrote, "The goal of this legislation is to protect the health of the workers and other citizens of Ohio."

 She said, "It does so by regulating proprietors of public places and places of employment in a minimally invasive way." Zeno's Victorian Village had been cited 10 different times between July 2007 and September 2009 totaling $33,000. The tavern was also known as Bartec Inc., whose CEO and sole shareholder was Richard Allen. On behalf of Bartec and Allen, the 1851 Center for Constitutional Law argued that the smoking ban was supposed to be enforced against smokers, not businesses. Maurice Thompson, the bar's attorney, called the ruling discouraging.

He said it means "there's really no meaningful limit on the regulation of private property in Ohio by the government." Thompson said it is unlikely the center would appeal to the U.S. Supreme Court on a federal property-rights issue, even though Ohio's is the first state Supreme Court to rule on that issue with regard to a smoking ban. He said Ohio has some of the strongest property protection laws in the country. "So we felt that if there was anywhere we could win, it was with bars in Ohio," he said. Thompson said he expects the fight to move now to the state Legislature, where a bill is already in the works to exempt bars from the ban.

 Overwhelmingly approved by voters in 2006, Ohio's ban prohibits smoking in most indoor public places. Penalties for proprietors violating the ban range from a warning letter for a first violation to fines of $100 to $2,500 for subsequent violations. Fines can be doubled for intentional violations. Justices said there was evidence that the bar tacitly allowed smoking and had plastic cups partially filled with water that were placed around the bar as ash trays. They said the complaints were against the bar, not individual smokers. The opinion further noted the bar had access to an appeals process and did not take advantage of it eight of 10 times. Ohio Attorney General Mike DeWine, legal counsel to the Ohio Department of Health, noted that Zeno's currently owes more than $40,000 for its repeated smoking ban violations.

 "This is great news for the health of Ohioans and for the democratic process," DeWine said in a statement. "The Ohio Supreme Court has upheld a law passed by a statewide majority of Ohio voters, and patrons and employees of Ohio businesses will continue to enjoy surroundings that are safer because they are smoke-free." Lanzinger's opinion noted that the bar argued "that prohibiting smoking in an adults-only liquor-licensed establishment, such as Zeno's, is unduly oppressive and amounts to a taking." She said that was "an as-applied challenge" that suggested their unique circumstances made the law unconstitutional for them. The legal issue was disregarded because it had not been raised in earlier phases of the case.

 The 10th District Court of Appeals in Columbus had upheld enforcement of the law, saying there was overwhelming evidence that Zeno's owners had intentionally violated the ban. That decision reversed a lower court ruling that tossed the violations and said the state health department exceeded its authority by holding Zeno's responsible for the actions of its patrons. Public health and medical groups lined up Wednesday to praise the ruling. Groups opposed to the ban have included the Ohio Licensed Beverage Association and the Buckeye Liquor Permit Holders Association, where an official has said it is devastating small businesses in Ohio.

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