delgazette.com

Erin Lee Moore

May 23, 2012

JULIE CARR SMYTH

Associated Press

COLUMBUS — 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.

Claims related to elements of the U.S. Constitution could be subject to appeal.

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 had argued that the smoking ban was intended to be enforced against smokers, not businesses. The ban prohibits smoking in most indoor public places. It was overwhelmingly approved by Ohio voters in 2006 and took effect in 2007.

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.

A message was left seeking comment with the 1851 Center’s Maurice Thompson. He has said local taverns are not public property and so had the right to decide how their indoor air was used.

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.