On road, Ohio's top court takes on state smoking ban

HILLSBORO, Ohio -- The fate of one of the strictest indoor smoking bans in the nation rested in a small town courtroom in the hills of tobacco-growing country Wednesday.

Taking its seven justices on the road to southern Ohio, the state Supreme Court was urged to declare the state's enforcement of the voter-passed law unconstitutional in a case involving a Columbus tavern that was issued 10 citations and fines totaling $33,000 for allowing patrons to light up.

In particular, the justices honed in on how this voter-passed regulation differs from others imposed by government on businesses, as well as the state Department of Health's focus on business owners instead of individual smokers who also violate the law.

Maurice Thompson, attorney for the 1851 Center for Constitutional Law, represented Zeno's Victorian Village tavern. He argued that the enforcement amounts to a taking of private property by restricting a pre-existing activity of the bar's customers.

"It wiped out all of their profits. …," he said.

The state, however, countered that the law puts a greater burden on the business owner, noting that individuals cannot be cited for violating the law unless they first ignore a warning from the business to stamp out the cigarette.

Elizabeth Long, deputy solicitor for the Ohio attorney general's office, said the smoking violations were witnessed by state agents who followed up on anonymous complaints received via a state tip line. Ms. Long said that some of the citations noted Zeno's failure to post no-smoking signs and to remove ashtrays as required by the law.

She urged the court not to extend to health and safety regulations its prior ruling that protected private property owners from government exercising its eminent domain authority to take property because it believes the land could be put to better economic use.

"That would essentially lead to the future invalidation of countless laws that have been enacted to regulate the public health, safety, and general welfare," Ms. Long said.

The justices seemed interested in the process that led to the citations and particularly the fact that no individual smoker ever has been cited, while numerous bars such as Zeno's have.

"They've chose only to cite the bar owners. …," Mr. Thompson said. "They don't even investigate whether the smoker has continued to smoke after being told to stop."

Voters approved a ban in 2006 on smoking in any indoor establishment that has at least one employee and invites the public inside, making Ohio the first Midwestern state to enact such a ban. Enforcement began in 2007.

The ban applies to offices, bars, restaurants, enclosed arenas, and any other workplace with few exceptions. The law hands enforcement power to the state Department of Health, which, in most cases, has delegated that authority to local officials. Zeno's was cited by the Columbus Health Department.

Business violators receive a warning upon the first offense and are cited for each subsequent offense with fines escalating for chronic offenders.

In recent months, the state has begun going after the liquor licenses of repeat offenders to force payment of fines.

"We're talking about an establishment that is licensed by the state of Ohio,'' Justice Paul Pfeifer said.

"Food is regulated by the health department. These rules do not reach into one's home. … They reach only into an establishment open to the public."

The court has before it an appeal of a 10th District Court of Appeals decision last year that reversed a ruling from Franklin County Common Pleas Court Striking down what it deemed to be the state's uneven enforcement of the law.

In overturning the lower-court ruling and reinstating the fines against Zeno's, the Columbus-based 10th District ruled that Zeno's had an administrative appeal at its disposal to address its issues but chose not to challenge the bulk of its citations.

After struggling to collect the fines it imposed, the state shifted gears in recent months by going after the liquor licenses of repeat offenders. The Department of Health reported that as of Oct. 3, more than 2,600 fines had been issued totaling $2.6 million, but just $636,567 had been collected.

The arguments in the 1834 courthouse in downtown Hillsboro, about 40 miles from the Kentucky line, marked the high court's 62nd off-site session, allowing students and other members of the public to see the court in action. The attorneys who were involved in the cases made themselves available for a post-argument debriefing by students.

The smoking-ban challenge was selected because of the statewide interest in the case. Highland is one of a handful of southern Ohio counties where tobacco is grown for the cigarette industry.

The justices stayed in Hillsboro after the arguments to deliberate behind closed doors and did not render an immediate decision.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.