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Published: Friday, 10/16/2009

Toledo bar wins smoking case

BY JAMES NASH
COLUMBUS DISPATCH

COLUMBUS - Bar owners who try to keep their customers from smoking can't be penalized under the state's anti-smoking law just because a patron disobeys, an appeals court ruled yesterday.

The Franklin County Court of Appeals reversed a lower court's decision that a Toledo bar violated the statewide smoking ban because an inspector observed a lit cigarette in a mint tin.

The bartender at the Pour House, 4301 Bennett Rd., said she told the patron that he couldn't smoke inside, and the man left with the cigarette still smoldering.

A Lucas County inspector, operating on a tip about smoking at the bar in early 2008, found the lit cigarette and cited the business for violating the 2006 smoking ban. The bar was fined $500.

Attorneys for the Pour House said it and other bars shouldn't be punished for violating the smoking ban when they try to prevent customers from smoking.

The three-judge appeals court agreed.

"Without evidence that the proprietor permitted smoking, there is no basis for finding the proprietor violated the statute," Judge William A. Klatt wrote.

The Ohio Licensed Beverage Association hailed the ruling.

"We're pleased to hear that we can't be the cops and that once we've told the customer to extinguish the cigarette, they're the ones violating the law, not the establishment," said Jacob Evans, a spokesman for the association.

During a hearing on the Pour House's alleged violation, a hearing officer accepted the bar owner's statement that he had posted no-smoking signs at entrances and attempted to enforce the ban. Likewise, the hearing officer believed the bartender's explanation that she asked the customer to extinguish his cigarette.

Nevertheless, the hearing officer said the law is clear: Establishments caught with customers smoking or clear evidence of smoking are in violation.

Ohioans passed the anti-smoking law in November, 2006, and it has not been seriously challenged through a lawsuit or a referendum.

In August, the Ohio Department of Health sued two bars, including Zeno's in Columbus, for repeatedly violating the ban. Zeno's said the state's enforcement was inconsistent and discriminatory. The suit is pending.



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