Ohio Supreme Court to weigh ban on smoking

4/7/2011

COLUMBUS -- The question of whether smokers can light up in bars, restaurants, and other public places has worked its way up to Ohio's highest court.

The Supreme Court Wednesday agreed to hear an appeal of November's 10th District Court of Appeals ruling that upheld enforcement of the voter-approved ban on indoor public smoking against a challenge brought by a Columbus bar that had racked up $30,000 in fines for repeat violations.

"These enforcement complications are largely a function of trying to fit a square peg into a round hole," said Maurice Thompson, executive director of the 1851 Center for Constitutional Law, which took up the challenge on behalf of Zeno's Victorian Village tavern.

"Local taverns are not public property, and owners of these properties have a right to decide how their indoor air is used, just as potential patrons have a right to freely enter or exit," he said.

In 2006, voters approved Ohio's strict ban on smoking in workplaces and other indoor places frequented by the public, with very few exceptions. It handed enforcement authority to the state Department of Health, which, in turn, largely delegated that authority to county boards of health.

Last year, a Franklin County Common Pleas Court judge dealt a blow to enforcement of the law. The judge found that a state inspector went too far when it cited Zeno's multiple times for allowing smoking without citing the smokers who also were breaking the law.

The Columbus-based 10th District Court of Appeals overturned that ruling, noting the lower court judge did not strike down any of the law as unconstitutional. Zeno's, it said, had the ability to challenge each citation via an administrative hearing but didn't do so.

"We are pleased that the court did agree to hear the appeal," said Mary Ann Farmer, spokesman for the American Cancer Society of Ohio, a major force behind the 2006 ballot issue.

"We expect businesses to abide by the law of Ohio and to protect their employees from second-hand smoke," she said. "The vast majority of businesses are abiding by the law. Certainly, Zeno's had incurred high amounts of fines."

Even if the smoking ban should survive this court challenge, there is a question of whether its enforcement would survive Gov. John Kasich's $55.5 billion, two-year budget proposal. The proposal would cut the line-item that pays for enforcement and operation of the state's Quit Line from $6 million this year to $1 million in 2012, a cut of 83 percent. The line-item would be zeroed out entirely in 2013.

Department of Health spokesman Jen House said the state is looking for alternative sources of funding for the Quit Line and enforcement. The state also had received $1 million in federal stimulus dollars for the Quit Line's operation through Jan. 1.

The now-defunct Ohio Tobacco Prevention Foundation, fueled by Ohio's share of a national settlement with tobacco companies, previously had provided grants to help pay for enforcement of the ban. But the foundation was put out of business and its trust fund confiscated for other purposes under former Gov. Ted Strickland.

"We are very concerned about cuts in enforcement of the Smokefree Workplace Act," Ms. Farmer said. "It was passed in 2006 very handily, and since then all Ohioans have enjoyed smoke-free public places. As citizens, we certainly do expect the state of Ohio to enforce the laws of our state."

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