Smoking ban upheld by justices

Ohio Supreme Court rules unanimously

5/24/2012

COLUMBUS -- Ohio's voter-initiated ban on indoor public smoking, the first enacted in the Midwest and among the strictest in the nation, is constitutional and enforceable, the Ohio Supreme Court unanimously ruled on Wednesday.

The decision struck a blow against stubborn bars and their customers who smoked and then doused their cigarettes in plastic cups after ashtrays were removed.

Opponents of the law argued that it amounted to an unconstitutional taking of their private property and unfairly targeted business owners while ignoring the smokers themselves.

The high court called the Ohio Smoke-Free Workplace Act "a valid exercise of the state's police power" as it rejected a challenge from Zeno's Victorian Village, a Columbus tavern that has been cited 10 times and fined $33,000.

"Although the Smoke Free Act was ultimately passed pursuant to a ballot initiative, the voters of Ohio also have a legitimate purpose in protecting the general welfare and health of Ohio citizens and work force from the dangers of secondhand smoke in enclosed public places," Justice Judith Ann Lanzinger, of Toledo, wrote.

"By requiring that proprietors of public places and places of employment take reasonable steps to prevent smoking on their premises by posting 'No Smoking' signs, removing ashtrays, and requesting patrons to stop smoking, the act is rationally related to its stated objective," she wrote.

"Although appellants complain that the Smoke Free Act is not being enforced against actual smokers themselves, the evidence establishes that [the Ohio Department of Health] has not received a complaint against an individual smoker."

The state had argued that the law puts a greater burden on the business because an individual smoker can't be cited unless he or she first ignores a warning from the business.

"This closes any door to question the constitutionality of the state's smoke-free law … " said John Hoctor, a vice president for the American Cancer Society's east-central division. "It's a common-sense ruling. I think it really does bolster what the Department of Health and the state believe is in the best interest of workers."

Passed in 2006, Ohio's law forbids smoking in any indoor establishment that has at least one employee and invites the public inside. Enforcement began in 2007.

The ban applies to offices, bars, restaurants, enclosed arenas, private clubs, and any other workplace, with few exceptions.

In most cases, the health department delegated enforcement to local officials. Business violators receive a warning for the first offense and are cited for each subsequent offense, with fines escalating for chronic offenders.

The conservative 1851 Center for Constitutional Law had taken up Zeno's cause. It also has cases pending related to Mayfly Tavern and Rip Cord in Toledo, which also have racked up huge fines.

"The 1851 Center's interest has never been so much in protecting bars or anything to do with smoking," said Maurice Thompson, the center's director. "Our interest has been that there must be some meaningful limit to the extent that the state could regulate private property, short of taking it.

"What this decision says is there is no meaningful limit to what the state can do to regulate private property," he said. "You can't take it without paying for it, but you regulate it any way you want."

The court noted that Zeno's failed to take advantage of administrative hearings to challenge its citations and failed to demonstrate that the ban had significantly hurt business.

Bill Delaney sold Delaney's Lounge in Toledo in August, but he's still personally fighting the citations he was issued for violating the anti-smoking law.

"They can take me to a court of my peers," he said. "I have no intention of paying them a dime."

Attorney General Mike DeWine, whose office defended the law, called the decision great news for democracy.

"This was enacted by a direct vote of the people," he said.

"This is what the people of the state wanted to do, and the court has said it's not only what they want, but it is constitutional. This should put an end to the debate as to whether this is legal or constitutional. The few outliers out there who are not complying with the law should get the message and comply."

He said the state's most effective tool in going after unpaid fines is suspension of the businesses' liquor licenses.

"That's really the heaviest club the state has," he said.

In 2002, the state Supreme Court struck down a similar ban enacted by the Toledo-Lucas County Board of Health, determining that the Ohio General Assembly had never given health boards authority to enact such a ban. The city followed with its own weaker ban. The stricter statewide effort superseded it in 2006, with 59 percent of the vote cast to approve the ban.

Dr. David Grossman, Toledo-Lucas County health commissioner, said local enforcement of the state ban continued while the court case was pending, but a cloud had been hanging over the process.

"Those days are gone," he said. "Now the attorney general and all those involved with prosecution can go after cases as they should and hold people to it. We've been doing it heart in hand hoping it doesn't get turned over.

"The cause was right," he said.

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