Judge drops citation against tavern owner

7/2/2004

Where there's smoke, there's a citation. Where there's not, there's a dismissal.

Judge C. Allen McConnell of Toledo Municipal Court has dismissed a city smoking ban citation against the owner of Chuck's Hungry i tavern in West Toledo because the complaint did not specifically state that "lighted" smoking materials were involved.

Judge McConnell also used the June 22 ruling to order the city to immediately stop issuing arrest warrants for persons, individuals, owners, or corporations that have been cited for violating Toledo's Clean Indoor Air Act.

The initial notice of the citation should be by summons, the judge ruled, and if the defendant fails to appear on the designated court date, "a warrant will be issued by this court."

David J. Carleski, the city environmental inspector who issued the May 21 complaint against Cassis Corp., owned by Chuck Cassis and which operates Chuck's Hungry i, did not specify that the smoking material present in the tavern was actually lit.

In a June 22, decision, Judge McConnell dismissed the complaint because the city's Clean Indoor Act states that "no person shall possess lighted smoking materials" in enclosed public places such as bars, restaurants, and bowling alleys.

"A patron could conceivably have a cigarette and other smoking material on their person, but if same is not lighted as required by the ordinance, there is no violation," the judge wrote in his decision.

John Madigan, general counsel for the city of Toledo, said yesterday that since the judge made his ruling on the face of the affidavit, the city never had a chance to challenge the decision in trial.

"In criminal law, the complaint has to state an offense," said Mr. Madigan. "And since the complaint didn't state that the person was in possession of lighted materials, the judge dismissed the case."

Court records indicate Mr. Cassis originally pleaded no contest but later filed a motion to dismiss through his attorney.

Without asking for the city's concurrence, the defendant's attorney offered a stipulation to amend the original complaint to include the wording "lighted smoking material."

The defense argument for dismissal was based, in part, on the claim that a corporation could not be guilty of violating the city smoking ban since it "is not a person or individual in the physical sense" and thus not capable of smoking or lighting any smoking material, court records show.

"Although the court may have accepted the plea of no contest, there was no actual finding by the court," Judge McConnell ruled. Though he dismissed the complaint, the judge ruled that "a corporation can be penalized under the ordinance."

In fact, Judge McConnell pointed out that under the criminal code, "the court may impose a greater penalty for corporations that commit criminal violations." Other issues raised by the defense are moot, the judge said, and were not addressed.

Mr. Madigan said that since the case never went to trial, the city could refile the citation. He said he will consult with the city's environmental inspectors to decide what step to take next.

Contact Meredith Heagney at:

mheagney@theblade.com

or 419-724-6050.