The owner of a Toledo bar fined three times for violating the state smoking ban - and who is about to get hit with a $2,500 fine - is trying to have the law declared unconstitutional.
But the Ohio Department of Health contends Terry Hymore, the owner of Rip Cord Ltd., 115 North Erie St., has not exhausted the smoking ban's appeals process, so the case should be dismissed.
Mr. Hymore filed a lawsuit last month in Lucas County Common Pleas Court against the department, as well as the Toledo-Lucas County Health Department and three state and local officials.
If not dismissed, the lawsuit should be moved to Franklin County, the state health department said in court documents.
Among other allegations, Mr. Hymore claims health department inspectors did not investigate whether Rip Cord permitted smoking and that they failed to question smoking customers about whether they refused to stop.
The lawsuit asks that the smoking ban be declared unconstitutional in the way it is written, enforced, and applied and that Rip Cord's fines are stayed until the case is concluded.
A similar lawsuit seeking to declare the state law unconstitutional was filed last year by the Buckeye Liquor Permit Holders Association in Hamilton County, but it does not involve specific violations, as does the Rip Cord lawsuit, said Kristopher Weiss, spokesman for the Ohio health department.
Mr. Hymore could not be reached for further comment yesterday.
Rip Cord was warned about violating the smoking ban and fined $100, $500, and $1,000 when illegal activity continued, said Alan Ruffell, director of environmental health for the Toledo-Lucas County Health Department and one of the officials named in the lawsuit.
"There's no doubt they're smoking at Rip Cord," Mr. Ruffell said. "We've caught them several times."
A $2,500 fine is expected to be issued next week against Rip Cord because of a recent investigation, Mr. Ruffell said. That is the highest civil-fine level for establishments.
Individuals who are found violating Ohio's smoking ban are warned for the first occurrence. Repeat offenders are fined $100 each time.
Four establishments - D&M Southwyck Lounge, 5345 Heatherdowns Blvd.; Anchor Inn, of 4950 Suder Ave.; Brad's Place, 5801 Telegraph Rd., and American Legion Post 320, 204 Illinois Ave., Maumee - are scheduled to appeal smoking-ban citations March 13.