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Published: Wednesday, 10/19/2011

State supreme court justices go off site to discuss smoking ban

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

HILLSBORO, Ohio — The court battle over Ohio’s 4-year-old strict ban on smoking in bars, restaurants, and most other indoor public places went to the hills of tobacco-growing country Wednesday.

Taking its seven justices on the road in Highland County, the Ohio Supreme Court was urged to declare the state’s enforcement of the law unconstitutional in a case involving a Columbus tavern issued 10 citations and fines totaling $33,000 for repeatedly allowing patrons to light up.

In particular, the justices honed in on how this voter-passed regulation differs from others imposed by government on businesses as well as the state Department of Health’s enforcement focus on business owners instead of the individual smokers who also violate the law.

Maurice Thompson, attorney for the 1851 Center for Constitutional Law representing Bartec., Inc., owner of Zeno’s Victorian Village tavern, argued that the enforcement amounts to a taking of private property, restricting a pre-existing activity of the bar’s customers.

"It wiped out all of their profits," he said. "... It’s an important use."

The state, however, countered that the law puts a greater burden on the business owner, noting that individuals cannot be cited for violating the law unless they first ignore a warning from the business to stamp out the cigarette.

Elizabeth Long, deputy solicitor for the Ohio attorney general’s office, noted that the smoking was personally witnessed by agents of the state who followed up on anonymous complaints received via a state tip line. She noted that some of the citations noted Zeno’s failure to post no-smoking signs and to remove ashtrays as required by the law.

"There’s no evidence the proprietor ever said a word to the patron while inspectors were in the establishment," she said.

The justices seemed interested in the process that led to the citation and particularly in the fact that no individual smoker has ever been cited while numerous bars have, some of them, like Zeno’s, many times.

"They’ve chosen only to cite the bar owners" Mr. Thompson said. "... They don’t even investigate whether the smoker has continued to smoke after being told to stop."

Voters approved a ban in 2006 on smoking in indoor establishments that have employees or invite the public in, making Ohio the first Midwestern state to enact such a ban. Enforcement began in 2007.

The strict ban applies to offices, bars, restaurants, enclosed arenas, and any other workplace with few exceptions. The law hands enforcement power to the state Department of Health, which, in most cases, has delegated that authority to local officials. Zeno’s was cited by the Columbus Health Department.

Business violators receive a warning upon the first offense and then are cited for each subsequent offense with fines that escalate for chronic offenders.

"We’re talking about an establishment that is licensed by the state of Ohio," Justice Paul Pfeifer said. "Zeno’s has a very valuable liquor license. … Food is regulated by the health department. These rules do not reach into one’s home. … They reach only into an establishment open to the public."

The court has before it an appeal of a 10th District Court of Appeals decision last year that reversed a ruling from Franklin County Common Pleas Court striking down what it deemed to be the state’s uneven enforcement of the law.

In overturning the lower ruling and reinstating the fines against Zeno’s, the Columbus-based 10th District ruled that Zeno’s had an administrative appeal at his disposal to address its issues but chose not to challenge the bulk of its citations.

The arguments in Hillsboro, about 40 miles from the Kentucky line, marked the high court’s 62nd off-site session, allowing students and other members of the public to see the court in action. The attorneys involved in the cases made themselves available for a post-argument debriefing by observing students.

The smoking ban challenge was selected because of the statewide interest in the case. Highland is one of a handful of southern Ohio counties where tobacco is grown for the cigarette industry.

The justices stayed in Hillsboro after the arguments to deliberate behind closed doors and did not render an immediate decision.

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



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