Ohio High court upholds statewide smoking ban Tavern owner argued fines violated powers

By Julie Carr Smyth Associated Press COLUMBUS, Ohio (AP) -- Ohio's statewide smoking ban is constitutional, the state Supreme Court ruled unanimously on Wednesday. The court rejected claims by a Columbus tavern owner that argued the fines it was charged for violations were an illegal taking of property, violating the state's legitimate police powers. Justice Judith Ann Lanzinger, in authoring the opinion, wrote, "The goal of this legislation is to protect the health of the workers and other citizens of Ohio." She said, "It does so by regulating proprietors of public places and places of employment in a minimally invasive way." Zeno's Victorian Village had been cited 10 different times between July 2007 and September 2009 totaling $33,000. The tavern was also known as Bartec Inc., whose CEO and sole shareholder was Richard Allen. The bar argued that the smoking ban was intended to be enforced against smokers, not businesses. The ban prohibits smoking in most indoor public places. It was overwhelmingly approved by Ohio voters in 2006 and took effect in 2007. Penalties for proprietors violating the ban range from a warning letter for a first violation to fines of $100 to $2,500 for subsequent violations. Fines can be doubled for intentional violations. Justices said there was evidence that the bar tacitly allowed smoking and had plastic cups partially filled with water that were placed around the bar as ash trays. They said the complaints were against the bar, not individual smokers. They further noted the bar had access to an appeals process and did not take advantage of it eight of 10 times. Lanzinger noted that the bar argued "that prohibiting smoking in an adults-only liquor-licensed establishment, such as Zeno's, is unduly oppressive and amounts to a taking." She said that was "an as-applied challenge" that suggested their unique circumstances made the law unconstitutional for them. She said they did not raise that legal issue in earlier phases of the case and so it was not applicable to the decision. The 10th District Court of Appeals in Columbus had upheld enforcement of the law, saying there was overwhelming evidence that Zeno's owners had intentionally violated the ban. That decision reversed a lower court ruling that tossed the violations and said the state health department exceeded its authority by holding Zeno's responsible for the actions of its patrons. Handling the case for Zeno's was the 1851 Center for Constitutional Law. Maurice Thompson, the center's executive director, had said local taverns are not public property and so had the right to how their indoor air was used. Groups opposed to the ban have included the Ohio Licensed Beverage Association and the Buckeye Liquor Permit Holders Association, where an official has said it is devastating small businesses in Ohio. Published: Thu, May 24, 2012