Ohio SC upholds state's smoke-free workplace law

Jessica M. Karmasek May 24, 2012, 12:00pm



COLUMBUS, Ohio (Legal Newsline) - The Ohio Supreme Court ruled Wednesday that the enforcement of the state's Smoke Free Workplace Act against a Columbus bar is not an unconstitutional "taking" of property.

The Court unanimously upheld a decision by the state's Tenth District Court of Appeals.

In their 27-page opinion, all seven justices rejected claims by the owner of Zeno's Victorian Village that fines assessed against the bar for violating the statewide ban on smoking in places of employment exceeded the state's legitimate police powers, or were an unconstitutional governmental "taking" of private property.

"The voters of Ohio also have a legitimate purpose in protecting the general welfare and health of Ohio citizens and workforce from the dangers of secondhand smoke in enclosed public places," Justice Judith Ann Lanzinger wrote for the Court.

In November 2006, Ohio voters passed a ballot initiative to enact the Smoke Free Act, which became effective December 7, 2006.

Subject to certain exemptions, the act prohibits proprietors of public places of employment -- including bars and restaurants -- from permitting smoking in their establishments, and authorizes the Ohio Department of Health and local agencies designated by the ODH to enforce the ban, including the authority to impose fines that increase in severity for repeat violators.

On 10 separate occasions between July 2007 and September 2009, Zeno's was cited by the Columbus City Health Department for violations and assessed fines, none of which were paid.

Zeno's did not file administrative appeals on eight of the citations. Two citations were appealed to the Franklin County Common Pleas Court, but the bar did not contest them and did not pursue further legal challenges to those citations or the resulting fines.

At that time, the ODH filed a complaint in the common pleas court, seeking preliminary and permanent injunctions ordering Bartec Inc., d.b.a. Zeno's Victorian Village, and Richard Allen, the CEO and sole shareholder of Bartec, to comply with the law and to pay all outstanding fines.

The bar's owners filed an answer, arguing the law was unconstitutional. They also filed a counterclaim, seeking a declaratory judgment and injunction against the ODH, invalidating the citations against Zeno's and vacating the resulting fines on constitutional grounds.

The common pleas court denied the ODH's requested injunctions, saying the rules and procedures adopted by the agency to enforce law exceeded its statutory authority.

The court vacated all of the citations and fines that the ODH had imposed against Zeno's.

The ODH then appealed to the Tenth District, which reversed the lower court's ruling and remanded with instructions to issue the injunction requested by the agency.

The bar's owners then sought and were granted review by the state's high court.

The Court said the constitutional arguments raised by the owners regarding the bar's past citations presented "as applied" challenges to the law, and such challenges must be advanced in administrative appeals to be preserved for appellate review.

"Because appellants failed to request an administrative hearing for eight of their violations and because they failed to prosecute the two administrative appeals they did request, appellants did not raise any constitutional challenge regarding any of its ten violations. Therefore, appellants failed to exhaust their administrative remedies, and this constitutional issue is not properly before the court," Lanzinger wrote.

There also is "substantial" evidence that the owners at least implicitly permitted smoking, the Court said.

"For instance, on Aug. 6, 2007, a Columbus City Health Department investigator witnessed two people smoking at Zeno's and observed cigarette butts in plastic cups filled halfway with water. On Nov. 29, 2007, another investigator found multiple Zeno's patrons who were smoking and who were using partially filled plastic cups as ashtrays," Lanzinger wrote.

"Although appellant Richard Allen was present at the time, the investigator did not witness him address any of the smoking patrons. On Nov. 6, 2008, a third investigator witnessed at least eight patrons smoking and using small plastic cups as ashtrays."

Under the law, proprietors are required to remove all ashtrays and "other receptacles used for disposing of smoking materials" from any area where smoking is prohibited, the Court noted.

As for the owners' claim that application of the ban constituted a governmental "taking" of Zeno's property -- or that the ban confiscated the owners' control of the indoor air -- the Court said, except for narrow exceptions that do not apply in the case, regulatory takings claims are governed by standards set in the U.S. Supreme Court's 1978 decision in Penn Central Trasportation Co. v. New York City.

"With a Penn Cent. regulatory taking, a court engages in a factual inquiry of the following three factors: '(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action,'" Lanzinger explained.

"Appellants submitted evidence that their gross sales declined in 2009, but the Smoke Free Act became effective in December 2006, and in 2007 and 2008 appellants' gross sales actually increased. Furthermore, Columbus's smoking ban, found at Columbus Code of Ordinances Chapter 715, is very similar to R.C. Chapter 3794 and went into effect in January 2005. Still, appellants' gross sales increased in 2005 and 2006. Thus, appellants have failed to demonstrate that the Smoke Free Act has had a significant economic impact on their business."

The second and third factors also do not support finding a "taking" in the case, the Court said.

"The 'taking' of appellants' indoor air space is not the type of taking contemplated by either the Fifth Amendment to the U.S. Constitution or the Ohio Constitution, Article I, Section 19," Lanzinger wrote. "Appellants have also failed to demonstrate that the Smoke Free Act interfered with a distinct investment-backed expectation.

"The goal of this legislation is to protect the health of the workers and other citizens of Ohio. It does so by regulating proprietors of public places and places of employment in a minimally invasive way. We therefore hold that the Smoke Free Act does not constitute a taking."

Ohio Attorney General Mike DeWine praised the Court's ruling in a statement Wednesday.

"This is great news for the health of Ohioans and for the democratic process," said DeWine, whose office served as counsel for the ODH.

"The Ohio Supreme Court has upheld a law passed by a statewide majority of Ohio voters, and patrons and employees of Ohio businesses will continue to enjoy surroundings that are safer because they are smoke-free."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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