COLUMBUS -- The Ohio Supreme Court has upheld the state's smoking ban, rejecting a challenge brought by a Columbus bar that faced thousands of dollars in fines for allowing patrons to light up.
"It is not unreasonable or arbitrary to hold responsible the proprietors of public places and places of employment for their failure to comply with the Smoke Free Act," Justice Judith Ann Lanzinger wrote in the unanimous decision Wednesday against Bartec Inc., doing business as Zeno's. She added later, "We therefore hold that the Smoke Free Act is a valid exercise of the state's police power by Ohio's voters."
In November 2006, voters OK'd a statewide smoking ban in public places and workplaces, including bars and restaurants. Enforcement began in May 2007, and health officials statewide have issued thousands of warnings and fines against businesses that have allowed their customers to smoke.
Zeno's was cited on 10 separate occasions between July 2007 and September 2009 for violating the ban. The business was investigated "about 30 times in the past five years" with "patrons... sitting at the bar in front of the bartender, smoking and ashing into small plastic cups filled with water," according to documents.
In response, the bar's owner said he installed "no smoking" signs, removed ashtrays and asked customers to stop smoking whenever they do light up, as required under the smoking ban. But he also challenged the constitutionality of the smoking ban and the legitimacy of enforcement actions against the business.
A county court stopped the state from collecting more than $30,000 in fines in the case, saying the bar owner had no control over whether "someone rips out a cigarette and lights up" and could not be held responsible if other requirements outlined in the SmokeFree Workplace Act were met.
An appeals court reversed the decision: "... The evidence is overwhelming that Bartec repeatedly and intentionally violated the Smoke Free Act, failed to comply with provisions (of state law)... and, in so doing, exposed patrons and employees to the very harm the statute is designed to prevent."
The Supreme Court sided with the appeals court, saying the business permitted smoking on its premises and did not pursue administrative appeals against the resulting violations.
"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 10 violations," Lanzinger wrote. "Therefore, appellants failed to exhaust their administrative remedies, and this constitutional issue is not properly before the court."
Justices also ruled that the statewide smoking ban did not amount to an unconstitutional taking of property.
"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," Lanzinger wrote. "Furthermore, Columbus' smoking ban ... 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.
She added, "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."