Ohio Supreme Court upholds state's smoking ban

By MARC KOVAC C-N Capital Bureau Published:

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."

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  • It is said that the bans are about protecting health...but that is just the pretense. The more important reason for the bans is to protect the cigarette industry from potentially disastrous legal suits for contaminating typical cigarettes with residues of any of 450 pesticides registered for tobacco use, with cancer-causing levels of radiation from certain fertilizers, with burn accelerants, with hosts of kid-attracting sweets and flavors, with any of over 1000 untested, often toxic, non-tobacco additives, with addiction-enhancing substances, AND with dioxin-producing chlorine from many pesticides and the bleached paper To protect the industries’ profits, none of that is labeled. To protect the chlorine industries in general, no warnings are required for the deadly dioxins in smoke from typical products. And, to protect themselves from indictments for perhaps decades of approving this and enabling the industries (to maximize "sin taxes"), government officials fall all over themselves pretending to be "concerned about health"...NOT by banning the deadly adulterants but by blaming and burdening the victims. With that in mind, it is necessary to assure that the Supreme Court judge who made this ruling does not have economic links to this industry...including the pesticides and other ingredients suppliers and their insurers and investors. Is the judge linked to pesticides or chlorine industries? ...To suppliers of agricultural additives and paper? ...to pharmaceuticals that supply additives and pesticides?...to health insurers that invest billions in cigarette manufacturing? If there are such links, the judge would have been required to recuse herself for bias or the appearance of bias. If there was bias, it is impossible to see how the ruling can be valid. See http://fauxbacco.blogspot.com for reference material. PS: Unacceptable bias may also exist if a judge (or juror) has religious bias against smoking, or if he or she believes that he or she was sickened by “smoking”, or if a relative or friend has been sickened or killed by “smoking”. “Smoking” in quotes because it is never said WHAT is being smoked. Just tobacco? Highly-contaminated tobacco? Or camouflaged industrial waste cellulose made to appear like tobacco? (No law requires tobacco in a cigarette…unless label says it’s there.) To not pursue this bias angle is to virtually hand undeserved victory to the prohibitionists.