Law Center: Ohio Bars Can Fight Smoking Ban Fines

COLUMBUS, Ohio -- A group challenging a policy used to enforce Ohio's ban on workplace smoking said Thursday that a judge's ruling in favor of a Columbus bar means other taverns cited by the state could have their violations tossed.

The state is appealing the Franklin County ruling, which says the Ohio Department of Health exceeded its authority by holding Zeno's bar responsible for the actions of its patrons.

Judge David Cain ruled last week that the department improperly levied $33,100 in fines against Zeno's despite the bar's "no smoking" signs, removal of ashtrays and employee requests that smokers extinguish cigarettes. He vacated the ten citations that led to the fines.

Cain said in his ruling that the bar was being unfairly held responsible for its customers' decisions, which it could not control.

"(P)roperty owners can only do so much .... They can put up 'no smoking' signs. They can take away ashtrays. They can ask patrons that are smoking to leave. Outside of these things, there is little property owners can do," Cain wrote.

The bar was defended for free by the Columbus-based 1851 Center for Constitutional Law, which says the ruling allows bars across the state to challenge fines.

The ruling calls into question fines imposed since voters approved the smoking ban in November 2006, said law center Director Maurice Thompson. He said that could mean refunds for bar owners who have already paid.

The health department has been enforcing the law in a way that is "unconstitutionally antagonistic" to businesses and it must re-evaluate its policy and investigate complaints by talking to smokers and bar owners before issuing fines, Thompson said.

Cain did not rule on the law's constitutionality.

"In doing this, the health department has effectively taken the law into its own hands, and administrative agencies aren't allowed to do that," Thompson said.

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.

The health department said it has issued 3,395 warning letters and 2,227 citations carrying a fine, according to data compiled Monday. Fines levied have totaled about $1.1 million, with about $473,000 collected through last week.

Through January, the ban has cost about $2.4 million to enforce.

Health department Director Alvin Jackson said the decision is surprising because dozens of other cases have been decided in the state's favor in Franklin County.

"(The department) always has and will continue to follow the law and enforce the law regarding smoking in public places," Jackson said in a prepared statement. "The negative health effects from smoking and secondhand smoke are widely known and detailed in numerous studies."

Thompson said the case involving Zeno's was different from others in the Franklin County court because the others were administrative reviews and because the attorney general attempted to make an example of Zeno's.

"We simply believe that in a free society, with a constitutionally limited government, it's important that government agencies not run amok all over private businesses, small business owners," Thompson said. "Our business climate is tough enough here in Ohio."

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