Bar also fighting to get $33,000 in fines overturned
By Tristan NaveraHILLSBORO, Ohio — Ohio’s Supreme Court justices remained tight-lipped on the bench yesterday, pressing only for occasional clarification from attorneys in a case that could have a major impact on the state’s 4-year-old smoking ban.
Zeno’s, a bar near Columbus’ Victorian Village, is challenging the law on the basis that it invades businesses’ property rights. Zeno’s also says the Ohio Department of Health is unfairly fining bars and restaurants — even if they have posted no-smoking signs and removed ashtrays — while refusing to cite the smokers who violate the ban.
Maurice Thompson, an attorney for the 1851 Center for Constitutional Law, a nonprofit legal center, argued on behalf of the bar, saying the statute “essentially releases a police power ... that knows no limit.”
“The (Ohio Department of Health) policy is unconstitutional, as it exceeds the limited authority it has,” Thompson said. “It exceeds the state’s police power.”
Elizabeth Long, deputy solicitor in the Ohio attorney general’s office, said the ban protects the health of bar patrons and employees. She said Zeno’s was found to be “intentionally violating” the ban in eight of the citations, all of which stemmed from complaints.
“Every regulation interferes with the enjoyment of liberty and property to some degree,” she said. “This could mean the future invalidation of countless laws protecting public health, safety and general welfare.”
The bar, at 384 W. 3rd Ave., owes $33,000 in fines for 10 smoking-ban violations. The state is threatening to seize and foreclose on Zeno’s to get the money.
Enforcement of Ohio’s smoking ban began in May 2007, affecting 280,000 public and private places of employment, the Ohio Department of Health says. Since then, bars have received 60 percent of the 33,347 citations and every citation has been against a business, not a smoker.
As of July, more than 2,500 fines totaling $2.5 million had been imposed, the Health Department said. At that time, $778,000 of the fines had been paid.
Thompson said the ban restricts land use, not conduct: Certain types of businesses, such as hotels, motels, clubs and family businesses, may have exemptions, but bars such as Zeno’s may not. He called the ban “spot zoning,” saying smoking goes hand-in-hand with the bar business and the ban has wiped out Zeno’s profits by sending patrons to bars with patios.
Thompson said the bars should not be forced to ban smoking because people visit them voluntarily. He said some bars would ban smoking even without the rule, and that would allow smokers and nonsmokers alike to be happy.
“There is a concern about protecting younger people (in the ban), but bars like this one are for people over 21,” he said.
Long said bars already are held responsible for some patrons’ actions. She said it falls to bars to ensure that patrons are not allowed to get too drunk or disorderly by limiting the drinks served or asking them to leave.
Almost all of the justices’ questions were for clarification of the attorneys’ arguments.
The bar won a case to dismiss its fines in a Franklin County court but lost an appeal in the Franklin County Court of Appeals last November. Since then, it has gained the backing of the 1851 Center, the Ohio Licensed Beverage Association and the Buckeye Liquor Permit Holders Association, among other groups.
Justices vote on a case the day they hear it but don’t announce their decision for three to five months.
Going on the road, as it does twice a year, the high court sat in Highland County Common Pleas Court to hear the case.
Tristan Navera is a fellow in the E.W. Scripps School of Journalism Statehouse News Bureau.
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