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Smoking Ban Goes Before The Supreme Court

The state’s four year old ban on smoking in most indoor places came before the Ohio Supreme Court today. Ohio Public Radio’s Karen Kasler says it’s being framed as a case pitting the rights of private property owners against a popular public health crusade.The owner of the Columbus bar called Zeno’s has $33,000 in fines from 10 citations for violations of the state’s smoking ban. The bar claims the ban is unconstitutional. Maurice Thompson from the 1851 Center for Constitutional Law agrees, and said the court has a clear question to answer.

“Will the court protect a fundamental right to own and use property, or will it essentially unleash a police power completely untethered from nuisance principles that knows essentially no limit?” says Thompson.

Thompson says the law amounts to “spot zoning” – because it allows for exemptions of the smoking ban for certain places, such as retail tobacco stores, but doesn’t allow for smoking at other places where there could be a similar economic hardship. Beyond that, Thompson says, it doesn’t allow owners to use and enjoy their property, when the Ohio Supreme Court has held that property rights are fundamental rights.

“We have a bundle of rights in property. Ownership is only one stick in that bundle. And ownership is often irrelevant if you can’t also use your property in a gainful way. And that’s what we have here,” says Thompson.

“Nearly every regulation under the police power is going to interfere with the enjoyment of liberty or property,” says Elisabeth Long, the attorney representing the Ohio Department of Health.

Long agreed with Thompson that an Ohio Supreme Court case involving eminent domain did recognize that there is a higher standard for property rights holders in Ohio than nationally.

“But that says nothing about the police power. And if the court were to refashion its test for police power regulations in such a way as to apply some form of heightened scrutiny as Zeno’s is advocating, that would essentially lead to the future invalidation of countless laws that have been enacted to regulate the public health, safety and general welfare,” says Long.

Thompson also blasted the law for citing bar owners 33,000 times for violating the smoking ban, when not one patron has ever been cited,"even though we have two co-equal sections of the law, one prohibiting the business owner from permitting smoking, and another saying that once the business owner has asked the patron to discontinue smoking, that that patron must in fact discontinue.”

But Long said the tipline that leads to investigations of violations of the ban has only received complaints about bars, not about individual smokers in them.

“Proprietors are held responsible for the conduct that goes on in their establishments in other contexts as well, such as under the liquor laws. Proprietors are responsible for making sure that patrons do not become overly intoxicated or start behaving in improper ways,” says Long.

The outcome of this case has widespread interest – among activist groups, businesses and, of course, bars. So far, 50 bars across Ohio have racked up more than $10,000 in fines.