Archives for 2009

Pour House Inc., v. Ohio Department of Health

A victory came on October 19, 2009 for Ohio bars and restaurants facing fines for breaking the state smoking ban. Up to that point, enforcement methods essentially required small businesses to enforce the smoking ban for the government. The 1851 Center points out that it’s the government’s law and that the state should be required to enforce its own laws.  That’s what the statute said and that’s what the court has said.

“I think we’ve been cited about 12 times and it’s up to about $33,000,” Dick Allen said; he owns Zenos Bar in the Harrison West neighborhood of Columbus.
 
The state’s 10th District Court of Appeals ruled that the way the ban is enforced is unfair, 10TV’s Kurt Ludlow reported. It all came down to two words “permit smoking.” The court ruled that if a business posts signs prohibiting smoking, and notifies customers that smoking is not allowed, then the business should not be charged with permitting smoking just because a patron is caught doing so.
 
A Toledo bar challenged a $500 fine it received after a Lucas County health department worker caught a patron smoking inside the bar. In the lawsuit, the Pour House of Toledo argued that they were improperly cited because they had posted signs and told patrons to refrain from lighting up. It’s notable that no one smoking in a bar has been fined as an individual. Now the state is going to have to start investigating whether the patron is smoking without the permission of the owner, or whether the owner gave permission to the patron.
 
Allen said he would help the state enforce the law if they paid him.  “If the state wants me to be their police officer, they should be paying me $30,000 and then I’d be happy to do it,” Allen said. Zenos Bar has not paid any of the fine money.
 

Media

August 20, 2009 – ONN: Smoking Ban Lawsuit Goes Before an Appeals Court

Filings

October 15, 2009: Appellate Court’s Decision

Manna Storehouse v. Ohio Department of Agriculture

 

 

 On the morning of December 1, 2008, law enforcement officers forcefully entered the Stowers’ residence, without first announcing they were police or stating the purpose of the visit. With guns drawn, officers swiftly and immediately moved to the upstairs of the home, finding eight children in the middle of a home-schooling lesson. Officers then moved the mother, Jacqueline Stowers, and her children to their living room where they were held for more than six hours. Ohio Department of Agriculture (ODA) and Lorain County Health Department agents forcefully raided the home and unlawfully seized the family’s personal food supply, cell phones and personal computers.

What was the crime alleged against Mr. and Mrs. Stowers that required such use of force?  The state alleged that the couple was operating a retail food establishment without a license.

In fact, the Stowers operate a private-membership organic food cooperative called Manna Storehouse.  There has never been a complaint filed against Manna Storehouse or the Stowers related to the quality or healthfulness of the food distributed through the co-op.

The Center argues the right to buy food directly from local farmers; distribute locally-grown food to neighbors; and pool resources to purchase food in bulk are rights that do not require a license. In addition, the right of peaceful citizens to be free from paramilitary police raids, searches and seizures is guaranteed under the Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution.

“The Stowers’ constitutional rights were violated over grass-fed cattle, pastured chickens and pesticide-free produce,” 1851 Center of Constitutional Law Director Maurice Thompson said. “Ohioans do not need a government permission slip to run a family farm and co-op, and should not be subjected to raids when they do not have one. This legal action will ensure the ODA understands and respects Ohioans’ rights.”

Such raids are beyond the scope of the purely administrative authority delegated to ODA and county health departments. In enforcing licensure laws, these agencies are only permitted to contract for routine enforcement services. Forceful raids and sweeping searches and seizures are not routine, and exceed the authority granted to ODA and county health departments. The 1851 Center seeks to ensure that such raids do not occur in the future.

 

Case Timeline

December 19, 2008: Center Files Complaint in Common Pleas Court

On December 19, 2008, The  1851 Center for Constitutional Law took legal action against the Ohio Department of Agriculture (ODA) and the Lorain County Health Department for violating the constitutional rights of John and Jacqueline Stowers of LaGrange, Ohio. The complaint was filed in Lorain County Court of Common Pleas.

The 1851 Center sought an injunction against similar future raids, and a declaration that such licensure laws are unconstitutional as applied the Stowers and individuals like them. The Center also committed to defend the Stowers from any criminal charges related to the raid.

October 10, 2009: Center Appeals Trial Judge’s Ruling

The Center successfully obtained a court order for the return of over $10,000 in food seized by authorities, and appealed the trial judge’s ruling that deems it constitutional to destroy, through regulation, a private-membership organic food cooperative.

June 6, 2011: Court of Appeals Rules Against the Stowers Family

The court applied the rational basis test, deferring to the legislature. The Court of Appeals explained that the government’s “explanation for the statute need not be supported by evidence; rather, we will be satisfied with the government’s ‘rational speculation’ linking the regulation to a legitimate purpose, even ‘unsupported by evidence or empirical data.’”

July 21, 2011: Center Appeals to Ohio Supreme Court 

On July 21, Manna Storehouse and the Stowers family moved the Ohio Supreme Court to protect their rights.

The Stowers argued that the state’s imposition on their property rights and right to earn a living requires the utmost scrutiny and must be protected.  They further argued that requiring government permission and licensure to operate their safe and private cooperative converts state government to one of unlimited powers, transgressing the limits of state power, while violating their rights.

November 2, 2011: Ohio Supreme Court Refuses to Hear Case

The Ohio Supreme Court stated that there was no substantial question for review.

December 3, 2008: Morning Journal: Local Food Cooperative Searched by State

December 3, 2008: The Bovine: ODA “Swats” Manna Storehouse Co-op

December 4, 2008: WorldView: Swat Team Like Raid on a Farm House in Lagrange

December 9, 2008: Reason Magazine: Pantry Raid

December 17, 2008: World Net Daily:Armed Officers Raid Home, Hold Mom, Kids for 6 Hours

December 18, 2008: Cleveland Plain Dealer: Manna Asks Court to Rule Search Illegal

March 3, 2009: Filed in Federal Court: Combined Motion to Amend and Remand asking to remand the case back to the State of Ohio Common Pleas Court. 

March 3, 2009: Filed in Federal Court: Amended Complaint motioning for a Preliminary Injunction & Writ of Replevin.

December 17, 2009: Filed in Ohio Common Pleas Court: Motion for Summary Judgment

July 6, 2010: Appellant’s Brief to the Ninth District Court of Appeals, Lorain County appealing the Common Pleas Court ruling.

July 21, 2011: Motion for Jurisdiction in Ohio Supreme Court

Victory: Ohio Estate Tax Repealed

 

 

 

 

 

 

 

 

 

 

The legislature has passed a state budget that includes the repeal of Ohio’s Estate Tax.  Special thanks to the team at http://www.endohioestatetax.com/ for their leadership in accomplishing a feat that no liberty group before them had accomplished:  the elimination of a statewide tax.  In drafting the initiative and representing the effort, the 1851 Center was simply the professional scaffolding around this inspiring all-volunteer effort.

Despite openly hostile opposition (see below) from city and township government bureaucrats, who used public funds to oppose the repeal, and behind-closed-doors dismissal from elected and even conservative policy organizations, Ohio’s worst-in-the-nation Estate Tax, kicking in at just $338,000, will no longer be tearing Ohio families apart, destroying family farms, and driving business from the state.

April 4, 2011 – Use of Public Funds to Oppose Estate Tax Repeal is Unconstitutional

The 1851 Center for Constitutional Law today notified the cities of Loveland, and Oakwood, Ohio that their use of public funds applied to the Council/Coalition to Protect Ohio’s Communities (CPOC) is unlawful and, if continued, will result in legal action on behalf of each city’s taxpayers.

CPOC, comprised of local governments seeking to maintain the Ohio Estate Tax, formed in response to the introduction of House Bill 3, legislation that will end the tax.

Ohio’s Estate Tax is rated the worst in the nation, and kicks in at the lowest threshold, taxing all assets above $338,000. Although it is opposed by many Ohioans, local governments formed CPOC to lobby and propagandize against estate tax repeal. Loveland and Oakwood used local taxpayer dollars to fund their participation in CPOC.

Using public funds to support CPOC’s efforts:

  • Abuses “Home Rule” authority, which only lends municipalities authority to exercise powers of local self-government
  • Abuses “Police Power” authority by supplying public funds to that are biased, unreasonable, and arbitrary
  • Violates competitive bidding requirements due to no-bid contracts; and
  • Violates the First Amendment rights of citizens by forcing taxpayers to speak in a manner with which they disagree

In letters sent to Loveland and Oakwood, 1851 Center Executive Director Maurice Thompson highlights the lack of regard for taxpayers in the cities’ actions:

“You have dedicated revenue derived from all of your residents towards taking a side in a hot-button political debate on which the two sides fervently disagree. Indeed, many of your own taxpayers, whose dollars you use to fund CPOC, have worked tirelessly to ensure the introduction of House Bill 3 into the Ohio General Assembly, and other Ohio cities and townships oppose your efforts.”

The 1851 Center requested that the cities of Loveland and Oakwood recover any public funds that have been directed to CPOC, abstain from transmitting further public funds to the group, and withdraw from the council entirely. Otherwise, the Center will bring legal action against each municipality on behalf of local taxpayers.

August, 2009 – Ballot Language Drafted

The 1851 Center drafted ballot language that was adopted by Citizens United to Eliminate Ohio’s Estate Tax for an Initiated Statute effort. If successful, the measure will eliminate the Ohio Estate Tax as of 2012. The Ohio Attorney General has approved the language and the group is now collecting the needed signatures to place the issue before the general assembly.

April 4, 20111851 Center’s Letter to City of Loveland

April 4, 20111851 Center’s Letter to City of Oakwood 

April 5, 2011 – Dayton Daily News: Estate Tax Lobbying Called Illegal; Cities Disagree

700 WLW: Doc Thompson

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www.endohioestatetax.com

Case Suggestions

If you have a case suggestion or if you believe your constitutional rights have been violated by the government please contact mthompson@buckeyeinstitute.org.

LetOhioVote.org v. Brunner

August 3, 2009: 1851 Center Files Amicus In Supreme Court Slots Case

The 1851 Center for Constitutional Law filed an amicus brief in LetOhioVote.org v. Brunner with the Ohio Supreme Court. This filing supports a public vote on video slot machines at Ohio horse race tracks. The 1851 Center filed on behalf of Ohio Citizen Action, Citizens in Charge and the Ohio Freedom Alliance. The amicus brief urges the court to find language in the state budget excluding the authorization of video slot machines from referendum unconstitutional.

“The referendum process outlined in the Ohio Constitution is sacrosanct and must be tread upon lightly,” said Maurice Thompson, director of the 1851 Center for Constitutional Law. “Ironically, in seeking to arbitrarily and unconstitutionally deprive the people of Ohio of their right to Referendum, the General Assembly accentuates the very reason why Initiative and Referendum are so vital to Ohio’s governance.”

The brief references that the right to referendum was added by amendment to the Ohio Constitution in 1912 to serve as a check on the General Assembly by permitting laws, or parts of laws passed in that body to be submitted to voters for their approval or rejection. In addition the brief shows that the Ohio Supreme Court has, on multiple occasions, upheld the right to a referendum as a staple of democracy in Ohio and should do so again on this issue.

September 21, 2009:Victory for 1851 Center and Let Ohio Vote

The Supreme Court of Ohio sided with LetOhioVote.org, 6-1, and LetOhioVote.org is currently gathering signatures. The Court’s decision can be viewed here.

 

July 31, 2009: 1851 Center’s Amicus Brief

COAST v. City of Cincinnati

In May 2009, the 1851 Center for Constitutional Law filed, in Federal Court, a motion to restrain the City of Cincinnati and its agents from harassing citizens who are demanding that the City put its $200 million trolley project to a vote. The Motion argues the City consistently threatens petitioners who gather signatures for causes with which the City disagrees, and that the Court must immediately stop this interference.

Over the last month, the City of Cincinnati, through various police officer and other government agents, has escalated its interference with trolley project petitioners, ordering them to stop collecting signatures on Fountain Square, Findlay Market, and on public sidewalks, and in several cases, threatening to arrest petitioners for “circulating petitions without a license.” The Motion notes that no license or prior approval is needed to gather signatures on public property.

“The political class of Cincinnati clearly feels threatened by the idea that the citizens, and not they, would get to have the final word on whether to implement this abysmally expensive pork project.” Maurice Thompson, Director of the 1851 Center for Constitutional Law said.

The Center, who is partnering with the Coalition Opposed to Additional Spending and Taxes on this case, expects that the U.S. District Court will immediately grant a Temporary Restraining Order prohibiting the City and its agents from interfering with petitioner’s collection of signatures.

In Ohio and nationwide, Courts recognize the ballot initiative as the zenith of political speech, accorded the utmost protection under the First Amendment. Given our state Constitution’s acknowledgment that ‘all political power is inherent in the people,’ that the City would interfere with this clearly-recognized right in such a haphazard manner is dumbfounding.

The City’s interference and harassment coincides with COAST petitioners reaching the halfway point on their way to the the 6,150 valid signatures that need to be submitted by September 4 to place the issue on the ballot.

The city responded to the complaint by entering into a settlement agreement requiring them to allow petitioners to gather signatures.

May 2009: 1851 Center’s Complaint and Motion for Restraining Order

Ohio Grocer’s Association v. Wilkins

In May 2009, the 1851 Center filed an amicus brief in Ohio Grocers Association v. Wilkins. The brief argues that Ohio’s Commercial Activities Tax is an unconstitutional excise tax on food. It  is levied on Ohio grocers based on the amount of food they sell and grocers then pass the cost of the tax on to Ohioans when they purchase food.  The 1851 Center was recruited by the principal attorneys for the Ohio Grocers Association and worked in tandem with the Tax Foundation to explain the economics of the tax to the Supreme Court of Ohio.  Unfortunately the Supreme Court of Ohio recently overturned the Court of Appeals and ruled against the Ohio Grocers.

 

May 26, 2009: Ohio Grocers Amicus Brief

Toledo Planning Commission and Private Schools

In December 2008, the 1851 Center issued a legal notice to the Toledo City Council and the Toledo Planning Commission advising that, if the City passed an ordinance applying “Minimum School Facilities Requirements” to private schools, the 1851 Center would pursue litigation. The requirements would have unconstitutionally restricted the growth, facilities, and curricula of existing Toledo private and charter schools. As a result, the City Council and the Planning Commission dropped efforts to pass the ordinance.

Toledo Charter Schools- Letter to Plan Commission