Legal Center Asks High Court to Accept Smoking Ban Challenge

1851 Center Files Jurisdictional Motion with Ohio Supreme Court

COLUMBUS – The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio’s state smoking ban, and its enforcement. The legal center argues that state health officials’ misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here.

“Irrespective of what one thinks of the merits of this law, it was never intended to result in the indiscriminate imposition of $5,000 citations on innocent business owners,” said 1851 Center Executive Director Maurice Thompson. “These enforcement complications are largely a function of trying to fit a square peg into a round hole. At local ‘mom and pop’ taverns, alcohol and cigarette consumption have always gone hand-in-hand, and owners of these properties have a right to decide how their indoor air is used, just as potential patrons have a right to freely enter or exit.”

In 2009, after a politically charged filing against Columbus Bar Zeno’s by Attorney General Richard Cordray, the 1851 Center challenged the constitutionality and enforcement of the Ohio smoking ban. The legal center argued the smoking ban unconstitutionally deprived business owners of fundamental property rights. It also argued that the state health officials’ methods while enforcing the ban exceeded their constitutional authority, and is at odds with the plain language of the ban.

A Franklin County Common Pleas court agreed and ruled that state and local health officials had overstepped their authority in enforcing the law. “When an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual,” wrote Judge David E. Cain in his February 2010 decision.

The Ohio attorney general appealed the decision to the Tenth District Court of Appeals, which overturned the lower court and prompted the current appeal to the Ohio Supreme Court.

“The Health Department and its designees have and continue to exceed their limited executive branch authority when they employ a policy of strict liability for the presence of smoking against Ohio’s business and property owners,” wrote Thompson in the Ohio Supreme Court filing.

Also yesterday, the Ohio Licensed Beverage Association, Buckeye Liquor Permit Holders Association, Ohio Liberty Council, COAST, and the Ohio Freedom Alliance filed amicus briefs with the high court supporting the 1851 Center’s position.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.