High Court Reviewing Smoking Ban Constitutionality

On April 6, 2011, The Supreme Court of Ohio agreed to become the first state supreme court in the nation to determine whether a statewide smoking ban violates bar owners’ property rights. The Court also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban.

The case is brought by the 1851 Center for Constitutional Law on behalf of Zeno’s Victorian Village, a family-owned Columbus tavern. The Center argues the smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argues that the state health officials’ methods while enforcing the ban exceed their unconstitutional authority and is at odds with the plain language of the ban. The legal center’s Motion for Jurisdiction 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: local taverns are not public property, 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.”

The 1851 Center believes this will be Ohio’s most important decision on property rights since the Ohio Supreme Court decided Norwood v. Horney in 2006, prohibiting takings of private property for economic development. “In Norwood, the Court called Ohioans’ property rights, including the right to use property, ‘fundamental’ and ‘sacrosanct,'” said Thompson. “This case will determine whether the Court really meant that.”

After a politically-charged filing against Zeno’s by then-Attorney General Richard Cordray, a Franklin County Common Pleas court 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,” Judge David E. Cain wrote in his February 2010 decision.

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

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, and asking the Court to review the case.