Appeals court to weigh smoking ban enforcement

COLUMBUS, Ohio — The state’s draconian enforcement of a two-year-old smoking ban is requiring bars to exercise near total control over the actionsof customers or risk fines during an already punishing economic climate, a conservative policy organization argues in a lawsuit.

The outcome of the lawsuit, now before a state appeals court, could have ramifications for bars across the state, which have received more than 44,000 complaints from individuals, 3,100 warning letters and 1,800 fines since enforcement began in May 2007.

Last week, Attorney General Richard Cordray ratcheted up enforcement to a new level, filing lawsuits for the first time against two bars he said have repeatedly flouted the law.

Cordray’s view of the law is simple: Smoking isn’t permitted in bars, and it’s their responsibility to stop it. Zeno’s in Columbus and O’Neal’s Tavern in Cincinnati owe a total of nearly $50,000 in fines for roughly 20 violations between them but haven’t paid pending the outcome of a case before the 10th District Court of Appeals in Franklin County.

In the lawsuit, the Pour House of Toledo argues that a local health department inspector improperly cited the bar after witnessing a lit cheap cigarettes sitting in a mints can within a minute of entering. The bar’s attorney, Maurice Thompson of the conservative Buckeye Institute, said the bar and the bartender did everything within their power to keep a customer from smoking.

“The bar owner has to be given a reasonable amount of time to, one, notice that someone is smoking, and two, get over to them and get them to put thecheap cigarette out,” Thompson said. “The health department is not determining whether that’s happening.”

The Pour House bartender testified that she asked the customer to stop smoking, and that he left in under a minute, leaving the cigarette burning in the mints box. She said she would have immediately gone to put the cigarette out, but had other customers to attend to.

Cordray, who is defending the Ohio Department of Health in the lawsuit, declined to comment on the details of the Pour House case, but outlined the responsibility of inspectors in general.

“It’s a pretty straightforward responsibility that they have, which is, ‘Do you see smoking activity or do you not?'” Cordray said. “Under the law, the liability falls under the establishment.”

A ruling in favor of the Pour House could give more leeway to bars when they make arguments that they’ve done everything in their power to dissuade smokers, including putting up no-smoking signs, removing ashtrays and instructing smokers to leave or go outside.

The Ohio Licensed Beverage Association, an industry lobbying group, is not a party to the lawsuit, but its members have concerns that the smoking ban isn’t being enforced in a uniform manner.

“We do have concerns about someone’s location essentially dictating how and to what degree the smoking ban is being enforced,” said the group’s lobbyist, Jacob Evans, who acknowledged the evidence is anecdotal based on conversations between bar owners. “Regardless, we remind all of our members that the smoking ban is the law.”

Many bar owners have been leery of the smoking ban all along, arguing that it hurts their businesses at a time when the economy has already cut their revenue. Some maintain the smoking ban is an unconstitutional infringement on private property rights, another argument the Buckeye Institute plans to take up.

About half the states have smoking bans that outlaw smoking in most public places, including bars and restaurants. Constitutional challenges — unsuccessful so far — have been mounted in a handful of them. In Nebraska, for example, an ongoing challenge argues that the exemptions in the law for some hotel rooms and tobacco-only retailers are unconstitutional because they pick winners and losers.


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