, , ,

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