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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

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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

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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

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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