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Victory: Ohio Cities’ “Pre-Sale” Home Inspections and Fees Unconstitutional

City of Oakwood violated homeowners Fourth Amendment rights through sweeping city-wide  home inspection requirements and must now return in section fees to all affected homeowners

February 9, 2018: Dayton, OH – A federal court late yesterday declared unconstitutional the City of Oakwood’s pre-sale inspections mandates – – mandates requiring homeowners to obtain and pass thorough government inspection before being permitted to sell their homes.  The court also certified a class of all homeowners who were subject to the mandates and paid a $60 inspection fee at anytime over the past six years

The 40 page ruling, by Judge Thomas M. Rose of the Southern District of Ohio, firmly rejects the lawfulness of pre-sale inspections, sometimes also referred to as “point of sale” mandates, and paves the way for the return of inspections fees to all affected homeowners, rather than just those who filed the lawsuit

Specifically, the Court’s decision ruled and explained as follows:

  • “Oakwood’s ordinance violated Plaintiffs’ Fourth Amendment rights by subjecting them to a warrantless search without valid consent.”
  • “The Court agrees that an Oakwood property owner could not have provided voluntary consent under the prior ordinance because failure to do so could result in denial of a certificate of occupancy and a criminal penalty . . . A person cannot provide such uncontaminated consent when refusal to do so empowers the municipal authority to deny him the right to sell his property.”
  • “Plaintiffs have established Oakwood’s liability on their claim for unjust enrichment and restitution here. Plaintiffs paid the $60 fee to Oakwood for the inspection of their property. It would be inequitable to allow Oakwood to retain that money when it was collected pursuant to an unconstitutionally coercive ordinance.”

Judge Rose’s decision certifies classes of all individuals or businesses that have been subject to the inspections and paid inspection fees to the City in conjunction with the inspections.

“Local governments do not have unlimited authority to force entry into Ohioans’ homes.  To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have every moral and constitutional entitlement to exclude others, even government bureaucrats, from their property,” said Maurice Thompson, Executive Director of the 1851 Center.  “The right to own property in Ohio has little value if local governments are permitted to stop the sale of one’s home to a willing buyer.”

“Class action litigation is an excellent method for average citizens to even the playing field when fighting back against their corrupt and otherwise indifferent local governments.  This ruling confirms that Ohio cities must be held just as responsible to their citizens and big corporations are to their customers,” added Thompson.

Such municipal ordinances, in addition to restricting Ohioans’ property rights, subject homeowners to open-ended warrantless searches of every interior and exterior space of a home, violating the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

Accordingly, in May of 2016, the 1851 Center for Constitutional Law moved to immediately enjoin Ohio cities, and the Cities of Bedford and Oakwood in particular, from enforcing “point of sale” and “pre-sale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they can sell their homes to even the most informed and willing buyers.

In each case, the Cities had threatened to criminally prosecute and even imprison homeowners if sold their homes without first submitting to and passing city inspections.

The legal action against Oakwood was filed on behalf of area real estate investor Jason Thompson, who was told by the City that he would face jail time for transferring a home he owns into a Limited Liability Company he created without first having paid for, obtained, and passed a pre-sale inspection.

This lawsuit is brought in partnership with the Finney Law Firm in Cincinnati.

Read the Court’s Order HERE

Listen to Maurice Thompson discuss the 4th Amendment:

​Watch our video discussing this case:

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Forbidding More Than Three People from Living Together Violates Ohio Constitution 

Ohio cities violate property rights by prohibiting more than three unrelated people from living in the same home

February 5, 2018: Bowling Green, OH – The 1851 Center for Constitutional Law today moved to strike a municipal ordinance that criminalizes greater than three unrelated individuals living in the same home regardless of the size of the home.

The action is filed against the City of Bowling Green on behalf of 23 Bowling Green landlords and three student tenants threatened with eviction.  The landlords own over 161 homes that, despite four or more bedrooms and ample parking, may not be occupied by greater than three unrelated people.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s ordinance, which imposes a $500 per day fine, is violates the Ohio Constitution through suppressing private property rights and equal protection and imposing vague standards and excessive fines:

  • As in other states that have invalidated such occupancy limits, the Ohio Constitution is more protective of private property rights and equal protection than the federal constitution.
  • While the regulation professes to limit population density, many homes in the City are exempt from the rule, while there are no similar occupancy limits on related individuals.
  • The regulation is unconstitutionally vague, insofar as the City maintains no list of which properties are exempt, and regulates houses based upon whether or not they were “designed for single family use.”
  • Fine of $162,500 per year for permitting four individuals to live in a four-bedroom home is patently excessive.

“In Ohio, many zoning regulations needlessly interfere with private property rights, drive up the cost of living, fail to accomplish their proclaimed purposes, and are used as political weapons – – often to benefit special interests or suppress disfavored minorities.  This regulation is no different,” explained 1851 Center Executive Director Maurice Thompson.  “However, there is no coherent reason why four missionaries should be prohibited from occupying a large six bedroom house, even as an unruly family of eight lives in a smaller home next door.”

The 1851 Center draws a distinction between zoning regulations that prohibit homeowners from using their property to directly inflict harm on others and regulations simply aimed at social engineering.

“This regulation is aimed at government-controlled social engineering, i.e. keeping ‘the wrong kind of people’ out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together,” added Thompson.  “Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations.”

The case is pending before Judge Zouhary in the Western Division of the Northern District of Ohio.  The Judge has issued a temporary standstill order.

Read the 1851 Center’s Complaint HERE.

Read the 1851 Center’s Motion for Preliminary Injunction HERE.

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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 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.

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Sixth Circuit: State Cannot Inspect Ohioans’ Business Records without Warrant

Fourth Amendment prohibits state’s mandate making all business records “available at all times” to state agents

January 22, 2018: Columbus, OH – A federal circuit court late yesterday ruled that Ohio’s policies demanding private business records – – without a warrant or any evidence of wrongdoing – – violate the Fourth Amendment’s protection from unreasonable searches and seizures.

The ruling, made by a unanimous panel of the Sixth Circuit and authored by Judge David McKeague, addresses regulations governing those purchasing gold, silver, and other precious metals under the Precious Metals Dealers Act (“PMDA”).

However, its impact is likely to far exceed just the PMDA. Many Ohio businesses, particularly those requiring government licensing, face materially identical mandates. Accordingly, the ruling paves the way for Ohio businesses, even if heavily licensed and regulated, to protect their privacy and property, especially when such demands are made on-the-spot and without a warrant.

In a 23 page decision, the three-judge panel struck down a statute declaring “all books, forms, and records, and all other sources of information with regard to the business shall at all times be available for inspection,” and another demanding “free access to the books and papers and other sources of information with regard to the business.”

The Court explained as follows:

  • “Business owners cannot be forced to choose between being arrested on the spot and standing on their Fourth Amendment rights.”
  • “[The challenged statutes] are both unnecessary to furthering Ohio’s state interest and too broad in scope to withstand facial Fourth
  • Amendment scrutiny . . . both statutes effectively allow searches of dealers’ entire businesses . . . They therefore do not provide any standards to guide inspectors in the exercise of their authority to search.”
  • “The provisions’ seemingly unlimited scope, along with the grant of free access to such information at all times, does not sufficiently constrain the discretion of the inspectors.”

“This ruling essentially affirms that while government may request some basic record-keeping, reporting, and inspection of inventory purchased from the public that has been reported stolen, state officials cannot walk into a business without a warrant or evidence of wrong-doing and demand to review our papers, cell phones, laptops, or other business records,” said Maurice Thompson, Executive Director of the 1851 Center. “No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through these records.”

Thompson added “this precedent will guard warrantless searches of business records in all industries, since the Court of Appeals decision acknowledged that even ‘closely regulated’ industries are entitled to greater protection. Ohioans should feel free to decline invasive and costly government searches without fear of retaliation.”

The 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, and paper records simply “upon demand” of state enforcement agents.

Read the Court’s Order HERE.

Listen to the Oral Argument HERE.

Read the Brief HERE.

Watch our video describing the impact of this case:

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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 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

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Ohio Cities’ Pre-Sale Home Inspections Unconstitutional

Legal Center moves to protect Ohioans’ property rights from unlawful searches and fees statewide

Columbus, OH – The 1851 Center for Constitutional Law moved in federal court to immediately enjoin Ohio cities, and the Cities of Bedford and Oakwood in particular, from enforcing “point of sale” and “presale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they can sell their homes to even the most informed and willing buyers.

Such municipal ordinances, in addition to restricting Ohioans’ property rights, subject homeowners to open-ended warrantless searches of every interior and exterior space of a home, violating the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

The legal action against Bedford is filed on behalf of area landlord Ken Pund, who is forbidden from selling to his daughter a home that he owns and she already resides in, and John Diezic, who was prohibited from selling his Bedford home due to minor cracks in the asphalt of his driveway. In Oakwood, Plaintiff Jason Thompson was forced to pay for and undergo an inspection simply after making an alteration to the title of his property.

In each case, the City threatened to criminally prosecute and even imprison these homeowners if they sold their homes without first submitting to and passing city inspections.

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of houses, absent consent or an emergency. Nevertheless, Ohio cities have vigorously sought to collect inspection fees and impose fines, and the point of sale inspection requirements are the lynchpin to this revenue stream – – homeowners, irrespective of whether they want or need the inspection, pay a $100 fee to fund the inspections, and then additional fees for “follow-up” inspections.

The lawsuit seeks to restore both Ohio homeowners’ and small business owners’ freedom from warrantless searches without probable cause. In doing so, the 1851 Center’s Complaint explains the following:

  • Government inspection of homes, even when for sale, requires a warrant, and these expansive warrantless searches, as “unreasonable searches” of “houses,” violate Ohioans’ Fourth Amendment rights.
  • The Warrant Requirement is a significant protection for property owners, because a warrant can only be issued in light of serious and credible complaints about the property.
  • Fees that are charged to fund these unconstitutional inspections are also unconstitutional; cities cannot require their payment, and must return past payments.
  • In a prior 1851 Center victory, Baker v. Portsmouth, federal courts declared warrantless inspections of rental homes unconstitutional. The Fourth Amendment’s protections should extend to inspections triggered by the marketing or sale of a home, just as they apply to inspections triggered by renting a home.

“Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicionless inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“The right to own property in Ohio has little value if local governments can continuously chip away at one’s right to actually make use of that property, requiring government permission slips for basic arrangements such as the sale of one’s home to a willing buyer.”

In Bedford, the City maintains the power to block sales on account of “architectural style and detail,” “color,” and lack of “orderly appearance.” In Oakwood, the City concedes “the inspection will seldom, if ever, reveal latent defects or violations of the Property Maintenance Code which are not readily apparent. Neither should owners nor prospective owners or occupants rely entirely upon our inspection regarding the house or accessory structures or fixtures.”

Read the Property Owners’ Complaint HERE

Read the Property Owners’ Motion for Preliminary Injunction HERE

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This lawsuit is brought in partnership with the Ohio Real Estate Investors Association (“OREIA”), the Finney Law Firm in Cincinnati, and the law firm of Berns, Ockner & Greenberger in Cleveland.

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Cincinnati Public Schools v. Conners

Cincinnati Public Schools has a policy of prohibiting the use of vacant public school buildings by charter schools and private schools.

Historical Overview

Theodore Roosevelt School, in Cincinnati, had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency status and 80 percent of families are minorities and live in poverty. The school opened in August, 2010, serving 210 students and employing 45 staff members.

CPS sued Dr. Conners, the operator of Theodore Roosevelt, attempting to enforce a deed restriction and shut down the school. The 1851 Center asserted such a restriction is void by Ohio’s public policy in favor of school choice and cheats taxpayers of sales revenue from the buildings.

Both the Hamilton County Court of Common Pleas and Appellate Court ruled in favor of Dr. Conners, affirming the following: CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools; statewide public policy favors effectuating parental choice and educational opportunity through community schools; and Theodore Roosevelt is entitled to retain possession of the school and continue its operation.

“Our expectation is that the Supreme Court will decide to uphold a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson. “Deed restrictions like the one struck down in this case were devised simply to stop new charter schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than to amass revenue.”

Partners in Action

Joining the 1851 Center in defending school choice, as amicus parties, are the Ohio Alliance for Public Charter Schools, the Black Alliance for Educational Opportunities, School Choice Ohio, the Ohio Coalition for Quality Education, and the National Alliance for Public Charter Schools. Joining Cincinnati Public Schools is the controversial government-funded lobbying organization The Ohio School Boards Association.

Timeline

February 7, 2011: Ohio Supreme Court hears Oral Arguments in Conners

The Ohio Supreme Court heard oral arguments in Cincinnati Public Schools v. Conners at 9:30a.m. on February 7, 2011. 

September 24, 2011: Ohio Supreme Court Will Review CPS v. Conners

The Ohio Supreme Court has granted certorari and will review this case. This will likely be the final resolution of the case.

March 11, 2011: Court of Appeals: CPS Deed Restrictions Against Charter and Private Schools Illegal 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, today ruled the Court of Appeals for the First District Court of Appeals, Hamilton County.  This decision further rebuffs CPS efforts to shut down Theodore Roosevelt Community School and others, and is a victory for charter and private school operators throughout the state.

CPS appealed after a victory by the 1851 Center for Constitutional Law on behalf of Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down.  The Court of Appeals decision, authored by Judge Sundermann, states: “We conclude that the trial court properly determined that the facilitation of community schools having access to classroom space was clear Ohio public policy. And the deed restriction that sought to prevent the use of the property for educational purposes was void as against this clear policy.”

The Court further stated:  “[w]e are not persuaded by CPS’s argument that the property was not ‘suitable’ for classroom use.  This argument is belied by the deed restriction itself, which allows the possibility that the restriction would not apply should CPS itself decide to use the property for school purposes in the future.”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools, including heeding charter schools’ right of first refusal to purchase all property “suitable for use as classroom space,” in order to be eligible for OSFC funding.  The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, pending before Judge Ruehlman in Hamilton County.

The court’s ruling affirms:

  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools;
  • Although the deed restriction is void, Theodore Roosevelt is entitled to retain possession of the school, and continue its operation; and
  • CPS school buildings with such prohibitive deed restrictions are suitable for use as classroom space.

October 14, 2010: Cincinnati Public Schools Continues Charter School Vendetta in Appellate Court 

On October 14, the 1851 Center filed its brief in response to Cincinnati Public Schools’ appeal of a trial court ruling invalidating its efforts to eliminate school choice options in Cincinnati’s poorest communities.

In May, Ohio’s school choice movement won a significant victory when Hamilton County Common Pleas Court Judge Robert P. Ruehlman ruled that Cincinnati Public Schools (CPS) violated state law through its policy of prohibiting the sale of unused available public school buildings to charter and private schools.

The Theodore Roosevelt School opened in August 2010. However, CPS has appealed the case, now before the First Appellate District in Hamilton County. The school building was previously unused, and is located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status and live in poverty.

CPS is attempting to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The school district likens itself to a private hotel or gas station that can prohibit “competitors” from acquiring its old buildings. However, those buildings are taxpayer-owned, and being sold at a considerable loss due to the deed restriction.

The 1851 Center countered that such a restriction is void by Ohio’s public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings. The trial court agreed with the 1851 Center.

“CPS is not a private business or individual: it is a taxpayer supported entity that should not target the state’s program of education, i.e. community schools, as ‘competing,’” the 1851 Center wrote in its filing with the appeals court.

The 1851 Center is joined by the Ohio Alliance for Public Charter Schools (OAPCS), which has filed an amicus brief in the action.

“Securing adequate and affordable facilities remains one of the greatest challenges to Ohio’s charter schools,” OAPCS wrote in its amicus brief. “The Cincinnati Public School District’s attempt here to prevent a public school from operating where a different public school once existed unlawfully exacerbates these facilities challenges and, at the same time, needlessly prevents students from getting a public education at the school of their choice.

July 06, 2010: Cincinnati Public Schools Blocked from Discriminating Against Charter and Private Schools

On July 6, Judge Ruehlman denied CPS’s desperate last-ditch effort to derail Theodore Roosevelt School’s opening by denying CPS’ Motion to Stay. This clears the way for the school to open in August; area families have already enrolled over 200 children. The school will employ approximately 40 people.

A Public Records Request by the 1851 Center reveals that CPS has already paid its hand-picked law firm over $32,000 in Cincinnati taxpayers’ money for the case, at an average rate of approximately $200 per hour, and at times as much as $256 per hour.

This is quite a sum, considering that Dr. Conners only paid $30,000 for the school building and the 1851 Center offered CPS an opportunity to settle beforehand. In addition, the amount also does not include the fees yet to be paid for the pending appeal.

May 28, 2010: Common Pleas Court says Cincinnati Public Schools Violated State Law 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools violates state law, yesterday ruled Hamilton County Common Pleas Court Judge Robert P. Ruehlman. The judge issued the ruling immediately from the bench.

In his ruling, Judge Ruehlman called CPS’s deed restrictions anti-competitive and acknowledged that CPS was merely attempting to suppress competition from charter and other alternative schools, and thwart school choice for the parents and children of Cincinnati.

The ruling halts CPS’s restrictive practice and opens the district to the loss of hundreds of millions of dollars in funding from the Ohio School Facilities Commission (OSFC). Last week, OSFC member State Rep. Kris Jordan moved to stop state facilities funding to CPS because of its purported violations. Jordan, prompted by the 1851 Center’s legal action against CPS, informed the commission the school district forfeited its statutory right to project funding because of repeated violations of state charter schools provisions. The court’s ruling bolsters Jordan’s assertion.

The court’s ruling affirms:

  • A contract term that violates public policy is void;
  • A contract term that hinders the purpose of a statute is void;
  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools; and
  • Although the deed restriction is void, the conveyance must remain valid.

 

June 1, 2010: Cincinnati Enquirer: Judge Sets Charter School Precedent

March 11, 2011: Appellate Court’s ruling

October 14, 2010: OAPCS’s amicus brief

October 14, 2010: Appellate merit brief

March, 2010: Motion for judgment

March, 2010: Response to original complaint

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Drees Company v. Hamilton Township

Ohio Townships do not have the power to levy taxes.  That’s why they call them “fees.” This case argues that “fees” on new homeowners and developers are really taxes and are unconstitutional.

Timeline

February 14, 2011 – 1851 Center Files Amicus Brief at Ohio Supreme Court

On February 14, 2011, the 1851 Center for Constitutional Law filed an amicus brief with the Ohio Supreme Court, on its own behalf and on behalf of the Tax Foundation. The brief argues that Ohio townships, which do not have the power to levy taxes, cannot levy back-door taxes on new homeowners and developers merely by labeling those taxes as “impact fees.”

December 15, 2010 – The Ohio Supreme Court Accepts the Case on Appeal

February 1, 2010 –  1851 Center Files Amicus Brief at Appellate Court

The 1851 Center filed an amicus brief with the Twelfth District Court Appeals, arguing that Ohio townships, which do not have the power to levy taxes, cannot levy back-door taxes on new homeowners and developers merely by labeling those taxes as “impact fees.”

Media

March 3, 2011 – Listen to Maurice Thompson on the Tax Policy Podcast here.

Documents

February 14, 2011: 1851 Center’s Amicus Brief (Ohio Supreme Court)

February 1, 2010: 1851 Center’s Amicus Brief (Appellate Court)

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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