Jackson v. Bartec

This case is brought 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 constitutional authority and is at odds with the plain language of the ban.

“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.”

Historical Overview

In September, 2009, the 1851 Center offered to defend Zeno’s pro bono, challenging the constitutionality and enforcement of the Ohio smoking ban, after the Attorney General’s office filed a lawsuit to make an example of Zeno’s. The Center sought an injunction to prevent the Ohio Attorney General from seizing Zeno’s tavern and its assets to collect on faulty smoking ban citations. The suit was part of the 1851 Center’s ongoing defense of tavern owners unfairly victimized by the state’s smoking ban.

The legal center argued Ohio’s smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argued that the state health officials’ methods while enforcing the ban exceeded their constitutional authority and is at odds with the plain language of the ban.

A Franklin County Common Pleas court agreed and 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,” wrote Judge David E. Cain in his February 2010 decision.

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

“The Health Department and its designees have and continue to exceed their limited executive branch authority when they employ a policy of strict liability for the presence of smoking against Ohio’s business and property owners,” wrote Thompson in the Ohio Supreme Court filing.

Oral Arguments were made before the Ohio Supreme Court in October, 2011; we are currently awaiting the court’s decision.

Partners in Action

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.

Case Timeline

October 19, 2011 – Oral Arguments before the Ohio Supreme Court

March 6, 2011 – High Court Agrees to Review Smoking Ban Constitutionality

The Supreme Court of Ohio has 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 has also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban.

January 4, 2011 – Legal Center Asks High Court to Accept Smoking Ban Challenge

The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio’s state smoking ban, and its enforcement. The legal center argues that state health officials’ misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here.

February 5, 2010 – State Smoking Ban Enforcement Declared Unlawful

Ohio Department of Health officials and the Attorney General have substantially overstepped their authority in enforcing the state’s smoking ban law, a Franklin County Common Pleas Court ruled. In a cased won by the 1851 Center for Constitutional Law, a non-profit constitutional rights advocacy firm, Judge David E. Cain vacated all fines against Columbus bar Zeno’s. The decision renders the state’s current enforcement of the Ohio Smoke Free Workplace Act invalid and will require government officials to readdress its tactics.

Specifically, the court determined current enforcement of the state smoking ban unduly punishes innocent business owners. In explaining the decision, Judge Cain wrote, “when an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual.”

“Law-abiding business owners have a right to operate their establishments free from the tyranny of government officials who overstep their authority and trample personal property rights, all while in pursuit of the extraction of fees,” said 1851 Center Director Maurice Thompson. “This decision should give pause to officials who cavalierly issue $5,000 fines without regard for the negative economic impact their actions impose on law-abiding small business owners.”

WTVN 610 Bob Conners WTVN 610 Bob Conners

October 14, 2011 – Toledo Blade: Budget cut may yield weakened smoke ban

October 14, 2011 – Washington Examiner: Ohio High Court to Hear Smoking Ban Case

April 7, 2011 – Columbus Dispatch: High Court to Weigh Smoking Ban Fines

April 7, 2011 – Dayton Daily News: Smoking ban challenge to be taken up by Ohio Supreme Court

April 7, 2011 – Toledo Blade: Ohio Supreme Court to weigh ban on smoking

April 6, 2011 – Fox19: Ohio Supreme Court to review smoking ban constitutionality

April 6, 2011 – Bloomberg Businessweek: Ohio High Court to Hear Challenge to Smoking Ban

January 4, 2011 – Columbus Business First: Smoking ban detractor wants Ohio Supreme Court to weigh in

Sept 6, 2011 – 1851 Center’s reply brief

June 27, 2011 – Merit Brief filed in Ohio Supreme Court

February 22, 2010 – Trial court decision