Legal Issue

Whether the Ohio Department of Health’s enforcement of Ohio’s Smoke Free Workplace Act violates separation of power principles, impedes property rights, and is a proper use of police powers, and whether the Court of Appeals was correct in ruling that it was improper for the appellants to use a declaratory judgment action in their counter-claims to collaterally attack the ten final orders finding violations.

Overview

On November 7, 2006, voters approved a ballot initiative to implement Ohio's Smoke Free Workplace Act, codified as R.C. Chapter 3794, which prohibits smoking in workplaces and other indoor places frequented by the public, with very few exceptions.  The law, which took effect December 7, 2006, handed enforcement authority to the state Department of Health, which, in turn, largely delegated that authority to county boards of health. On ten different occasions between 2007 and 2009, a Victorian Village bar named Zeno’s received citations for violating the law, and was fined $33,000. In 2010, a Franklin County Common Pleas Court judge found that a state inspector went too far when it cited Zeno's multiple times for allowing smoking without citing the bar’s smoking patrons who were also breaking the law.

On November 16, 2010, the Columbus-based 10th District Court of Appeals overturned this ruling, noting the lower court judge did not strike down any of the law as unconstitutional and pointing out that  Zeno's had the ability to challenge each citation via an administrative hearing but failed to do so. Zeno’s appealed on the ground that the Ohio Department of Health’s enforcement of the law was unconstitutional. On April 6, 2011, the Ohio Supreme Court agreed to hear the case.

On August 16, 2011, the Tobacco Control Legal Consortium joined fourteen other major public health and advocacy organizations, in submitting an amicus curiae brief in support of the Ohio Department of Health’s enforcement of Ohio’s Smoke Free Workplace Act.  Our brief argues that the Department’s enforcement of the Ohio smoke-free law is constitutional and a proper use of police power; that the Department of Health is uniquely situated to adopt regulations to protect its citizens from the devastating impact of secondhand smoke; and that the appellate court was correct in holding that the bar could not collaterally attack the ten final orders.  Joining the Consortium on this brief were the American Medical Association; the American Cancer Society Cancer Action Network; the American Heart Association, Great Rivers Affiliate; the American Lung Association of the Midland States; Americans for Nonsmokers’ Rights; the Campaign for Tobacco-free Kids; the Association of Ohio Health Commissioners, Inc.; and several other organizations.

Outcome

On May 23, 2012, the Ohio Supreme Court unanimously upheld Ohio’s Smoke-free Workplace Law, finding that the Act is a valid exercise of the state’s police power by Ohio voters and does not amount to a regulatory taking. The Ohio Supreme Court subsequently denied Zeno’s motion for reconsideration on July 25, 2012.