Ohio Supreme Court settles bar fight over smoking ban

That relatively small minority of taverns and restaurants that gambled that Ohio’s five-year-old ban on smoking in public places was unconstitutional have lost their bet. And now they’re going to have to pay up — about 200 of them in excess of $5,000, and one Columbus bar in excess of $40,000.

To some, that may sound excessive, but it turns out to be the price of continued open defiance of a valid state law. It is somewhat akin to what happens when a motorist is caught speeding. If the motorist pays his or her fine and lightens up on the gas pedal in the future, the fine is painful but not crippling. If the motorist continues to speed, amasses multiple citations and acts as if he or she is above the law, the costs mount.

Recently the Ohio Supreme Court spoke, clearly and unanimously, in the case of a Columbus bar, Zeno’s, which attacked Ohio’s Smoke Free Act on several levels. The bar had limited success in challenging the statute at the Franklin County Common Pleas level, but lost in the Court of Appeals and Supreme Court. And, frankly, that is as it should be.

The Smoke Free Act represented not only the intent of the Legislature, but the wishes of the voters of Ohio, who went to the polls in 2006 and approved a referendum prohibiting the smoking of cigars and cigarettes in almost all enclosed public spaces and places of business. The Legislature was thus required to pass enabling legislation that was true to the intent of the vote of the people, which it did.

Broad statewide support

This was not a one-man campaign to limit salt or trans fats or the size of sugary sodas a la New York City. It was the people of Ohio recognizing, as the statute states, that “medical studies have conclusively shown that exposure to secondhand smoke from tobacco causes illness and disease, including lung cancer, heart disease, and respiratory illness. Therefore, the statute continues, “it is in the best interests of public health that smoking of tobacco products be prohibited in public places and places of employment.”

The law was to be liberally construed to prohibit smoking, which should have been a strong hint to those inclined to flaunt it that they would some day come to regret their recalcitrance. And so it now is.

The supreme court’s upholding of the law and of the procedures in place to enforce the law means that establishment inclined to permit smoking by employees or patrons is going to pay. The court’s ruling also clears the way for state officials to begin collecting about $2.5‚âmillion in outstanding fines, including more than $40,000 from the standard bearer of scofflaws, Zeno’s.

There was an interesting note in the court’s 27-page decision during which Justice Judith Ann Lanzinger was debunking a claim that the law represented an unlawful taking from the bar’s owners by restricting commerce. The bar claimed that its gross sales declined in 2009, but the Smoke Free Act became effective in December 2006, and in 2007 and 2008 the bar’s gross sales actually increased.

Obviously a smoking ban and running a successful business are not mutually exclusive. Five years after the ban went into effect, any bar of restaurant that hasn’t been able to turn a smoke-free environment into a marketing plus isn’t trying.