Update: The merit decision in this case was handed down May 23, 2012. Read the analysis of the decision here.
On October 19 the Supreme Court of Ohio will hear oral argument in Jackson v. Bartec, Inc., which challenges the enforcement of Ohio’s smoking ban law, O.R.C. Chapter 3794. At issue in the case are questions about the scope and power of that law, and how it was applied to Zeno’s bar in Columbus.
Background and Procedural History:
The Smoke Free Workplace Act, enacted by popular initiative in 2006, banned smoking in public places in Ohio (with few exceptions) and granted power to the Ohio Department of Health (ODH) to promulgate rules of enforcement under O.R.C. 3794.07. The health department can investigate claims, and then either issue a warning (for first-time offenders) or, when appropriate, issue fines against repeat offenders. The Ohio Administrative Code sets forth various provisions for how parties can contest these findings and fight violations.
In August of 2009, the ODH filed a complaint with the Franklin County Court of Common Pleas, requesting preliminary and permanent injunctions against Bartec ,(which does business as Zeno’s, which we will call the defendant in our post,) which had accrued various fines under the Smoke Free Act, and which had violated the Act ten times.
Zeno’s countered that: (1) portions of the Smoke Free Workplace Act were unconstitutional facially and as applied, (2) the ODH engaged in unlawful rulemaking and policy making, and (3) ODH’s interpretation of the Act violated the statute. Zeno’s sought a permanent injunction preventing ODH from further enforcement of the Act or from issuing any more fines against it. Zeno’s also sought a permanent injunction against the Attorney General to prevent him from collecting the fines against it, arguing that the collection was a taking without just compensation.
The trial court denied ODH’s request for injunctive relief, and vacated the ten existing violations against Zeno’s, finding that ODH had improperly implemented an unwritten strict liability policy against property owners for violations of the Act, exceeding its authority under the statute. Because the trial court vacated the underlying citations, it determined it need not decide the constitutional issues in the case.
Both parties appealed to the Tenth District Court of Appeals. The court of appeals found that Zeno’s failed to raise its as-applied constitutional challenge in the appropriate administrative proceedings, and thus the trial court had erred in vacating Zeno’s ten existing violations of the Act. As for the facial challenge, the appeals court noted that it had previously upheld the facial constitutionality of the Act, so there was no need to remand that issue to the trial court. The appeals court found that the trial court erred in denying ODH a permanent injunction against Zeno’s for repeated intentional violations of the Act. Finally, the appeals court found that Zeno’s was not entitled to declaratory or injunctive relief against ODH, nor against the Attorney General.
Arguments to the Supreme Court of Ohio:
On appeal to the Supreme Court of Ohio, Zeno’s advances three arguments.
First, Zeno’s argues that the smoking ban is unconstitutional on its face, is an unlawful use of Ohio’s police power, and constitutes a “taking” of the indoor air on Zeno’s property. Zeno’s contends that the Supreme Court should use strict scrutiny to evaluate the ban and determine if it is constitutional.
Second, Zeno’s contends that the smoking ban violates the separation of powers because the Ohio Department of Health is exceeding its authority under the statute by promulgating an “unofficial rule” of finding businesses strictly liable for third-party smoking offenses that merely occur on their premises.
Finally, Zeno’s argues that it can use the declaratory judgment act to challenge the constitutionality of a statute or regulation. Zeno’s believes that it should now be able to raise an as-applied constitutional challenges to the ban and to the ten violations it received.
In response, the state argues that the Smoke Free Workplace Act is a proper exercise of the state’s police power because it “bears a real and substantial relation to the public health, safety, morals, or general welfare”—in this case, protecting Ohioans from the dangers of second hand smoke. It is a proper public health and occupational safety law. The state also contends that there is no physical or regulatory taking in this case.
As to Zeno’s enforcement argument, the state argues that Zeno’s should be barred from advancing what is essentially an as-applied constitutional challenge disguised as a facial one by the fact that Zeno’s did not advance this argument during the administrative proceedings. However,Ohio addresses Zeno’s argument on the merits and concludes that there was no improper enforcement in this case, no unwritten rule, and no separation of powers violation. The Act itself specifically states that lack of intent on the part of a proprietor “shall not be a defense” against liability—which is precisely the standard that the ODH used in enforcement. Further, Zeno’s gripe appears to be with the enforcement of unintentional violations, but its own violations were intentional, on repeated occasions.
Finally, while the State agrees that while Zeno’s is correct about the purpose of the Declaratory Judgment Act, that act cannot be used to collaterally attack final administrative orders. Zeno’s should not be allowed to collaterally attack final judgments on its ten violations after failing to raise as-applied constitutional challenges during the administrative review process.
Several liquor trade associations, such as the Ohio Licensed Beverage Association and the Ohio Liquor Permit Holders Association, filed amicus briefs in support of Zeno’s. Some of the arguments they advance include: (1) that this case did constitute a violation of separation of powers because ODH read strict liability into a statute that didn’t have it; (2) that there was an unconstitutional “taking” here and that Zeno’s property rights were infringed upon; and (3) that the ban is unconstitutional on its face.
The amicus briefs in support of Zeno’s also advance some empirical data disputed by ODH, the State of Ohio and others. First, the briefs state that there is no public health reason to ban smoking because consumers who visit bars understand that there will be smoking and drinking, and therefore, there is no need to protect them. Second, the briefs also point to studies that downplay the significance of second-hand smoke in bars, and claim it is not a serious health risk. Finally, the briefs cite economic data about the costs to bars and restaurants that these bans take on them.
A number of groups filed briefs in support of ODH and the State of Ohio. These include the Franklin County Board of Health, the American Cancer Society and American Heart Association, and the Ohio State Medical Association.
In sum, these groups argue that the smoking ban is clear, and that proprietors who tacitly allow smoking to continue on their premises are clearly liable under the Act. They also argue that this is not a case of strict liability, which violates the separation of powers, because each violator is subject to extensive site visits, and there is evidence for each violation that Zeno’s should have appealed at the appropriate stage—there was no strict liability.
Finally, the health organizations in particular focus on the negative impacts of second-hand smoke, both to consumers and to employees of establishments who permit smoking, and they argue it is well within Ohio’s police powers to uphold the smoking ban.
Student Contributors: Sarah Topy and Jason Persinger