Debate Forum Right, 10/25/11

Ohio Attorney General blows smoke, but you can’t

by Mark Luedtke

Mark Luedtke

Most Americans are under the misconception that elections mean something to them. Most think if you vote out one party and replace it with the other, the government will go in a new direction. It never happens. No matter which party voters empower, government always continues in the same direction: bigger, more powerful and more oppressive.

Case in point: Ohio’s smoking ban. The smoking ban took a big chunk out of the property rights of Ohioans starting in 2007. It took an even bigger chunk of change out of the wallets of bar owners. You might think that since voters overwhelmingly threw the Democrats out in 2010, Republicans, who claim to support freedom, property rights, puppies and other catchy buzzwords they use to fool voters, would put an end to this infringement on freedom and property rights. Not when there are votes to be bought.

Last week the Ohio Supreme Court heard the case of Zeno’s, a Columbus tavern that had originally been sued by the Democrat Attorney General for failing to pay its fines under the smoking ban. Republican Attorney General Mike DeWine is continuing that suit.

Zeno’s makes two major arguments in its counter-suit. First, the law is unconstitutional on its face. Zeno’s points to the Ohio Constitution and case law and claims the government can only interfere with property rights if there is an “essential public need.” Clearly, since customers voluntarily enter a bar and either smoke or inhale secondhand smoke, there is no essential public need to ban smoking in bars. In a sane society, this ban would never have happened. Unfortunately, we don’t live in a sane society. Our rulers claim they must use the threat of violence backed by violence to ban smoking to save people from secondhand smoke. The fact that customers are voluntarily inhaling the secondhand smoke seems lost on them.

Zeno’s second argument is more complex. They claim that the Ohio Department of Health (ODH) is not enforcing the law as written and therefore has violated the separation of powers doctrine in the Ohio Constitution. One subsection of the smoking ban law states, “[n]o person shall refuse to immediately discontinue smoking in a public place, place of employment, or establishment * * * declared nonsmoking *** when requested to do so by the proprietor or any employee of an employer of the *** place***.” In other words, the liability for smoking falls on the smoker, not the bar owner, if a customer chooses to smoke after being informed it’s illegal by the bar owner. To comply with the law, Zeno’s removed all ash trays, put up no smoking signs and informs its customers who smoke that they are breaking the law and they are liable for any fines.

But the ODH refuses to enforce that provision of the law. It holds bar owners liable instead of smoking customers. Zeno’s reports that ODH has never ticketed a smoker. It only tickets bar owners. It fined Zeno’s over $30,000. Zeno’s claims by failing to obey the law, ODH has effectively rewritten the law, which violates the separation of powers provision because only the legislative branch has the power to write laws. The Ohio Attorney General claims that Zeno’s employees provide cups to customers to use as ash trays so Zeno’s is winking at the law instead of enforcing it. But enforcing the law is not the job of bar owners. That’s the job of the ODH.

One thing I realized while researching this article is that this smoking ban is not only about prohibiting smoking. It’s also about alcohol prohibition. The prohibitionists couldn’t go after alcohol directly; it’s too popular, so they used smoking as a tool to punish bar owners. It worked. Zeno’s claims that bar employment in Franklin County alone decreased by 869 employees after the first two years of the ban.

You might think this case is open and shut: the ban should be overturned because the government obviously overstepped its bounds. I doubt it. Laws are always written so bureaucrats, attorneys general, prosecutors and judges can expand the power of government. For example, the Ohio constitution states, “Private property shall ever be held inviolate, but subservient to the public welfare.” That’s a non sequitur. Private property can’t be both inviolate and subservient to the public welfare. That’s how politicians pretend to support property rights while in fact rendering them meaningless. That’s how politicians pretend we are ruled by laws, when in fact we are ruled by the self-serving decisions of our rulers.

This case will be decided by what’s in the best personal, economic interest of the justices. Since this smoking ban was created by voters in a referendum, it’s likely in the justices’ best interest to uphold the ban. That will buy them the most votes.

This illustrates the folly of our system of government. We’ve allowed a handful of voters, a tiny minority of Ohioans, to use the violence of government to force their prohibitionist values on every other person in Ohio. Nobody, not even an overwhelming majority, should be allowed to use violence to force their will on others except when defending themselves or others from aggression.




Mark Luedtke is an electrical engineer with a degree from the University of Cincinnati and currently works for a Dayton attorney. He can be reached at

Reach DCP freelance writer Mark Luedtke at

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