Debate Forum Topic, 10/25/11

Debate Forum Topic, 10/25/11

Ohio Supreme Court hears arguments on state smoking ban

By Chris Britt

By Chris Britt

Last Wednesday, the Ohio Supreme Court heard arguments in a case that challenges the state’s nearly 5-year-old indoor smoking ban.

Sitting in rural Highland County, the Court heard a case against Zeno’s, a Columbus bar, which owes $33,000 in fines for smoking violations. Having been cited for repeatedly violating the statewide smoking ban, Zeno’s is challenging the law as it applies to bars as an unconstitutional violation of property rights. Attorneys for the bar argued that the statute “essentially releases a police power … that knows no limit.” Zeno’s is challenging the smoking ban, arguing that bar patrons as adults should be able to gather in a private facility and smoke if they so choose. They argue that the ban shouldn’t apply to a private establishment with a tailored clientele — people over 21 who are there to smoke and drink. Bar owners should decide whether to ban smoking in their own establishment because they have a right to enjoy and use their private property.

On behalf of the state and the smoking ban, the Ohio Attorney General’s office has argued that the public’s welfare must be taken into account when framing such rights. They allege in their argument that secondhand smoke has been proven to cause health problems, which gives states the authority under their inherent police powers to regulate smoking in public places. Ohio Attorney General Mike DeWine contended the ban protects the health of bar patrons and employees.

“Every regulation interferes with the enjoyment of liberty and property to some degree,” he said. “This could mean the future invalidation of countless laws protecting public health, safety and general welfare.”

In reaching its decision, the Ohio Supreme Court must exercise a balancing test. While the right to property is fundamental, it is still subject to the state’s police power. However, the police power is not plenary: it may only be exercised to interfere with fundamental rights when necessary to protect the public. In other cases, the Ohio Supreme Court has held that courts must consider the burdens that statutes and their applications impose upon the party’s rights, and whether they are justified in light of the benefits.

Ohio is one of 27 states with a statewide smoking ban. An additional 10 states have a smoking ban, but exempt bars. Among these 37 states, 12 states exempt private clubs. There are 11 states that have no statewide smoking ban. As such, bars are not subject to a smoking ban in 21 states, and private clubs are not subject to a smoking ban in 23 states.

Forum Question:
Should Ohio have the right to create this smoking ban and does such a ban infringe on the rights of property owners?

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