In Wymsylo v. Bartec, Inc., the Ohio Supreme Court unanimously ruled that the Ohio Smoke Free Workplace Act is constitutional and, in doing so, rejected a bar owner’s claim that the penalties for violating the Smoke Free Workplace Act ("SFWA") are excessive and inappropriate
By way of background, in November 2006, 58% of Ohio voters passed the SFWA making Ohio the 12th state (the first in the Midwest) to protect all workers and the public from exposure to secondhand smoke in public places. The law impacts “public places” and “places of employment” in Ohio. Subject to certain exemptions, the SFWA prohibits "public places" and "places of employment" from permitting smoking in their establishments. To comply with the SFWA affected entities must:
- prohibit smoking;
- post “No Smoking” signs which include the telephone number 1-866-559-OHIO (6446) for reporting violations ─ sample signs can be downloaded and printed from the Ohio Department of Health’s webpage; and
- remove all ashtrays and other smoking receptacles.
Enforcement of the law began on May 3, 2007 and provides that a daily fine for a violation of the SFWA "shall be not less than $100 and not more than $2,500". Fines are doubled for intentional violations. The text of the SFWA, which is codified at Ohio Revised Code Chapter 3794, is available here.
In Wymsylo, between July 2007 and September 2009, Zeno’s Victorian Village was cited on ten separate occasions by the Columbus City Health Department for smoking ban violations and assessed $33,000 in fines, none of which were paid. The bar currently owes $40,457 in fines and interest penalties for numerous smoking-ban violations and the state is threatening to seize and foreclose on the bar to get the money.
In challenging the fines, and the law itself, the owner of Zeno’s Victorian Village argued that the fines levied upon the bar for violating the law were unduly oppressive, beyond the state’s legitimate police powers and, as such, an unconstitutional "taking" of private property because it "confiscates a proprietor’s control over indoor air" (yes, that quote is accurate.). Although not as creative as the first argument, the owner also argued that the Ohio Department of Health should be stopped from enforcing the law.
The high court disagreed with both contentions and found that the SFWA does not unreasonably interfere with property rights or amount to a taking because "the ‘taking’ of…indoor air space is not the type of taking contemplated by either the Fifth Amendment to the U.S. Constitution or the Ohio Constitution, Article I, Section 19." The Court went on and found that "[i]t is not unreasonable or arbitrary to hold responsible the proprietors of public places and places employment for their failure to comply with the Smoke Free Act" and noted that the bar owner’s "own witness testified that most patrons who are asked to stop smoking readily do so."
With this decision, it looks like the SFWA is here to stay. If you as an employer or public property owner have been relaxed in complying with the SWFA’s mandates, now would be a good time to ensure your facilities are compliant. It is also advisable that employers adopt a smoke-free policy that designates where employees may smoke, if at all.