Update: The merit decision was handed down in this case May 23, 2012. Read the analysis of the decision here.

On October 19 the Supreme Court of Ohio heard oral argument in Jackson v. Bartec, Inc, #2011—0019. in which Zeno’s, a Columbus bar, challenges the enforcement of Ohio’s smoking ban law, O.R.C. Chapter 3794.

Zeno’s was cited ten times for violating the law. Zeno’s countered that: (1) portions of the Smoke Free Workplace Act were unconstitutional facially and as applied, (2) the Ohio Department of Health 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. The trial court found for Zeno’s and vacated the ten existing violations against it. The Tenth District court of appeals reversed.  Read the oral argument preview post here.

 Counsel for Zeno’s is Executive Director of the 1851 Center for Constitutional Law.  According to its website, the Center is “a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse.” His approach to this case before the Supreme Court was that this is a property rights case, and that in Norwood v. Horney, the Ohio Supreme Court held Ohio property owners should be afforded greater protection from government takings under the Ohio constitution than is provided under the federal constitution. (for more on this point, see In Sharper Focus: The New Judicial Federalism). He emphasized time and again that this law is not a restriction on conduct, but on property, and asked the Court to protect property owners from administrative agencies that take the law into their own hands and apply standards beyond what the law empowers them to do.

The assistant attorney general, defending the law on behalf of the state, argued that this case has nothing to do with the Norwood v. Horney case, and that Zeno’s attempt to engraft that body of law onto this one is completely inappropriate. All regulations interfere with liberty and property to some extent. The proper test to evaluate a challenged police power regulation is found in the syllabus law in Benjamin v. Columbus, (1957), 167 Ohio St. 103—which is that such regulation will be held valid if it bears a real and substantial relation to the public health, safety, morals, or general welfare of the public and if it is not unreasonable or arbitrary.  The assistant AG also argued that any as-applied challenge to the statute should be barred for failure to raise this at the administrative level, and that the trial court should not have made any findings about the merits of the underlying violations, improperly reopened and allowed collateral attacks on final orders, and allowed an improper use of a declaratory judgment action in this case.

Why is this case different from other regulated activities?

Justice Stratton asked how this regulation is any different from companies mandating workplace safety rules, which apply to the property but also impact worker safety.  When Zeno’s counsel tried to analogize what happened to spot zoning, Justice Stratton said she wasn’t following that.

Justice Pfeifer, speaking about a subject on which he has written much, asked how this legislation is any more overreaching that what the legislature has done to regulate concealed firearms—in that area, the legislature has said cities can’t keep people with concealed firearms out of parks.

Is this really about property rights?

Justice Lanzinger asked whether the Court’s decision in the Norwood case affected the police power as applied to private property?   And wasn’t the state changing what could be done on a pre-existing property?

 Tell Us Exactly How this Works?

Chief Justice O’Connor in particular wanted to make sure she understood how all this works in practice. A complaint is filed—agents go into Zeno’s—see smoking going on and see the proprietor not asking the smokers to stop.  That’s the violation? (answer: yes).  In each case, she went on, the violation is triggered by an agent actually seeing a smoker not being told to stop by the proprietor.

Justice O’Donnell asked whether the issuance of citations was always predicated on seeing patrons smoking and no one asking them to stop? If so, why did the trial court make a finding that citations were issued against Zeno’s without determining whether staff had asked patrons to stop, and wasn’t the court bound by those findings?

Justice Cupp asked what steps a bar would have to take to avoid being cited for a smoker’s conduct? Hire a bouncer? Has any bar that has been cited ever been found not liable?

Big procedural hurdles loom for Zeno’s

Chief Justice O’Connor noted that Zeno’s had not made a constitutional challenge to the levying of the ten citations in any administrative hearing. She asked both sides the significance of the fact that Zeno’s had not made an as-applied challenge in the administrative hearing. Was the right to contest any of those ten violations extinguished by failure to pursue this at an earlier phase? But why wasn’t it fair for the bar to come back later and say we just found out that all 33,000 citations went to bar owners and none to patrons?

 How it Looks from the Bleachers

I doubt that a majority will see this case as part of its takings jurisprudence.  It’s unlikely Norwood v. Horney applies here. But the fact that did seem to bother the justices was that of the 33,000 citations issued under the regulations, all went to bar owners and none to smokers.  Still, this case is a procedural nightmare for Zeno’s—its failure to raise the appropriate challenges in the appropriate administrative hearings—as detailed meticulously in the court of appeals decision– is likely to sink this case.