The Tenth District Court of Appeals has upheld a ruling against a Dayton bar for violating Ohio's state-wide smoking ban.

The Tenth District Court of Appeals has upheld a ruling against a Dayton bar for violating Ohio's state-wide smoking ban.

The Tenth District Court of Appeals has upheld smoking ban violations against a Dayton bar in a ruling that clarifies the application of the law.

The decision affirmed a trial court ruling that the observations of two Montgomery County health department investigators that multiple patrons of a Dayton bar were smoking in a non-smoking area in the presence of bar employees, and that the employees did not ask any of the smokers to extinguish their cigarettes or go outside to smoke during the 15 minute period the investigators were in the bar, constituted “reliable, probative and substantial evidence” that the bar violated the state’s Smoke Free Workplace Act.

In a 3-0 decision announced December 31, the court of appeals found that the Franklin County Court of Common Pleas did not abuse its discretion when it upheld a citation and $2,500 fine imposed by the Ohio Department of Health against Enterman Enterprises LLC, which owns and operates Ziggy’s Ritz Night Club in Dayton. 

The case arose from an inspection of Ziggy’s conducted by Montgomery County sanitarians Andrew Evans and Jason Dreler in response to a complaint that the bar’s management was not enforcing the statewide ban against indoor smoking in such establishments. Evans and Dreler visited the bar and observed that there were ashtrays in multiple locations and that several patrons were smoking in plain sight of bartenders, who made no effort to remove the ashtrays or enforce the smoking ban during the 15 minutes the inspectors were there.

Based on Evans’ and Dreler’s observations, the county cited Ziggy’s  and its owner, Elizabeth Enterman, for permitting smoking in a prohibited area and  allowing the presence of ashtrays in violation of the no-smoking statute.  Because Ziggy’s had been cited for similar violations in the past, and because the current violation was determined to be intentional, Montgomery County imposed a $5,000 fine. Ziggy’s requested and received an administrative hearing before a state health department hearing officer.

At that hearing, Evans testified about his observations at time of  the inspection.  Enterman testified that her bar had a no-smoking policy and an outdoor area where patrons could smoke, and also indicated that there were no ashtrays in the bar.  One of the bartenders who was working on the night of the inspection testified that she had observed patrons smoking inside the bar on that evening, and that before the investigators arrived she had requested that they put their cigarettes out,  but the smokers had refused.

Based on the evidence presented at the hearing, the hearing examiner concluded that Ziggy’s had committed the violations for which it had been cited, but recommended that the fine for those violations be reduced  to $2,500 on the basis that the evidence was insufficient to support a conclusion that the violations were intentional. The state health director approved the hearing officer’s findings and imposed the recommended fine.  Enterman appealed the department’s ruling to the Franklin County Court of Common Pleas, which affirmed the director’s decision. Enterman then appealed the trial court’s decision to the Tenth District.

Writing for a unanimous appellate panel, Judge William A. Klatt noted that the court of appeals was required to affirm the common pleas court’s ruling unless the reviewing judges found that the trial court abused its discretion when it found that the health department’s action  was supported by reliable, probative and substantial evidence.

Judge Klatt wrote: “A proprietor permits smoking when the proprietor affirmatively allows smoking or implicitly allows smoking by failing to take reasonable measures to prevent patrons from smoking, such as by posting no-smoking signs and notifying patrons who attempt to smoke that smoking is not permitted. ...  Here, Evans' observations are reliable, probative, and substantial evidence that Ziggy's permitted smoking. He observed several patrons smoking for 15 minutes without being asked to put the cigarettes out. The smokers were openly smoking in close proximity to the bar and the bartender and Evans wrote in his report that the smokers were visible as soon as he walked into the bar.”

“Moreover, the bartender's testimony that she had previously asked the patrons to stop smoking or to take the cigarettes outside is not determinative. ... After considering all the circumstances, we cannot conclude that the trial court abused its discretion in finding reliable, probative, and substantial evidence to support the administrative decision.”

Judge Klatt’s opinion, which was joined by Judges John A. Connor and Julia L. Dorrian, also held that the statutory requirement of an “interview” with an accused violator of the smoking ban before a fine is imposed was satisfied by a conversation that Evans and Dreler had with the bartender during their investigatory visit to the bar.

Enterman Enterprises LLC v. Ohio Dept. of Health, 2012-Ohio-6230
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2012/2012-ohio-6230.pdf
Civil Appeal From: Franklin County Common Pleas Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 31, 2012

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