Analysis

There is No Constitutional Right to Smoke (PDF) - legal synopsis by the Tobacco Control Legal Consortium explaining that there is no constitutional “right to smoke.”

Legal Authority to Regulate Smoking and Common Legal Threats and Challenges (PDF) - an analysis of common legal challenges to smoke-free laws (TCLC).

Hookah Bars and Clean Indoor Air Laws (PDF) - fact sheet explaining how to draft and enforce clean indoor air laws with regard to hookah bars.

Cases

Cookie's Diner, Inc. v. Columbus Bd. of Health
D.A.B.E., Inc. v. City of Toledo
D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health
Operation Badlaw, Inc. v. Licking County Gen. Health Dist. Bd. of Health
Taverns for Tots, Inc. v. City of Toledo

Cookie's Diner, Inc. v. Columbus Bd. of Health, 65 Ohio Misc. 2d 65 (1994).

Plaintiffs business owners and trade associations filed a complaint against defendants Columbus Board of Health and the Franklin County District Board of Health seeking declaratory judgment to bar the implementation of smoking regulations. The boards adopted two separate but identical resolutions entitled “Non-Smoking Policy Regulation” to regulate smoking in enclosed areas where the public was invited. In a finding of fact, the court wrote that the regulations included exceptions based on enforceability and economics, rather than public health concerns. The court concluded that rulemaking based on these types of considerations is a legislative activity that can only be done by the legislative branch of government. Therefore, the court concluded that the boards had exceeded their authority in promulgating the regulations, despite findings by the boards that smoking in enclosed areas was detrimental to public health.

In sum, the court found that the boards' regulations were discriminatory lawmaking, since the regulations applied differently to different businesses, and therefore invalid. However, the court accepted the general principle that the power to regulate smoking was within the statutory powers granted to the boards under the Ohio Revised Code.

NOTE: In D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 773 N.E.2d 536 (Ohio Sup. Ct. 2002), the Ohio Supreme Court held that boards of health lack the authority to pass regulations limiting smoking in public places.

D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir. 2005).

Plaintiffs, a group of proprietors of bars, restaurants, and bowling alleys operating within Toledo appealed the district court's dismissal of their complaint claiming that the city's smoking ordinance was a regulatory taking of their property in violation of the Fifth and Fourteenth Amendments. The ordinance regulated the ability to smoke in public and enclosed places, generally prohibiting smoking except in separate smoking lounges.

The U.S. Supreme Court had previously held that a statute regulating the use of property was considered a taking if it denied an owner economically viable use of his or her land. The Sixth Circuit held that the proprietors had failed to establish that the Clean Indoor Air Act denied economically viable use of their respective properties. They had only asserted their that they would lose customers as a result of the ordinance, and the court held that even if that were true, it would not constitute a taking. The ordinance merely regulated the conditions under which smoking was permitted; it did not otherwise interfere with the plaintiffs' ability to operate their businesses.

The plaintiffs also claimed that the city's ordinance was preempted by O.R.C. § 3791.031, a state law regarding smoking in places of public assembly. The court determined that the city ordinance was not preempted by state law since the law did not apply in restaurants, bowling alleys and bars. Since the state legislature did not regulate smoking in these establishments, city governments were free to do so.

In sum, the Sixth Circuit held that clean indoor air ordinances do not constitute takings in violation of the Fifth and Fourteenth Amendments, and it also determined that a city ordinance does not conflict with state law where the state law does not purport to regulate the same matter as the ordinance.

D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 773 N.E.2d 536 (Ohio 2002).

Plaintiffs, a group of proprietors of bars, restaurants, and bowling alleys operating within Toledo and Lucas County, challenged the Clean Indoor Air Regulation adopted by the Toledo-Lucas County Board of Health. The regulation prohibited smoking in indoor public areas and places of employment within Lucas County. Plaintiffs argued that the Ohio Revised Code did not delegate boards of health the authority to prohibit smoking in public places. The Board argued that it was granted broad authority to pass regulations necessary to protect the public health.

The Ohio Supreme Court held that O.R.C. § 3709.21 did not vest local boards of health with unlimited authority to address all public health concerns. Rather, O.R.C. § 3790.21 was found to be “a rules-enabling statues, not a provision granting substantive regulatory authority.” Since the legislature had not specifically delegated authority to boards of health to regulate secondhand smoke, that could not make rules addressing that issue. However, the court stated that such authority could be delegated to boards of health by the legislature at a later date.

Significantly, the court took notice of several studies indicating the dangers of secondhand smoke, and it suggested that the General Assembly or home rule municipalities (including cities and villages) could take action to address this issue.

Operation Badlaw, Inc. v. Licking County Gen. Health Dist. Bd. of Health, 866 F. Supp. 1059 (S.D. Ohio 1992).

Plaintiffs, a non-profit group and its individual members, filed an action against defendants county board of health and its members as well as the city board of health and its members. The plaintiffs claimed that the board violated their constitutional right to Due Process and Equal Protection by passing regulations that limited smoking in public places and places of employment. The boards of health filed for a motion to dismiss. The court followed a Tenth Circuit decision, Grusendorf v. Oklahoma City, (816 F.2d 539 (10th Cir. 1987), in finding that the plaintiffs did not have a protected liberty interest in smoking and that the right to smoke was not fundamental. The also court found that the plaintiffs' Due Process rights were not violated since the smokefree regulations were related to a legitimate state purpose determined by the boards of health, i.e., to minimize unwanted exposure to secondhand smoke. The district court dismissed all claims.

In conclusion, the court did not address whether the boards' of health had the power to enact smokefree regulations under the Ohio Revised Code, but did rule that there was no constitutionally protected privacy interest in smoking and that clean indoor air regulations were valid when related to a legitimate interest. The court did suggest that a ban on smoking in the privacy of one's home could be problematic.

NOTE: In D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 773 N.E.2d 536 (Ohio Sup. Ct. 2002), the Ohio Supreme Court held that boards of health lack the authority to pass regulations limiting smoking in public places.

Taverns for Tots, Inc. v. City of Toledo, 341 F. Supp. 2d 844 (N.D. Ohio 2004).

A group calling itself Taverns for Tots, Inc. filed a First Amendment claim against the City and Mayor of Toledo. The plaintiff claimed that the city and mayor violated its constitutional rights by enactment and enforcement of the Clean Indoor Air Act of 2003 which prohibited smoking in public places, subject to certain exceptions. “Taverns for Tots” was a group of bars that charged a $1 “lifetime membership” fee to all patrons and then claimed to be a “membership association” that was exempt from the Clean Indoor Act. The court found that the plaintiff was a sham entity created for the sole purpose of attempting to avoid the requirements of the Clean Indoor Air Act. Therefore, the corporation did not possess any of the intimate relationships protected by the First Amendment. In addition, the court found that the Clean Indoor Act did not interfere with freedom of speech, since smoking was not sufficiently expressive conduct to warrant First Amendment protection, and the Act did not interfere with anyone's ability to join organizations or groups of their choosing. In addition, the Act was not void for vagueness since the legislative purpose and language of the Act clearly defined public places as “that portion of any enclosed indoor area to which members of the general public are invited or in which members of the general public are permitted.” The City of Toledo acted within its authority, motivated by concern for public health, and the act was not an ex post facto law because it did not punish past conduct.

In sum, the court granted summary judgment for the city and mayor, finding that the city had acted within its powers in passing clean indoor air legislation and that the legislation did not violate the First Amendment rights of the plaintiff. Taverns for Tots was found to be a sham corporation, and it was enjoined for permitting smoking at any of its activities.