COLUMBUS - Ohio's workplace smoking ban is unconstitutional because it is not equally enforced throughout the state, a bar owner contends in a lawsuit against the state's top law official.
Richard Allen, owner of Zeno's, a bar facing $28,000 in fines for violating the smoking ban, is teaming up with a conservative policy group to fight the law after being sued by Attorney General Richard Cordray.
In a countersuit filed this week in Franklin County Common Pleas Court, the group said the law is too vague in ordering that business owners take "reasonable steps" if a customer is caught smoking and that the Ohio Department of Health is not properly interpreting the law.
"The smoking ban represents one of the greatest universal deprivations of property rights in Ohio's history," said Maurice Thompson, a lawyer for the Buckeye Institute for Public Policy Solution in Columbus.
The action is the Buckeye Institute's second smoking-related lawsuit in a month. In mid-August, Mr. Thompson sued the state on behalf of the Pour House in Cincinnati, saying enforcement of the law is requiring bars to exercise unrealistic control over customers' actions.
The smoking ban was approved by voters and took effect in May, 2007.
Holly Hollingsworth, a spokesman for Mr. Cordray, said there's no reason to believe that any parts of the law are unconstitutional.
The legal challenges began after Mr. Cordray filed a lawsuit last month against Zeno's and O'Neal's Tavern in Cincinnati, accusing each of repeatedly flouting the law.
In the countersuit, Zeno's argues that it has complied with the ban by posting signs, removing ashtrays, and telling patrons not to smoke there.
But city health department officials say Zeno's patrons consistently smoke in full view of employees and the owner, often with employee-supplied plastic cups for ashtrays.
Mr. Allen said seven of Zeno's eight employees are smokers and that none of the workers is seeking protection from secondhand smoke.
Bars across the state have received nearly 3,200 warnings and 1,900 fines since the smoking ban took effect.
First Published September 20, 2009, 3:07 p.m.
