The Ohio Department of Health (ODH) recently filed suit against Zeno’s Victorian Village seeking payment of approximately $30,000 in fines imposed against Zeno’s for alleged violations of Ohio’s Smoking Ban. According to Zeno’s, payment of the fines would put Zeno’s out of business.

Represented by the Buckeye Institute for Public Policy, Zeno’s responded to the lawsuit with several counterclaims, including a claim that Ohio’s Smoking Ban and its implementing regulations are an unconstitutional deprivation of property rights. According to Zeno’s, Ohio’s Smoking Ban “interferes with the private property rights of Zeno’s and other Ohio business owners by depriving Zeno’s and others from exercising the option of choosing to allow others, or themselves, to smoke on their private property.”

Zeno’s also claims that certain ODH rules—such as imposing citations against businesses any time smoking is present and requiring business owners to enforce the Smoking Ban—constitute unlawful rulemaking. Additionally, Zeno’s alleges that ODH unlawfully interpreted and applied the Smoking Ban and that the Smoking Ban is unconstitutionally vague.

Penalties for a business’s violation of the Smoking Ban include a warning letter for first violations, a $100 fine for second violations, a $500 fine for third violations, a $1,000 fine for fourth violations, and a $2,500 fine for fifth and subsequent violations. Fines may be doubled for intentional violations at the discretion of the enforcement entity and may be assessed on a daily basis for continuing violations.

A copy of Zeno’s Answer, Counterclaim and Cross Claim may be found at http://www.buckeyeinstitute.org/1851/Zenos_Franklin_County_Court_Filing.pdf. For any significant updates on this case and/or additional information regarding Ohio’s Smoking ban, visit Bricker & Eckler’s website at http://www.bricker.com/LegalServices/Practice/employ/smokefree.asp