Operation Badlaw v. Licking County

• Decision Date: 26 June 1992
• Docket Number: No. C2-92-241.,C2-92-241.
• Parties: OPERATION BADLAW, INC., et al., Plaintiffs, v. LICKING COUNTY GENERAL HEALTH DISTRICT BOARD OF HEALTH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

866 F. Supp. 1059

OPERATION BADLAW, INC., et al., Plaintiffs, v. LICKING COUNTY GENERAL HEALTH DISTRICT BOARD OF HEALTH, et al., Defendants.

No. C2-92-241.

United States District Court, S.D. Ohio, Eastern Division.

June 26, 1992.

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Grey Wilbur Jones, Enz, Jones & LeGrand, Columbus, OH, for plaintiffs.

Robert Louis Berry, Reid, Berry & Stanard, Columbus, OH, Robert Luther Becker, Newark, OH, for Licking County General Health Dist. Bd. of Health, Patrick Scarpitti, Kathleen Pipes, Janine Shipley.

James William Hostetter, Newark City Law Director, Newark, OH, for Newark City Bd. of Health, Daniel Stricker, Margaret Chaconas, Robin Lynn Green, Cindy Barnes.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This action was filed by plaintiff Operation Badlaw, Inc., a non-profit group based in Licking County, Ohio, on March 16, 1992. On May 20, 1992, the plaintiff filed an amended complaint adding a number of its individual members as additional plaintiffs. The defendants are the Licking County General Health District Board of Health and its members (Licking Board) and the Newark City Board of Health and its members (Newark Board). The plaintiffs allege that the defendants have violated a number of their constitutional rights by passing regulations limiting smoking in public places and places of employment. Operation Badlaw seeks injunctive and declaratory relief. The individual plaintiffs also request compensatory damages.

On April 27, 1992, the defendants filed a motion to dismiss. The plaintiffs responded on May 20, 1992, and the defendants replied on June 1. The motion to dismiss is now ripe for decision.

I.

A motion to dismiss attacks the sufficiency of the complaint. In ruling upon such motion, the Court must accept as true all well-pleaded allegations of the complaint, and may dismiss the action only if it appears beyond doubt that the Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). It is with this standard in mind that the motion to dismiss must be decided.

II.

In January, 1992, the Licking Board and the Newark Board both passed regulations relating to smoking in public places. The two regulations are identically worded, and prohibit smoking in a wide variety of establishments. The regulations are preceded by findings that second-hand smoke is "acutely harmful" to nonsmokers with cardiovascular or respiratory diseases, that smoking in enclosed areas is a public nuisance, and that nonsmokers are currently unable to protect themselves against these hazards.

Smoking in certain "enclosed public places" (healthcare facilities and governmentally-owned structures) is absolutely prohibited; the prohibition against smoking in other enclosed public places, such as stores, public vehicles, theaters, elevators, restrooms, gymnasiums, libraries, and exhibition halls is subject to a procedure for obtaining exemptions. Certain other public places, such as restaurants, hotels, shopping centers, long-term care facilities, and educational facilities, may apply for exemptions or may designate smoking areas. Certain areas within places of employment, including employee work areas, lunchrooms, lounges, and restrooms, are also subject to the no-smoking ban, although employers are also permitted to provide designated areas for smoking. Bars, bowling alleys, and pool halls are exempt so long as they conspicuously display a sign stating that a non-smoking area is not available.

Variances are also made available to any person whose premises would otherwise be subject to the requirements of the regulations. Grounds for such a variance are that "compliance with such requirements has been and is technically not feasible, economically unreasonable, or impossible because of conditions beyond the control of the applicant." Variances are granted or denied by the Boards. Penalties for violating the regulations are also prescribed, including fines and imprisonment.

Operation Badlaw is a grass-roots citizens group which was formed to combat these regulations, and the individual plaintiffs are some of its members. They allege that the regulations violate various provisions of the constitution, including the commerce clause and the contract clause. They also allege that the regulations deprive them of their right to due process and equal protection, as well as infringing on their privacy interests. Finally, they allege that passage of the regulations violates the separation of powers doctrine inherent in the Ohio constitution, and that both the Boards and all of the individual members thereof knew that they did not have the statutory authority to pass either regulation.

The regulations have not yet gone into effect. The defendants agreed to delay implementation in order to allow the parties to present these challenges to the Court. Thus, all of plaintiffs' challenges are to the regulations on their face, since no implementation or enforcement has yet occurred.

III.

The plaintiffs' claims fall into two general categories. The first category of claims attack the regulations at issue as contrary to the United States Constitution. For purposes of deciding these claims, the Court will assume that the regulations were validly enacted under state law, even though they may be found to be unconstitutional. The second category of claims question whether passage of the regulations was a legitimate exercise of the police power delegated to either (or both) the Licking Board or the Newark Board. Each of these broad issues, and each underlying federal constitutional claim, will be addressed in turn.

A. Equal Protection

Plaintiffs claim that the enforcement of these particular anti-smoking regulations would violate their right to equal protection of the laws. In particular, they assert that the distinctions drawn in the regulations are without rational bases, and that the existence of exemption and variance procedures is also irrational. For the following reasons, the Court concludes that this constitutional challenge is without merit.

The equal protection clause of the fourteenth amendment does not require absolutely equal treatment of all similarly situated persons, or the absolutely equal division of governmental benefits. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In the absence of a deprivation of a fundamental right or deprivation based on a suspect classification, equal protection requires differing governmental treatment of groups or individuals to be based on no more than a rational relationship to a legitimate state purpose. New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976).

It is clear that the right to smoke is not a fundamental right, Grusendorf v. Oklahoma City, 816 F.2d 539 (10th Cir.1987), and the plaintiffs do not argue that it is. Additionally, they do not claim that being a smoker or being interested in the rights of smokers makes any of the plaintiffs members of a suspect class. Consequently, if there is a rational basis for the distinctions drawn in the Boards' regulations, they pass muster under the equal protection clause.

The standard of analysis under the rationally related test is deferential. Pennell v. City of San Jose, 485 U.S. 1, 14, 108 S.Ct. 849, 858-59, 99 L.Ed.2d 1 (1988). Only if the Court can find no set of facts which could possibly support the distinction drawn by the state will it overturn state action. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Further, the state need not prove that such a rational relationship exists; rather, the plaintiffs must demonstrate that it is impossible for the state to show any reasonable basis for its action.

In applying the rational basis test, the burden falls upon the party challenging the state enactment to convince the court that its basis is irrational and not upon the state. If it is evident that the question is at least debatable, the attack must fail. Furthermore, the court need not determine what particular reasoning was actually used to justify the enactment, and may even hypothesize as to any possible legitimate state objectives which are promoted by the enactment.

Zielasko v. State of Ohio, 693 F.Supp. 577, 586 (N.D.Ohio 1988), aff'd, 873 F.2d 957 (6th Cir.1989) (citations omitted); see also Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445-46, 47 L.Ed.2d 708 (1976) (threshold issue is whether the plaintiff can show there is no rational basis for the regulation).

The plaintiffs argue that two provisions make it clear that the regulations are not rationally related to the defendants' goal of minimizing the exposure of nonsmokers to second-hand smoke. First, the plaintiffs argue that the existence of a provision for exemptions makes it clear that the regulations are irrational, since the regulations then protect nonsmokers in some environments but not in others, although the threat of harm to nonsmokers is the same. The exemption granted to bowling alleys and bars is cited as one example of this. In addition, the plaintiffs contend that the variance provision contained in the regulations violates the equal protection clause because it permits such variances to issue at the "unfettered judgment" of the Boards. Therefore, they argue, "variances arbitrarily will be granted to some proprietors at sic the exclusion of others."

In response to the first argument, the defendants argue that the exemptions to the no-smoking policy established by the regulations are completely rational. Specifically, the defendants claim that the regulations are written in such a way as to maximize the protection available to nonsmokers in traditionally public areas, while minimizing the impact on smokers in more private places. For example, in furtherance of this goal, the regulations are written to ban smoking in open office...