Wymsylo v. Bartec, Inc.

• Decision Date: 23 May 2012
• Docket Number: No. 2011–0019.,2011–0019.
• Citation: 132 Ohio St.3d 167,970 N.E.2d 898,2012 -Ohio- 2187
• Parties: WYMSYLO, Dir., Appellee, v. BARTEC, INC., d.b.a. Zeno's Victorian Village, et al., Appellants; DeWine, Atty. Gen., Appellee.
• Court: Ohio Supreme Court

132 Ohio St.3d 167

970 N.E.2d 898

2012 -Ohio- 2187

WYMSYLO, Dir., Appellee,

v. BARTEC, INC., d.b.a. Zeno's Victorian Village, et al., Appellants;DeWine, Atty. Gen., Appellee.

No. 2011–0019.

Supreme Court of Ohio.

Submitted Oct. 19, 2011.

Decided May 23, 2012.

[Ohio St.3d 168]Syllabus of the Court

R.C. Chapter 3794, the Smoke Free Workplace Act, is a valid exercise of the state's police power by Ohio voters and does not amount to a regulatory taking.

Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, Elisabeth A. Long, Deputy Solicitor, and Stacy Hannan, Robert Moormann, and Angela M. Sullivan, Assistant Attorneys General, for appellees Theodore E. Wymsylo and Michael DeWine.

Maurice A. Thompson, for appellants.

Law Office of Joseph C. Lucas, L.L.C., and Tyler W. Kahler, urging reversal for amici curiae Ohio Licensed Beverage Association, Buckeye Liquor Permit Holders Association, and Dr. Michael L. Marlow.

Finney, Stagnaro, Saba & Patterson Co., L.P.A., and Christopher P. Finney, Cincinnati; and Law Firm of Curt C. Hartman and Curt C. Hartman, Amelia, urging reversal for amici curiae Ohio Liberty Council, Ohio Freedom Alliance, and Coalition Opposed to Additional Spending & Taxes.

Ron O'Brien, Franklin County Prosecuting Attorney, and Tracie M. Boyd, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County District Board of Health.

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, and J. Corey Colombo, Columbus, urging affirmance for amici curiae American Cancer Society, East Central Division; American Cancer Society Cancer Action Network; Academy of Medicine of Cleveland & Northern Ohio; American Heart Association, Great Rivers Affiliate; American Lung Association of the Midland States; American Medical Association; Americans for Nonsmokers' Rights; Association of Ohio Health Commissioners, Inc.; Campaign for Tobacco–Free Kids; Cleveland Clinic; Ohio Asthma Coalition; Ohio Chapter of the American College of Cardiology; Ohio Osteopathic Association; Ohio State Medical Association; and Tobacco Control Legal Consortium.

LANZINGER, J.

{¶ 1} In this case, we are asked to address several constitutional challenges to the Smoke Free Workplace Act, R.C. Chapter 3794.

I. Factual Background

{¶ 2} On November 7, 2006, Ohio voters passed a ballot initiative to enact the Smoke Free Workplace Act (“the Smoke Free Act”). Codified in R.C. Chapter 3794, the act became effective on December 7, 2006. The Ohio Department of Health (“ODH”) and its designees are charged with the enforcement of the Smoke Free Act. R.C. 3794.07. Subject to certain exemptions, proprietors of public places of employment are not to permit smoking in their establishments. R.C. 3794.02(A). Zeno's Victorian Village is a privately owned bar in Columbus that has been cited for violations of the act on multiple occasions.

{¶ 3} ODH's director filed a complaint seeking preliminary and permanent injunctive relief ordering Bartec, Inc., d.b.a. Zeno's Victorian Village, and Richard Allen, the CEO and sole shareholder of Bartec, Inc. (collectively, “appellants”) to comply with the Smoke Free Act and to pay all outstanding fines. Appellants answered the complaint and admitted receiving nine notices of violations after investigations had been completed and that a tenth investigation was pending. They raised the affirmative defenses that R.C. Chapter 3794 is unconstitutional both on its face and as applied to them and that R.C. Chapter 3794 has been enforced in an unconstitutional manner and in a manner that is inconsistent with its plain language. Appellants also filed a counterclaim for declaratory and injunctive relief against ODH and a cross-claim against the Ohio Attorney General, alleging that the Smoke Free Act operates in violation of appellants' constitutional rights under the Ohio Constitution, Article I, Sections 1, 16, 19, and [Ohio St.3d 169]20, that the act is invalid as applied to them, and that ODH engaged in rulemaking that exceeds its authority.¹

{¶ 4} The trial court consolidated the parties' requests for preliminary injunction with the trial on the merits. At trial, evidence was presented that appellants had been cited ten times for violating the Smoke Free Act between July 2007 and September 2009. Eight of the ten violations were not appealed. The two violations that were appealed were upheld by the Franklin County Court of Common Pleas. The trial court, however, found that ODH has implemented a policy of strict liability for violations of the Smoke Free Act by issuing fines regardless of whether the appellants were actually “permitting” smoking to occur at Zeno's. The court observed, “Property owners, however, have no control over whether someone rips out a cigarette and lights up. Again, the Department of Health's interpretation of the Smoke Free Act makes property owners liable for the actions of third parties upon which the property owner has little to no control.” The trial court held that this ODH policy of imposing liability without fault was stricter than R.C. 3794.02 allowed and that ODH had exceeded its authority in implementing it. The trial court denied ODH's request for a permanent injunction and vacated the ten citations.

{¶ 5} ODH appealed to the Tenth District Court of Appeals, raising three assignments of error. The first alleged that the trial court failed to apply the plain language of the Smoke Free Act. The second alleged that the trial court erred when it held that ODH had engaged in unlawful rulemaking. The third [Ohio St.3d 170]asserted that the trial court abused its discretion in denying ODH's complaint for injunction. Appellants filed a cross-appeal, arguing that they were entitled to declaratory and injunctive relief to prohibit further unconstitutional or otherwise unlawful enforcement of R.C. Chapter 3794 and to prohibit the Ohio Attorney General from attempting to collect the outstanding fines.

{¶ 6} The Tenth District reversed the trial court's judgment. Jackson v. Bartec, Inc., 10th Dist. No. 10AP–173, 2010-Ohio-5558, 2010 WL 4632557. The court of appeals examined R.C. 3794.02 and determined that the plain language of the statute and related Administrative Code sections required proprietors covered by the Smoke Free Act to assume some level of responsibility for conduct occurring on their premises. Id. at ¶ 19. The court of appeals determined that appellants were challenging ODH's method of enforcement as applied and that appellants were therefore required to develop a factual record so that their challenge could be fully considered on appeal. By not pursuing an administrative hearing and failing to develop the necessary record, appellants had waived any error. Id. at ¶ 24. Because the ten orders finding violations of the Smoke Free Act had become final orders, the court of appeals held that the trial court should not have heard appellants' collateral attack on the enforcement issue and thus erred as a matter of law in vacating the violations. Id. at ¶ 25. With respect to appellants' argument that the Smoke Free Act is unconstitutional on its face, the appellate court relied on its previous decision in Deer Park Inn v. Ohio Dept. of Health, 185 Ohio App.3d 524, 2009-Ohio-6836, 924 N.E.2d 898, to hold that the act is constitutional.

{¶ 7} After resolving the constitutional issues, the Tenth District addressed whether ODH was entitled to a permanent injunction. The court stated,

On this record, the evidence is overwhelming that Bartec repeatedly and intentionally violated the Smoke Free Act, failed to comply with its provisions as R.C. 3794.09(D) requires, and in so doing exposed patrons and employees to the very harm the statute is designed to prevent. Due to the hearing the court conducted and the evidence adduced as a result of the hearing, the trial court could reach no other conclusion than that ODH is entitled to the statutory injunction it requested.

Id. at ¶ 33.

{¶ 8} Based on its resolutions of ODH's assignments of error, the Tenth District overruled appellants' cross-assignments of error as an impermissible collateral attack on the final orders of violation.

{¶ 9} We accepted appellants' appeal to this court on the following three propositions of law:

[Ohio St.3d 171]{¶ 10} 1. “The Health Department's method of enforcing the smoking ban violates separation of powers, and must be discontinued.”

{¶ 11} 2. “Inclusion of bars as proprietors subject to R.C. [Chapter] 3794 exceeds the outer limits of the state police power, and unreasonably extinguishes property rights.”

{¶ 12} 3. “Ohio's declaratory judgment statute enables previously-cited Ohioans to challenge the constitutionality of a statute or rule.”

{¶ 13} Because appellants failed to exhaust their administrative remedies and cannot use declaratory judgment to vacate final orders, we affirm the judgment of the court of appeals with respect to the ten earlier violations. We also hold that the Smoke Free Act is a valid exercise of the state's police power and does not constitute a taking.

II. Legal Analysis

{¶ 14} R.C. 3794.04 expresses the purpose of the Smoke Free Act passed by Ohio voters.

Because medical studies have conclusively shown that exposure to secondhand smoke from tobacco causes illness and disease, including lung cancer, heart disease, and respiratory illness, smoking in the workplace is a statewide concern and, therefore, it is in the best interests of public health that smoking of tobacco products be prohibited in public places and places of employment and that there be a uniform statewide minimum standard to protect workers and the public from the health hazards associated with exposure to secondhand smoke from tobacco.

The provisions of this chapter shall be liberally construed so as to further its purposes of protecting public health and the health of employees and shall prevail over any less restrictive state or local laws or regulations. Nothing in this...