Law School Discussion

Smoking Ban

Smoking Ban
« on: November 08, 2006, 08:53:40 AM »
My state (Ohio) just created an amendment where it is illegal to smoke in public places (bars, ect.).  I am only a 1L, so I haven't taken constitutional law yet, but this doesn't strike me as being a constitutional amendment.  The "public places" are actually privately owned bars, and I don't understand how the government can make it illegal to partake in a legal activity on private property.  Why is this not unconstitutional?

It seems like nobody is really bothered by this because most people don't like smoking/ smokers, but I don't think that should be the focus of the problem, as this strikes me as a civil liberties issue.  If this were alcohol or another product that causes "harm" to bystanders but was generally well-liked, people would be angry.

I just don't understand.


jacy85

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Re: Smoking Ban
« Reply #1 on: November 08, 2006, 09:03:44 AM »
If its open to the public, its a public place.  A bar or restaurant is therefore a public place, despite being privately owned.  Being open to the public means that you shouldn't have to choose going to a restaurant at the detriment to your health.  We're valuing the health of the public at large vs. an individual's personal decision to smoke.  It's not unconstitutional, because our Constitution does not give anyone the right to do whatever they want, whenever they feel like it.

Re: Smoking Ban
« Reply #2 on: November 08, 2006, 09:26:23 AM »
I see your point, but what about bars that charge cover fees?  They are not open to the general public and should be considered private because they "screen" who gets in. Since they exercise control over the public access to the bar, shouldn't that make them "private," so that they can allow smoking (or not)? 

Also, would this apply to "private" country clubs with memberships?  I wouldn't think so because they aren't open to the general public.  Maybe a way to get around this would be to create memberships to bars in order to establish themselves as private and NOT open to the general public.

Sorry, I am just really curious about this issue.

Re: Smoking Ban
« Reply #3 on: November 08, 2006, 10:47:18 AM »
It is really a takings issue under the Fifth Amendment to the US Constitution.  Just off the top of my head, I think because the government has a rational basis (ie, public health concerns) it is not a taking under judicial interpretation.  However, I don't have time to go through the full analysis, but I think this is the gist of the argument.

jacy85

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Re: Smoking Ban
« Reply #4 on: November 08, 2006, 11:55:15 AM »
I see your point, but what about bars that charge cover fees?  They are not open to the general public and should be considered private because they "screen" who gets in. Since they exercise control over the public access to the bar, shouldn't that make them "private," so that they can allow smoking (or not)? 

Also, would this apply to "private" country clubs with memberships?  I wouldn't think so because they aren't open to the general public.  Maybe a way to get around this would be to create memberships to bars in order to establish themselves as private and NOT open to the general public.

Sorry, I am just really curious about this issue.

Bars that charge a fee are still open to the public.  Anyone can get in if they have the money to pay a fee.  There is public access, regardless of whether all of the public has the means to take advantage of that access.  Country clubs might be different, because they are not open to the general public in the way a bar is. 

And all this aside, xferlawstudent makes an excellent point; I agree that if anything, it's a takings issue, but the government has a rational basis for the regulation.

Re: Smoking Ban
« Reply #5 on: November 08, 2006, 12:18:36 PM »
This is absolutely NOT a taking (5th Amendment issue). No taking has occured, under anybody's standard.

The answer to your question of whether such an amendment is constitutional is YES. It's constitutional becasue your state has amended ITS CONSTITUTION to include it. Becasue there is no issue arising under the US constitution, that's the end of the story. The only way to get rid of the Ohio Smoking ban is to amend the Ohio constitution once again. Even if the ban somehow runs afoul of another provision of the OHIO constitution, it is still good law.

Re: Smoking Ban
« Reply #6 on: November 08, 2006, 03:05:50 PM »
I meant that the counter-argument is a takings analysis, but I realize that it is NOT a taking, just a taking issue/analysis.



This is absolutely NOT a taking (5th Amendment issue). No taking has occured, under anybody's standard.

The answer to your question of whether such an amendment is constitutional is YES. It's constitutional becasue your state has amended ITS CONSTITUTION to include it. Becasue there is no issue arising under the US constitution, that's the end of the story. The only way to get rid of the Ohio Smoking ban is to amend the Ohio constitution once again. Even if the ban somehow runs afoul of another provision of the OHIO constitution, it is still good law.

Re: Smoking Ban
« Reply #7 on: November 09, 2006, 01:55:25 AM »
Just as fed'l and state gov'ts can ban racial discrimination in restaraunts, it can also ban smoking.

Personally, I understand banning smoke in restaraunts since small children who have no choice go there. However, I take issue w/ banning smoking in a bar. Bar patrons are over 21 and therefore made a conscious choice to patronize a place that allows smoking. I live in NV, where a similar ban has passed for bars that have a food handling license. Since 80% of gamblers smoke, bars will be forced to stop serving food so that the ban will not affect them, (otherwise they will go to casinos to gamble where smoking is still legal). Unfortunately, the end result will be bars that allow you to smoke, drink, and gamble but won't give you any food to sober up before driving home.

Re: Smoking Ban
« Reply #8 on: November 09, 2006, 10:37:57 AM »
Actually, I believe that the issue that passed -- Issue 5 -- is not an amendment to the Ohio Constitution, but a regular statute.  Issue 4, the issue that would have restricted smoking in only a few places (not coincidentally, the one the tobacco companies threw their money at), was a constitutional amendment.  If both issues had passed, 4 would have trumped 5 because it was a constitutional amendment.  That's why you probably saw all the "No on 4, Yes on 5" ads.


I think that given the number of cities and states nationwide that have banned smoking in all restaurants and bars, there would have been a court challenge earlier if courts really thought this was a problem.

Re: Smoking Ban
« Reply #9 on: November 09, 2006, 12:23:28 PM »
I read over The Smoke Free Workplace Act (ORC 3794).  This bill means business!
  • Because the highest normal fine of $2500 can be doubled for intentional violations the actual maximum fine is $5000 for each violations.
  • Private club exemption:  In Utah, smoking can take place in "private clubs."  Bars charge a "one day membership fee" rather than a "cover" to get around this - like the OP had suggested.  But, Ohio's law only exempts not for profit private clubs with no employees
  • Nursing home exemption: Specific sections of a nursing home can be set aside for smoking.  But, only residents can use the area for smoking and no employee can be required to enter the area... hope grandpa doesn't have a heart attack while he's inside smoking.
  • Patio exemption:  Columbus has had a smoking ban for some time.  Bars just set up heaters and allow people outside to smoke.  ORC 3784.03(F) requires that patio's be physically separate from the bar.  If there is a door that divides the bar from patio then the doors must be closed and, if smoke gets into the bar when the doors are open (i.e. when the smokers come in or go out) the patio is considered part of the building and smoking cannot occur on it.

Actually a very interesting read in a nerdy law student way.

Full text available at: http://www.smokefreeohio.org/oh/about/documents/SFOlaw.pdf