A Blow to Property Rights


The Ohio Supreme Court delt a blow to liberty and property rights. They made no rulling on the key issue based on a technicality.

Lanzinger’s opinion noted that the bar argued “that prohibiting smoking in an adults-only liquor-licensed establishment, such as Zeno’s, is unduly oppressive and amounts to a taking.” She said that was “an as-applied challenge” that suggested their unique circumstances made the law unconstitutional for them.

The legal issue was disregarded because it had not been raised in earlier phases of the case.

I was afraid that the lawyers didn’t make enough of an issue out of the “junk science” behind the ban and that seems to be the case.

Ohio Justice Judith Ann Lanzinger, in authoring the opinion, wrote, “The goal of this legislation is to protect the health of the workers and other citizens of Ohio.”

From the rulling;
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

Problem is the above statements have never been proven in a court of law, as a matter of fact the opposite is the case.

The only time the science was ochallenged in court it failed miserably and rightfully so if you know about science and the law.

Of course that too was overturned based on a technicality. (jurisdictional grounds) But the fact remains that the prohibitionist continue to use the same flawed methodology.(meta-analysis) So I am quite sure that we will see this revisited. As a matter of fact after reading the rulling I am sure of it.

Future Application of Smoke Free Act to Zeno’s

{¶ 35} Although appellants are foreclosed from challenging the violations already issued, we agree with appellants that their declaratory judgment/injunction action also sought to prevent future enforcement of the Smoke Free Act. Appellants raised an as-applied challenge and, therefore, must prove by clear and convincing evidence that future enforcement of the act would violate their constitutional rights

It also clearly shows why the prohibitionist come up with so many bogus economic reports as they know that is a serious threat to the constitutionality of these laws

Footnote omitted.) State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 18. Because there is no physical invasion of appellants’ property and there is no claim that the Smoke Free Act deprives appellants of all economically beneficial uses of their property, the only possible taking involved is a partial regulatory taking under Penn Cent.
{¶ 55} With a Penn Cent. regulatory taking, a court engages in a factual inquiry of the following three factors: “(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action.” Shelly Materials at ¶ 19, citing Penn Cent. at 124.
{¶ 56} Appellants submitted evidence that their gross sales declined in 2009, but the Smoke Free Act became effective in December 2006, and in 2007 and 2008 appellants’ gross sales actually increased. Furthermore, Columbus’s smoking ban, found at Columbus Code of Ordinances Chapter 715, is very similar to R.C. Chapter 3794 and went into effect in January 2005. Still, appellants’ gross sales increased in 2005 and 2006. Thus, appellants have failed to demonstrate that the Smoke Free Act has had a significant economic impact on their business.
{¶ 57} The second and third factors also do not support finding a taking in this case. As the U.S. Supreme Court noted in Penn Cent.

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About Marshall Keith

Broadcast Engineer Scuba Diver Photographer Fisherman Hunter Libertarian
This entry was posted in Libertarian, Nanny State, Smoking Ban and tagged , , , , , , , . Bookmark the permalink.

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