IN THE TENTH DISTRICT COURT OF APPEALS

FRANKLIN COUNTY, OHIO

)
POUR HOUSE, INC. ) NO. 09 AP-157
4301 Bennett Road )
Toledo, Ohio 43612 ) Trial Court No. 08 CVF07-9510
)
Appellant, ) REGULAR CALENDAR
)
-VS- )
)
OHIO DEPARTMENT OF HEALTH ) APPELLANT’S REPLY BRIEF
246 North High St. )
Columbus, OH 43215 )
)
Appellee. )

On Appeal from the Franklin County Court of Common Pleas

BRIEF IN REPLY TO BRIEF OF DEFENDANTS-APPELLEES OHIO DEPARTMENT

OF HEALTH, ET AL

Maurice A. Thompson (0078548)

88 E. Broad, Suite 1120
Columbus, Ohio 43215
Tel: (614) 224-4422
Fax: (614) 224 4644
Email: mthompson@buckeyeinstitute.org
Counsel of Record for Appellant

Carol V. Mosholder
Principal Assistant Attorney General
Tobacco Enforcement Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: (614) 387-5600
Fax: (614) 387-5597
Carol.Mosholder@ohioattorneygeneral.gov
Counsel for Appellees

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 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES……...………………………………………………………………3

ASSIGNMENTS OF ERROR.……..……………………………………………………..............4

ISSUES PRESENTED FOR REVIEW……………….…………………………………………..4

ARGUMENT IN REPLY TO APPELLEE’S BRIEF………………………………………..…...5

1. Legal Conclusions of the Trial Court and Administrative Review Board are not entitled to
deference……………………………………………………………………......................5

2. Since the legislative intent behind R.C. 3794.02 is manifested in the language used, it is
not necessary to resort to other sections of R.C. 3794…………………………………….6

3. Codified canons of statutory instruction mandate that the word “permit” have meaning,
and that a proprietor is not liable when it does everything possible to stop smoking in its
establishment………………………………………………………………………………6

4. The Health Department misconstrues the difference between the unintentional presence
of smoke and the unintentional permission of smoking…………………………………..8

5. Traditions Tavern does not govern the vagueness argument here………………………...9

6. The Health Department’s theory that the burden shifts to the Proprietor has no bases in
law………………………………………………………………………………………..11

CONCLUSION…………………………………………………………………………………..12

PROOF OF
SERVICE……………………………………………………………………………………..12,13

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 TABLE OF AUTHORITIES

Akron v. Meissner (1993), 92 Ohio App.3d 1, 4, 633 N.E.2d 1201.

Beau v. Lindley (1978), 56 Ohio St.2d 310, 383 N.E.2d 907, 10 O.O.3d 438.

Ravenna Township Trustees v. City of Ravenna (1996), 117 Ohio App.3d 152, 690 N.E.2d 49.

Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574.

Yusuf v. Omar, 10th Dist. No. 06AP-416, 2006-Ohio-6657.

Black’s Law Dictionary (5 Ed. Rev. 1979) 1026.

R.C. 1.42

R.C. 1.47(B)

R.C. 1.47(C)

R.C. 3794.02(A)

R.C. 3794.02(B)

R.C. 3794.02(D)

R.C. 3794.02(E)

OAC 3701-52-08(E)

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 ASSIGNMENTS OF ERROR

First Assignment of Error

The trial court erred in finding that Appellant permitted smoking within its establishment.
(Common Pleas Decision, p. 4).

Second Assignment of Error

The trial court erred in finding that R.C. 3794 is constitutional as applied to Appellant.
(Common Pleas Decision, p. 4).

ISSUES PRESENTED FOR REVIEW

1. Whether a proprietor “permits” smoking, so as to invoke liability under R.C. 3794.02(A),

where it does not immediately stop a patron from smoking, or in the alternative, whether
the term “permit” envisions that the proprietor shall have a reasonable amount of time to
cure the potential violation. (First Assignment of Error).

2. Whether R.C. 3794.02(A) may be construed as a strict liability, or de facto strict liability
offense (First Assignment of Error).

3. Whether, if the Appellant is found to have permitted smoking in this instance, R.C.
3794.02(A) is unconstitutionally vague as applied to appellant (Second Assignment of
Error).

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 ARGUMENT IN REPLY TO APPELLEE’S BRIEF

1. Legal Conclusions of the Trial Court and Administrative Review Board are not
entitled to deference.

Although the Health Department submits that this Court may not substitute its

judgment for that of the Administrative Review Board and Court of Common Pleas, the finding

that Pour House permitted smoking was predicated on a legal conclusion, rather than factual

determinations, and is thus entitled to no deference. As the Health Department aptly

acknowledges, this Court reviews questions of law de novo. Yusuf v. Omar, 10th Dist. No.

06AP-416, 2006-Ohio-6657.

Here, both the Trial Court and the Administrative Review Board based their

findings of violation on legal conclusions. The hearing officer drew the legal conclusion that

R.C. 3794 is a strict liability offense, and that though the bartender asked the patron to extinguish

the cigarette the second she was him, “the statute’s ‘shall’ language does not incorporate any

leniency for fact patterns such as this.”

On this front, the Trial Court appears to have agreed with the conclusion that R.C.

3794 is a strict liability offense, insofar as it concluded that “the legislature gave significant

resolution to the issue by providing that the ‘lack of intent to violate a provision of this chapter

shall not be a defense to a violation’…Thus, the type of ‘permit’ necessary to be shown need not

have a purposeful component to it.” Common Pleas Decision, p. 4. Thus, legal conclusions

were essential to the finding that Pour House permitted smoking, and rather than viewing this as

a matter of weighing evidence, this Court should review these lower tribunals’ conclusions de

novo.

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 2. Since the legislative intent behind R.C. 3794.02 is manifested in the language used, it
is not necessary to resort to other sections of R.C. 3794.

The Health Department places unnecessary emphasis on sections of R.C. 3794

other than R.C. 3794.02(A). “[T]he intent of the lawmakers is to be sought first of all in the

language employed, and if words be free from ambiguity and doubt, and express plainly, clearly,

and distinctly the sense of the lawmaking body, there is no occasion to resort to other means of

interpretation * * * The question is not what did the general assembly intend to enact, but what is

the meaning of that which it did enact.” Beau v. Lindley (1978), 56 Ohio St.2d 310, 383 N.E.2d

907, 10 O.O.3d 438, citing Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574. (Emphasis

added).

Here, the language is clear: a proprietor shall not permit smoking. Permit is a

verb that has meaning, and although the Health Department heavily relies on R.C. 3794.02(E) to

construe the meaning of the word “permit,” it is not necessary to resort to other parts of R.C.

3794 to determine whether a proprietor permitted smoking. Consequently, this Court should

reject the use of outside subsections to misconstrue the prohibition on permitting smoking, and

should instead review the supplied definitions of “permit” and apply them to the fact of this case.

3. Codified canons of statutory instruction mandate that the word “permit” have
meaning, and that a proprietor is not liable when it does everything possible to stop
smoking in its establishment.

Even if R.C. 3794.02 is construed as ambiguous, Ohio’s codified standards of

statutory construction dictate that Pour House did not permit smoking in this case. Firstly, the

Health Department’s interpretation would require this Court to impermissibly ignore the context

of the proscription on permitting smoking. R.C. 1.42 states: “Words and phrases shall be read in

context and construed according to the rules of grammar and common usage. Words and phrases

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that have acquired a technical or particular meaning, whether by legislative definition or

otherwise, shall be construed accordingly.” The Health Department’s position, i.e. that a

proprietor permits smoking any time that smoking is present in its establishment, would require

this Court to read R.C. 3794.02(A) out of context. Specifically, it requires this Court to read

R.C. 3794.02(A) as though 3794.02(D) does not exist.

Secondly, the Health Department’s interpretation is inconsistent with the axiom

that parts of a statute must be interpreted so as to render the entire statute effective. R.C. 1.47(B)

states “[i]n enacting a statute, it is presumed that the entire statute is intended to be effective.”

But if R.C. 3794.02(A) is interpreted to mean that a liability is to be imposed upon the proprietor

any time smoking is present within its establishment, then when is R.C. 3794.02(D) effective?

The answer: never. R.C. 3794.02(D) requires that the patron, and not the proprietor, be cited

when smoking is present because the patron has refused to discontinue smoking. This section is

nullified by the an interpretation of the smoking ban that imposes strict liability on the proprietor

even where, as here, the proprietor has asked the patron to discontinue, but the patron does not

immediately comply.

Thirdly, the Health Department’s interpretation creates unjust and inequitable

results. Under R.C. 1.47(C), “[i]n enacting a statute, it is presumed that a just and equitable

result is intended.” The notion that liability should be strictly imposed upon the proprietor

whenever smoking is present, irrespective of whether (1) the proprietor has tried to stop the

smoking; or (2) the proprietor has not yet had an opportunity to stop the smoking, is unjust and

inequitable. As an illustration, consider a scenario where a tavern owner, in protest, walks into a

courtroom, lights up a cigarette, and refused to extinguish it. Under the Health Department’s

interpretation, the court would have permitted smoking the very second that the tavern owner

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had lit the cigarette. Such a result is clearly unjust and inequitable. Notably, this interpretation,

and its correlative result, also runs afoul of that axiom that courts should interpret statutes so as

to avoid absurd and ridiculous results. See Ravenna Township Trustees v. City of Ravenna

(1996), 117 Ohio App.3d 152, 690 N.E.2d 49 and State ex rel. Haines v. Rhodes (1958), 168

Ohio St. 165, 151 N.E.2d 716 (holding that “if it is reasonably possible, courts should construe

statutes so as to avoid ridiculous or absurd results because it is presumed that the legislature did

not intend such results.”).

4. The Health Department misconstrues the difference between the unintentional

presence of smoke and the unintentional permission of smoking.

The Health Department spends a majority of its brief creating and then attacking a

strawman. It asserts that Pour House’s argument has something to do with intent, and then lauds

provisions stating that intent need not be demonstrated to show that a proprietor permitted

smoking. These arguments are illusory and misdirecting: Pour House concedes that it need not

be shown that a proprietor intentionally permitted smoking.

Pour House only posits that irrespective of intent, it must still be demonstrated

that a proprietor permitted smoking, and “permitted” has independent meaning. Put another

way, a proprietor does not permit smoking every time that smoking is present just because it

need not have the intention to permit smoking. As a simple illustration, in Ohio, the crime of

statutory rape does not require a particularized intent, but the underlying sexual act with a minor

occurred. This underlying act is tantamount to permitting smoking, and not to the mere presence

of smoking. A proprietor must still have permitted the smoking. Thus, if the proprietor acted

unintentionally, and did not permit smoking, as here, there is no violation of R.C. 3794.02(A).

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 The Health Department plays a similar word game with the word “shall.”

Although it appears prior to the word permit, it does not alter the meaning of permit in any

substantive way. Instead it just links the subject of the statute (the proprietor) with the standard

of conduct to which that subject must adhere. Inserting the words “may” or “can” in place of

“shall” would not change the meaning of the statute. Consequently, this Court should not find

that R.C. 3794.02(A) imposes strict liability merely because the word shall appears in the text of

the statute. In the absence of strict liability, this Court must engage in analysis as to whether

Pour House permitted smoking, and that analysis necessarily results in a finding that no such

permission occurred in this case.

5. Traditions Tavern does not govern the vagueness argument here.

The Health Department inaccurately asserts that this Court’s decision is

Traditions Tavern is decisive in this case. In Traditions, this Court characterized the proprietor’s

arguments as follows:

Appellants argue that the Columbus smoking ban is impermissibly vague because
it lacks an objective standard clearly setting forth the proscribed conduct in
ordinary language. Specifically, appellants state that there is no common
understanding of what it means to “permit smoking.” Traditions Tavern v.
Columbus (2006), 171 Ohio App.3d 383, 870 N.E.2d 1197, 2006 -Ohio- 6655.

In contrast to the appellants in Traditions, Pour House readily concedes that the word “permit”

has a common meaning, and that this common meaning, as articulated in Traditions, should be

applied. That common meaning is as follows: “to suffer, allow, consent, let; to give leave or

license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act,”

and “some affirmative act or omission.” Traditions Tavern v. Columbus (2006), 171 Ohio

App.3d 383, 870 N.E.2d 1197, 2006 -Ohio- 6655, citing Black's Law Dictionary (5

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Ed.Rev.1979) 1026 and Akron v. Meissner (1993), 92 Ohio App.3d 1, 4, 633 N.E.2d 1201, 1203.

Pour House particularly stipulates to the conclusion in Traditions Tavern that any omission must

be affirmative, i.e. assenting or confirmatory, as opposed to inadvertent. This latter point led this

Court to hold as follows:

Thus, the ban prohibits a proprietor to allow, consent, or expressly assent to

smoking within his or her establishment. Likewise, a proprietor is forbidden to
acquiesce in smoking by failing to take appropriate measures to prevent people
from using tobacco on the premises, such as posting no-smoking signs or
removing ashtrays. Id.

The general tenor of this holding appears to acknowledge that need for obviation from liability in

cases where the proprietor does not allow, consent, or express to smoking, and has posted “no-

smoking” signs and removed all ashtrays. Since Pour House did not allow or consent to the

smoking, and posted signs and removed its ashtrays, its conduct falls outside of the “permit”

rubric expressed in Traditions.

In further contrast to Traditions, Pour House asserts that only if this Court adopts

the Health Department’s standardless interpretation of the word “permit” in a way that warrants a

finding that Pour House permitted smoking in this case, then it is unconstitutional vague as

applied to Pour House in this case. This argument reflects the reality that the statute, in

prohibiting the permission of smoking, appears to give a proprietor the opportunity to stop the

smoking. If interpreted so that the proprietor would have no opportunity to stop a smoking, then

the word permit, as interpreted and applied, is vague: a “person of an ordinary intelligence”

would read the statute to mean that the proprietor has a reasonable opportunity to stop the

smoking and avoid liability before it can be said to permit smoking.

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 6. The Health Department’s theory that the burden shifts to the Proprietor is a
fabrication.

In its brief, the Health Department boldly asserts that “[a]fter ODH proved that

smoking occurred in a prohibited area * * *, the burden shifted to Appellant to set forth

affirmative defenses, such as that Pour House did not ‘permit’ smoking.” This theory is solely a

product the of the Health Department’s imagination. There is only one rule in the Ohio Revised

Code and the Ohio Administrative Code regarding the burden of proving a violation of R.C.

3794.02, and that rule places the burden of proof squarely upon the Health Department.

Specifically, OAC 3701-52-8(E) states that “all findings of violation by the department * * *

shall be by a preponderance of the evidence.”

Proving that the proprietor has permitted smoking is the central element to the

Health Department’s case in chief. This means that the Health Department must prove not only

that smoking was present, but also that the proprietor permitted smoking. Pragmatically, this

only requires that the Health Department to engage in a cursory investigation, whereby it verifies

that the smoking was permitted by the proprietor, rather than the product of an obstinate patron.

Complying with this burden hardly places a health department inspector in an intractable

position: the inspector merely needs to ask whether the patron refused to discontinue smoking

upon request to do so, and if so, issue the citation to the patron rather than the proprietor.

Consequently, the Ohio Administrative Code places the burden on the Health Department to

prove not just that smoking was present, but rather “all findings of violation,” including that the

proprietor permitted smoking.

To hold otherwise would tantamount to allowing prosecutors to indict for “theft”

and then place the burden on the criminal defendant to show that the value of the property stolen

was not greater than $500. Instead, because the burden is on the prosecution, it must prove a

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value greater than $500 if it wishes to obtain a conviction for felony theft. Similarly, if the

Health Department wishes to impose liability under R.C. 3794.02(A), it must show that the

offense was not a R.C. 3794.02(D) offense.

For the foregoing reasons, this Court should find that Pour House did not permit

smoking, or in the alternative, that R.C. 3794.02(A) is unconstitutionally vague as applied to

Pour House in this case.

____________________________________
Maurice A. Thompson (0078548)
88 E. Broad, Suite 1120
Columbus, Ohio 43215
Tel: (614) 224-4422
Fax: (614) 224 4644
Email: mthompson@buckeyeinstitute.org
Counsel of Record for Appellant

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was served upon the parties specified below this
_____ day of ______________.

___________________________
Maurice A. Thompson (0078548)

Carol V. Mosholder
Principal Assistant Attorney General
Tobacco Enforcement Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: (614) 387-5600
Fax: (614) 387-5597
Carol.Mosholder@ohioattorneygeneral.gov
Counsel for Appellees

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Angela Sullivan, Esq.
Ohio Attorney General
Tobacco Enforcement Section
30 E. Broad St
16th Floor
Columbus, Ohio 43215

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