Pour House- Appellate Brief

IN THE TENTH DISTRICT COURT OF APPEALS FRANKLIN COUNTY, OHIO

POUR HOUSE, INC. 4301 Bennett Road Toledo, Ohio 43612 Appellant, -VSOHIO DEPARTMENT OF HEALTH 246 North High St. Columbus, OH 43215 Appellee.

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NO. 09 AP-157 Trial Court No. 08 CVF07-9510 REGULAR CALENDAR

APPELLATE BRIEF

Maurice A. Thompson (0078548) 88 E. Broad, Suite 1120 Columbus, Ohio 43215 Tel: (614) 224-4422 Fax: (614) 224 4644 Email: [email protected] Counsel of Record for Appellant

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES……...………………………………………………………………3 ASSIGNMENTS OF ERROR.……..……………………………………………………..............4 ISSUES PRESENTED FOR REVIEW……………….…………………………………………..4 STATEMENT OF THE CASE……………………………………………………………………5 FACTS…………………………………………………………………………………………….5 ARGUMENT IN SUPPORT OF ASSIGNMENTS OF ERROR…………………………….......9 Proposition of Law No. 1: A proprietor does not permit smoking when it does everything within its power to stop the smoking……………………………………………………………....………….….....9 Proposition of Law No. 2: Enforcement and Application of R.C. 3794 as a strict liability offense is inconsistent with the plain language of R.C. 3794…………………………………………….……………13 Proposition of Law No. 3: If R.C. 3794.02(A) imposes liability on the proprietor in this case, the it is unconstitutionally vague as applied to that proprietor……………………………….......15 CONCLUSION…………………………………………………………………………………..17 PROOF OF SERVICE…………………………………………………………………………...18

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TABLE OF AUTHORITIES Akron v. Meissner (1993), 92 Ohio App.3d 1, 4, 633 N.E.2d 1201. Ashton v. Kentucky (1966), 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469. Beau v. Lindley (1978), 56 Ohio St.2d 310, 383 N.E.2d 907, 10 O.O.3d 438. Bexley v. Selcer (1998), 129 Ohio App.3d 72. Colten v. Kentucky (1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584. Columbus-Suburban Coach Lines v. Pub. Util. Comm., 20 Ohio St.2d 125, 254 N.E.2d 8. Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 Kolender v. Lawson (1983), 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903. Norwood v. Horney (2006), 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115. Papachristou v. Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. Slingluff v. Weaver (1902), 66 Ohio St. 621, 64 N.E. 574. Wheeling Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 263 N.E.2d 249. Black‟s Law Dictionary (5 Ed. Rev. 1979) 1026. 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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STATEMENT OF THE CASE This is an appeal from an administrative determination that Appellant, the Pour House, Inc., (hereinafter “Pour House”) violated R.C. 3794, Ohio‟s Smoke Free Workplace Act, on February 4, 2009. Pour House appealed its initial citation, and the Toledo-Lucas County Health Department conducted an Administrative Review hearing on the matter on April 17, 2008. On May 1, 2008, the hearing officer issue a finding upholding the citation of Pour House. The Health Department approved the hearing officer‟s findings, and the Pour House, pursuant to R.C. 119.12, filed its appeal to the Franklin County Court of Common Pleas. On January 13, 2009, the Court of Common Pleas journalized a Decision and Judgment Entry denying Pour House‟s Appeal. Pour House file a Notice of Appeal to this Court on February 12, 2009.

FACTS The facts of this case are not in dispute. Testimonies given at the April 17, 2008 hearing do not necessarily conflict, and the hearing examiner acknowledged as much in her decision, stating that “it appeared to the examiner that the statements of the three witnesses were all very believable.” May 1, 2008 decision of hearing examiner Leslie Kovacik, p. 3. Despite this general agreement, the facts of the alleged violation are indispensable to any determination

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of whether Pour House actually permitted smoking. Accordingly, they warrant significant treatment. The Pour House is a bar and tavern located in Toledo, Lucas County, Ohio. A smoking ban inspector from the Toledo-Lucas County Health Department conducted an on-site investigation of Pour House on February 4, 2008, at 2:50 p.m. There is no dispute that, upon entering Pour House, Toledo-Lucas County Health Department inspector Kerry Cutcher observed a cigarette in an Altoid Mints can that was burning, smoking, or smoldering. Transcript of April 17, 2008 Administrative Review Hearing (hereinafter “Tr.”), p. 12. Ms. Cutcher inquired about the smoldering cigarette, and was advised by the bartender that it belonged to a customer who had exited the establishment just seconds before. Tr., p. 14. Ms. Cutcher conceded that she was certainly in the bar for less than a minute, and perhaps 30 seconds or even less than 30 seconds, prior to addressing the issue of the smoldering cigarette with the bartender, and thus that the cigarette could have been burning for only that amount of time. Tr., p. 18. Although Ms. Cutcher originally indicated, in her direct testimony, that the cigarette was in front of a seated patron, she conceded, upon cross-examination, that the cigarette was not in fact in front of anyone, but only near a patron. Tr., p. 20. While the patron who attempted to smoke stood in the vicinity of the seated patron, and set his Altoid can down in the vicinity of the seated patron, the seated patron, who was not smoking and did not leave, indicated to the inspector that it was not his cigarette in the Altoid can. Tr., pp. 43, 44, 50. The seated patron then demonstrated to the inspector that the cigarette was not his by showing her his own pack of cigarettes (that had been in his pocket), which was of a different brand than the cigarette in the Altoid can. Tr., pp. 44, 50.

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Jennifer Croley, the bartender on duty at the time of the inspection, testified that the patron who attempted to smoke was not a regular, and she did not otherwise recognize him. Tr. 40. The patron brought an Altoid can into the establishment in his pocket. Tr. 38, 39. He lit up a cigarette. Tr. 39. Ms. Croley immediately told the patron “no smoking in the bar,” and “to go outside and smoke.” Tr. 39. “He stood there for about a minute and then he sat the cigarette down and left.” Tr. 39. She further testified that she did not serve alcohol, or anything else, to this patron. Tr. 40. Importantly, no more than a minute elapsed between the time the patron complied with the bartender‟s order and set the cigarette down and left the establishment, and the inspector entered the establishment. Tr. 38, 40. During that minute, Ms. Croley would have extinguished the cigarette, but she was occupied “tending to another customer,” with her “hands full.” Tr. 39, 40. Ms. Croley explained that “when you have a lot of customers in the bar, I mean, you‟re doing stuff constantly, I mean, it‟s kind of hard to go over at that second and dispose of it.” Tr. 49. Mr. Croley added that at the specific time of this incident “[she] had a couple beers in [her] hands,” and that she had to walk over to patrons and serve them the drinks.” Tr. 51. She knew that the cigarette was still burning, and was planning on heading over to extinguish it as soon as her hands were free; however, the inspector entered before she could do so. Tr. 52. Ms. Croley verified that the cigarette had only been lit for a very short period of time by explaining that only the very tip of the cigarette had burnt, rather than any appreciable portion of it. Tr. 53. However, Ms. Cutcher cited the Pour House for “smoking in prohibited area.” Tr., p. 17. Pour House owner Ted Wilczynski testified, as to his establishment‟s policy, that (1) there are at least eight “no-smoking” signs posted within the Pour House, and that these signs have been posted since the statewide smoking ban went into effect; (2) Pour House has an

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official policy whereby employees order patrons to either extinguish there cigarettes, smoke on the outdoor patio, or leave the establishment; (3) he has personally enforced this policy; and (4) this policy is enforced to the utmost degree. Tr. 27. More specifically, patrons who light up a cigarette within Pour House, despite „no-smoking” signs, are told to leave the establishment, “put it out,” or “go to the patio.” Tr. 29, 30. Mr. Wilczynski further testified that Pour House policy is so strict that a patron is not even permitted to carry a lit cigarette out to the outdoor patio with him once he has wrongfully lit it within the establishment, but must instead extinguish the cigarette immediately, and then walk out to the patio. Tr. 31, 32. Mr. Wilczynski concluded that “my policy is no smoking in the Pour House.” Tr. 31. Mr. Wilczynski separately noted that he had reviewed security video from his establishment, and that this video demonstrated that a patron, who was not a regular, (1) began to smoke, (2) was not served anything, and (3) left the establishment immediately after lighting the cigarette. Ms. Croley verified that owner Ted Wilczynski has told her, “one-on-one,” to tell smoking patrons “to put it out, go to the patio, or go outside [and smoke].” Tr. 46, 47. Ms. Croley enforces the Pour House‟s zero tolerance policy. She indicated that “I tell all my customers to go outside and smoke,” and that she has always taken best efforts to enforce this policy. Tr. 41. However, Ms. Cutcher separately indicated that she enforces R.C. 3794 as though it is a strict liability offense: “Part of my instruction for doing these investigations, typically I don‟t make assumptions of who it belongs to, I‟m there to see if there’s a burning cigarette.” Tr. 22. To this end, although the statute authorizes it, Ms. Cutcher indicated that she has never cited a patron for smoking or for refusing to discontinue smoking. Tr. 23.

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The hearing officer upheld the citation of Pour House. Notably, in her decision, the hearing officer stated that “it appeared to the examiner that the statements of the three witnesses were all very believable.” May 1, 2008 decision of hearing examiner Leslie Kovacik, p. 3. However, she concluded that because the inspector “observed a lit cigarette burning inside an Altoid can,” and because “this observation is the foundation of the above-cited violation of Ohio‟s Smokefree Workplace Law,” the violation was upheld. Hearing Examiner, p. 5. The hearing officer ruled that R.C. 3794(A) is of a “strict liability nature.” Hearing Examiner, p. 4. 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 Franklin County Court of Common Pleas 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. It also appears as though the Court of Common Pleas failed to consider and analyze Appellant‟s “as applied” arguments.

ARGUMENT A. A proprietor does not permit smoking when it does everything within its power to stop the smoking. The Pour House did not permit smoking because it took all reasonable, feasible steps to preclude smoking within its establishment, and could have done nothing more to stop the smoking. To hold otherwise, when the Pour House engaged in the antithesis of permitting

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smoking, would render R.C. 3794.02(A) standardless. The Ohio Supreme Court has aptly stated its role in construing a statute as follows: The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the lawmaking body which enacted it. * * * But the 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. That body should be held to mean what it has plainly expressed, and hence no room is left for construction. 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. Further, “(i)n determining the legislative intent of a statute it is the duty of this court to give effect to the words used in a statute, not to delete words used, or to insert words not used.” Columbus-Suburban Coach Lines v. Pub. Util. Comm., 20 Ohio St.2d 125, at 127, 254 N.E.2d 8.” Wheeling Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 28, 263 N.E.2d 249, 251. Emphasis added. R.C. 3794.02(A) states, in pertinent part, “No proprietor * * * shall permit smoking in the public place or place of employment or in the areas directly or indirectly under the control of the proprietor * * *.” In analyzing whether the Pour House permitted smoking, both the Health Department‟s hearing examiner and the Court of Common Pleas incorrectly interpreted R.C. 3794. First, in construing this language as imposing “strict liability,” the Toledo-Lucas County Health Department‟s decision emphasized the presence of the word “shall.” Specifically, the Health Department concluded that “the statute‟s „shall‟ language does not incorporate any leniency for fact patterns such as this.” Hearing Examiner, p. 4.

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Plain English renders this interpretation incorrect. When the statute states that “no proprietor * * * shall permit [smoking],” the word “shall” modifies the active word “permit” Thus the word “permit” describes the activity from which the proprietor must abstain. Very simply, if a proprietor permits smoking, he has violated R.C. 3794.02(A); but if he has not permitted smoking, he has not violated R.C. 3794.02(A). The Court of Common Pleas appears to have acknowledged this much, insofar as its analysis is limited to whether Pour House permitted smoking. However, the Court of Common Pleas abrogated the meaning of the word “permit,” and thus the entire standard articulated in R.C. 3794.02(A) when it concluded that R.C. 3794(E) effectively nullifies the existence of the word “permit.” R.C. 3794.02(E) states that “the lack of intent to violate a provision of this chapter shall not be a defense to a violation.” While the Court of Common Pleas ruled that this subsection removes any requirement that the permission to smoke be purposeful, this analysis does not fully address the inquiry of whether a proprietor permits smoking. To violate R.C. 3794.02(A), a proprietor must permit smoking. Thus, subsection (E) must be read to stand for the following proposition: “the lack of intent to permit smoking is not a defense to the violation of permitting smoking.” Hence, the proprietor must still be found to have permitted smoking. The Court of Common Pleas erred in its analysis when it presupposed that the Pour House permitted smoking, and the hastily concluded that Pour House‟s lack of intent was not a defense to this presupposed intention. Further, the Court of Common Pleas then failed to apply the standard that it expressed for the word “permit” in its own decision. Instead, it offered a short-shrift, two sentence analysis of whether Pour House permitted smoking, concluding that “it was found [by

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the Health Department] that appellant did allow smoking to occur * * * accordingly, appellant‟s arguments to the contrary are found not to be well taken.” Common Pleas Decision, p. 4. This finding, and its very legal predicate, was and is the very thing that Appellant appealed. If the Court of Common Pleas would have properly applied its own definition of the word “permit,” it would have been required to find that the Pour House did not permit smoking. It noted the following definition of “permit:” The word “permit” is defined as to “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.” Other Ohio courts have held that this definition “connotes some affirmative actor omission.” Bexley v. Selcer (1998), 129 Ohio App.3d 72, at 77, citing Black‟s Law Dictionary (5 Ed. Rev. 1979) 1026; Akron v. Meissner (1993), 92 Ohio App.3d 1, 4, 633 N.E.2d 1201.

Clearly, the Pour House did not allow, consent to or acquiesce in smoking within its establishment on February 4, 2009. To the contrary, Pour House owner Ted Wilczynski testified, as to his establishment‟s policy, that (1) there are at least eight “no-smoking” signs posted within the Pour House, and that these signs have been posted since the statewide smoking ban went into effect; (2) Pour House has an official policy whereby employees order patrons to either extinguish there cigarettes, smoke on the outdoor patio, or leave the establishment; (3) he has personally enforced this policy; and (4) this policy is enforced to the utmost degree. Tr. 27. More specifically, patrons who light up a cigarette within Pour House, despite „no-smoking” signs, are told to leave the establishment, “put it out,” or “go to the patio.” Tr. 29, 30. More importantly, Ms. Croley did not permit smoking on February 4, 2008 because the Health Department did not establish that there was anything else Ms. Croley could have done to stop the smoking (OAC 3701-52-08(E) requires that the Health Department prove the violation by a preponderance of the evidence). 12

This failure of evidentiary proof is merely a reflection of the reality of the situation. Ms. Croley immediately told the patron “no smoking in the bar,” and “to go outside and smoke.” Tr. 39. She did not serve him alcohol, or anything else. Tr. 40. The patron complied, and Ms. Croley testified that she would have extinguished the cigarette, but she was occupied “tending to another customer,” with her “hands full.” Tr. 39, 40. Ms. Croley explained that “when you have a lot of customers in the bar, I mean, you‟re doing stuff constantly, I mean, it‟s kind of hard to go over at that second and dispose of it.” Tr. 49. In other words, Mr. Wylczynski and Ms. Croley did everything in their power to preclude smoking. Given these well-settled facts, Mr. Wylczynksi and Ms. Croley should be commended for their diligent attempts to comply with the statewide smoking ban, rather than cited for permitting smoking.

B. Upholding citation under these facts would renders R.C. 3794.02(A) a strict liability offense, contrary to legislative intent. To uphold a citation where the find otherwise would be to inevitably find that R.C. 3794.02(A) is a strict liability offense, and strip the “permit” standard of all of its meaning, when this was clearly not the legislature‟s intent.

To reiterate an important axiom, “(i)n

determining the legislative intent of a statute it is the duty of this court to give effect to the words used in a statute, not to delete words used, or to insert words not used.” Columbus-Suburban Coach Lines, supra.; Wheeling Steel Corp., supra. Emphasis Added. Rendering R.C. 3794.02(A) a strict liability offense is inconsistent with the legislative intent behind the statute. The legislature deliberately avoided creating a strict liability offense, even though it had the opportunity to do so. For instance, the legislature created a strict liability offense in R.C. 3794.02(B), which requires a proprietor to “ensure that tobacco smoke does not enter any area in which smoking is prohibited.” If the legislature had intended for the 13

proprietor to be subject to liability where only smoking is present in his establishment, it simply could have indicated as much through its drafting. For example, it could have written R.C. 3794.02(A)(2) to read “a proprietor shall be liable whenever smoking is present within the indoors of premises under its control.” However, instead of mimicking the strict liability approach of subsection (B), the legislature used a word that creates a standard, and thus cannot be without meaning. The term “permit” must be construed as having some meaning. A construction whereby liability is imposed upon a proprietor who takes a myriad of steps to preclude smoking both prior to and after the lighting of the cigarette within its establishment leaves the term “permit” with no meaning at all. The intent to impose a standard is further evidenced by the existence of R.C. 3794.02(D). That subsection states that “[n]o person shall refuse to immediately discontinue smoking in a public place, place of employment, or establishment * * * declared nonsmoking * * * when requested to do so by the proprietor or any employee of an employer of the * * * place * * *.” Clearly, R.C. 3794.02(A) and R.C. 3794.02 (D) are mutually exclusive. That is, under subsection (D), the patron, and not the proprietor, is subject to liability where the patron has refused to discontinue smoking. This provision evidences the legislative intent to protect the proprietor from liability where the patron acts in recalcitrant defiance of the proprietor‟s efforts to stop the smoking. Consequently, pursuant to the plain language of R.C. 3794, a proprietor does not “permit” smoking, so as to establish liability the very second that a recalcitrant patron lights a cigarette within the proprietor‟s establishment. Instead the employee of the proprietor on duty must be afforded a reasonable amount of time to (1) notice that the patron has lit the

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cigarette; (2) order the patron to stop smoking and to extinguish the cigarette; and (3) if the patron fails to comply with the first two directives, to put down whatever the employee has in his or her hands and walk over and extinguish the cigarette. In this case that process took somewhere between 30 seconds and one minute—a commendable performance rather than a permission of smoking. To hold otherwise would be to render the proprietor the victim of any rogue patron.

C. R.C. 3794 is unconstitutionally vague as applied to, and enforced against Pour House in this case. If R.C. 3794.02(A) is interpreted so as to create a strict liability offense or a de facto strict liability offense, then R.C. 3794.02(A) is unconstitutionally vague as applied to the Pour House. In dismissing this argument in several sentences, the Court of Common Pleas merely recited several sentences indicating that the language of a civil statute need not be crystal clear. Common Pleas decision, p. 4, 5. The Pour House concedes this much. However, this does not end the inquiry. A law must give fair notice to the citizenry of the conduct proscribed and the penalty to be affixed if that law is breached. See, generally, Kolender v. Lawson (1983), 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903; Colten v. Kentucky (1972), 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584. Implicitly, the law must also convey an understandable standard capable of enforcement in the courts, for judicial review is a necessary constitutional counterpoise to the broad legislative prerogative to promulgate codes of conduct. Norwood, supra., citing Giaccio v. Pennsylvania (1966), 382 U.S. 399, 403, 86 S.Ct. 518, 15 L.Ed.2d 447. Although the vagueness doctrine is perhaps most familiar in the context of criminal law, “[v]ague laws in any area suffer a constitutional

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infirmity.” Norwood, supra., citing Ashton v. Kentucky (1966), 384 U.S. 195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469. As the United States Supreme Court has explained: Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Norwood, supra., citing Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222. When a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactment (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. Kolender, supra., 461 U.S. at 357, 103 S.Ct. 1855, 75 L.Ed.2d 903. Ultimately, the critical question is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law; those laws that do not are void for vagueness. Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222; Papachristou v. Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. As a quintessential example of an Ohio Court striking down such vagueness, the Ohio Supreme Court, in Norwood, found the term “deteriorating” to be unconstitutionally vague, and therefore, unenforceable. See Norwood, supra. Here, if definition of the term “permit” can be stretched so broadly so as to allow for citation under the set of facts articulated in this case, then it does not “provide sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence.” This

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conclusion is supported through an attempt to answer the following questions: (1) what is a proprietor required to do, if he seeks a safe harbor to avoid liability, once a patron begins to smoke and an inspector walks in before the proprietor can get to the patron to ask him to stop? (2) how much time is the proprietor permitted to physically get to the patron to ask him to cease smoking? (3) what must the proprietor due to avoid liability once the patron, upon request, refuses to discontinue smoking once requested to do so? If the answer is that there is nothing a proprietor can do to avoid liability in such scenarios, or that it is unclear what the proprietor may do, then the ban is unconstitutionally vague as applied, and must not be applied against proprietors that have diligently attempted to comply with R.C. 3794.02(A), such as the Pour House.

CONCLUSION/RELEIF SOUGHT For the foregoing reasons, this Court should find that the Pour House, Inc. did not violate R.C. 3794, or in the alternative, find that R.C. 3794 is unconstitutional as applied to the Pour House, Inc. Accordingly the citation imposed upon the Pour House, Inc. should be overturned.

____________________________________ Maurice A. Thompson (0078548) 88 E. Broad, Suite 1120 Columbus, Ohio 43215 Tel: (614) 224-4422 Fax: (614) 224 4644 Email: [email protected] Counsel of Record for Appellant

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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)

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

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