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Tri County Beverage v. Ohio Department of Health

Court of Appeals of Ohio, Tenth District

July 9, 2013

Tri County Beverage, Appellant-Appellant,
v.
Ohio Department of Health, Appellee-Appellee.

APPEAL from the Franklin County Court of Common Pleas. C.P.C. No. 12CVF-04-5207

Cicero Law Office, LLC, and Lori R. Cicero, for appellant.

Michael DeWine, Attorney General, and Frank S. Carson, for appellee.

DECISION

SADLER, J.

{¶ 1} Appellant, Tri County Beverage, appeals the judgment of the Franklin County Court of Common Pleas, which affirmed an administrative decision by appellee, Ohio Department of Health, and its designee, the Seneca County General Health District ("Health District"), finding appellant in violation of the Ohio Smoke-Free Workplace Act ("Smoke-Free Act"). For the following reasons, we reverse the judgment of the trial court.

I. BACKGROUND

{¶ 2} The Smoke-Free Act requires businesses to prohibit smoking in public places under its control. R.C. 3794.02(A). It also prohibits the presence of ashtrays in any of those places. R.C. 3794.06(B). The law is enforced by appellee and its designee, the Health District.

{¶ 3} The Health District received a complaint that appellant, a bar in Seneca County, Ohio, was violating the Smoke-Free Act because its proprietor, Richard Miller, kept ashtrays in a storage room for use by customers in a prohibited area. Matt Beckman, a sanitarian for the Health District, went to the bar to investigate, discovered that there were two coffee cans in the storage room, and one of the cans contained cigarette butts and ashes. Based on Beckman's investigation, the Health District determined that appellant violated the Smoke-Free Act by failing to remove ashtrays from an area where smoking is prohibited, as required by R.C. 3794.06(B), and a $5, 000 fine was imposed because the Health District found that the bar intentionally violated the Smoke-Free Act.

{¶ 4} Appellant requested an administrative hearing to contest the violation and fine, as provided for in Ohio Adm.Code 3701-52-08(F)(2)(a). At the hearing, Beckman testified about his investigation of appellant, which took place around 5:30 p.m. on Thursday, February 17, 2011. Beckman noted that he went to the bar to investigate the complaint about illegal ashtrays being kept in a storage room. Upon entering the bar, Beckman smelled smoke and saw two bartenders and eight patrons. Beckman indicated that he needed to go to the storage room, and one of the bartenders told him that he was not allowed because money was kept there. After Beckman informed her that to prevent him from looking into the storage room would be impeding his investigation, the bartender acquiesced and let Beckman into the storage room. Once in the storage room, Beckman saw two coffee cans with lids on them. He opened the lid of one coffee can and saw that it contained cigarette butts and ashes. Beckman determined that appellant violated the Smoke-Free Act by keeping a coffee can with cigarette butts and ashes in the bar. Beckman testified that he was at the bar for a total of five minutes and that he never asked Miller or his staff any questions.

{¶ 5} Kathy Myers testified that she is employed as a bartender by appellant and was working when Beckman arrived for his investigation. She indicated that the coffee cans Beckman found in the storage room were provided for patrons to use as ashtrays when they smoked outside and that the public does not have access to the storage room. Myers said that cans were placed outside when the bar opened and in the storage room at closing time. Myers noted that the bar opens around 6:30 or 7:00 a.m. and closes at 1:00 a.m. on Monday through Saturday and at midnight on Sunday. She indicated that the ashes and cigarette butts from the coffee cans are thrown in a dumpster in the morning before being set out, and she noted that staff does not go to the dumpster at night for safety reasons. At another point, Myers testified that the coffee can found by Beckman was in the storage room because no one had asked to use it, and the staff usually waits "until somebody asks for [the coffee can] and wants to go out and smoke. And then we'll get it out and set them outside." (Tr. 48.) Lastly, Myers noted that Beckman did not ask the bar staff any questions while he was there.

{¶ 6} Miller testified that the coffee cans used as ashtrays are stored inside the bar because he did not want to leave them unattended outside when the bar was closed. He also said that his understanding of the law was that he could store ashtrays in a bar area that had no public access, and he believed he was complying with the Smoke-Free Act. Miller further testified that his staff would have placed the coffee can, found by Beckman, outside the bar around 6:00 p.m. on the day of the investigation because business would have started to pick up by then.

{¶ 7} During closing argument, counsel for appellant asserted that the Smoke-Free Act violation levied against it cannot stand because the bar was in compliance with the law and because Beckman did not conduct an interview, as required by Ohio Adm.Code 3701-52-08(D)(2)(c) and (3), during the investigation. The hearing examiner issued a recommendation in which she concluded that appellant violated the Smoke-Free Act and that Beckman complied with his duty to interview. The hearing examiner also recommended that appellant be fined $5, 000 for intentionally violating the Smoke-Free Act.

{¶ 8} Appellant objected to the hearing examiner's conclusion that Beckman conducted an interview during his investigation. Appellant also objected to the finding that the record established that the bar violated the Smoke-Free Act and to the determination that the bar intentionally violated the law.

{¶ 9} Appellee initially issued an adjudication order adopting the hearing examiner's recommendation, but it withdrew the order because it did not consider appellant's objections. Appellee subsequently issued an adjudication order overruling the hearing examiner's decision to find that ...


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