D.A.B.E., Inc. v. City of Toledo

Plaintiffs, a group of bar and restaurant owners, challenged an ordinance passed by the City of Toledo that prohibited smoking in enclosed public spaces except in a “separate smoking lounge”.  The plaintiffs argued that the ordinance violated the 5th amendment of the U.S. constitution by affecting a regulatory taking and contravened the Ohio constitutional “home rule” provision restricting municipalities from directly contradicting state law.  In rejecting the takings argument, the court found the public health protection and history of increased regulation of smoking outweighed any economic loss incurred by the plaintiffs.  Similarly, in rejecting the state law claim, the court found that a state law regulating smoking that chose not to address bars and restaurants did not, by implication, mean those areas could not be regulated by municipalities like Toledo.  The court denied the plaintiff’s motion for a preliminary injunction.

D.A.B.E., Inc. v. City of Toledo, 292 F.Supp.2d 968 (N.D. Ohio, 2003)

  • United States
  • Nov 19, 2003
  • United States District Court, N.D. Ohio, Western Division
Download Document

Parties

Plaintiff D.A.B.E., Inc.

Defendant City of Toledo, OH

Legislation Cited

Clean Indoor Air Ordinance of 2003

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Based upon the record, injunctive relief has the possibility of harming others in two distinct ways: 1) harm to the non-smoking population of Toledo, which would continue to be subject to the harmful effects of ETS in plaintiffs' bars and restaurants; and 2) harm to the enforcement mechanism set in place by the ordinance. The second of these is of lesser significance, and standing alone would be immaterial. Dr. Price's uncontradicted testimony as to the harmful effects of ETS on employees and non-smokers was, however, quite compelling. That testimony established the biological effects of ETS that appear within as little as thirty minutes of exposure to ETS. It also established the uniquely deleterious mixture of chemicals and carcinogens in second-hand smoke. Enjoining an otherwise legally valid ordinance would, on balance, present an unacceptable risk of harm to the non-smoking patrons and employees of plaintiffs' establishments. This factor weighs against the granting of injunctive relief as well."
"In this case, the General Assembly's exclusion of bars and restaurants from the reach of § 3791.031 does not mean that smoking in bars and restaurants is absolutely permitted, and that any home rule regulation of such behavior is barred. The statute simply did not cover smoking in bars and restaurants. Like the court in Mr. Fireworks, I conclude that a home rule municipality can, without violating Article XVIII, § 3, act where the legislature has declined to do so Despite plaintiffs' arguments to the contrary, plaintiffs have failed to establish a likelihood of success, much less a strong likelihood of success, as to their claim of a conflict between the Toledo's ordinance and O.R.C. § 3791.031."
"Plaintiffs claim that, in view of the accessibility of smoker-friendly bars and restaurants in adjacent communities, a state-wide regulation would be less harmful to their businesses than Toledo's ordinance. The fact that the State of Ohio could enact a statute with state-wide reach does not bear on the issue of whether the City of Toledo's ordinance constitutes a taking. The desirability of one alternative does not establish the unconstitutionality of the other."
"First, with regard to the "character" of the governmental action: the regulation indisputably regulates behavior which creates a significant risk to the health of nonsmokers. This is not, like nearly all takings cases, a land-use regulation: it is, rather, a response to a serious public health problem. The extent of that problem is not, moreover, limited solely to the impact of ETS on the health nonsmokers. That direct consequence has an indirect, but substantial public impact in the form of increased health care and related costs that must be borne by society as a whole. In addition, according to Dr. Price's testimony, other measures, including the designation of unenclosed smoking and non-smoking areas, do not significantly reduce the dangers from exposure to even diluted amounts of ETS. The ordinance simply seeks to eliminate employees' and non-smoking patrons' exposure to ETS in those public places in which there is likely to be a heightened risk of such exposure. "