Parker's Tavern v. Ohio Department of Health
958 N.E.2d 632
Ohio Ct. App.2011Background
- Appellant Parker’s Tavern appeals a Board of Health smoking violation under R.C. 3794.02(A).
- Investigation began May 16, 2009 after a complaint about patrons smoking in the Grove City tavern.
- Inspectors observed patrons smoking for about five minutes with no Tavern employee intervening.
- The Tavern’s wife later instructed patrons to stop smoking; patrons complied when inspectors were recognized.
- Franklin County fined $2,000 due to prior violations and deeming this violation intentional.
- Trial court affirmed the administrative decision; Tavern challenges on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the inspectors’ interview deficiency require reversal? | Tavern asserts non-interview of proprietor/employees/patrons violated Ohio Adm.Code 3701-52-08(D). | Franklin County contends issue not preserved; no reversible error. | No reversal; issue forfeited for appellate purposes. |
| Was there sufficient evidence Tavern permitted smoking? | Tavern argues measures taken show no permit of smoking. | Inspectors’ observations support a smoking violation despite Tavern measures. | Yes; the evidence was reliable, probative, and substantial to support the violation. |
Key Cases Cited
- Pour House, Inc. v. Ohio Dept. of Health, 185 Ohio App.3d 680 (2009-Ohio-5475) (preponderance and reasonable preventive measures determine permit to smoke)
- Traditions Tavern v. Columbus, 171 Ohio App.3d 383 (2006-Ohio-6655) (reasonable measures vary by circumstances; no safe harbor from prevention duties)
- The Boulevard v. Ohio Dept. of Health, 2010-Ohio-1328 (10th Dist. No. 09AP-837) (appellate review of agency findings; defer to agency on conflicts of evidence)