{¶ 1} Appellants, Trish’s Café & Catering, Inc. and Pat’s Bar & Restaurant, Inc., separately appeal judgments of the Franklin County Court of Common Pleas, which affirmed administrative decisions by Public Health — -Dayton & Montgomery County (“Public Health”), a designee of appellee, the Ohio Department of Health (“DOH”), finding appellants in violation of the Ohio Smoke-Free Workplace Act (“Smoke-Free Act”). This court sua sponte consolidated these appeals for purposes of record filing, briefing, and oral argument. For the following reasons, we affirm the trial court’s judgments.
{¶ 2} The Smoke-Free Act, R.C. Chapter 3794, prоhibits proprietors of public places and places of employment from permitting smoking in those places and requires proprietors to post no-smoking signs and to remove ashtrays and receptacles used for disposing of smoking materials from any area where smoking is prohibited. R.C. 3794.02(A) and 3794.06. R.C. 3794.07 requires DOH and its designees to enforce the Smoke-Free Act and authorizes the director of DOH to promulgate rules to implement and enforce the Smoke-Free Act.
{¶ 3} On January 10, 2009, DOH received an anonymous complaint that the owner, employees, and customers of Trish’s Café were smoking in the establishment and that there were ashtrays everywhere. As a result, Public Health, as a designee of DOH, opened an investigation, generated a notice of a complaint, and assigned a sanitarian to investigate. On January 12, 2009, Aaron Fister, a
{¶ 4} Trish’s Café, through its owner, Patricia Wehrley, requested administrative review, and an administrative hearing was held befоre an impartial decision-maker. Fister testified to his January 12, 2009 observations and maintained that customers continued smoking the entire 15 to 20 minutes he was in the establishment. When Fister presented himself to the bartender, she extinguished her cigarette and summoned the owner. Fister went over his report with the owner, who told him to get out and threatened to call the police. The impartial decision-maker issued a report and recommendation, in which he concluded that on January 12, 2009, the proprietor of Trish’s Café permitted smoking in a prohibited area, in violаtion of R.C. 3794.02(A), and failed to remove ashtrays from a public place, in violation of R.C. 3794.06(B). The impartial decision-maker agreed that the violation was Trish’s Café’s third within two years and that the violation was intentional. Trish’s Café filed written objections to the impartial decision-maker’s report and recommendation, but Public Health approved the recommendation. Trish’s Café appealed to the Franklin County Court of Common Pleas, and that court affirmed.
{¶ 5} In a letter dated November 13, 2008, Public Health informed Pat’s Bar that a report had been filed against it, alleging а violation of the Smoke-Free Act. The letter cited a report dated May 15, 2008, but noted that additional reports received prior to the conclusion of the investigation would be included in the investigation, without additional notice. Additional complaints against Pat’s Bar were filed with DOH on May 19, 21, 23, and September 5, 2008. On November 21, 2008, a Public Health sanitarian, Aaron Florea, conducted an on-site investigation of Pat’s Bar and completed an investigation worksheet, stating that while he did not observe smoking, he observed an Altoids tin on the bar, and it contained ash rеsidue. Public Health sent Pat’s Bar notice of a proposed civil fine, dated December 23, 2008, and signed by Florea, informing Pat’s Bar that it had been found in violation of R.C. 3794.06(B) and assessing a $100 civil fine.
{¶ 6} On behalf of Pat’s Bar, Tracie Lindon requested an administrative review, and an administrative hearing was held before an impartial decision-
{¶ 7} Appellants assert the following assignments of error:
[L] Chapter 3794 of the Ohio Revised Code is void for vagueness in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section I of the Constitution of Ohio.
[II.] The proprietors of Trish’s Café * * * did not permit smoking in violation of Chapter 3794 of the Ohio Revised Code.
[III.] The proprietors of Trish’s Café * * * аnd Pat’s Bar * * * did not fail to remove from a public place ashtrays and/or smoking receptacles used for disposing of smoking materials.
[IV.] The trial court erred in finding that the sanitarian investigating Pat’s Bar did not violate its rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Constitution of Ohio.
{¶ 8} Pursuant to R.C. 3794.09(C), R.C. 119.12 governs an appeal from a finding of a violation of the Smoke-Free Act to the Franklin County Court of Common Pleas. In an administrative appeal, pursuant to R.C. 119.12, the trial court reviews an order to determine whether it is supported by reliable, рrobative, and substantial evidence and is in accordance with the law. The Ohio Supreme Court has defined reliable, probative, and substantial evidence as follows:
(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) “Substantial” evidence is evidence with some weight; it must have importance and value.
(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor Control Comm. (1992),
{¶ 9} On appeal to this court, the standard of review is more limited. Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992),
{¶ 10} In their first assignment of error, appellants argue that the Smoke-Free Act is void for vagueness, a question of law we review de novo. They specifically contend thаt R.C. 3794.02(A) and 3794.06(B) provide no guidance as to what a proprietor must do to comply with the law. R.C. 3794.02(A) states that “[n]o proprietor of a public place or place of employment * * * shall permit smoking in the public place or place of employment.” R.C. 3794.06(B) requires that “[a]ll ashtrays and other receptacles used for disposing of smoking materials shall be removed from any area where smoking is prohibited.”
{¶ 11} “When a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactmеnt (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.” Norwood v. Homey,
{¶ 12} Laws are entitled to a strong presumption of constitutionality, and the party challenging a law bears the burden of proving that it is unconstitutional beyond a reasonable doubt. Columbia Gas Transm. Corp. at ¶ 41, citing Yajnik v. Akron Dept. of Health, Hous. Div.,
{¶ 13} This court has previously addressed and rejected arguments that the Smoke-Free Act is unconstitutionally vague. In Deer Park Inn v. Ohio Dept. of Health,
{¶ 14} Appellаnts also contend that language in R.C. 3794.06(B), requiring a proprietor to remove ashtrays from areas where smoking is prohibited, is unconstitutionally vague. To determine legislative intent, we review a statute by reading undefined terms in context and construing them in accordance with rules of grammar and common usage. Carolina Tobacco Co. v. Petro, 10th Dist. No.
{¶ 15} Appellants cite the trial court’s decision in Jackson v. Bartec, Inc. (Feb. 22, 2010), Franklin C.P. No. 09CVH08-12197,
{¶ 16} Moreover, “[i]t is well-established that an individual who engages in conduct which is clearly proscribed by a statute cannot complain of the vagueness of a law as applied to others.” State v. Ferguson (1991),
{¶ 17} Before addressing the merits of appellants’ second and third assignments of error, we briefly consider a common argument raised under both— specifically, that the charges levied against appellants are invalid because Public Health did not comply with a procedural requirement under Ohio Adm.Code 3701-52-08. If DOH transmits a report of a violation of the Smoke-Free Act to
{¶ 18} It is unclear from the testimony whether the sanitarians conducted interviews as part of their investigations. The sanitarians who conducted the on-site investigations of Trish’s Café and Pat’s Bar testified that they spoke with the proprietors of those establishments. Fister testified that he spoke with the owner of Trish’s Café for about five minutes after he completed his investigation report but that the owner was upset and threatened to call the police. Similarly, Florea testified thаt he spoke with Lindon, the bartender of Pat’s Bar, who he believed was the owner. Florea stated that he asked Lindon about the Altoids-tin ashtray but that she made no statement about it.
{¶ 19} Whether or not the sanitarians complied with the interview prong of Ohio Adm.Code 3701-52-08(D), however, we conclude that appellants have waived any error in that regard. Neither Trish’s Café nor Pat’s Bar raised the alleged lack of interviews at its administrative hearing or in its objections to the impartial decision-makers’ report and recommendation. Appellants did not raise this issue until thеy filed their reply briefs in the trial court. A party generally waives the right to appeal an issue that could have been raised, but was not raised, in earlier proceedings. MacConnell v. Ohio Dept. of Commerce, 10th Dist. No. 04AP-433,
{¶ 20} In their second assignment of error, appellants contend that the proprietor of Trish’s Café did not permit smoking in violation of R.C. 3794.02(A). A proprietor permits smoking when she affirmatively allows smoking or implicitly allows smoking by failing to take reasonable measures to prevent
{¶ 21} Appellants argue that Public Health and the trial court imposed strict liability based solely on the observation of smoking on the premises, with no inquiry into whether the proprietor permitted the smoking, and that there was no evidence that the proрrietor permitted smoking. We disagree. This court has implicitly acknowledged that “because the proprietor is essentially tributary to the conduct of his or her patrons, not every instance of surreptitious, unobserved smoking on the premises will give rise to liability for the proprietor.” Deer Park Inn v. Ohio Dept. of Health, 10th Dist. No. 09AP-974,
{¶ 22} A trier of fact could conclude from Fister’s testimony that the proprietor permitted smoking. Fister testified that upon entering Trish’s Café, he observed three customers and the bartender smoking cigarettes and using ashtrays. According to Fister, the customers continued to smoke, in plain sight of the bartеnder, the entire 15 to 20 minutes he was in the establishment. When summoned from a back area, the owner was uncooperative and made no effort to stop the customers from smoking, nor did she instruct the bartender to tell the customers to stop smoking. Fister’s testimony also constituted reliable, probative, and substantial evidence upon which the trial court could rely to affirm the violation of R.C. 3794.02(A) against Trish’s Café. See The Boulevard at ¶ 18 (stating that sanitarian’s observation of a patron smoking for a lengthy period of time, within plain sight of the bartender, who did not request the patron to stop smoking in the establishment, constituted reliable, probative, and substantial evidence in support of the violation). Accordingly, we overrule appellants’ second assignment of error.
{¶ 24} With respect to Trish’s Café, Fister observed ashtrays on the bar, at a table, and behind the bar. The ashtrays held ashes, cigarette butts, and lit cigarettes, and were being used not only by customers but also by the bartender, while the owner was on the premises. Just as a violation of R.C. 3794.02(A) can be established with evidence that a proprietor implicitly permitted smoking, so may a violation of R.C. 3794.06(B) be established with evidence that a proprietor acquiesced in the presence of ashtrays in areas wherе smoking is prohibited. At the very least, the testimony established that the bartender, an agent of the proprietor, acquiesced in the presence of ashtrays and failed to remove them. Moreover, Fister’s testimony that the owner did nothing, upon entering the public area of the bar, to stop customers from smoking or to remove the ashtrays constitutes evidence that the owner also acquiesced in the presence of ashtrays. Despite appellants’ contention that Fister did not ask any questions regarding the ashtrays he observed, Fister’s testimony constitutes reliable, probative, and substantial evidence supporting a violation of R.C. 3794.06(B).
{¶ 25} With respect to Pat’s Bar, Florea testified that he observed an Altoids tin containing, at least, ash residue on the bar. There was some conflict in the testimony as to whether the tin was on the bar or behind the bar and whether the tin contained cigarette butts. The impartial decision-maker, however, believed Florea’s testimony over Lindon’s contrary testimony. In an R.C. 119.12 appeal, the common pleas court should ordinarily defer to an agency’s determination as to witness credibility and the weight assigned to the evidence. See Conrad,
{¶ 26} Ohio Adm.Code 3701-52-02(F) sets forth three exceptions to the requirement of removing ashtrays. A proprietor may provide ashtrays in areas where smoking is not prohibited and may provide ashtrays solely for the purpose of disposing of smoking materials prior to entering a place of employment or public place. A proprietor may also store ashtrays in a location within an area
{¶ 27} Finally, in their fourth assignment of error, appellants contend that the trial court erred by finding that Florea did not violate Pat’s Bar’s rights under the Fourth Amendment to the United States Constitution and Article I, Section 14, Ohio Constitution, which protect against unreasonable searches and seizures. In the trial court, Pat’s Bar argued that Florea discovered the basis for the violation only after entering into a nonpublic area of Pat’s Bar, without judicial authorization.
{¶ 28} “Warrantless searches are generally considered unreasonable. * * * Accordingly, evidence obtained by means of a warrantless search is subject to exclusion, unless the circumstances of the search establish it as constitutionally reasonable.” AL Post 763 v. Ohio Liquor Control Comm. (1998),
{¶ 29} In Stone at 165, fn. 4, the Supreme Court of Ohio explicitly added “administrative search[es]” to the list of recognized warrantless search exceptions. In New York v. Burger (1987),
{¶ 30} Another judicially recognized exception to the search-warrant requirement is the plain-view doctrine. Stone at 165, fn. 4. The plain-view exception permits a law-enforcement officer to seize clearly incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. State Dept. of Pub. Safety v. Marchbank (Mar. 29, 2001), 10th Dist. No. 00AP-1026,
{¶ 31} The impartial decision-maker who heard testimony regarding the Pat’s Bar violation found that Florea entered the establishment and “observed an open Altoid[s] can on the top of the bar with ash residue and cigarette butts present. He was approximately 6-10 feet from the ashtray when he observed it sitting on the back of the bar.” The impartial decision-maker noted Lindon’s contrary testimony but nevertheless found Florea’s testimony more credible. There is no dispute that the Altoids tin qualified as an ashtray or other receptacle for disposing of smoking materials under the Smoke-Free Act. See R.C. 3794.06(B). While appellants argue that the impartial decision-maker erred by believing Florea’s testimony over Lindon’s testimony, the trial court appropriately deferred to the impartial decision-maker’s resolution of the evidentiary conflicts and determination of credibility. There is no doubt that Florea had a right to be present on the Pat’s Bar premises, which were open to the public, and Florea’s testimony established that the Altoids tin was in plain view. Beсause the record contained reliable, probative, and substantial evidence to establish that the Altoids tin was in plain view, we conclude that the trial court did not err in overruling Pat’s Bar’s assignment of error alleging a violation of its Fourth
{¶ 32} In conclusion, having overruled each of appellants’ assignments of error, we affirm the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.