Tri Cty. Beverage v. Bur. of Environmental Health, Ohio Dept. of Health

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2012 » Tri Cty. Beverage v. Bur. of Environmental Health, Ohio Dept. of Health

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-5978

Case Date: 12/18/2012

Plaintiff: Tri Cty. Beverage

Defendant: Bur. of Environmental Health, Ohio Dept. of Health

Preview:[Cite as Tri Cty. Beverage v. Bur. of Environmental Health, Ohio Dept. of Health, 2012-Ohio-5978.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Tri County Beverage,                                                                                 :
Appellant-Appellant,                                                                                 :                                                   No. 12AP-373
(C.P.C. No. 11CVF-06-8391)
v.                                                                                                   :
No. 12AP-441
Bureau of Environmental Health,                                                                      :                                                   (C.P.C. No. 11CVF-02-2129)
Ohio Department of Health,
                                                                                                     :                                                   (REGULAR CALENDAR)
Appellee-Appellee.
                                                                                                     :
D    E    C    I    S    I    O    N
Rendered on December 18, 2012
Cicero Law Office, LLC, and Lori R. Cicero, for appellant.
Michael DeWine, Attorney General, Angela M. Sullivan, and
Stacy L. Hannan, for appellee.
APPEALS from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶ 1}  Appellant, Tri County Beverage ("Tri-County"), appeals the judgments of
the Franklin County Court of Common Pleas, which affirmed administrative decisions
by appellee, the Ohio Department of Health  ("ODH"), and its designee, the Seneca
County General Health District ("Health District"), finding Tri-County in violation of the
Ohio  Smoke-Free  Workplace  Act                                                                     ("Smoke-Free  Act").     This  court  sua  sponte
consolidated these appeals, and we affirm the trial court's judgments for the following
reasons.

Nos. 12AP-373 and 12AP-441                                                                  2
I. BACKGROUND
{¶ 2}  Tri-County is a bar and drive-thru.   In case No.  12AP-373, the Health
District determined that Tri-County violated the Smoke-Free Act because its proprietor,
Richard Miller, failed to remove an ashtray from the bar.   In case No. 12AP-441, the
Health District determined that Tri-County violated the Smoke-Free Act because Miller
permitted a patron to smoke in the bar.    Tri-County contested the violations and
requested administrative review before an independent decision-maker.
{¶ 3}  Matt Beckman, a sanitarian for the Health District, testified as follows at
the administrative hearing in case No.  12AP-373.    Beckman went to Tri-County on
August 27, 2009.   While inside the bar, he found a wastebasket containing a beer can
"that had ashes and the smell of a cigarette butt."                                         (Case No. 12AP-373 Tr. 13.)   Miller
told Beckman that a drive-thru patron gave him the can and asked him to throw it away.
Beckman did not believe Miller, however.  Instead, Beckman inferred that a patron from
the bar placed the ash-filled can in the wastebasket, and he determined that the Smoke-
Free Act required Miller to remove the can because it was in the bar.
{¶ 4}  David Angals and Gary Dillon are regular patrons at Tri-County, and they
testified that people smoke outside the bar and dispense their ashes in beer cans
provided by bartenders.   Dillon indicated that smokers bring the ash-filled cans back to
the bar for disposal because Miller did not "want any cigarette butts laying outside."
(Case No. 12AP-373 Tr. 32.)  Tri-County employee Michael Scott also testified about that
procedure for patrons who smoke.   He indicated that Tri-County keeps a dozen cans for
patrons who smoke.    Lastly, Miller reiterated at the hearing that the can found by
Beckman was given to him by a drive-thru patron.
{¶ 5}  The independent decision-maker issued a report and recommendation, in
which he concluded that Tri-County violated the Smoke-Free Act.   Tri-County objected,
but ODH approved the recommendation.   Tri-County appealed to the trial court, and
that court affirmed.
{¶ 6}  In case No. 12AP-441, Beckman testified as follows at the administrative
hearing.   The Health District received an anonymous complaint that Tri-County was

Nos. 12AP-373 and 12AP-441                                                                  3
violating the Smoke-Free Act.    Beckman investigated the complaint on January 29,
2010.   Beckman smelled "a strong odor" of smoke when he went inside the bar at Tri-
County, and he saw a man holding a cigar.                                                   (Case No. 12AP-441 Tr. 21.)   The cigar had
smoke billowing from it, and "[i]t was obviously burning for a little while."               (Case No.
12AP-441 Tr. 27.)  Miller was facing the smoker while sitting at a nearby table.  Beckman
determined that Tri-County violated the Smoke-Free Act because a patron was allowed
to smoke in the bar, and Beckman spoke with Miller about the violation.
{¶ 7}  Miller testified that someone was sitting between him and the person
Beckman claimed had been smoking.   Therefore, Miller said he did not see that person
smoke.   He also claimed that he did not smell smoke.   Lastly, he noted that Beckman
discussed the smoking violation with him for two or three minutes.  Ashley Drake works
at Tri-County, and she testified that she did not smell smoke in the bar on January 29,
2010.  She noted, however, that she was busy working in the drive-thru.
{¶ 8}  During  closing  argument,  counsel  for  Tri-County  claimed  that  the
evidence failed to establish a violation of the Smoke-Free Act.   Counsel also contended
that the charge against Tri-County was invalid because Beckman did not interview
Miller during his investigation.   The independent decision-maker issued a report and
recommendation, in which he upheld Beckman's finding that Tri-County violated the
Smoke-Free Act.   Tri-County objected, but ODH approved the recommendation.   Tri-
County appealed to the trial court, and that court affirmed.
II. ASSIGNMENTS OF ERROR
{¶ 9}  Tri-County filed timely notices of appeal and assigns the following errors:
[Case  No.                                                                                  12AP-373]  THE  OHIO  DEPARTMENT  OF
HEALTH     FAILED     TO     ESTABLISH     BY     A
PREPONDERANCE   OF  THE  EVIDENCE  THAT  THE
PROPRIETOR OF TRI COUNTY BEVERAGE FAILED TO
REMOVE ASHTRAYS AND/OR SMOKING RECEPTACLES
USED FOR DISPOSING OF SMOKING MATERIALS FROM
A PUBLIC PLACE.
[Case  No.                                                                                  12AP-441]  THE  OHIO  DEPARTMENT  OF
HEALTH     FAILED     TO     ESTABLISH     BY     A
PREPONDERANCE   OF  THE  EVIDENCE  THAT  THE
PROPRIETOR OF TRI-COUNTY BEVERAGE PERMITTED

Nos. 12AP-373 and 12AP-441                                                                   4
SMOKING IN VIOLATION OF R.C. 3794.02(A) AND O.A.C.
3701-52-02(A) AND WAS IMPROPERLY FINED.
III. DISCUSSION
{¶ 10} Because  they  concern  similar  issues,  we  address  Tri-County's  two
assignments of error together.   In those assignments of error, Tri-County contends that
the trial court erred by affirming ODH's conclusion that it violated the Smoke-Free Act.
We disagree.
{¶ 11} Tri-County first argues that the charges against it were invalid because
Beckman did not interview Miller during his investigations on August 27, 2009 and
January 29, 2010.   Ohio Adm.Code 3701-52-08(D)(2)(c) and (D)(3) required Beckman
to conduct interviews during his investigations.   This court has defined "interview" as a
" 'meeting at which information is obtained.' "  Parker's Tavern v. Ohio Dept. of Health,
10th  Dist.  No.  10AP-968,  2011-Ohio-5767,  ¶  8, quoting Merriam-Webster's Online
Dictionary  (2012),  http://www.merriam-webster.com/dictionary/interview  (accessed
December 12, 2012).
{¶ 12} Miller acknowledged that Beckman discussed the smoking violation with
him during the January 29, 2010 investigation.   To be sure, the discussion lasted only
two or three minutes, but an "extensive" meeting is not required.   Parker's Tavern at
¶ 10.  Therefore, we hold that Beckman interviewed Miller on January 29, 2010.
{¶ 13} We next address Tri-County's claim that Beckman did not conduct an
interview during his investigation on August 27, 2009.   As an initial matter, Tri-County
failed to preserve that issue for appellate review because it was not raised at the
administrative hearing.   See Trish's Café & Catering, Inc. v. Ohio Dept. of Health, 195
Ohio  App.3d  612,  2011-Ohio-3304,  ¶                                                       19   (10th  Dist.).    In  any  event,  the  record
established that Beckman interviewed Miller during the investigation on August 27,
2009.
{¶ 14} Because Beckman interviewed Miller during his investigations, the charges
against Tri-County were valid.   We now turn to the merits of Tri-County's claim that the
trial court erred by affirming ODH's decision that it violated the Smoke-Free Act.   The
trial court was required to determine whether ODH's decision was in accordance with

Nos. 12AP-373 and 12AP-441                                                                     5
law and supported by reliable, probative, and substantial evidence.   See The Blvd. v.
Ohio Dept. of Health, 10th Dist. No. 09AP-837, 2010-Ohio-1328, ¶ 7.   In applying this
standard,  the  trial  court  needed  to  give  "due  deference"  to  ODH's  "resolution  of
evidentiary conflicts."  Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).
{¶ 15} Our review is more limited.   The Blvd. at ¶ 8.   We determine whether the
trial court abused its discretion by finding that ODH's decision was supported by
reliable, probative, and substantial evidence.   See Pour House, Inc. v. Ohio Dept. of
Health, 185 Ohio App.3d 680, 2009-Ohio-5475, ¶ 12 (10th Dist.).  An abuse of discretion
connotes  more  than  an  error  of  law  or  judgment;  it  entails  a  decision  that  is
unreasonable, arbitrary or unconscionable.   Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).  On questions of law, our review is plenary.  See Pour House at ¶ 12.
{¶ 16} ODH concluded that Tri-County violated the Smoke-Free Act because its
proprietor allowed a patron to smoke a cigar in the bar on January 29, 2010.  Tri-County
contends that the trial court abused its discretion by affirming that decision.
{¶ 17} R.C. 3794.02(A) prohibits smoking in public places.   A business violates
R.C.  3794.02(A) if its proprietor "affirmatively allows smoking or implicitly allows
smoking by failing to take reasonable measures to prevent it."   Pour House at ¶ 19.   The
Supreme Court of Ohio has concluded that a proprietor implicitly permitted smoking
when multiple patrons smoked in front of him, and he did nothing to stop them.
Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, ¶ 45.
{¶ 18} Here, Beckman testified that a patron was smoking a cigar in a public
place at Tri-County and that Miller did nothing to stop him.   Tri-County contends,
however, that the record failed to establish that Miller knew the patron was smoking.   It
notes that Miller testified that someone was blocking his view of the patron and that
Miller and Drake indicated that they did not smell smoke.  But ODH rejected Miller and
Drake's claim that  they did not  smell  smoke,  and the trial  court  deferred to that
conclusion.    Pursuant to Conrad, it was reasonable for the court to do so because
Beckman indicated that the patron's cigar emitted "a strong odor of smoke" and "was
obviously burning for a little while."                                                         (Case No. 12AP-441 Tr. 21, 27.)   In addition, ODH
did not believe Miller's testimony that he did not see the patron smoke, and the trial

Nos. 12AP-373 and 12AP-441                                                                        6
court properly deferred to that finding given that Miller and the patron were sitting near
each other.   Consequently, reliable, probative, and substantial evidence established that
Miller permitted a patron to smoke at Tri-County.   Therefore, the trial court did not
abuse  its  discretion  by  affirming  ODH's  decision  that  Tri-County  violated  R.C.
3794.02(A).
{¶ 19} Next,  ODH  concluded  that  Tri-County  violated  the  Smoke-Free  Act
because Miller failed to remove an ashtray from the bar on August 27, 2009.  Tri-County
contends that the trial court abused its discretion by affirming that decision.
{¶ 20} Under R.C. 3794.06(B), a proprietor is required to remove ashtrays from
inside public places of his business.   A violation under R.C. 3794.06(B) occurs if the
proprietor fails to remove the ashtrays or acquiesces to their presence.   Trish's Café at
¶ 24.    An ashtray is a "receptacle that is used for disposing of smoking materials
including but not limited to ash and filters."   Ohio Adm.Code 3701-52-01(A).   Here,
while looking through a wastebasket in the bar, Beckman found a beer can "that had
ashes and the smell of a cigarette butt."   (Case No. 12AP-373 Tr. 13.)   That beer can was
an ashtray pursuant to Ohio Adm.Code 3701-52-01(A).
{¶ 21} Tri-County claims that Miller simply threw the beer can away after a drive-
thru patron gave it to him.   But Beckman determined that a patron from the bar placed
the beer can in the wastebasket and that Miller unlawfully failed to remove the can from
the public place.   It was within the province of the trial court to accept that conclusion
because the evidence established that Miller allowed patrons to smoke outside with beer
cans used as ashtrays and, in spite of R.C. 3794.06(B), he required the smokers to bring
the ash-filled cans back in the bar for disposal.  Nevertheless, even if a drive-thru patron
gave Miller the beer can, R.C. 3794.06(B) prohibited Miller from bringing it into the bar.
{¶ 22} Consequently,  reliable,  probative,  and  substantial  evidence  established
that Tri-County, through its proprietor, failed to comply with its duty to remove an
ashtray  from  the  bar.    Therefore,  the  trial  court  did  not  abuse  its  discretion  by
concluding that Tri-County violated R.C. 3794.06(B).

Nos. 12AP-373 and 12AP-441                                                                 7
{¶ 23} In summary, the trial court did not abuse its discretion by affirming ODH's
conclusion  that  Tri-County  violated  the  Smoke-Free  Act  on  August 27,  2009,  and
January 29, 2010.  We overrule appellant's first and second assignments of error.
IV. CONCLUSION
{¶ 24} Having  overruled appellant's two  assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
TYACK and SADLER, JJ., concur.

Download 12ap-373.pdf