[Cite as Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187.] 

WYMSYLO, DIR., APPELLEE, v. BARTEC, INC., D.B.A. ZENO’S VICTORIAN 

VILLAGE, ET AL., APPELLANTS; DEWINE, ATTY. GEN., APPELLEE. 

[Cite as Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187.] 

R.C. Chapter 3734—Smoke Free Workplace Act—Legislation requiring 

proprietors of public places of employment to prevent smoking on 

premises is valid exercise of state’s police power—State’s enforcement of 

legislation against property owners does not constitute regulatory taking 

without just compensation.

(No. 2011-0019—Submitted October 19, 2011—Decided May 23, 2012.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 10AP-173, 2010-Ohio-5558. 

__________________ 

SYLLABUS OF THE COURT

R.C. Chapter 3794, the Smoke Free Workplace Act, is a valid exercise of the 

state’s police power by Ohio voters and does not amount to a regulatory 

taking. 

__________________ 

LANZINGER, J.

{¶ 1} In this case, we are asked to address several constitutional 

challenges to the Smoke Free Workplace Act, R.C. Chapter 3794. 

I. Factual Background 

{¶ 2} On November 7, 2006, Ohio voters passed a ballot initiative to 

enact the Smoke Free Workplace Act (“the Smoke Free Act”). Codified in R.C. 

Chapter 3794, the act became effective on December 7, 2006. The Ohio 

Department of Health (“ODH”) and its designees are charged with the 

enforcement of the Smoke Free Act. R.C. 3794.07. Subject to certain 
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2 

exemptions, proprietors of public places of employment are not to permit smoking 

in their establishments. R.C. 3794.02(A). Zeno’s Victorian Village is a privately 

owned bar in Columbus that has been cited for violations of the act on multiple 

occasions. 

{¶ 3} ODH’s director filed a complaint seeking preliminary and 

permanent injunctive relief ordering Bartec, Inc., d.b.a. Zeno’s Victorian Village, 

and Richard Allen, the CEO and sole shareholder of Bartec, Inc. (collectively, 

“appellants”) to comply with the Smoke Free Act and to pay all outstanding fines. 

Appellants answered the complaint and admitted receiving nine notices of 

violations after investigations had been completed and that a tenth investigation 

was pending. They raised the affirmative defenses that R.C. Chapter 3794 is 

unconstitutional both on its face and as applied to them and that R.C. Chapter 

3794 has been enforced in an unconstitutional manner and in a manner that is 

inconsistent with its plain language. Appellants also filed a counterclaim for 

declaratory and injunctive relief against ODH and a cross-claim against the Ohio 

Attorney General, alleging that the Smoke Free Act operates in violation of 

appellants’ constitutional rights under the Ohio Constitution, Article I, Sections 1, 

16, 19, and 20, that the act is invalid as applied to them, and that ODH engaged in 

rulemaking that exceeds its authority.1

 

 

1. The actual relief sought by appellants with respect to their declaratory judgment is somewhat 

unclear because the answer/counterclaim/cross-claim filed in the record is missing two pages. The 

only part of the request for relief that appears in full is a request for a preliminary and permanent 

injunction prohibiting 

1. Any further unconstitutional or otherwise unlawful enforcement of 

R.C. 3794 and OAC 3701. 

2. Any further Ohio Attorney General collection efforts against Zeno’s 

and similarly situated proprietors that have been, are, and continue to be issued 

under an unconstitutional and unlawful framework. 

3. Current Ohio Attorney General collection efforts which, if 

successful, will effectuate the permanent cessation of Zeno’s as a going business 

concern. 
January Term, 2012 

3 

{¶ 4} The trial court consolidated the parties’ requests for preliminary 

injunction with the trial on the merits. At trial, evidence was presented that 

appellants had been cited ten times for violating the Smoke Free Act between July 

2007 and September 2009. Eight of the ten violations were not appealed. The 

two violations that were appealed were upheld by the Franklin County Court of 

Common Pleas. The trial court, however, found that ODH has implemented a 

policy of strict liability for violations of the Smoke Free Act by issuing fines 

regardless of whether the appellants were actually “permitting” smoking to occur 

at Zeno’s. The court observed, “Property owners, however, have no control over 

whether someone rips out a cigarette and lights up. Again, the Department of 

Health’s interpretation of the Smoke Free Act makes property owners liable for 

the actions of third parties upon which the property owner has little to no control.” 

The trial court held that this ODH policy of imposing liability without fault was 

stricter than R.C. 3794.02 allowed and that ODH had exceeded its authority in 

implementing it. The trial court denied ODH’s request for a permanent injunction 

and vacated the ten citations. 

{¶ 5} ODH appealed to the Tenth District Court of Appeals, raising three 

assignments of error. The first alleged that the trial court failed to apply the plain 

language of the Smoke Free Act. The second alleged that the trial court erred 

 But a fragment of another request for what appears to be declaratory relief reads as follows: 

3. Relevant policies of the Ohio Department of Health constitute 

unlawful agency policymaking. 

4. The Ohio Department of Health’s interpretations and applications of 

relevant provisions of R.C. [Chapter] 3794 and OAC [Chapter] 3701 are in 

contravention of the language of the statute drafted and handed down by Ohio’s 

legislative branch of government. 

5. Ohio Attorney General’s Office collection efforts effectuate a taking 

of property without just compensation. 

From appellants’ trial brief, it appears that they were requesting that R.C. Chapter 3794 be 

declared unconstitutional as applied to them, that the citations already issued be invalidated, and 

that future enforcement against them be enjoined. 
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when it held that ODH had engaged in unlawful rulemaking. The third asserted 

that the trial court abused its discretion in denying ODH’s complaint for 

injunction. Appellants filed a cross-appeal, arguing that they were entitled to 

declaratory and injunctive relief to prohibit further unconstitutional or otherwise 

unlawful enforcement of R.C. Chapter 3794 and to prohibit the Ohio Attorney 

General from attempting to collect the outstanding fines. 

{¶ 6} The Tenth District reversed the trial court’s judgment. Jackson v. 

Bartec, Inc., 10th Dist. No. 10AP-173, 2010-Ohio-5558. The court of appeals 

examined R.C. 3794.02 and determined that the plain language of the statute and 

related Administrative Code sections required proprietors covered by the Smoke 

Free Act to assume some level of responsibility for conduct occurring on their 

premises. Id. at ¶ 19. The court of appeals determined that appellants were 

challenging ODH’s method of enforcement as applied and that appellants were 

therefore required to develop a factual record so that their challenge could be fully 

considered on appeal. By not pursuing an administrative hearing and failing to 

develop the necessary record, appellants had waived any error. Id. at ¶ 24. 

Because the ten orders finding violations of the Smoke Free Act had become final 

orders, the court of appeals held that the trial court should not have heard 

appellants’ collateral attack on the enforcement issue and thus erred as a matter of 

law in vacating the violations. Id. at ¶ 25. With respect to appellants’ argument 

that the Smoke Free Act is unconstitutional on its face, the appellate court relied 

on its previous decision in Deer Park Inn v. Ohio Dept. of Health, 185 Ohio 

App.3d 524, 2009-Ohio-6836, 924 N.E.2d 898, to hold that the act is 

constitutional. 

{¶ 7} After resolving the constitutional issues, the Tenth District 

addressed whether ODH was entitled to a permanent injunction. The court stated, 
January Term, 2012 

5 

 On this record, the evidence is overwhelming that Bartec 

repeatedly and intentionally violated the Smoke Free Act, failed to 

comply with its provisions as R.C. 3794.09(D) requires, and in so 

doing exposed patrons and employees to the very harm the statute 

is designed to prevent. Due to the hearing the court conducted and 

the evidence adduced as a result of the hearing, the trial court 

could reach no other conclusion than that ODH is entitled to the 

statutory injunction it requested. 

Id. at ¶ 33. 

{¶ 8} Based on its resolutions of ODH’s assignments of error, the Tenth 

District overruled appellants’ cross-assignments of error as an impermissible 

collateral attack on the final orders of violation. 

{¶ 9} We accepted appellants’ appeal to this court on the following three 

propositions of law: 

{¶ 10} 1. “The Health Department’s method of enforcing the smoking 

ban violates separation of powers, and must be discontinued.” 

{¶ 11} 2. “Inclusion of bars as proprietors subject to R.C. [Chapter] 3794 

exceeds the outer limits of the state police power, and unreasonably extinguishes 

property rights.” 

{¶ 12} 3. “Ohio’s declaratory judgment statute enables previously-cited 

Ohioans to challenge the constitutionality of a statute or rule.” 

{¶ 13} Because appellants failed to exhaust their administrative remedies 

and cannot use declaratory judgment to vacate final orders, we affirm the 

judgment of the court of appeals with respect to the ten earlier violations. We 

also hold that the Smoke Free Act is a valid exercise of the state’s police power 

and does not constitute a taking. 

 
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II. Legal Analysis 

{¶ 14} R.C. 3794.04 expresses the purpose of the Smoke Free Act passed 

by Ohio voters. 

Because medical studies have conclusively shown that 

exposure to secondhand smoke from tobacco causes illness and 

disease, including lung cancer, heart disease, and respiratory 

illness, smoking in the workplace is a statewide concern and, 

therefore, it is in the best interests of public health that smoking of 

tobacco products be prohibited in public places and places of 

employment and that there be a uniform statewide minimum 

standard to protect workers and the public from the health hazards 

associated with exposure to secondhand smoke from tobacco. 

The provisions of this chapter shall be liberally construed 

so as to further its purposes of protecting public health and the 

health of employees and shall prevail over any less restrictive state 

or local laws or regulations. Nothing in this chapter shall be 

construed to permit smoking where it is otherwise restricted by 

other laws or regulations. 

{¶ 15} The act also provides that “[n]o proprietor2

 of a public place3 or 

place of employment4 * * * shall permit smoking in the public place or place of 

employment * * *.” (Footnotes added.) R.C. 3794.02(A). Another section states, 

 

2. “ ‘Proprietor’ means an employer, owner, manager, operator, liquor permit holder, or person in 

charge or control of a public place or place of employment.” R.C. 3794.01(G). 

3. “ ‘Public place’ means an enclosed area to which the public is invited or in which the public is 

permitted and that is not a private residence.” R.C. 3794.01(B). 
January Term, 2012 

7 

No person shall refuse to immediately discontinue smoking 

in a public place, place of employment, or establishment, facility 

or outdoor area declared nonsmoking [under this chapter] when 

requested to do so by the proprietor or any employee of an 

employer of the public place, place of employment or 

establishment, facility or outdoor area. 

R.C. 3794.02(D). Proprietors of public places and places of employment are 

required to remove all ashtrays and receptacles used for disposing of smoking 

materials and to post at every entrance “no smoking” signs, which shall be 

“clearly legible to a person of normal vision throughout the areas they are 

intended to mark.” R.C. 3794.06. Only private residences and certain familyowned and -operated places of employment, retail tobacco shops, outdoor patios, 

private clubs, and designated smoking rooms in hotels and nursing homes are 

exempt from the reach of the act. R.C. 3794.03. 

{¶ 16} According to the rules promulgated by ODH pursuant to R.C. 

3794.04, once a report of violation is received, ODH has two alternatives. It may 

dismiss the report if, after construing the allegations as true, it determines that the 

report is frivolous, was not made in good faith, or is too old to be reasonably 

investigated. Ohio Adm.Code 3701-52-08(C). If it concludes that the report may 

have merit, ODH must issue to a proprietor a written notice and copy of the report 

of violation and allow for written statements or evidence to contest the report. 

Ohio Adm.Code 3701-52-08(D). After the written notice is issued, ODH must 

 4. “ ‘Place of employment’ means an enclosed area under the direct or indirect control of an 

employer that the employer's employees use for work or any other purpose, including but not 

limited to, offices, meeting rooms, sales, production and storage areas, restrooms, stairways, 

hallways, warehouses, garages, and vehicles. An enclosed area as described herein is a place of 

employment without regard to the time of day or the presence of employees.” R.C. 3794.01(C). 
SUPREME COURT OF OHIO

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investigate. Ohio Adm.Code 3701-52-08(D)(2). Upon finding a violation, ODH 

must provide a proprietor with either a letter of warning if there has been no 

finding of violation within the previous two years, or a written proposed finding 

of violation and a proposed civil fine. Ohio Adm.Code 3701-52-08(F). The fine 

per day for a violation of R.C. 3794.02(A) shall be not less than $100 and not 

more than $2,500. R.C. 3794.07(B). The fine shall be doubled for intentional 

violations. Id. 

{¶ 17} A proprietor who receives a proposed finding of violation and 

proposed civil fine may request an administrative review to present its case and to 

confront and cross-examine adverse witnesses. Ohio Adm.Code 3701-52-

08(F)(2). The hearing officer must prepare a report and recommendation, 

including findings of fact and conclusions of law, to which objections may be 

filed. ODH is required to approve, modify, or disapprove the report. Id. An 

affected proprietor may appeal a final ODH decision to the Franklin County 

Common Pleas Court pursuant to R.C. 119.12. R.C. 3794.09(C). 

A. Scope of Appeal

{¶ 18} Before addressing the merits of appellants’ appeal, we must 

determine which issues are properly before this court. The first two propositions 

of law assert that ODH’s method of enforcing the Smoke Free Act violates the 

separation-of-powers doctrine, exceeds the state’s police power, and constitutes a 

taking of property. The third proposition of law addresses the denial of 

appellants’ request for declaratory judgment. 

{¶ 19} With regard to the first two propositions, the Tenth District Court 

of Appeals concluded that these arguments were as-applied constitutional 

challenges that should have been raised at the administrative level. 2010-Ohio5558, ¶ 22-25. Because the court of appeals determined that appellants never 

argued an as-applied challenge during the administrative process, it held that the 

issues had been waived, and the trial court erred in vacating the violations. 
January Term, 2012 

9 

Appellants counter that the issues were properly raised as facial challenges and 

that they did not need to exhaust administrative remedies. 

1. The As-Applied v. Facial Constitutional Challenge 

{¶ 20} Like statutes and ordinances, administrative rules may be 

constitutionally challenged on their face or as applied. Jones v. Chagrin Falls, 77 

Ohio St.3d 456, 674 N.E.2d 1388 (1997). The distinction between the two types 

of constitutional challenges is important. For example, the standard of proof 

depends upon which type of challenge is being made. See State ex rel. Ohio 

Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-

Ohio-5512, 857 N.E.2d 1148, ¶ 21 (a facial constitutional challenge requires 

proof beyond a reasonable doubt, whereas an as-applied challenge requires clear 

and convincing evidence). More relevant to this case, however, is that parties 

advancing an as-applied challenge must raise that challenge at the first available 

opportunity, and failure to do so results in waiver. They need not do so if arguing 

a facial challenge. South-Western City Schools Bd. of Edn. v. Kinney, 24 Ohio 

St.3d 184, 494 N.E.2d 1109 (1986), syllabus; Reading v. Pub. Util. Comm., 109 

Ohio St.3d 193, 2006-Ohio-2181, 846 N.E.2d 840, ¶ 16 (facial constitutional 

challenge may be raised for the first time in appeal from administrative agency, 

but as-applied constitutional challenge must be raised first in the agency to allow 

the parties to develop an evidentiary record). 

{¶ 21} A facial challenge alleges that a statute, ordinance, or 

administrative rule, on its face and under all circumstances, has no rational 

relationship to a legitimate governmental purpose. Jaylin Invests., Inc. v. 

Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11. Facial 

challenges to the constitutionality of a statute are the most difficult to mount 

successfully, since the challenger must establish that no set of circumstances 

exists under which the act would be valid. United States v. Salerno, 481 U.S. 

739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). If a statute is unconstitutional 
SUPREME COURT OF OHIO

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on its face, the statute may not be enforced under any circumstances. When 

determining whether a law is facially invalid, a court must be careful not to 

exceed the statute’s actual language and speculate about hypothetical or 

imaginary cases. Washington State Grange v. Washington State Republican 

Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Reference to 

extrinsic facts is not required to resolve a facial challenge. Reading at ¶ 15. 

{¶ 22} A party raising an as-applied constitutional challenge, on the other 

hand, alleges that “the ‘application of the statute in the particular context in which 

he has acted, or in which he proposes to act, would be unconstitutional. The 

practical effect of holding a statute unconstitutional “as applied” is to prevent its 

future application in a similar context, but not to render it utterly inoperative.’ ” 

Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 

802 N.E.2d 632, ¶ 14, quoting Ada v. Guam Soc. of Obstetricians & 

Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., 

dissenting). Because an as-applied challenge depends upon a particular set of 

facts, this type of constitutional challenge to a rule must be raised before the 

administrative agency to develop the necessary factual record. Reading at ¶ 13. 

2. Appellants’ Separation-of-Powers Proposition—An As-Applied 

Constitutional Challenge

{¶ 23} In their first proposition of law, appellants allege that ODH’s 

method of enforcing the smoking ban violates the separation of powers and is 

therefore unconstitutional. They argue that this is a facial challenge. We 

disagree. 

{¶ 24} R.C. 3794.02(A) provides that no proprietor shall permit smoking 

in a public place or place of employment. In accordance with that statutory 

provision, ODH adopted Ohio Adm.Code 3701-52-02(B), requiring a proprietor 

to take “reasonable steps including, but not limited to, requesting individuals to 

cease smoking, to ensure that tobacco smoke, in an area directly or indirectly 
January Term, 2012 

11 

under the control of the proprietor, does not enter any area in which smoking is 

prohibited.” Appellants contend that ODH, in its efforts to enforce this 

regulation, has adopted an unwritten policy of strict liability. In other words, if an 

investigator sees smoking in a public place or place of employment covered by 

the Smoke Free Act, the proprietor is automatically charged with violating R.C. 

3794.02 regardless of the steps the proprietor has taken to comply with the act. 

Appellants contend that the adoption of a policy of strict liability exceeds the 

statutory authority granted to ODH, thereby usurping the legislative function and 

violating the separation of powers. 

{¶ 25} The resolution of this proposition, however, depends upon the 

particular set of facts and circumstances surrounding each of the ten separate 

violations. Due to the unwritten nature of the alleged strict-liability policy, 

extrinsic evidence is required to prove that the policy existed and that ODH 

investigators implemented it when conducting their investigations into the ten 

complaints. Thus, appellants are raising an as-applied challenge on separation-ofpowers grounds. 

{¶ 26} Nevertheless, we agree with the court of appeals that the trial court 

should not have entertained this as-applied challenge to the ten past violations. 

Appellants had the opportunity to request an administrative hearing in which they 

could have developed a record to show that ODH’s investigators used a strictliability approach. See Ohio Adm.Code 3701-52-08(F) and (G); R.C. 3794.09. 

Because appellants failed to request an administrative hearing for eight of their 

violations and because they failed to prosecute the two administrative appeals 

they did request, appellants did not raise any constitutional challenge regarding 

any of its ten violations. Therefore, appellants failed to exhaust their 

administrative remedies, and this constitutional issue is not properly before the 

court. 
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3. Appellants’ Police-Power and Takings Proposition—An AsApplied Constitutional Challenge

{¶ 27} In their second proposition of law, appellants assert that their 

inclusion as proprietors subject to the Smoke Free Act exceeds the outer limits of 

the state’s police power and unreasonably extinguishes property rights. 

Additionally, they argue that prohibiting smoking in an adults-only liquorlicensed establishment, such as Zeno’s, is unduly oppressive and amounts to a 

taking. It is clear that this is an as-applied challenge. Appellants are not 

contending that there is no set of circumstances under which the Smoke Free Act 

would be valid. Again, appellants are contending that, as applied to their 

particular circumstances, R.C. 3794.02 is unfair and unconstitutional. 

{¶ 28} Appellants acknowledge that this second proposition of law raises 

an as-applied challenge but nonetheless urge this court to adopt their arguments 

and invalidate the ten violations. However, as discussed above, because 

appellants did not raise this as-applied constitutional challenge in an 

administrative review, they failed to exhaust their administrative remedies, and 

this challenge is not properly before the court. 

B. Declaratory Judgment—Collateral Attack or Alternate Remedy

{¶ 29} In response to ODH’s complaint, appellants filed a counterclaim 

and cross-claim requesting declaratory judgment. The Tenth District held that the 

declaratory judgment was an as-applied challenge to the Smoke Free Act and was 

an improper means to collaterally attack the ten final orders finding violations. 

2010-Ohio-5558, ¶ 36. Appellants argue that the appellate court interpreted their 

request for relief as addressing only the past ten violations. Appellants contend 

that this characterization ignored the prospective aspect of their request for 

declaratory relief, i.e., their request to prevent ODH from continuing to apply its 

unwritten policy of strict liability. 
January Term, 2012 

13 

{¶ 30} Declaratory judgment is available to challenge the constitutionality 

of an administrative rule or policy. Karches v. Cincinnati, 38 Ohio St.3d 12, 526 

N.E.2d 1350 (1988). But it may not be used to review administrative 

proceedings. Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 271, 328 N.E.2d 

395 (1975) (“the declaratory judgment action is independent from the 

administrative proceedings; it is not a review of the final administrative order”). 

{¶ 31} The three essential elements for declaratory relief are that (1) a real 

controversy exists between the parties, (2) the controversy is justiciable in 

character, and (3) speedy relief is necessary to preserve the rights of the parties. 

Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 

261 (1973), citing Am. Life & Acc. Ins. Co. v. Jones, 152 Ohio St. 287, 296, 89 

N.E.2d 301 (1949). 

{¶ 32} Although the existence of another adequate remedy does not 

preclude an action for declaratory judgment, Civ.R. 57, we have also indicated 

that a party must exhaust an available administrative remedy before instituting a 

declaratory judgment action challenging the constitutionality of an administrative 

regulation as applied. Driscoll at 273-274. We further stated, 

This court has recognized at least two situations in which 

exhaustion of administrative remedies is not required prior to filing 

a declaratory judgment action challenging the constitutionality of 

zoning. One, of course, is the situation in which there is no 

administrative remedy available which could provide the relief 

sought. Kaufman v. Newburgh Heights, [26 Ohio St.2d 217, 271 

N.E.2d 280 (1971)]. The other is the situation in which the 

administrative remedy is unnecessarily onerous. Burt Realty Corp. 

v. Columbus, [21 Ohio St.2d 265, 257 N.E.2d 355 (1970)]. 
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Driscoll at 275. 

1. The Ten Orders Finding Violations Are Final 

{¶ 33} Appellants argue that an administrative appeal would have been 

futile and costly, and therefore they were not required to exhaust their 

administrative remedies before seeking a declaratory judgment on the 

constitutionality of the Smoke Free Act. But nothing in the record suggests that 

the administrative process under the Smoke Free Act is unduly burdensome or 

costly. The act provides proprietors, like appellants, several opportunities to 

contest a reported violation. A proprietor may submit a written statement or 

evidence after receiving a written notice of an alleged violation. Ohio Adm.Code 

3701-52-08(F). During an on-site visit by an investigator, a proprietor may 

demonstrate compliance with the act. A sanitary and program administrator for 

ODH testified that if no violations are observed during the investigation, the 

complaint against the proprietor would be dismissed. If the investigation results 

in proposed findings of violation and a civil fine, a proprietor will be afforded the 

opportunity to submit additional evidence. Ohio Adm.Code 3701-52-08(F)(1). 

Certain repeat violators will be afforded the opportunity to request administrative 

review of the proposed findings, during which they may present evidence and 

cross-examine witnesses. Ohio Adm.Code 3701-52-08(F)(2) and (F)(2)(a)(iv). If 

the hearing report goes against the proprietor, the proprietor may object to ODH. 

Ohio Adm.Code 3701-52-08(F)(2)(a)(vi). At any of these stages, given a proper 

challenge to the method of enforcing R.C. 3794.02, ODH could have found that 

there was insufficient evidence of a violation and dismissed the complaints 

against appellants. Therefore, an administrative remedy was available. 

{¶ 34} Appellants also argue that pursuant to Johnson’s Island, Inc. v. 

Danbury Twp. Bd. of Trustees, 69 Ohio St.2d 241, 431 N.E.2d 672 (1982), 

exhaustion of administrative remedies is not required when the constitutionality of 

a statute is raised as a defense in a proceeding brought to enforce the statute. 
January Term, 2012 

15 

However, the original enforcement of the Smoke Free Act against appellants 

occurred when the Columbus City Health Department, ODH’s designee, issued 

the ten proposed findings of violation and civil fine. These orders became final 

when they were not challenged on appeal, and the time for appeal has passed. 

Collateral attacks of final judgments are disfavored and succeed only in limited 

situations—fraud or lack of jurisdiction. Ohio Pyro, Inc. v. Ohio Dept. of 

Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 22-23. 

Because appellants do not argue either fraud or lack of jurisdiction, their attempt 

to invalidate the ten violations through a declaratory judgment action is an 

improper collateral attack. 

2. Future Application of Smoke Free Act to Zeno’s 

{¶ 35} Although appellants are foreclosed from challenging the violations 

already issued, we agree with appellants that their declaratory 

judgment/injunction action also sought to prevent future enforcement of the 

Smoke Free Act. Appellants raised an as-applied challenge and, therefore, must 

prove by clear and convincing evidence that future enforcement of the act would 

violate their constitutional rights. 

{¶ 36} As an initial matter, we note that the Smoke Free Act was passed 

as a ballot initiative by Ohio voters. The Ohio Constitution, Article II, Section 1, 

provides, 

The legislative power of the state shall be vested in a 

general assembly consisting of a senate and house of 

representatives but the people reserve to themselves the power to 

propose to the general assembly laws and amendments to the 

constitution, and to adopt or reject the same at the polls on a 

referendum vote as hereinafter provided. * * * The limitations 

expressed in the constitution, on the power of the general assembly 
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16 

to enact laws, shall be deemed limitations on the power of the 

people to enact laws. 

{¶ 37} Therefore, the same constitutional challenges that would invalidate 

legislation enacted by the General Assembly would also invalidate laws passed by 

ballot initiative. 

 a. Unlawful Enforcement of the Smoke Free Act

{¶ 38} In their counterclaim, appellants requested that ODH be enjoined 

from unlawful enforcement of R.C. Chapter 3794. Specifically, they contended 

that ODH’s policy of strict liability—where there’s smoke, there’s a violation—

exceeds the authority R.C. Chapter 3794 grants to ODH. 

{¶ 39} A rule adopted by an administrative agency is “valid and 

enforceable unless unreasonable or in conflict with the statutory enactment 

covering the same subject matter.” Amoco Oil Co. v. Petroleum Underground 

Storage Tank Release Comp. Bd., 89 Ohio St.3d 477, 484, 733 N.E.2d 592 

(2000). In this respect, “an administrative rule cannot add [to] or subtract from 

the legislative enactment.” Id. 

{¶ 40} In ruling in favor of appellants, the trial court found that the 

following facts had been brought forward at trial: 

(1) The Department of Health has in the past implemented a policy 

of strict liability for violations of the SmokeFree Act in regards to 

property owners such as [appellants]; (2) In the case of 

[appellants,] the Department of Health implemented this policy 

and cited [appellants] for violations of the SmokeFree Act without 

regard to whether [appellants] were actually permitting smoking to 

occur on the premises of Zeno’s; (3) If a complaint was filed and 

the Department of Health found someone smoking at Zeno’s, 
January Term, 2012 

17 

[appellants] were fined; (4) The Department of Health has never 

once fined an individual for smoking in a public place; and (5) 

[appellants] posted “no smoking” signs in Zeno’s, removed all 

ashtrays from Zeno’s, and would regularly ask patrons who were 

smoking on the premises to put out their cigarette or take it 

outside. 

{¶ 41} The trial court’s first finding may have been based in part on the 

Tenth District’s decision in Pour House, Inc. v. Ohio Dept. of Health, 185 Ohio 

App.3d 680, 2009-Ohio-5475, 925 N.E.2d 621 (10th Dist.). In that case, a bar in 

Toledo had been cited by the Toledo-Lucas County Health Department for 

violating the Smoke Free Act. The hearing examiner concluded that the 

proprietor’s evidence of good-faith efforts to comply with the act, though 

credible, was unavailing, because R.C. 3794.02 imposes strict liability. The court 

of appeals in Pour House stated, 

The question before us is the meaning of the phrase “permit 

smoking” [in R.C. 3794.02(A)]. Does this phrase mean that the 

statute is violated if smoking occurs in a prohibited place, 

regardless of the measures taken by the proprietor to prevent it? 

Or does this phrase mean that the statute is violated only if the 

proprietor affirmatively allows smoking in a prohibited place, or 

implicitly allows smoking by failing to take reasonable measures 

to prevent it? 

Id. at ¶ 15. The appellate court determined that a violation of R.C. 3794.02(A) 

occurs only when the proprietor permits smoking. “A proprietor permits smoking 

when the proprietor affirmatively allows smoking or implicitly allows smoking by 
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18 

failing to take reasonable measures to prevent patrons from smoking * * *.” Id. at 

¶ 18. 

{¶ 42} In Pour House, ODH had argued that once it proved that smoking 

had occurred, the burden shifted to the proprietor to prove that it had not 

permitted smoking. The Tenth District rejected that argument, stating, 

“Permitting smoking is an element of the smoking violation; the opposite is not an 

affirmative defense.” Id. at ¶ 20. The appellate court remanded the case to the 

Franklin County Court of Common Pleas with instructions to remand to the 

hearing examiner to determine whether the bar had violated the Smoke Free Act. 

Id. at ¶ 22. 

{¶ 43} The Tenth District’s decision in Pour House, however, does not 

establish that ODH has engaged in a widespread policy of strict liability in 

investigating and citing proprietors for violations of the Smoke Free Act. Nor 

does the evidence in this case, contrary to the trial court’s finding. 

{¶ 44} A sanitary and program administrator for ODH testified that the 

determination of whether a proprietor is permitting smoking is conducted on a 

case-by-case basis. Appellants’ main contention is that investigators never 

inquired of appellants’ employees whether they had taken steps to prevent 

smoking in prohibited areas. The smoking enforcement coordinator for the city of 

Columbus, however, testified that when he observed a patron smoking at Zeno’s, 

he would on occasion speak with the employees and that none had told him that 

they had asked the patron to stop smoking. 

{¶ 45} Substantial evidence exists that appellants at least implicitly 

permitted smoking. For instance, on August 6, 2007, a Columbus City Health 

Department investigator witnessed two people smoking at Zeno’s and observed 

cigarette butts in plastic cups filled halfway with water. On November 29, 2007, 

another investigator found multiple Zeno’s patrons who were smoking and who 

were using partially filled plastic cups as ashtrays. Although appellant Richard 
January Term, 2012 

19 

Allen was present at the time, the investigator did not witness him addressing any 

of the smoking patrons. On November 6, 2008, a third investigator witnessed at 

least eight patrons smoking and using small plastic cups as ashtrays. 

{¶ 46} The trial court also ignored the fact that appellants were cited nine 

times for allowing ashtrays to be present. Although the “ashtrays” used were 

plastic cups filled with water, R.C. 3794.06(B) requires proprietors to remove all 

ashtrays and “other receptacles used for disposing of smoking materials” from 

any area where smoking is prohibited. 

{¶ 47} Finally, in eight of the violations, the investigator determined that 

the violation was intentional and doubled the fine. The court of appeals agreed: 

On this record, the evidence is overwhelming that Bartec 

repeatedly and intentionally violated the Smoke Free Act, failed to 

comply with its provisions as R.C. 3794.09(D) requires, and in so 

doing exposed patrons and employees to the very harm the statute 

is designed to prevent. Due to the hearing the court conducted and 

the evidence adduced as a result of the hearing, the trial court 

could reach no other conclusion. 

Jackson, 2010-Ohio-5558, at ¶ 33. 

{¶ 48} We therefore conclude that appellants have failed to establish that 

appellants will be subject to an unlawful policy of strict liability. 

b. The Smoke Free Act Does Not Unreasonably 

Interfere with Property Rights or Amount to a Taking 

{¶ 49} The Ohio Constitution, Article I, Section 19, provides, “Private 

property shall ever be held inviolate, but subservient to the public welfare.” 

Appellants present a two-fold argument that the inclusion of Zeno’s within the 

Smoke Free Act is unconstitutional. First, they contend that the act exceeds the 
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20 

limits of the state’s police powers. Second, appellants argue that the act amounts 

to a taking without compensation. We disagree with both arguments. 

 1. Valid Exercise of Police Power 

{¶ 50} The fundamental nature of property rights in Ohio was recently 

reaffirmed. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 

N.E.2d 1115, ¶ 38. But it has also long been established that the guarantees of the 

Ohio Constitution are subject to a reasonable, nonarbitrary exercise of the police 

power of the state or municipality, when exercised in the interest of public health, 

safety, morals, or welfare. Yajnik, 101 Ohio St.3d 106, 2004-Ohio-357, 802 

N.E.2d 632, ¶ 16. In Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371 (1936), we 

noted, 

The exercise of the police power is inherent in government and 

essential to its existence and inevitably comes into conflict with the 

constitutional guaranties of the right of property and liberty of 

contract. In each case presented the court must draw the line of 

demarcation. Courts do not attempt to define police power with 

exactness, and inevitably the individual case must stand upon its 

own footing. 

Id. at 451. Whether a statute is “truly in the public welfare within the meaning of 

Section 19, and thus superior to private property rights, [the] legislation must be 

reasonable, not arbitrary, and must confer upon the public a benefit commensurate 

with its burdens upon private property.” Direct Plumbing Supply Co. v. Dayton, 

138 Ohio St. 540, 546, 38 N.E.2d 70 (1941). A court will not invalidate the 

judgment of the General Assembly as to whether an exercise of the police power 

bears a real and substantial relation to the public health, safety, morals, or general 

welfare of the public unless that judgment appears to be clearly erroneous. 
January Term, 2012 

21 

Benjamin v. Columbus, 167 Ohio St. 103, 146 N.E.2d 854 (1957), paragraph six 

of the syllabus. We believe that the same holds true for legislation passed by 

Ohio voters pursuant to a ballot initiative. 

{¶ 51} We have previously stated that the General Assembly has the 

authority to enact a public-smoking ban. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. 

of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 54 (“Within its 

constitutional grant of powers, the General Assembly possesses both the authority 

to enact smoking legislation such as the regulation at issue and the prerogative to 

delegate that authority to local boards of health”). Although the Smoke Free Act 

was ultimately passed pursuant to a ballot initiative, the voters of Ohio also have a 

legitimate purpose in protecting the general welfare and health of Ohio citizens 

and the workforce from the dangers of secondhand smoke in enclosed public 

places. By requiring that proprietors of public places and places of employment 

take reasonable steps to prevent smoking on their premises by posting “no 

smoking” signs, removing ashtrays, and requesting patrons to stop smoking, the 

act is rationally related to its stated objective. Although appellants complain that 

the Smoke Free Act is not being enforced against actual smokers themselves, the 

evidence establishes that ODH has not received a complaint against an individual 

smoker. The trial court may have also questioned how much a property owner 

can do, but the evidence also establishes that during their on-site visits, the 

investigators did not witness appellants or their employees asking patrons to stop 

smoking or removing the makeshift ashtrays being used. It is not unreasonable or 

arbitrary to hold responsible the proprietors of public places and places of 

employment for their failure to comply with the Smoke Free Act. 

{¶ 52} Appellants would have us limit the police power to simply abating 

public nuisances. Although the “state may use its police power to enjoin a 

property owner from activities akin to public nuisances without offending either 

the Due Process or Takings Clause,” State ex rel. Pizza v. Rezcallah, 84 Ohio 
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22 

St.3d 116, 125, 702 N.E.2d 81 (1998), we have not expressly limited the police 

power to nuisance and decline to do so. 

“The police power is inherent in sovereignty; and its 

exercise is justified by the necessity of the occasion. Its foundation 

is the right and duty of the government to provide for the common 

welfare of the governed. It is tersely expressed in the maxim, 

‘salus populi suprema lex.’5

 While, therefore, a broad discretion is 

given to the Legislature to provide for the general welfare, it 

necessarily is not an arbitrary or unlimited discretion * * *.” 

(Footnote added.) State v. Martin, 168 Ohio St. 37, 40, 151 N.E.2d 7 (1958), 

quoting State v. Boone, 84 Ohio St. 346, 351, 95 N.E. 924 (1911). In R.C. 

3794.04, the state declared the necessity for regulating smoking in public places 

and places of employment. Our review of the act leads us to conclude that it is 

neither unduly oppressive nor arbitrary in its restrictions. Appellants’ own 

witness testified that most patrons who are asked to stop smoking readily do so. 

{¶ 53} We therefore hold that the Smoke Free Act is a valid exercise of 

the state’s police power by Ohio’s voters.

 2. The Smoke Free Act Does Not Amount to a Taking 

{¶ 54} Appellants contend that the Smoke Free Act is unconstitutional 

because it effects a regulatory taking without just compensation. Specifically, 

appellants argue that R.C. Chapter 3794 confiscates a proprietor’s control over its 

indoor air. But the standard to be used depends on the type of regulatory taking 

involved: 

 

5. This phrase has been translated as “[t]he safety of the people is the supreme law.” Black’s Law 

Dictionary 1870 (9th Ed.2009). 
January Term, 2012 

23 

Two types of regulatory actions will be deemed to be per se 

takings for Fifth Amendment purposes: first, those government 

actions that cause an owner to suffer a permanent physical invasion 

of property, see Loretto v. Teleprompter Manhattan CATV Corp.

(1982), 458 U.S. 419, 435-440, 102 S.Ct. 3164, 73 L.Ed.2d 868 

(state law requiring landlords to permit cable companies to install 

cable facilities in apartment buildings effected a taking); and 

second, government regulations that completely deprive an owner 

of “all economically beneficial uses” of the property. (Emphasis 

sic.) Lucas v. South Carolina Coastal Council (1992), 505 U.S. 

1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798. A Lucas taking is 

also known as a categorical, or total, taking, and in such a case, the 

government must pay just compensation for the total property 

taken except to the extent that “background principles of nuisance 

and property law” independently restrict the owner's intended use 

of the property. Id. at 1030. “ ‘Outside these two relatively 

narrow categories (and the special context of land-use exactions 

* * *), regulatory takings challenges are governed by the standards 

set forth in Penn Cent. Transp. Co. v. New York City, 438 U.S. 

104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).’ ” Lingle v. Chevron 

U.S.A., Inc. (2005), 544 U.S. 528, 538, 125 S.Ct. 2074, 161 

L.Ed.2d 876. 

(Footnote omitted.) State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of 

Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 18. Because 

there is no physical invasion of appellants’ property and there is no claim that the 

Smoke Free Act deprives appellants of all economically beneficial uses of their 
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24 

property, the only possible taking involved is a partial regulatory taking under 

Penn Cent.

{¶ 55} With a Penn Cent. regulatory taking, a court engages in a factual 

inquiry of the following three factors: “(1) the economic impact of the regulation 

on the claimant, (2) the extent to which the regulation has interfered with distinct 

investment-backed expectations, and (3) the character of the governmental 

action.” Shelly Materials at ¶ 19, citing Penn Cent., 438 U.S. at 124, 98 S.Ct. 

2646, 57 L.Ed.2d 631. 

{¶ 56} Appellants submitted evidence that their gross sales declined in 

2009, but the Smoke Free Act became effective in December 2006, and in 2007 

and 2008, appellants’ gross sales actually increased. Furthermore, Columbus’s 

smoking ban, found at Columbus Code of Ordinances Chapter 715, is very similar 

to R.C. Chapter 3794 and went into effect in January 2005. Still, appellants’ 

gross sales increased in 2005 and 2006. Thus, appellants have failed to 

demonstrate that the Smoke Free Act has had a significant economic impact on 

their business. 

{¶ 57} The second and third factors also do not support finding a taking in 

this case. As the United States Supreme Court noted in Penn Cent.: 

“Government hardly could go on if to some extent values 

incident to property could not be diminished without paying for 

every such change in the general law,” Pennsylvania Coal Co. v. 

Mahon, 260 U.S. 393, 413 [43 S.Ct. 158, 67 L.Ed. 322] (1922), 

and this Court has accordingly recognized, in a wide variety of 

contexts, that government may execute laws or programs that 

adversely affect recognized economic values. Exercises of the 

taxing power are one obvious example. A second are the decisions 

in which this Court has dismissed “taking” challenges on the 
January Term, 2012 

25 

ground that, while the challenged government action caused 

economic harm, it did not interfere with interests that were 

sufficiently bound up with the reasonable expectations of the 

claimant to constitute “property” for Fifth Amendment purposes. 

Penn Cent. at 124-125. The “taking” of appellants’ indoor air space is not the 

type of taking contemplated by either the Fifth Amendment to the United States 

Constitution or the Ohio Constitution, Article I, Section 19. Appellants have also 

failed to demonstrate that the Smoke Free Act interfered with a distinct 

investment-backed expectation. The goal of this legislation is to protect the 

health of the workers and other citizens of Ohio. R.C. 3794.04. It does so by 

regulating proprietors of public places and places of employment in a minimally 

invasive way. We therefore hold that the Smoke Free Act does not constitute a 

taking. 

III. Conclusion 

{¶ 58} Because appellants failed to exhaust their administrative remedies 

and may not use declaratory judgment as a collateral attack on a final judgment, 

the ten previous violations of the Smoke Free Act are res judicata. We also hold 

that the Smoke Free Act is a valid exercise of the state’s police power by Ohio 

voters and does not amount to a regulatory taking. The judgment of the court of 

appeals is affirmed. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE 

BROWN, JJ., concur. 

O’DONNELL, J., concurs in judgment only. 

__________________ 

 Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor 

General, Elisabeth A. Long, Deputy Solicitor, and Stacy Hannan, Robert 
SUPREME COURT OF OHIO

26 

Moormann, and Angela M. Sullivan, Assistant Attorneys General, for appellees 

Theodore E. Wymsylo and Michael DeWine. 

 Maurice A. Thompson, for appellants. 

 Law Office of Joseph C. Lucas, L.L.C., and Tyler W. Kahler, urging 

reversal for amici curiae Ohio Licensed Beverage Association, Buckeye Liquor 

Permit Holders Association, and Dr. Michael L. Marlow. 

 Finney, Stagnaro, Saba & Patterson Co., L.P.A., and Christopher P. 

Finney; and Law Firm of Curt C. Hartman and Curt C. Hartman, urging reversal 

for amici curiae Ohio Liberty Council, Ohio Freedom Alliance, and Coalition 

Opposed to Additional Spending & Taxes. 

 Ron O’Brien, Franklin County Prosecuting Attorney, and Tracie M. Boyd, 

Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin 

County District Board of Health. 

 McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, 

and J. Corey Colombo, urging affirmance for amici curiae American Cancer 

Society, East Central Division; American Cancer Society Cancer Action Network; 

Academy of Medicine of Cleveland & Northern Ohio; American Heart 

Association, Great Rivers Affiliate; American Lung Association of the Midland 

States; American Medical Association; Americans for Nonsmokers’ Rights; 

Association of Ohio Health Commissioners, Inc.; Campaign for Tobacco-Free 

Kids; Cleveland Clinic; Ohio Asthma Coalition; Ohio Chapter of the American 

College of Cardiology; Ohio Osteopathic Association; Ohio State Medical 

Association; and Tobacco Control Legal Consortium. 

______________________