South-Western Legal Studies in Business

City May Strictly Regulate Smoking on Business Property
Description Appeals court held that it was not an unconstitutional regulatory taking for a city to enact an ordinance that strictly limited smoking in bars and restaurants. The businesses were still allowed to operate but would have to spend money if they wished to allow smokers on their premises.
Topic Constitutional Law
Key Words Regulation; Taking; Smoking
C A S E   S U M M A R Y
Facts The City of Toledo, Ohio, enacted an ordinance strictly limiting smoking. Bars and restaurants could only have smoking in a "separate smoking lounge" that is walled-off from the majority of the business and has its own ventilation system. A group of bar and restaurant owners joined together to challenge the constitutionality of the ordinance. They contended the regulation is an uncompensated regulatory taking that violated the Fifth and Fourteenth Amendments. The trial court held for the city; plaintiffs appealed.

Affirmed. The city is allowed by the state to regulate matters such as this. The regulation does not deny the business owners some economically viable use of their property, so it is not a regulatory taking. Owners may lose some business and are required to spend money if they wish to have a smoking section, but they are not prohibited from running their business. Hence, the regulation is not unconstitutional.

Citation D.A.B.E., Inc. v. City of Toledo, 393 F.3d 692 (6th Cir., 2005)

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