Article published November 26, 2006
Clubs probe for loopholes in smoke ban
Few exemptions likely in strict new Ohio law
By JIM PROVANCE
BLADE COLUMBUS BUREAU
COLUMBUS — Forget the cigar with your drink at the country club after a round of golf or after a hard day at the office.
And don’t think about lighting up at a wedding reception at the Elks Lodge or at the Veterans of Foreign Wars fish fry.
Local VFW and American Legion posts, Moose lodges, and other private clubs across the state are scrambling to see if they can qualify for an exemption after voters decided Nov. 7 to make Ohio the first Midwestern state to ban smoking in nearly all indoor public places.
The law, which takes effect Dec. 7, is so narrowly tailored that many not-for-profit clubs and fraternal organizations are expected to be classified as smoke-free workplaces.
Some have talked of selling guest memberships at the door, making all employees members, or changing their liquor licenses, but none of these maneuvers is expected to help them get around the law.
“We are private clubs, regardless of what the politicians say,” said Bill Seagraves, state commander of the Department of Ohio Veterans of Foreign Wars.
“They have really confused people on the issue,” Mr. Seagraves said. “A lot of our employees are members of our organization, but [the law is] also calling volunteers employees. I don’t understand that.”
He offers no advice to inquiring VFW posts, preferring to wait until the Ohio Department of Health writes the rules on who would investigate complaints and how fines would be applied, a process that could take months.
| OHIO’S CLEAN INDOOR AIR LAW: |
Beginning Dec. 7, smoking will be prohibited in restaurants, bars, workplaces, and other enclosed public places with the following exceptions:
• Private residences, except during hours used as public businesses.
• Tobacco specialty shops with less than 20 percent nontobacco sales.
• Up to 20 percent of rooms in hotels, motels, and other lodging facilities.
• Private clubs meeting specific criteria.
• Wholly family owned and operated businesses with no nonfamily members present.
• Designated smoking areas for nursing home residents.
• Outdoor patios. |
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Until the law gets some teeth, Mr. Seagraves said, he believes some posts will go on allowing smoking.
A changing landscape
The initiative petition-backed Issue 5, which passed handily on Nov. 7, will prohibit smoking in bars, restaurants, workplaces, and other indoor public places with very few exceptions. A nonprofit club would be exempt only if it has no employees, has no nonmembers or minors present, and is in a free-standing structure with no chance smoke could migrate elsewhere where smoking is off limits.
If it serves alcohol, it must have a D-4 liquor permit specifically for private clubs that have been around at least three years and have dues-paying members and elected officers.
Clubs and businesses are expected to comply with the law beginning Dec. 7 by conspicuously posting no-smoking signs and removing all ash trays and smoking receptacles.
The department of health has established two toll-free numbers to appear on the no-smoking signs: 1-866-599-OHIO (6446) to report violations and 1-866-ODH (634)-7654 for general information.
‘Private’ vs. ‘public’
Backers of Issue 5 said they saw what happened in Toledo when some bars tried to do an end run around the city’s short-lived, strict smoking ban. Some bars declared themselves to be private clubs by having patrons sign in at the door in support of a charity or organization.
| PRIVATE CLUB EXEMPTION: |
Beginning Dec. 7, a private club would be exempt from Ohio's new clean indoor air law only if all of the following apply:
• It has no employees.
• It's a not-for-profit entity.
• No nonmembers or anyone under 18 are present.
• The club building is a free-standing structure, and
smoke could not migrate to another area where smoking is prohibited.
• If it serves alcohol, it has a D-4 liquor permit designed for clubs that are at least three years old with dues-paying members and elected officers. |
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Although the courts balked at this maneuver, the point became moot when Toledo voters added an exemption for bars to the ordinance in 2004. But that loophole is about to be plugged again by Issue 5.
“It was very important that an establishment could not declare itself a private club, charge a small lifetime membership fee, and allow smoking to continue,” said Tracy Sabetta, spokesman for SmokeFreeOhio, a coalition of health organizations led by the American Cancer Society.
“We learned from the Toledo experience, and we wanted to make sure all customers and workers were protected to the best of our abilities,” she said.
The law, however, has created confusion by defining an “employee” as anyone performing a service for an employer “for compensation or for no compensation.”
Some have interpreted this to include unpaid member volunteers.
“That was not our intent,” Ms. Sabetta said. “They have to receive compensation from an employer. We’ve tried to be as clear as possible in defining ‘private club.’ It is the intent of Issue 5 to eliminate second-hand smoke in public places and workplaces that have employees. We’ve never hidden that.”
It remains to be seen whether the health department rules could clarify this.
As for the idea of guest membership passes, existing state law defines a membership in a private club as involving someone who prepays regular dues.
“One of the definitions is that there can only be members of the club present, but anyone working in [an American Legion] is a member,” Toledo attorney Bob Bryce said. “If employees are members, then there’s no harm, no foul. But the law is somewhat contradictory.”
Some private clubs backed an unsuccessful competing ballot issue chiefly underwritten by the tobacco industry that would have etched a number of exemptions, including a broader one for private clubs, into the Ohio Constitution.
Tradition in peril
The tradition of savoring a cigar, cigarette, or pipe over a drink and conversation in the Oak Room is about to come to an end at the Toledo Club, a 117-year-old private social and athletic club at 235 14th St. downtown.
Mike Searle, general manager, said the 900-member club’s attorney could find no way around it.
“Smoking is one of the amenities offered at our club, and it’s one that unfortunately will go away,” he said. “There’s a segment of our membership for which smoking is one of the things they enjoy about the club, and they’re not happy about this.”
He estimated that between six to 12 people smoke in the Oak Room at any one time. It’s too early to know whether the ban will affect membership, he said.
“For the greater Toledo area, it’s a different situation compared to businesses in the center of the state,” he said. “People here have the opportunity to migrate to Michigan, so unfortunately that decline in business can occur.”
Smoking already had been banned from most parts of the club, leaving the comfortable Oak Room, with its oak-paneled walls and leather chairs, as smokers’ sole sanctuary.
Terry Green, an attorney who represents liquor permit holders, has received calls from restaurants outside Toledo exploring whether they could bypass the ban by going private.
“This is a very well-written statute,” he said. “There aren’t too many loopholes in it. Some were thinking that they could go to private club permits, but that won’t work here. If you have employees working there, you still can’t smoke. It doesn’t matter if you go private or not.”
Living with the ban
Even if it went to an all-volunteer work force, Elks Lodge No. 75 in Findlay would still have to go nonsmoking, Manager Mike Rose said.
“The fact that we are a private club doesn’t matter because we have employees,” he said. “Even if we had members volunteering, we wouldn’t be allowed to have guests and children under 18 [and still allow smoking].”
The club already had taken a step in this direction, experimenting recently with smoke-free dinner hours between 4:45 and 8:45 p.m. He expects the club to comply with the law on Dec. 7.
“It’s pretty much a level playing field,” Mr. Rose said. “We’re not going to be the only private club that has to do this. Every club, every bar, every place will be the same. Smokers will be upset initially, but there’s nothing they can do about it.”
Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.
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