toledoblade.com --

COLUMBUS - Dayton-area bar and restaurant owner Debra Miller tearfully pleaded for help from the Ohio Department of Health yesterday, saying the state's new ban on smoking in indoor public places will put her out of business.

"I don't want to lose my business and all the people who work for me," she said. "These people who make laws and rules, sometimes they should put the shoe on the other foot."

Although department attorney Carol Ray smiled politely and listened, Ms. Miller and many of the dozens who showed up at a public hearing to protest the smoking ban law were unlikely to find solace there.

The proposed regulations on the table before Ms. Ray were written within the framework of the law that 2.2 million Ohio voters approved on Nov. 7, and the rules cannot interfere with the law's intent.

THE LAW SAYS

On Nov. 7, voters approved a Clean Indoor Air Law prohibiting smoking in bars, restaurants, workplaces, and other enclosed public places with the following exemptions:

• Private residences except during hours when used as a public business.

• Tobacco specialty shops with less than 20 percent nontobacco sales.

• Up to 20 percent of rooms in hotels and other lodging facilities.

• Private clubs that have no employees, do not invite the public indoors, and have no minors present.

• Wholly family-owned and operated businesses with no nonfamily members present.

• Designated smoking rooms for nursing home residents.

• Outdoor patios.

The law prohibits smoking in bars, restaurants, bowling alleys, and nearly all other enclosed public places that have employees or invite the public indoors. Smokers must step outside and away from entrances and exits or onto outdoor patios that, at most, are only partly enclosed.

Businesses were expected to remove ashtrays and post no-smoking signs as of Dec. 7, but the law is not being enforced while the department writes its operating rules.

Dan Shawver, co-owner of Eppi's bar, restaurant, and nightclub at 501 West Second St., Defiance, said his business has been off 20 to 25 percent since December. While the law still lacks teeth, he has permitted smoking to continue in his nightclub between 11 p.m. and 2 a.m.

"Right now I'm barely covering operating expenses," he said. "If I don't have the 11-2 crowd, I'm out of business."

More than 40 people testified over a four-hour hearing.

The rules define what constitutes an outdoor patio where smoking is permitted, define a workplace "vehicle" to allow smoking by a solo trucker who is the only one who uses the vehicle, and delegate enforcement powers to local health officials.

PROPOSED RULES

Sampling of rules drafted by the Ohio Department of Health to fill the gaps in the new law:

• Spells out how fines would escalate for repeat business violators from $100 to $2,500. Individual smokers face flat fines of $100.

• Designates local health officials to enforce the law.

• Allows solo truckers and drivers of business fleet
vehicles to smoke as long as nonsmokers are not present
and the vehicle is not passed on to another employee.

• Defines “outdoor patio” as having a roof and walls on two sides, or a roofless area with unlimited walls.

• Does not specify how far outdoor smokers must step away from entrances and exits

The rules do not specify how far outdoor smokers must step from doorways and windows, nor does it provide relief for private and fraternal clubs like the Veterans of Foreign Wars, many of which are considered smoke-free public workplaces under the law.

"It's been widely reported that the veterans who served this country so ably feel they've earned the right to smoke in private clubs," said Mike Renner, executive director of the Ohio Tobacco Prevention Foundation. "My father flew in 129 combat missions over western Europe. He didn't fight to earn his personal right to smoke where he pleased, though he was a smoker.

"He fought for the health, safety, and welfare of all Americans," he said. "He fought so that Ohioans could go to the polls and decide what laws they wanted for themselves to protect their own health."

But Mike Warmeling of Lake County, president of the Ohio State County Veterans Service Officers Association, countered, "He didn't fight for the right of the people to be tricked on the ballot, and I believe that's exactly what happened with Issue 5."

He said many voters believed Issue 5 exempted private clubs.

TALK BACK

Tell us what you think? Comment on this story. Register for toledoblade.com forums (it only takes a few seconds), and tell us exactly what you think.

Bill Delaney, owner of Delaney's Lounge at 309 West Alexis Rd., had planned to testify in Columbus, but instead led a competing protest rally of about a dozen people outside the Toledo-Lucas County Health Department.

"I figured it would fall on deaf ears down there," he said. "I don't want to talk about the rules. I want to talk about the ban itself, and about not having a ban."

He said he's hoping to spearhead a petition effort to put another issue on the Nov. 6 ballot to add an exemption to the ban for bars with food sales that amount to less than 10 percent of their business.

Health organizations led by the American Cancer Society have argued that a statewide smoking ban would level the playing field for all businesses. They claim other states with similar bans have not witnessed the dire consequences predicted by opponents.

"As the [U.S.] surgeon general's report in 2006 said, there is no safe lower level of exposure to second-hand smoke," said Dr. Tom Houston, of the OhioHealth hospital group in Columbus. "We need to remember that in public health, regulation is an important way to protect against things like bacteria in spinach, salmonella in peanut butter, clean water, and in this case clean indoor air."

The department could still make changes to its proposed rules before they are considered at another public hearing on March 26 before the legislative Joint Committee on Agency Rule Review. Unless the committee interferes, the rules would take effect 10 days later.

At that point, health departments could begin investigating complaints, issuing warning letters for first offenses, and imposing civil fines of $100 against individual smokers or between $100 and $2,500 for businesses.

Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.

Permanent Link

RECENT RELATED ARTICLES

• Smoking lies killing businesses | 01/24/2010

• Ohio weighs crackdown on violators of smoking ban | 01/17/2010

• Michigan votes indoor smoke ban | 12/11/2009

• Columbus bar files lawsuit against smoking ban | 09/20/2009