Article published April 29, 2007
OHIO SMOKE-FREE WORKPLACE ACT
Enforcement day nears for public smoking ban
Rules, fines begin Thursday unless courts act
Dan Cannon lights up at Nick & Jimmy’s in Toledo.
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By JOE VARDON
BLADE STAFF WRITER
Brian Duncan wasn’t puffing a cigar while sitting in Delaney’s Lounge in Toledo last week, but he said he frequents the establishment when he wants to enjoy a drink and a smoke.
Those who have similar tastes have been able to go to places such as Delaney’s, even though a majority of Ohio voters on Nov. 7 approved a ban on smoking in bars, restaurants, and most other indoor public places.
At the Bronze Boar, Nick and Jimmy’s, and Daddy Oh’s in Toledo, Quarters Bar and Grill in Perrysburg, and the Village Idiot in Maumee, just to name a few local bars, patrons have been able to smoke since the ban went into effect because its specifics had yet to be ironed out.
The Ohio Department of Health’s rules regarding the ban and its penalties are now set. Unless a court intervenes, enforcement will begin on Thursday.
Anyone smoking in most indoor public places, or the establishments in which the smoking took place, will be subject to penalties ranging from a warning letter to fines.
Nick & Jimmy’s in Toledo, and other bars allowed customers to smoke because enforcement rules have not gone into effect.
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Smokers at bars will still be permitted to light up outside if they are clear of the entrances and on open-air patios.
While sitting next to a friend on that Delaney’s stool last week, Mr. Duncan pondered what effect an enforced smoking ban might have.
“There are going to be a lot of fines in Toledo,” he said.
Legal maneuvers
One way those fines could be delayed is through a court filing made on behalf of various organizations that could set off a chain reaction of lawsuits throughout the state.
The Buckeye Permit Holders Association, a group mostly representing bars and restaurants, expects to hear Wednesday afternoon whether a Hamilton County Common Pleas Court judge will place both the law and the operating rules on hold while its lawsuit proceeds.
Delaney’s Lounge in Toledo displays a sign of the times, indicating the establishment accepts donations for legal fees to fight Ohio’s indoor smoking ban at public places.
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The lawsuit challenges the constitutionality of the law’s regulation of private property as well as the legality of an exemption added at the last minute by the Ohio Department of Health for some private clubs whose employees are also members.
Litigation over the private club exemption is also pending from another organization, the Ohio Licensed Beverage Association, and the American Cancer Society.
The licensed beverage association has a hearing scheduled for tomorrow in Franklin County Common Pleas Court. The American Cancer Society is attempting to have its case consolidated with the beverage association’s case. The two groups were on opposite sides when the smoking ban was up for a vote last November.
Compliance and penalties
Barring any court rulings, individuals and businesses found in violation of the new law for the first time will receive warning letters.
Fines of $100 will be issued for individuals who are repeat offenders.
Bill Delaney, left, owner of Delaney’s Lounge, and John
Orr of the Bronze Boar said they will abide by the law. Mr. Delaney said he plans to fight any penalties in court.
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Businesses caught ignoring the smoking ban a second time will be fined $100. The fine increases to $500 for a third violation and $1,000 for a fourth. Subsequent violations will result in $2,500 penalties.
Once the smoking ban gets the teeth it has lacked since it was approved by voters, many of the bar owners who have previously ignored the ban are saying they will follow it.
“It’s the only thing I can do,” said John Orr, owner of the Bronze Boar on Huron Street. “I’ve been waiting for the state to get its [act] together. I’m not going to be breaking any laws.”
Even Bill Delaney, the owner of Delaney’s who vehemently opposes the smoking ban, said he will follow the new law once it is enforced — sort of.
Mr. Delaney said he will pull the ashtrays from the bar and post the required “no smoking” signs but would stop short of policing his customers.
“I’m not a law enforcement official,” he said. “My customers know the law.”
| THE LAW, IN BRIEF |
The voter-approved Ohio Smoke-Free Workplace Act prohibits smoking in all indoor public places with the following exceptions:
• Private residences except hours when used as a public business.
• Nonprofit, private clubs that have no “employees,” do not invite the public or anyone under age 18 in, and have free-standing structures from which
smoke can’t migrate to areas deemed nonsmoking.
• Tobacco specialty shops with less than 20 percent nontobacco sales.
• Up to 20 percent of rooms in hotels and other lodging facilities.
• Wholly family-owned businesses with no nonfamily members present.
• Designated rooms in nursing homes.
• Outdoor patios.
To read the law, visit smokefreeohio.org.
PENALTIES AGAINST BUSINESSES
• First violation: Warning letter.
• Second violation: $100.
• Third violation: $500.
• Fourth violation: $1,000.
• Subsequent violations: $2,500.
AGAINST SMOKERS
• First violation: Warning letter.
• Second violation: $100.
• Third violation: $100.
• Fourth violation: $100.
• Subsequent violations: $100. |
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Asked if he was prepared to be fined if his customers were found to be smoking, Mr. Delaney said, “Sure, I’m willing to pay.”
And if the fines start rolling in for Mr. Delaney or other bar owners, it will likely be because of complaints filed by customers.
Enforcement issues
The ban is to be enforced by county health departments, which will respond to written, electronic, or telephone complaints filed either through the state or county health department.
Dr. David Grossman, Toledo-Lucas County health commissioner, said there will likely be two or three Lucas County inspectors charged with investigating smoking complaints at any one time.
Dr. Grossman said if an investigator personally witnesses a violation, he or she must still file a complaint before a citation is issued.
“There’s still a due process involved, but if a complaint comes from an inspector, we would probably take it serious enough to issue a letter without further investigation,” Dr. Grossman said.
Jay Carey, director of public affairs for the Ohio Department of Health, said the ban focuses more on the establishments than the people who frequent them.
Mr. Carey said the only way an individual can be found in violation is if he or she is smoking in a prohibited area and refuses to stop. But the one who would file a complaint must first know the name of the individual who is breaking the law.
“If someone sees an individual smoking, they should go to the proprietor and ask them to do something about it,” Mr. Carey said.
Fred Krieger, owner of Krieger’s Pub on West Laskey Road in Toledo, said it may be dangerous for some of his employees to enforce the ban.
He said a man who has had a few drinks might not listen to one of his small, female bartenders who asked him to put out his cigarette.
“What is my 110-pound barmaid going to do in that situation?” Mr. Krieger said. “It’s hard enough to run a bar. They shouldn’t ask us to be a police force.”
Mr. Delaney said he wouldn’t take extra steps to avoid citations, but he said he will go the extra mile to fight penalties levied against him.
| THE APPEALS PROCESS |
Ohio’s smoking ban was designed to be complaint-driven. If someone wants to fi le a complaint, he or she may call the Ohio Department of Health’s toll-free number at 1-866-559-OHIO.
Once a complaint is made, here’s what happens:
• The complaint, which may be made anonymously, is referred
to the local health department.
• A notice is sent to the alleged offender.
• The alleged offender has 30 days to offer a defense.
• The local health board investigates and determines if a violation occurred.
• The alleged offender has 30 days to respond.
• If a first offense, the violator is sent a warning letter.
• If not a first offense, the violator is fined. The violator has 30 days to seek administrative review by an impartial decisionmaker appointed by the state health board.
• The impartial decision-maker makes a recommendation.
• The local board makes a fi nal decision.
• The accused has 15 days to appeal to Franklin County Common Pleas Court in Columbus.
• Appeal of that decision may be made to the 10th District Court of Appeals in Columbus, and ultimately to the Ohio Supreme Court.
Source: Ohio Department of Health |
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The law allows those hit with citations to appeal them up to 30 days after they are notified of the violation, and Mr. Delaney said he will appeal every citation.
“We’re all going to go out of business, or lose 50 percent of our business, if we don’t do something,” he said.
Dr. Grossman said one problem with the ban is its most severe penalties are not stiff enough. He said smoking violations should be handled in the same manner as driving violations.
“I can get up to 12 points [on my driver’s license],” Dr. Grossman said. “Once I get 12, I lose my license. I truly and strongly feel punishment for repeated and deliberate offenses should be closing.”
What happens next?
Dan Cannon, a Petersburg, Mich., resident who was having a cigarette last week at Nick and Jimmy’s in Toledo, said people eventually will conform and even start to smoke less in general.
Jay Williams, who owns Quarters in Perrysburg, said he expects at least some smokers to search for Toledo bars that will continue to defy the ban, and others will go across the state line into Michigan.
Mr. Duncan, a loyal Delaney’s customer, doesn’t believe he will have to go anywhere.
“I know [Delaney’s] won’t follow [the smoking ban], and that’s why I come here,” he said.
Contact Joe Vardon at:jvardon@theblade.comor 419-410-5055.
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