Article published April 29, 2007
Ohio smoking-ban foes may create legal logjam
Appeals process could take years, many miles
By JIM PROVANCE
BLADE COLUMBUS BUREAU
COLUMBUS - Those planning to go the distance to appeal fines for violating Ohio's smoking ban should be prepared to put a lot of miles on their cars.
Some opponents of the voter-passed law have talked about creating a logjam of appeals in protest, but such battles eventually would lead to courts in Columbus, would take months or potentially years to resolve, and could cost far more than the fines imposed. The latter would be especially true for individual smokers, whose fines would be $100 maximum.
"If you check out Colorado, it cost the state $6,000 for a $200 fine," said Bill Delaney, owner of Delaney's Lounge in Toledo. "If this is the process, we could jam up Franklin County court till hell freezes over. Everybody thinks this is going to work out fine, but people are still smoking yet."
Ohio's law prohibiting smoking in bars, restaurants, bowling alleys, and nearly all other indoor places frequented by the public officially went into effect Dec. 7. But barring a court decision to the contrary, the state Thursday will begin enforcing the law - investigating complaints and issuing warning letters and fines.
If decisions are appealed just through the point at which a case is reviewed by a hearing officer appointed by the local health board, the process would take months. If a fined business or individual smoker insists on appealing beyond that, the battle would take place in Franklin County Common Pleas Court in Columbus, nearly 150 miles from Toledo, and the time frame would extend from months to years.
"Maybe we'll get rid of smoking by 2012," said Dr. David Grossman, Toledo-Lucas County health commissioner. "It's still rocky to me. You send one letter and then another letter, and there's 30 days for this and 30 days for that, and if there are more appeals it could be weeks and months between courts."I think people do need a chance to appeal," he said. "But you can't be Machiavellian about this. You have the right to say, 'I'm not doing what they've accused me of,' but once the evidence obviously shows what they're doing or if I see someone smoking, there shouldn't be an open-ended appeals process. I think this will be cumbersome and difficult."
Long appeals would mean long waits for local boards of health, as the enforcement arm of the Ohio Department of Health, to receive their 90 percent share of the fines collected. Those fines are designed to cover the enforcement costs.
"At this point, the court and the clerk are not envisioning a deluge of appeals landing on our doorstep," said Patrick McSweeney, spokesman for Franklin Clerk of Courts John O'Grady. "We could very well be wrong."
Any individual cited for insisting on lighting up in violation of the law would face a warning letter for the first offense and fines of $100 for each transgression thereafter. Businesses found to tolerate such activity would at first receive a warning letter and then face fines escalating from $100 to $2,500 per incident.
"We want to be respectful of businesses and give them every benefit of the doubt that we can," Seneca County Health Commissioner Marjorie Broadhead said. She served on the advisory panel that helped the state health department write the rules for the law's operation.
"The issuance of any kind of fine would be a last resort," she said. "We're ready to investigate. We will work with businesses. We're ready to educate. If it does go to court, this is something we'll have to work out."
Wendy Simpkins, spokesman for the American Cancer Society in Ohio, said she expects the vast majority of businesses and smokers to comply with the law and that there will be few cases in which the appeals process would be taken to its extreme.
"There would be no circumstance where we would create smoking police," she said. "It's a civil offense, not a criminal offense. It gives the power to the individual. It only takes one person to make a phone call or send an e-mail to trigger appropriate action."
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
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