Article published May 18, 2007
Private clubs not exempt from Ohio smoking ban
| 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.
THE APPEALS PROCESS
Ohio’s smoking ban was designed to be complaint-driven. If someone wants to file 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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ASSOCIATED PRESS
COLUMBUS - Private clubs can't allow smoking despite language in Ohio's statewide smoking ban that seems to allow it, a judge ruled yesterday.
The state overstepped its authority when writing rules exempting private clubs, including VFW halls that had fought to be excluded from the ban, said Judge David Cain of Franklin County Common Pleas.
He blocked the exemption from taking effect at the request of a restaurant and bar owners' group.
Judge Cain described as overbroad the Ohio Department of Health's attempt to resolve contradictory language in the SmokeFree Act, which both allowed smoking in private clubs and restricted smoking in most workplaces.
Smoking at clubs would violate an intent of the ban to keep workers from being exposed to secondhand smoke, he said.
"The court cannot think of a scenario under the SmokeFree Act in which the 'private club' exemption would actually apply," he wrote.In his 13-page order, Judge Cain said neither the court nor the Health Department has to void the state's rule that said smoking at clubs was allowed.
"This is true because from the very beginning there was never a 'private club' exemption in the SmokeFree Act," he wrote. "There was an apparition that called itself a 'private club' exemption, but that exemption did not really exist."
Bill Seagraves, state commander of the Veterans of Foreign Wars, said he feels backers of the smoking ban duped many of his own members who supported the ban.
"If they didn't mislead us, why did they put private clubs were exempt on the ballot when that's not the case?" he said. "I've had people to call and tell me they voted for the smoking ban because they don't think there should be smoking in restaurants but they said I thought it wouldn't apply in our clubs."
Wendy Simpkins, a spokesman for the American Cancer Society that helped promote the ballot measure, said there was no attempt to mislead.
"For folks who say they were confused, the law and the details were absolutely clear," she said. "They were on every petition we circulated, they were on our Web site for nearly two years, so certainly people had multiple opportunities to learn more about the law before they voted on it."
She noted that the Ohio Licensed Beverage Association, the owners' group that brought the court action, provided a list of private clubs that had qualified for the exemption, so it could not have been null as written.
The measure passed in 73 of Ohio's 88 counties.
Kristopher Weiss, a spokesman for the Ohio Health Department, said the state was still reviewing the judge's order and had not yet decided whether it would appeal.
A message seeking comment was left for a beverage association spokesman.
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