February 27, 2010 - Nearly three years after enforcement began of a voter-approved smoking ban prohibiting lighting up in most public places, hundreds of bars, clubs, restaurants, and even factories statewide continue to rack up violations. (Ohio - enforcement of existing smoking ban a must..)
COLUMBUS -- A central Ohio judge has stopped the state from collecting more than $30,000 in fines against a Columbus-area bar accused of allowing customers to smoke.
Franklin County Common Pleas Judge David E. Cain ruled business owners have no control over whether "someone rips out a cigarette and lights up" and cannot be held responsible if they have met other requirements outlined under the voter-approved Ohio SmokeFree Workplace Act.
"This all comes down to the fact that property owners can only do so much...," Cain wrote. "They can put up 'no smoking' signs. They can take away ashtrays. They can ask patrons that are smoking to leave. Outside of these things, there is little property owners can do."
Backers of the ruling said Thursday, February 25th the decision could have wide-reaching implications, including stopping health officials from enforcing the smoking ban anywhere in the state and potentially leading to the forced refunds of fines already paid by businesses cited with violations.
"The decision, on its face, invalidates (the Ohio Department of Health) and local health department's enforcement of the law, their method of enforcement across the state," said Maurice Thompson, legal counsel for Zeno's bar.
Phil Craig, executive director of the Ohio Licensed Beverage Association, added, "We expect them to cease and desist (enforcing the law), but we'll have to see what they do. We are ready to take action if they continue to pursue this illegal persecution of permit holders."
The Ohio Attorney General's Office has appealed the decision, and the state health department intends to continue enforcing the smoking ban as it has for several years.
In a released statement, state Health Director Alvin D. Jackson said, "Ohio voters had a choice in 2006 and they overwhelmingly approved the Smoke Free Act. (The Ohio Department of Health) always has and will continue to follow the law and enforce the law regarding smoking in public places." He added, "The negative health effects from smoking and secondhand smoke are widely known and detailed in numerous studies. This law protects the health of Ohioans from those dangers while they frequent public places and places of employment."
In November 2006, voters OK'd a statewide smoking ban in public places and workplaces, including bars and restaurants. Enforcement of the ban began in May 2007, after state health officials completed rules that outlined penalties for violations.
Since then, health officials statewide have issued nearly 3,400 warnings and more than 2,200 fines against businesses that have allowed customers to smoke. Zeno's was cited in court documents filed by the state Attorney General's Tobacco Enforcement Section as the "second-most frequent violator of the Smoke Free Act."
The bar was investigated "about 30 times in the past five years" and "on most occasions, patrons ... are sitting at the bar in front of the bartender, smoking and ashing into small plastic cups filled with water," according to documents. Zeno's received a warning letter about breaking the smoking ban in July 2007. It has been cited with 10 violations and has been fined numerous times since then, in amounts ranging from $100 to $5,000, according to documents.
In response, the bar owner said he installed no smoking signs, removed ashtrays and asks customers to stop smoking whenever they do light up, as required under the smoking ban.
In court documents, they questioned the constitutionality of the smoking ban and the legitimacy of enforcement actions against the business.
While not addressing the constitutionality issue, Judge Cain sided with the business and vacated the violations.
He wrote, "Would the Department of Health require property owners to pat down visitors for cigarettes before they are allowed to enter? Would it have property owners remove people via force from the premises at risk of personal injury? Placing the (onus) of enforcing the SmokeFree Act against individuals completely on property owners is ludicrous and defies basic notions of fairness."
Reference: Smoking ban still in effect But can it be enforced? by MARC KOVAC (firstname.lastname@example.org), Dix Capital Bureau Chief, The-Daily-Record.com, 2/26/2010.
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