Thursday, May 24, 2018
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An attorney's harmful advice

THE depths to which local bar owners will go to fight Ohio's new ban against smoking in public places is now clear. Their own lawyer is advising them to ignore it and light 'em up. Attorney Joe Loeffler's advice to disregard the new ban is a defiant insult not only to the nearly 2.2 million Ohioans who voted for the ban on Nov. 7 but to his own profession as well.

Mr. Loeffler told a group of bar owners and smokers the other night that because the Ohio Department of Health has not yet formulated rules and a formal set of sanctions, the ban is unenforceable. So forget about putting up the no-smoking signs and get on with your life, he said in essence.

In other words, an officer of the court is telling the bar owners to go ahead and break the law. Would Mr. Loeffler advise a client that it's okay to drive 60 miles per hour in a school zone if there's no police officer present?

It is outrageous conduct and certainly calls into question his license and his fitness to remain in the legal profession. If his considered legal advice is to recommend flouting a legally adopted statute, then oversight of Ohio lawyers by the Ohio State Bar Association and the Ohio Supreme Court is a joke.

But our disappointment is not with Mr. Loeffler alone. Where is the Ohio Department of Health? The new law provides that the state health department draft rules and regulations and establish a schedule of fines for violations of the new ban, but it gives the state until next June to do so.

That is a ridiculously long time. In our view the health department should have been drafting its rules and fines months ago in anticipation of voter approval of adding Ohio to a growing national movement to go smoke-free.

There is no reason under the sun that rules regarding enforcement and fines could not be in place by Dec. 31.

For that matter, the fines should be sufficiently stiff that they cannot be viewed as simply a nuisance by bar owners who would routinely pay them as a cost of doing business. A fine regarded simply as a manageable expense is a slap in the face of every Ohioan who voted for Issue 5.

Judges in Ohio are elected, not appointed, and we imagine they'd have a tough time disregarding the public's will if legal challenges by the Ohio Licensed Beverage Association and bar owners are pursued.

Similarly, the contention of the bar owners that they should have the right to operate their businesses as they see fit borders on the absurd. Would they step up and make the same case on behalf of the owner of a business who refused to remove asbestos from his walls or otherwise bring his establishment up to legal code?

We do agree with bar owners whose establishments are on the Ohio side of the Michigan border, including Bill Delaney, that some business may be temporarily lost to taverns across the line. But that will end when Michigan moves toward smoke-free public places itself.

Maybe there is another message in the legal challenges to Ohio's ban. Maybe what the statewide health organizations which pushed so hard for Issue 5 need to do now is start over, borrow a tactic from the tavern keepers, and ask the voters to put the ban into the Ohio Constitution.

In the meantime, the ban is the law of the state, and the Ohio Department of Health should move swiftly to provide the mechanism to enforce it. By New Year's Eve.

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