Toledo smoking ban likely to change Nov. 7

10/29/2006

COLUMBUS Regardless of which of two dueling bans reigns supreme when the smoke clears on election night, the rules about where people can and cannot light up in Toledo are likely to change.

Toledo s Clean Indoor Air Ordinance, as amended by voters in 2004, is much weaker than Issue 5, a strict statewide ban on indoor public smoking pushed by a group of health organizations, but slightly stronger than Issue 4, the exemption-laden alternative pushed by the tobacco and hospitality industries.

Unless both issues fail on Nov. 7, and no poll has suggested that will happen, Toledo s law will be replaced.

They re taking the malignancy that was Toledo statewide, said Stu Kerr, SmokeFreeOhio s northwest Ohio coordinator. They re trying to use Toledo as a model. We were leaning more toward using Columbus as our model.

While taking issue with the word malignancy, Bill Delaney, owner of Delaney s Lounge at 309 West Alexis Rd., agreed that Toledo started something when voters watered down the city s strict, short-lived, Issue 5-like ban.

We see this as a start for the rest of the country, he said. We ll see people jump on the constitutional amendment and adopt it in other states.

The law in Toledo and another weaker law enacted last year in Fairfield, north of Cincinnati, are rare exceptions among 21 local anti-smoking ordinances statewide that otherwise have more in common with Issue 5.

Toledo gave us a good starting point in reaching what we believe to be a common-sense approach, said Jacob Evans, spokesman for Smoke Less Ohio, the coalition behind Issue 4. Issue 4 closely mirrors what was enacted by Toledo voters.

Issue 5, whose chief financial backer has been the American Cancer Society, would create a new law prohibiting smoking in bars, restaurants, and other workplaces statewide with few exceptions.

Issue 4, however, is a proposed constitutional amendment that would exempt bars, restaurants with separate enclosed-smoking areas, bowling alleys, bingo halls, private clubs that serve only members, and any business that places itself off limits to minors.

Its chief financial backer is North Carolina-based R.J. Reynolds Tobacco Co., which has devoted $40 million to fight ballot battles over smoking bans and cigarette taxes in multiple states.

New tactic employed

If both issues pass, the weaker Issue 4, as a constitutional amendment, would prevail, even if the stricter Issue 5 garners more votes. It would make Issue 5 s initiated statute, as well as ordinances in Columbus, Toledo, Bowling Green, Wauseon, and 17 other cities, instantly unconstitutional, and would prohibit passage of any new law that would be stricter than Issue 4.

This is pretty much a new tactic for this year. This is not something we have seen before, said Micah Berman, executive director of the Tobacco Public Policy Center at Capital University law school in Columbus.

The center offers legal assistance to local governments enacting anti-smoking ordinances. While the center does not take sides on ballot issues, Mr. Berman questioned the concept of pre-empting local government authority to enact stronger laws.

It is important for local jurisdictions to be able to enact more comprehensive protections from secondhand smoke, he said. It s one thing for the state to set the minimum, but for states to set the maximum is a problem.

Some things will change

Toledo s law generally exempts bars, bowling alleys, bingo halls, and small restaurants with nine or fewer employees, and includes a broad exemption for separately ventilated smoking-only lounges in businesses.

If passed, Issue 4 would do away with Toledo s exemption for small mom-and-pop restaurants but would allow them and any other restaurant to permit diners to light up in smoking sections that are completely separated from the rest of the premises by walls or doors.

The proposed amendment makes no mention of those smoking sections having separate ventilation systems from the rest of the restaurant, as Toledo currently requires for its smoking-only lounges.

The ordinances in Bowling Green and Wauseon have more in common with Issue 5 than Issue 4, but both cities would also have to make changes to come into compliance with Issue 5 s new statewide minimum standard.

Bowling Green would surrender its exemptions for bars and separately ventilated employee smoking lounges. Wauseon would lose exemptions for bars and enclosed smoking sections in restaurants.

But the biggest difference between Issue 4 and all the local laws is Issue 4 s provision exempting any establishment that puts itself off limits to minors, a provision that critics claim could serve as an escape hatch for any business.

R.J. Reynolds Smoke Less Ohio campaign claims Issue 4 would make 90 percent of businesses smoke-free, said Patrick Reynolds, grandson of the tobacco company s namesake founder, a former smoker, and an anti-tobacco activist.

In reality, any business that slapped a Minors Prohibited sign on the front door, they could allow smoking, he said. That includes offices and factories.

But Mr. Evans said he doesn t expect many to take advantage of this clause.

[Smoking] is an adult choice, and adults should be allowed to make that choice, he said. Most businesses can t close themselves off to minors and expect to stay open.

Some may stay the same

Mr. Delaney, who ignored Toledo s strict citywide ban while it lasted, predicted that most restaurants that are currently smoke-free won t take down the no smoking signs even if Issue 4 passes.

He said he doesn t expect small diners and restaurants now exempt under Toledo s law to invest in separate smoking rooms to stay so under Issue 4.

I don t see them having the money to erect something like that, he said. These places are very small and generally they d prefer to be nonsmoking. I can honestly say that the smokers I ve interviewed here would rather go to a nonsmoking restaurant and have their meal with no smoking and then come here afterwards and have a cigarette.

President of the Northwest Ohio Licensed Beverage Association, he was one of the first to sign onto the Smoke Less Ohio coalition of bars, restaurants, tobacco companies, oil companies, grocers, bowling alleys, and retailers that led to Issue 4.

Mr. Delaney paid $1,100 in fines for 11 citations for allowing his patrons to light up while Toledo s strict ordinance was in effect. The law was changed before he had to pony up for the other seven citations he d received.

If Issue 5 had been the law, he could have faced escalating fines as a multiple offender up to a maximum of $2,500. The smokers themselves, however, would never have faced a fine exceeding $100. While backers of Issue 5 have been highly critical of Issue 4 s pre-emption of stronger local laws, in Toledo s case, it would be Issue 5 that would do most of the legal rewriting. If Issue 5 passes and Issue 4 fails, Toledo s weak ban would have to rise to a new statewide minimum standard.

Bars and the handful of mom-and-pop restaurants that are currently exempt in Toledo would have to go smoke-free. So would bingo halls, bowling alleys, private clubs, and most businesses that installed those separately ventilated smoking lounges.

While most local ordinances, including those in Columbus, Bowling Green, and Wauseon, have more in common with Issue 5, only two suburban Columbus bans, those in Powell and Granville, have laws that are actually stricter than Issue 5.

Powell prohibits smoking on outdoor patios immediately adjacent to the entrance or exit of a business, while Issue 5 generally requires outdoor smokers to step away from egresses. Unlike Issue 5, Granville sets a specific distance on how far away from the door a smoker must be.

We wanted to make sure people didn t have to run the gauntlet of cigarette smokers before entering a restaurant, said Dan Wiencek, current Powell councilman and the city s mayor at the time the ordinance passed. He is a native of California, which has a statewide ban.

When you ve got entire countries recognizing the dangers of second-hand smoke, it seemed the state of Ohio hasn t gone far enough, said Mr. Wiencek. Issue 5 is what it takes to protect both patrons and employees.

Council not taking sides

Despite the fact that it has been the center of local smoking skirmishes in the past, Toledo City Council has taken no position on the current statewide war.

Council President Rob Ludeman said no council member has approached him asking for a council resolution supporting one issue over another. Mr. Ludeman, however, has already taken advantage of early voting, casting his vote for Issue 5 and against Issue 4.

If Issue 5 goes through statewide, as far as Toledo business owners are concerned, it would make them level with everyone else in surrounding communities, he said.

Issue 5 is the only statewide ballot issue supported by the League of Women Voters of Ohio. The organization opposes not only Issue 4 but also Issue 2, a hike in Ohio s minimum wage, and Issue 3, the slots-for-scholarships proposal, because they are constitutional amendments.

Voters tend to overlook the long-term implications of a constitutional amendment versus a piece of legislation, said Linda D. Lalley, co-president of the League of Women Voters of Ohio. Legislation is much more responsive to our fast-paced society.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.