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Published: Wednesday, 1/17/2007

State struggles with rules for smoking law

BY JIM PROVANCE
BLADE COLUMUBUS BUREAU

COLUMBUS - The state should not micromanage every detail of Ohio's broad new anti-smoking ban right down to the size of signs or exact distance outdoor smokers must step away from doors, a diverse advisory panel advised yesterday.

"One size is not going to fit all for every business," said Tracy Sabetta, the American Cancer Society's representative on the Department of Health's advisory board.

"There were reasons those specifics were not put in the statute when it was drafted," she said. "The more specific you get, the more problems you may be opening yourself up for."

But there is grumbling among some panel members over areas where the Department of Health is trying to fill the gaps in the strict law voters approved on Nov. 7.

Private clubs aren't happy that a loophole they thought they saw opening a month ago for their members has been plugged. Bowling alleys and bars say there could be litigation if the state oversteps its authority under the law.

And health commissioners are concerned their new enforcement role will amount to an unfunded mandate not entirely covered by fines.

The state health department hopes to file proposed rules with the legislative Joint Committee on Agency Rule Review by the end of the month, triggering more public comment and the first of two hearings. It hopes to complete the entire process by early spring.

In the meantime, the law went into effect on Dec. 7. The department is receiving complaints, but it is mailing out information rather than warning letters to businesses accused of violating the law. The ban prohibits smoking in bars, restaurants, and nearly all other enclosed workplaces. Representatives of private clubs continue to try to use the department's rule-writing authority to undo a provision in the law that places the vast majority of them off-limits to smoking because they have employees or serve the public.

"The department has very little if no control over how that definition and exemption work," said Socrates Tuch, general counsel for the department.

The department, however, had given the clubs a glimmer of hope last month when its first draft proposed redefining the word "employee" to exclude uncompensated volunteers.

The clubs interpreted that to mean they could offer smoking hours when an unpaid member tended bar. Faced with complaints, the draft rule was rewritten to prohibit any kind of employee relationship with that volunteer.

"Most private club employees are members of that club. We ask that they be considered members," said Bill Seagraves, commander of the Department of Ohio Veterans of Foreign Wars.

David Corey, of the Ohio Bowling Center Association, balked.

"We have to have a level playing field," he said. "If you have a couple of loopholes in this, you're going to have a lawsuit, and then you're going to have a delay in these rules."

Ms. Sabetta urged no delays in the process. "In a year tops, a lot of this is going to be a blip on the radar screen, and the more difficult we make it for all of us now, the longer that process is going to take for everyone to become accustomed to this," she said.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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