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Published: Monday, 11/24/2008

Senate bill aims to soften public ban on smoking

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - Two years after Ohio voters approved one of the strictest public smoking bans in the country, some lawmakers hope to poke three holes in it for private clubs, family owned businesses, and outdoor patios.

A Senate bill could come to a committee hearing when lawmakers return to Columbus after the Thanksgiving recess, but time is rapidly running out in the lame-duck session.

Patrick Carroll of Cincinnati, president of the Buckeye Liquor Permit Holders Association, argued Senate Bill 346 is simply designed to make the law match what voters thought they were approving in 2006.

"At face value, the ballot issue said private clubs would be exempt," he said.

"Eighty percent of people are not privy to a computer where the rest of the ballot issue was printed. The ballot issue didn't say you couldn't have employees and you couldn't have customers. We want to clarify what people voted for."

Incoming Senate Minority Leader Capri Cafaro (D., Hub-bard), one of three Democratic co-sponsors on the Republican-introduced bill, said the measure could pass the Senate.

"I don't know if it would pass the House," she said. "Even if it did, it's very unlikely in my view that Gov. [Ted] Strickland would sign it."

The ban, enforced starting in mid-2007, prohibits nearly all employers from allowing indoor smoking.

The law does exempt certain private clubs, family-owned businesses, and outdoor patios, but only if they clear high hurdles.

Under the law, private clubs are exempt only when they have no employees, do not invite the general public or minors inside, and have free-standing structures from which smoke can't migrate to off-limit areas.

Family-owned businesses are exempt if family members only are present, which excludes outside customers or employees. Outdoor patios are defined as having a roof and walls or side coverings on up to two sides, or a roofless area with an unlimited number of walls.

Since the ban was enacted as an initiated statute rather than a constitutional amendment, lawmakers could amend it like any other law.

Senate Bill 346 would allow smoking in any private club with a D-4 liquor permit for nonprofits.

A "family-owned business" would be redefined as one that is not publicly traded, is run by a president or CEO from the family with controlling interest, and is located in a free-standing structure or is separated from another business by a firewall.

An "outdoor patio" would be redefined to cover any area adjacent to a building that lacks permanent walls. This would not include a parking lot.

The confusion over private clubs was created in 2006 when the brief summary that appeared on the ballot, written by the Ohio Ballot Board, simply listed private clubs among the handful of exemptions without mentioning the hoops they'd have to jump through to qualify.

Governor Strickland backed an attempt last year by his Department of Health to write an exemption for private clubs into the rules used to enforce the law. That attempt was struck down by the courts as conflicting with the text of the actual law voters approved.

"At this point, we're continuing to review that legislation, but the governor does not believe that wide-ranging issues would be best served during the short period of time in a lame-duck session," Strickland spokesman Keith Dailey said.

The American Cancer Society, the primary force behind putting the smoking ban on the ballot, opposes any attempt to weaken the law.

It's been joined by the Ohio Restaurant Association, which initially fought the ban at the polls but now wants to maintain the status quo.

"It's a comprehensive, smoke-free law enacted by 2.2 million Ohio voters," said John Hoctor, spokesman for the cancer society in Ohio.

"It covers employees and patrons of businesses. It's easy to understand, and customers and employees know what to expect when they go into a business.

"Any attempt to weaken the law would destabilize the level playing field that people have come to know and enjoy," Mr. Hoctor said. "Otherwise, we would put employees in two classes, those protected from secondhand smoke and those not protected."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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