Judge's decision axes some penalties; fines reduced, classes for violators eliminated

5/15/2004

A Toledo Municipal Court judge yesterday threw out a section of the city's smoking ban ordinance that requires bar owners who violate the law to attend tobacco education classes and eliminated graduated penalties ranging from $600 to $1,000.

But Judge C. Allen McConnell rejected other claims filed against the law and refused to dismiss smoking charges filed against two bar owners.

Law Director Barb Herring said the city will continue to impose the permissible $100 fine - daily, if necessary - on bar owners who illegally allow smoking.

Council President Louis Escobar said the ruling removes a provision that, ironically, was created for the protection of bar owners - to make a misdemeanor conviction that could affect their liquor licenses a last resort.

Judge McConnell ruled that the ordinance passed in July, 2003, illegally sets fines higher than the $100 ceiling allowed by state law for a minor misdemeanor. The city ordinance created graduated penalties of $600, $800, and $1,000 for owners who illegally permit smok-

ing. It also required them to attend tobacco classes, with some or all of their staff.

The judge ordered that part of the law back to council for reconsideration.

Ms. Herring said the judge's ruling means that each violation now will be treated as a misdemeanor crime.

"The normal minor misdemeanor penalty of $100 per offense can be imposed, and each day is a new offense," she said.

The ruling addressed a motion by lawyers for James Avolt, owner of the Distillery, 4311 Heatherdowns Blvd., and Jeff Bollin, owner of the Bier Stube, 5333 Monroe St., to dismiss charges against them. The judge declined to dismiss the charges.

Judge McConnell's ruling has been awaited to get clarity on whether the smoking ban - the toughest in Ohio - can stand up in Municipal Court, where misdemeanor charges are tried.

Lawsuits challenging the smoking ban have been filed and denied in U.S. District Court.

The Clean Indoor Air Ordinance widened Toledo's ban on smoking in public places to include bars, restaurants, bowling alleys, and many other public places. The law exempts private clubs, private social events, bars smaller than 245 square feet, and legal smoking lounges.

Lawyers representing Mr. Avolt and Mr. Bollin claim that their clients are exempt from the smoking ban because they were holding "private social functions" at the times they were cited.

The city claims the private parties were sham events to evade the law.

Judge McConnell did not rule on any of the cases, but he said he won't have any trouble telling the difference between a public and a private event.

"The statute is abundantly clear and any, if not all, persons of ordinary intelligence should be able to understand the legislative intent of City Council," Judge McConnell wrote.

When passed by Toledo City Council last year, council members had said that the exemption for a "private social function" was for events to which the public was not invited, such as a wedding reception.

Joseph Loeffler, an attorney for the bar owners, said, "This is an opportunity for Toledo City Council to speak with the businesses that are adversely affected and their constituents and make a decision whether to modify [the ordinance]."

The ruling clears a hurdle in the path of the city's case against William Delaney, owner of Delaney's Lounge, 309 West Alexis Rd. Mr. Delaney has 15 charges pending against him under the smoking law. He also has claimed innocence, saying his bar is open only to invited guests.

Mr. Delaney declined comment yesterday. His trial was postponed until May 28.

Stu Kerr, regional policy coordinator for Tobacco-Free Ohio, which lobbied for the ordinance, said the loss of the tobacco education section is not significant.

He said council should not consider any amendments to the law until after June 30, when a study of the impact on the city's health and the economy is expected to be complete.

Mr. Escobar said council won't consider changes to the law until the litigation is complete.

But Councilman George Sarantou, a Republican on the Democratic-controlled council, said he thought the judge was ordering council to amend the penalty sections. If so, council likely would hold a hearing at which people could testify about the ordinance, he said.

Contact Tom Troy at:

tomtroy@theblade.com

or 419-724-6058.