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Published: Thursday, 7/8/2004

2 Toledo bar owners guilty of violating city's smoking ban

BY ERICA BLAKE
BLADE STAFF WRITER

Opponents of Toledo's smoking ban took another hit yesterday when the owners of the Bier Stube and The Distillery were found guilty of violating the city's Clean Indoor Air Ordinance.

Jim Avolt of The Distillery, 4311 Heatherdowns Blvd., and Jeff Bollin of the Bier Stube, 5333 Monroe St., were convicted of one count each and will be sentenced Aug. 2. They face fines of up to $100. City inspectors found smokers in Mr. Avolt's bar and ashtrays in Mr. Bollin's.

Despite defense arguments to the contrary, Toledo Municipal Court Judge C. Allen McConnell wrote in his decision that the city did not violate the constitutional rights of area bar owners by creating an ordinance that requires a nonsmoking policy only in public bars. The city, he wrote, "may engage in selective enforcement to cure some of the existing evil as long as individual constitutional rights are not violated."

"If the 'evil' is smoking and the legislative intent is to protect the public," he added, "the city has begun to address the evil in public establishments."

The judge agreed with the city that social functions the two bars billed as private events under the terms of the ordinance were not legitimate and thus not exempt. But, he added that he may consider it a private function if a name and telephone number of the sponsoring organization is posted and if there is a sponsor on scene.

Defense attorney Joseph

Loeffler told The Blade later that is exactly what his clients intend to do. Mr. Avolt and Mr. Bollin could not be reached for comment.

"The good thing is that, in this opinion, the judge told us what we have to do to be within the letter of the law and my clients intend to do that," Mr. Loeffler said. "We're going to continue to have private social functions, and now we have direction on how to get away with it."

Despite ruling in favor of the city, the judge expressed several concerns with the ordinance - including the apparent ease with which members of the public can gain membership to private clubs based on testimony of at least one of the witnesses.

He urged city council members to revise certain aspects of the ordinance, including the penalty section, the definition of a "private social function," and how private clubs sell memberships to the public.

City Law Director Barb Herring said the judge's suggestions will be discussed by her department. She added that the courts have once again upheld that the city's ban against smoking in bars, restaurants, bowling alleys, and other public places is valid and constitutional.

Toledo became one of the first jurisdictions in Ohio to ban smoking in bars, restaurants, and public places when city council members approved the ordinance in July. The law exempts private clubs and social events, as well as bars smaller than 245 square feet. It allows establishments to build enclosed smoking lounges as long as they meet city standards.

Bowling Green voters banned smoking in most bars and restaurants in November, 2001, but that law exempts bars that derive less than 35 percent of their revenue from food sales. Columbus has adopted a tougher smoking ban that prohibits smoking in public places without exemption. An advisory committee has recommended Cleveland city council consider a similarly tough ban.

Yesterday's ruling by Judge McConnell comes two weeks after another bar owner, William Delaney, was found guilty of violating the ordinance. Mr. Delaney, owner of Delaney's Lounge, was convicted June 22 of 11 counts of violating the ordinance. He will be sentenced July 19 and faces up to $100 fine for each count.

Court proceedings against several other area bars are also under way, said city prosecutor John Madigan.

Contact Erica Blake at:

eblake@theblade.com

or 419-724-6076.



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