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Published: Thursday, 12/7/2006

Some area bar owners pledge to ignore new state no-smoking rules

BY JENNI LAIDMAN
BLADE STAFF WRITER

In a smoke-choked room, jammed with bar owners, employees, and their supporters, attorney Joe Loeffler gave his advice for compliance with the new state smoking ban that goes into effect today.

Light 'em up.

"No! Do not put signs up!" Mr. Loeffler told the more than 120 people standing and sitting and squeezing through the door to a side room at Delaney's Lounge on Alexis Road.

"As far as I'm concerned, there's no way to enforce this. There are no sanctions. So we don't need to put up the [no smoking] signs. Nobody's authorized to enforce this locally. The authorizing agency is the Ohio Department of Health and they have adopted no sanctions."

Attorney Joe Loeffler advises more than 120 people in attendance to 'light 'em up,' because the state has no way to enforce compliance. Attorney Joe Loeffler advises more than 120 people in attendance to 'light 'em up,' because the state has no way to enforce compliance.
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While today Ohio becomes the 19th state to have a smoking ban, bar owners look for every loophole to avoid a law they say will destroy their businesses.

The Buckeye Liquor Permit Holders Association filed suit in Hamilton County Common Pleas Court yesterday challenging the ban's constitutionality and asking for a temporary restraining order. Toledo bar owners are discussing a challenge before the Ohio Supreme Court, asserting that the ballot language was misleading when it claimed to exempt private clubs from the ban.

But starting today, Dr. David Grossman, director of the Toledo-Lucas County Department of Health, said his 15 restaurant inspectors will note whether businesses are prohibiting smoking, have removed ashtrays, and have "No Smoking" signs posted - the three steps the state requires - when they make their regular inspections.

Dr. David Grossman, left, emphasizes that the new rules will be enforced. Dr. David Grossman, left, emphasizes that the new rules will be enforced.
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He called the rebellious talk among some bar owners "just callous disregard of the law."

"A lawyer is telling them to ignore the law because there are no penalties. I find that unusual. It's a disregard of the process, of what the voters asked for in this community," he said.

"That their stance is, they don't care what the law is because you can't hurt me right now, I just find that unforgivable."

Kristopher Weiss, an Ohio Department of Health spokesman, said it is correct to say that penalties have not been designated and rules not spelled out, but that doesn't change the requirements to prohibit smoking, post signs, and remove ashtrays.

"It's akin to traffic laws," he said. "People are expected to follow them regardless of whether a trooper is on the road or not."

At a press conference, Shirley Dwyer said the ban
has widespread support. She also urged people to patronize businesses that are affected by the ban. At a press conference, Shirley Dwyer said the ban has widespread support. She also urged people to patronize businesses that are affected by the ban.
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Although the state health department has not yet delegated any local authority for enforcement, it will investigate local complaints, including those from local health departments, and follow up with a letter reiterating the law's intent. Individuals can report violations to the state via a toll-free number, 1-866-559-6446.

"We don't have the enforcement mechanisms in place" to do more until rules are formulated, a process that began yesterday, Mr. Weiss said. The state has until June 7 to finish that process.

In the meantime, Mr. Loeffler told local bar owners that ballot language claiming an exemption for private clubs may provide ammunition to topple the new law at the Supreme Court.

The law spells out such a narrow definition of a private club, said Jim Avolt, owner of The Distillery on Heatherdowns, no one could comply.

"Nobody qualifies under this," he said. "Now, even private clubs aren't private clubs anymore. Under this provision, we think the whole law is vulnerable to being overturned."

Jim Avolt, owner of The Distillery, reads the law s text at the meeting at Delaney s. He said he believes the law s description of a private club is too narrow and will not pass a court challenge. Jim Avolt, owner of The Distillery, reads the law s text at the meeting at Delaney s. He said he believes the law s description of a private club is too narrow and will not pass a court challenge.
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He said the law defines private clubs as being without paid employees, "no part-time bookkeeper, nobody out doing the lawn out front, no employees at all."

Further, only members can be allowed in the building, and guests and those under 18 are not permitted. The not-for-profit club must occupy a free-standing building, without other occupants.

Mr. Loeffler said he will reach out to private clubs statewide to join in the complaint. "I want to inundate the Supreme Court with people saying 'I was misled.'•"

Roy A. said he was mislead.

He was certain that Idle Time, 2044 Genesee, a club for Alcoholics Anonymous members, was protected from the ban, so he voted for it. (Alcoholics Anonymous requires its members to remain anonymous.)

"I voted only because I thought it wasn't going to affect us. I thought us, the bowling alleys, and the VFW, and The Eagles, were exempt," he said, adding that almost all of the club's 200 members smoke. While they do not permit smoking at AA meetings, they allow it afterward. The law would change that. He intends to support the move to challenge the law.

Mr. Loeffler said a legal challenge faces a number of hurdles, not the least of which is the cost of mounting such a suit. In addition to legal fees, the state requires a bond be posted in the event of such a filing, he said, but he did not know the amount of the bond requirement. The group also needs to learn whether there is still time to file a legal challenge. Mr. Loeffler said he believes he has 30 days after the vote is certified. Vote tallies are not yet officially certified.

Julie Garczynski, owner of the Timberwolf Tavern at Douglas and Alexis, says every bar from Laskey Road north to the Michigan line is particularly vulnerable to the ban, as patrons have only a short drive to escape Ohio's restrictions.

"I just cut half of my staff. I have four girls left, because I know I'm going to lose my rear end," she said.

She said many bartenders don't work 40 hours a week, and may not be able to get unemployment when they are laid off.

"These girls don't get unemployment. What are they going to do? They're done."

Gene Christian, owner of the 19th Hole on Sylvania, sat quietly through the loud and sometimes raucous meeting, assessing his options. His bar has been in the family for 75 years. He doesn't want to risk it. When he opens his door tomorrow, he's going to let his patrons smoke.

"It really hurt us bad that last time. Our sales went way down," Mr. Christian said.

But Shirley Dwyer, who passed out petitions for the smoking ban and attended a press conference at the health department yesterday, says most people are delighted with the ban.

"I was at Wildwood passing petitions, and they were stopping their cars in the middle of the road to sign the petition. I had one woman say she wasn't registered to vote, so she went out and registered, and she came back and signed the petition," she said.

Now, it's up to the smoking ban supporters to let business owners know they appreciate their compliance with the law. Go out today to the restaurants and bars that are now smoke-free, she says.

"Everyone should go out," she said. "They deserve our patronage."

Contact Jenni Laidman at:

jenni@theblade.com

or 419-724-6507.



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