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Published: Sunday, 1/17/2010

Ohio weighs crackdown on violators of smoking ban

BY JULIE M. McKINNON
BLADE STAFF WRITER

As far as the state is concerned, it's time for recalcitrant smoking ban violators to pay up.

But if it goes after downtown Toledo's Rip Cord with an injunction as it has done with two bars in Columbus and Cincinnati, co-owner Terry Hymore says he would shutter the 19-employee bar instead of paying $36,600 in fines levied against the establishment.

"I would rather close the bar down and walk away," Mr. Hymore said. "They can pay the unemployment."

Nearly three years after enforcement began of a voter-approved smoking ban prohibiting lighting up in most public places, hundreds of bars, clubs, restaurants, and even factories statewide continue to rack up violations, said Mandy Burkett, administrator of the state's smoke-free work force program for the Ohio Department of Health.

In Lucas County alone, where the biggest smoking ban violators are bars, the local health department has levied $118,600 worth of fines, of which just $5,134 have been paid. And Rip Cord owes nearly twice as much in fines as any other establishment, according to the Toledo-Lucas County Health Department.

"There are some strongholds, where people have just dug in their heels," said Lisa Zumstein, a state health department sanitarian who works on smoking ban compliance.

So the state is suing two bars - Zeno's in Columbus and O'Neal's Tavern in Cincinnati - as test cases for whether they can get court injunctions to make repeat smoking ban violators pay their fines. Zeno's, which in a countersuit alleges the smoking ban is unconstitutional because it is not equally enforced statewide, owes more than $28,000 in fines, while O'Neal's owes more than $21,000.

The state's lawsuits were filed in August on behalf of the Ohio Department of Health by the Ohio Attorney General's Office. Officials are working on how to recoup unpaid fines from establishments with multiple violations, Ms. Burkett said.

"We're kind of exploring our options in taking the next step," she said.

Opponents have long decried the smoking ban as an infringement on their constitutional and other rights. Mr. Hymore had filed a lawsuit in Lucas County Common Pleas Court, asking the smoking ban be declared unconstitutional in the way it is written, enforced, and applied, but the suit was dismissed a year ago.

"When I'm here, it doesn't happen," Mr. Hymore said recently of smoking at Rip Cord. "But if I'm home sleeping in my bed, I shouldn't be fined."

Mr. Hymore and other smoking ban opponents stand by their claims that health department inspectors should fine smokers, not establishments. While Ohio establishments can be fined $2,500 or more depending on how many violations they have, individual fines are $100 no matter how many violations the person obtains.

Yet public health officials say smoking ban complaints typically are against establishments, not individual smokers. Establishments are supposed to prohibit smoking, said Ms. Zumstein of the state health department.

"We aren't smoking police," she said.

How far establishments have to go to prohibit smoking remains under dispute.

Smoking ban opponents were buoyed in October when the Franklin County Court of Appeals ruled North Toledo's Pour House bar could not be penalized because a smoking patron disobeyed. A Pour House bartender had told the patron he couldn't smoke, but the bar was fined $500 after the man left a lit cigarette in a mint tin.

Ted Wilczynski, co-owner of Pour House, said it cost him more than $900 to fight the $500 fine. With business down nearly 60 percent since the smoking ban was enacted, in part because of the bad economy and in part because his patrons go to other neighborhood bars that allow them to smoke, he can't afford any more such fights.

"It was a bogus charge," said Mr. Wilczynski, who recently received another $500 smoking ban fine. "Did I 'win'? No, it was the principle."

Alan Ruffell, director of environmental health for the Toledo-Lucas County Health Department, said the case against Pour House was weak. Inspectors have beefed up smoking ban investigations since that fine was issued nearly two years ago, he said.

"That ruling is probably going to hurt our enforcement activities," Mr. Ruffell conceded. "We're not going to stop trying to gain compliance. We just have to change our strategy a little bit."

One longtime smoking ban defier, Bill Delaney of Delaney's Lounge, said he will never pay a smoking ban fine even if there is a court-ordered injunction against him.

"I'm still not going to do anything," Mr. Delaney said. "This is against my personal property rights."

Whoever filed two complaints last month against Mr. Delaney's North Toledo bar, which has $2,100 in unpaid smoking ban fines, was never even there, he said. One complaint said tin ashtrays were being used and the other claimed smokers were using cans, but Delaney's Lounge has been setting out regular ashtrays for four months, he said.

One recent change that has been made statewide is that administrative hearings for establishments appealing fines will no longer be held at local health departments. The attorney general's office will handle all such hearings in Columbus or at four regional locations, which in northwest Ohio will be in Wood County, helping with continuity and cutting down on costs for local health departments, state officials said.

Next on the agenda for the nation's public health officials may be banning smoking in vehicles or partially enclosed patios, two areas where research on health effects is ongoing, said James Price, public health professor at the University of Toledo.

Mr. Price was the principal investigator in a 2004 study that showed a 45 percent drop in heart attacks in Bowling Green after the Wood County city implemented a smoking ban. That study, which also involved researchers at the former Medical College of Ohio, was one of 11 worldwide weighed by the Institute of Medicine, which recently concluded smoking bans can decrease heart attack rates.

Adult smoking rates also have declined since Ohio's ban enforcement began, according to the latest Ohio Department of Health statistics. Twenty-one percent of Lucas County adults were smokers in 2008, down from 24.5 percent in 2007 but still higher than 19.8 percent in 2006. In northwest Ohio, rates declined from 22.4 percent in 2007 to 21.3 percent in 2008, while they dropped from 23.1 percent to 20.1 percent statewide between those two years, according to the figures.

Just like in Lucas County, however, adult smoking rates in northwest Ohio and statewide were lower in 2006 than either of the subsequent two years. They were 20.5 percent in northwest Ohio and 22.4 percent statewide, state statistics show.

Rates may go up again because people turn to smoking in tough times, and there aren't as many treatment options available since state funding was eliminated, said Sue Ryan, certified tobacco specialist at St. Luke's Hospital's Tobacco Treatment Center.

"For many people in this economy, tobacco use is their coping mechanism for stress," Ms. Ryan said. "They're addicted to the nicotine."

She added: "I feel for people. It's tough."

On the other hand, some of the tobacco center's nearly 200 clients are making the choice between food and cigarettes, an incentive for quitting, Ms. Ryan said. "People are trying to find a way to save money," Ms. Ryan said.

Economic times also have been tough for the St. Luke's Tobacco Treatment Center and other such programs statewide. State tobacco settlement funds designated nearly a decade ago for smoking treatment and cessation programs remain frozen until the Ohio Supreme Court decides whether the $258 million can be spent on other programs.

Last April, St. Luke's Hospital Foundation awarded the Tobacco Treatment Center $35,000 to keep going after state funding dried up, Ms. Ryan said. Some patients qualify for insurance coverage for treatment fees and medication assistance from pharmaceutical companies, which helps, she said.

Toledo Hospital's Tobacco Treatment Center has scaled back staffing but continues to provide cessation education in schools, through group counseling for adults, and for hospital patients, according to parent ProMedica Health System.

With the Michigan Legislature last month passing a statewide smoking ban approved by Gov. Jennifer Granholm, public health officials across the line may soon go through some of the same enforcement pains Ohio has.

The Michigan Department of Community Health is mulling details of the state's smoking ban. West Virginia, Indiana, and Kentucky are Ohio's only neighbors without some type of statewide smoking bans.

Some Michigan bars and restaurants already are arguing that the newly approved statewide ban is discriminatory because it exempts Detroit's three casinos. Smoking will be allowed on Detroit casino gambling floors, but not their bars, restaurants, and hotels, and it also will be permitted in cigar bars and some other businesses statewide.

Michigan establishments and smokers found violating the law will be fined $100 for the first offense and $500 for subsequent offenses.

How the smoking ban will be enforced beginning May 1 will be determined in coming weeks, said James McCurtis, spokesman for the Michigan Department of Community Health.

"Most likely it will be local health departments, but it's still up in the air," he said.

"It's going to require a lot of input."

Contact Julie M. McKinnon at:

jmckinnon@theblade.com

or 419-724-6087.



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