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Saturday, January 13, 2007

Ohio Smoking Ban: Court Blocks Enforcement

CINCINNATI (TDB) -- State health officials repeatedly keep issuing alerts that businesses in Ohio are "required to comply" with the new statewide smoking ban. The Ohio Health Department sent out 280,000 letters Friday at taxpayers' expense warning every business it could find that the ban is in effect.

The letters mentioned rules for enforcement are not final.

What the letters didn't say -- and what state officials have not been very forthcoming about -- is that the massive mailing probably wasn't worth the paper it was written on. There is a Hamilton County Common Pleas Court order on the books that states clearly Ohioans can ignore the ban for now no matter what the health department says. The state agreed to a consent decree that has blocked enforcement since December 8, 2006. Common Pleas Judge Fred Nelson signed the order in Buckeye Liquor Permit Holders Association et al v. Ohio Department of Health et al, Case No. A0610614.

The order does not seem to be on the state health department's Smoking Ban Web site, a significant omission that has allowed businesses to be frightened that they have to stop people from smoking. Meanwhile, all 280,000 letters mailed Friday said rules about how to enforce the ban were in the works and "until then, businesses and organizations are required to comply with the statutes."

But this is what the order signed by Judge Nelson says:

"A. The Ohio Department of Health, its director, officers, agents, designees and employees (collectively 'ODH'):

"1. Shall not undertake any enforcement action pursuant to sections 3794.09 (A) and (B) and (D) and 3794.07 (B) of the Revised Code until such time as the Director shall promulgate rules (in according with Chapters 119 and 3795 of the Revised Code including R.C. 3794.07 (B)) to implement and enforce all provisions of Ohio Revised Code Chapter 3794 and all such rules are effective. Specifically, ODH shall not make findings of violation, issue warning letters, or assess/impose civil fines upon any business, organization, proprietor, employer, employee or individual (herein 'Party') who is alleged to have violated Chapter 3794 or the Revised Code until such time as the director shall promulgate rules in accordance with Chapter 119 of the Revised Code and such rules are effective.

"2. Shall not use complaints or reports of alleged violations occurring before the effective date of rules promulgated by the Director in accordance with Chapter 119 or the Revised Code against any Party now or in the future."

The health department can send out letters to parties alleged to be in violation but "the letter, without comment concerning the report, shall acknowledge the report and provide the party alleged to be in violation with information on compliance with R.C. Chapter 3794 and no further enforcement action shall be taken regarding the referenced report." H. Louis Sirkin, of the Cincinnati law firm Sirkin Pinales & Schwartz LLP, represents the liquor permit holders. Assistant Attorney General Steven C. McGann of Columbus is the attorney for the state health department.

There is all kinds of information on the Ohio Health Department's Web site, but the state's failure to place the court order there only adds confusion. For now, the ban is legally toothless. And the rules -- when they finally are issued -- will be confronted by a well-financed legal attack in Judge Nelson's court. He has stayed all proceedings until the regs are rolled out. That's when the real match will begin.

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