December 7, 2006

By Virgil Hervey

State Issue 5, the Smoke Free Workplace Act, was passed in an atmosphere of confusion in the Nov. 7 election, and implementation of the new law may be even more confusing, local bar owners said in recent interviews. The law goes into effect on Dec. 7, but the Ohio Department of Health (ODH), which is charged with its implementation, has six months to adopt rules and procedures for its enforcement.

Issue 5 won by a large margin and is now being referred to by ODH as “Ohio’s indoor smoking ban.” Cathy Christian, owner of Ye Olde Trail Tavern, calls it “unfair to restaurants.”

According to ODH’s Web site, “businesses and organizations will be required to comply with the statute starting Dec. 7,” by prohibiting smoking in any public place or place of employment. They must also post conspicuous signs at each entrance. “The signs must be clearly legible and shall contain a toll-free number for reporting violations,” the Web site said. There is a link for downloading signs that meet the requirements.

“Restaurants should not have been included,” Christian said. “They are a choice — you choose to go there — not like a hospital.”

A smoker herself, Christian favors mandatory non-smoking areas; for example, the tavern currently reserves the solarium for its no smoking section. According to Christian, under the new law, she can’t even smoke in her own building, before she opens for business, even though it is a privately owned facility. Her regular customers and employees, alike, are also unhappy with the smoking ban, she said.

The big question that she and other owners have is how the law will be enforced on Dec. 7, when there are still no rules. Currently, ODH agents make spot checks, dropping in unannounced to check for other kinds of violations, Christian said. She wonders if they will be issuing warnings for smoking violations, in lieu of actual citations, and, if so, will accumulated warnings count toward increased penalties once the implementation period is over. ORC 3794 provides for a $100 fine for a first offense and increased penalties of up to $2,500 for repeated violations within a two-year period.

Both the tavern and Peach’s Grill have patios that are popular in warmer weather. Peach’s owner Don Beard and Christian both said they wish the statute would have become effective in the spring so they could have eased their customers into the smoking ban by offering them the option of smoking outside.

However, Beard and Christian are concerned with the sections of the statute that deal with the outdoor areas as it applies to their patios. ORC 3794.02 (A) says that they shall not “permit smoking in the public place or place of employment or in the areas directly or indirectly under the control of the proprietor immediately adjacent to locations of ingress or egress….” Paragraph (B) says that they “shall ensure that tobacco smoke does not enter any area in which smoking is prohibited…through entrances, windows, ventilation systems, or other means.” Beard wonders if smoking will be permissible at all on the Peach’s patio, which customers must pass through on their way to the main entrance. Christian worries that she will have to keep the doors and windows on her patio sealed shut in summer.

Peach’s, which draws big crowds with its live music, has put on several smoke-free shows, Beard said. In some cases, the entertainers have requested it; in other cases Beard, who himself does not smoke, tried offering the opportunity for non-smokers, who might otherwise stay away, to partake in Peach’s live music scene. Unfortunately, there wasn’t the kind of support from non-smokers that he had hoped for, he said.

“On Dec. 7, non-smokers will expect to walk in and find it non-smoking,” Beard said. In the confusion over enforcement of the smoking ban, he wonders if every establishment will immediately comply. “Will smokers move on to the next place?” he asked. He estimates that 80 percent of his customers smoke.

Beard said he was initially in favor of the smoking ban out of concern for his employees. His problem is with the procedure, he said. Beard questioned how the smoking ban could be a law without legislative scrutiny, and he attributed the confusion around its implementation to the fact that it was drafted by an interest group and passed by the electorate.

“This has not been made into a law yet,” Beard said.

Over at the Dayton Street Gulch on a recent day, the air was blue with smoke. It was “happy hour” and almost everyone at the bar was working on a cigarette. The Gulch differs from the tavern and Peach’s in that it does not serve food.

Bartender Debbie Boyd is not a smoker and suffers from a sinus problem. In spite of that, she said that second-hand smoke at the Gulch is not a problem for her due to the bar’s extensive exhaust system. Looking up, one can see that vents are spaced a few feet apart immediately over the bar.

“A lot of people don’t like it,” she said of the smoking ban. She is concerned that the law will force the bar’s patrons to hang out in front of the bar.

In contrast to the other establishments that serve liquor in Yellow Springs, The Winds is more restaurant than bar. As such, the owners were able to implement a restaurant-wide no smoking policy nine years ago, Mary Kay Smith said. According to Smith, who is not a smoker, they have had only a couple of customer complaints in that time.

Most of the businesses interviewed for this article are members of the Ohio Restaurant Association (ORA), which is planning a series of seminars around the state in mid-December to answer questions from their membership about the smoking ban and the minimum wage increase, which was also passed in November. Responses to some members’ questions by ORA’s legal counsel, Bob Walter of Buckley King, are posted on the group’s Web site. It is clear from the questions that restauranteurs around the state share the same concerns and confusion as local business owners.

As for what actions restaurants should take on Dec. 7, the ORA counsel advised, “You will need to remove all ashtrays and other receptacles used for the disposal of smoking materials and post no smoking signs by that date.”

Asked what she thought about the effect the smoking ban would have on business, Peach’s Manager Kim Raissouni said, “It will cut two ways. It will be good for the dinner crowd; the others will find a way to smoke.”

“It’s hard, because you want everybody to be happy,” Christian said.

Contact: vhervey@ysnews.com