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Most smoking fines remain uncollected

Clark, Champaign figures better than the state averages.One Clark County club has received 183 complaints, the most in an 8-county area.

Most Ohio businesses comply with the state’s smoking ban, but the majority of those caught breaking the law aren’t paying their fines.

Those in Clark and Champaign counties are bucking that state trend.

More than $3.6 million in fines have been levied against Ohio businesses since 2007 for violating the state’s smoke free workplace law. Only $1.4 million, or about 38 percent, have been collected. The rate is slightly lower in the Miami Valley, with only about 35 percent of its nearly $500,000 in fines paid through Aug. 31, according to a Springfield News-Sun analysis of eight counties using Ohio Department of Health data.

Ohio voters approved a statewide indoor smoking ban in 2006, with 58 percent of the vote. The Smoke-free Workplace Act required three things of businesses: Prohibit smoking in any public place of place of employment, post no-smoking signs at entrances and remove ashtrays.

Enforcement of the law relies on anonymous complaints made through either a toll-free phone number or email. Businesses are only fined if inspectors, who follow up on complaints within 30 days, determine the law was broken.

In the Miami Valley, many businesses ignored the fines for months, even years, while the law’s constitutionality hung in limbo in the courts. But since the Ohio Supreme Court upheld the law last year, officials are getting more aggressive in collecting what’s owed, most of which belongs to local health departments.

Several chances

Mandy Burkett, chief of the tobacco and indoor environment section at the Ohio Department of Health, said every complaint is investigated, sometimes along with other complaints made to the same establishment. A letter listing the complaints is sent to an establishment, sometimes by mail and sometimes in person by a local health district employee who also performs the investigation.

Investigators look for signs of smoking — ashtrays in view, scent of stale smoke, patrons actually smoking — and usually try to look behind the bar in case evidence has been hidden.

A first offense in two years yields a warning. Businesses are fined $100 for a second offense, $500 for a third violation, $1,000 for a fourth violation and $2,500 for each subsequent violation. The department invoices businesses twice before turning over collection to the attorney general’s office. Businesses can appeal fines first through an administrative review involving a third party and through the court system, dragging the process over several months or even years.

Zeno’s Victorian Village, a Columbus bar, appealed its fines to the Ohio Supreme Court in 2011. The court upheld the Smoke-free Workplace Act and the state’s power to enforce it as constitutional. Health officials said it was hard to get businesses to pay up while the case was pending.

The Supreme Court decision gave officials the green light to more aggressively collect fines and more businesses paid fines afterward, but most remain unpaid.

“We still have the holdouts, and those are the people we’re continuing to do enforcement,” Burkett said. “Enforcement has become more complicated over years because we’re dealing with people who are more resistant to compliance with the law.”

Ohio Attorney General Mike DeWine suggested revoking liquor licenses, which are renewed annually, as a threat against bars and restaurants that weren’t paying fines. Fifteen establishments have been referred to the Division of Liquor Control since July 2011, including six in the Miami Valley.

In Clark and Champaign counties, enforcement hasn’t had to go that far. In the five years since the law took effect, 21 businesses have been fined for smoking violations between the two counties. Of those, only three had outstanding balances as of Aug. 31— Chaps Saloon and Che’s Rustic Lounge in Springfield and the Loyal Order of the Moose 2464 in New Carlisle— according to the data.

Larry Shaffer, director of environmental health for the Clark County Combined Health District, said the county has been fortunate in having limited involvement with the attorney general’s office when it comes to enforcement.

“I believe people want to be compliant with the law and, therefore, they are paying their fines,” he said.

For those businesses racking up fines, the attorney general’s referrals seem to work — all have started to settle their debts or chosen to close their business and one license has been revoked.

The liquor control board only considers referrals for establishments still not complying with the law, but DeWine wants to expand the option for compliant establishments with outstanding fines.

“I’d like to turn that hammer into a sledge hammer and really go after this with the ones who won’t pay the state back the money,” DeWine said.

Violations vs. fines

While Clark and Champaign County businesses have not racked up fines since the smoking ban went into effect, they have seen their share of reported violations.

The Fraternal Order of Eagles 3491 has had 183 violations reported since 2007 — the most of any establishment in the eight counties analyzed by the Springfield News-Sun. Of those violations, only four instances resulted in fines totaling $6,950.

When the ban went into effect, FOE trustee Jerry Pike said it was difficult to impose and bad for business. Many members quit the club because they were no longer allowed to smoke inside and faced suspension if they did.

“You stop them from smoking, they just quit coming and you lose business,” Pike said. “We provided a place out back where they could go outside and smoke, but that was the best you could do.”

The FOE hired an attorney to handle their fines, adding to the cost whenever the local health department found a violation. As a result, Pike said they began enforcing a strict policy on smoking which allows bar maids and trustees to instantly suspend a member and bar them from entering the establishment if they are caught smoking inside.

Pike said that’s led to resentment. One member is believed to have called in more than 50 complaints after he was suspended. It resulted in unnecessary inspections and time wasted by both the health department and the FOE, he said.

“I feel that if you accuse someone so many times, you should be able to face your accuser. But even with an attorney you can’t do that,” Pike said. “So (anyone) can sit at home and complain about someone every day, all day long.”

The anonymous hotline prevents inspectors from knowing who lodges the complaint, Shaffer said.

“Just because somebody calls in a complaint, we have to go out, and some complaints may be frivolous,” he said. “That may be the case, but the rules are written, and we have to investigate every complaint and that’s important.”

“It’s an awful lot of work, but it’s important work,” Shaffer added.

The business with the second highest number of complaints in Clark and Champaign counties was the Loyal Order of Moose 2464 in New Carlisle, with 111 violations reported that resulted in two fines totaling $1,200. The lodge still has an outstanding balance of $325, which has been forwarded to the Ohio Attorney General’s Office. Trustees at the lodge could not be reached for comment.

Three Springfield businesses— Union Club Inc., which has received 79 complaints, Murphy’s Irish Pub, which has received 68 complaints, and Social Club, which has received 64 complaints— have never been fined by the health district.

Shaffer said businesses are given 30 days to address a complaint before an inspection, and since an infraction has to be witnessed by inspectors, their investigation does not always result in penalties.

Any office can receive a complaint. Violations were called in at the Clark County Sheriff’s Office, Clark County Public Library, Graham Local School District and Kohl’s. However, the News-Sun analysis showed the majority of businesses receiving fines are those that serve liquor.

The law applies to workplaces, and Shaffer said his office doesn’t target bars.

Drinking and smoking was a routine for Jim Hindes, a member of the FOE in New Carlisle for 37 years. He said he was upset when the ban took effect and prevented him from lighting up while he enjoyed a beer at the bar.

“I got tired of it, especially in the winter when you’d go out and freeze,” he said.

Now he uses an electronic cigarette, which allows him to smoke inside without violating the ban. It emits water vapor, but still contains nicotine.

“It’s a whole lot healthier and you don’t have the cigarette smell or the ashes. We’ve got 20 or 30 members who smoke these now,” Hindes said.

Poor return

Local health districts are reimbursed $125 per investigation and receive 90 percent of all fines paid. The other 10 percent stays at the Ohio Department of Health to cover administrative costs, and the department enforces the law in 40 of Ohio’s 125 health districts.

A 2010 survey of local health district employees found three-fourths of agencies lose money enforcing the law. Half said the state inspection fee does not cover the cost.

A majority of the employees said they can count on the state health department to aid in enforcement, but not the attorney general’s office, according to results published earlier this year in the journal Public Health Reports. Only 13 percent said the office has done a good job in getting local businesses to pay outstanding fines.

About 27 percent of fines handed over to then-Attorney General Richard Cordray’s office have been collected. Only about 17 percent of fines invoiced under DeWine have been collected.

DeWine said his office has to wait and rely on local and state health employees to do their jobs before his office can do its job.

“I share the frustration that locals have about this. They’re frustrated, I’m frustrated as well, that we cannot get an expedited process but that’s the way the system is set up,” DeWine said.

It takes, on average, about three months from the first Department of Health invoice to the first invoice by the attorney general. But administrative and court appeals can drag out the process over months or years.

Information provided by DeWine’s office show collections have increased since he’s been in office, from $90,284 in 2010 to $138,308 in 2011, $260,906 in 2012 and $182,439 so far this year.

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