While complaints are declining and compliance is growing, Ohio is struggling to enforce law
Lance Lambert reports:
Fines levied by health authorities under Ohio’s 5-year-old workplace smoking ban usually aren’t paid, an Enquirer analysis shows. About $3.3 million in fines have been levied statewide, yet $2.5 million remains unpaid.
The analysis also shows two Southwest Ohio counties rank atop the state for repeat smoking ban violations.
The lag in paying fines has occurred even as smoking complaints have continued to decline annually as compliance appears to be growing.
Voters approved the smoking ban in 2006 and it went into effect in 2007. Since then the Smoke-Free Workplace Act – a ban on smoking inside buildings with at least one employee and that allow the public inside with the exceptions of hotels and nursing homes – has resulted in 64,000 complaints.
The Enquirer analyzed all complaints and fines since the law went into effect. Statewide complaints have been made against about 16,800 locations.
Inspections following the complaints resulted in 2,981 fines totaling just over $3.3 million against 1,408 establishments. As of early October about $2.5 million, or 77 percent, remains unpaid, Ohio Department of Health records show.
In the four Southwest Ohio counties 8,456 complaints were made against 2,261 locations, the analysis shows. Inspections made after the complaints resulted in 385 fines totaling $532,800 being issued against 128 locations. State records show $443,385 (or 83 percent) of that total hasn’t been paid.
After 45 days, the unpaid fines are transferred from the health department to the Ohio Attorney General for collection.
Attorney General Mike DeWine’s office “sent a letter to debtors with unpaid smoking fine accounts after the Ohio Supreme Court upheld” the constitutionality of the smoking ban in March 2012, spokesman Dan Tierney said. The decision ended a protracted legal fight against the ban by some tavern and restaurant owners.
Since the letter was sent, fines paid this year have doubled, Tierney said.
If an offending establishment continues to be fined but refuses to pay up, the Ohio Division of Liquor Control can refuse to renew a bar or restaurant’s liquor license, he said.
That threat came into play for Peg’s Pub, a bar in Evendale that has been fined 23 times for a total of $84,000 – the biggest total for any establishment in Southwest Ohio and the second highest total in Ohio. According to the state, the bar still owes $79,000.
After threatening to take the bar’s liquor license (which was up for renewal), “the state made us a deal and cut around 25 percent of the owed fines, close to half of that total the bar paid in October,” owner Dave Pitzer said.
The Enquirer’s analysis shows Butler, Hamilton and Montgomery counties have a combined 223 offenders – or 40 percent of the state total – for locations cited four of more times under the law.
Butler County ranked No. 1 in the state with 80 offenders cited four or more times and fined 30 percent of locations that received a complaint. Neighboring Warren County did not have one location fined four or more times and only fined 3 percent of locations that received a complaint.
“I can’t explain why Butler County has more (violations and complaints) than Warren County,” said Dennis Murray, environmental health director for Warren County Health Department. “From what I have seen, there are very few repeat offenders here.” The county has a few repeat offenders, most stop after they receive a violation, Murray said.
Complaints on decline with compliance on rise
More than a third of the 64,000 complaints made under the law were filed during its first year, according to The Enquirer analysis.
The declining complaints are a result of more bars, restaurants and businesses becoming compliant with the law, said Tess Pollock, a spokeswoman for the state health department.
Officials currently only go out to enforce the law if a complaint is received. Once that happens, the county or city health department steps in to investigate and can fine the location if they can prove the law has been violated.
Southwest Ohio counties ranked high for complaints. In fact, a Butler County bar is leading the entire state in reported complaints for 2012.
Longbranch Saloon, 1807 Germantown Road in Middletown, has had 66 reported complaints this year, which is more than double the amount of any other location in the state. Butler County officials have fined the bar twice in 2012 for a total of $600, and the fines remain unpaid, state records show. The owner of the tavern could not be reached for comment.
Enquirer analysis shows the two organizations that have been fined the most in the state are 89 different Veterans of Foreign Wars (including one in Sharonville) with fines totaling $123,000, and 59 different American Legion posts (including four locally) with $82,000 in fines.
Complaint system leaves some bars off the radar
Since investigations under the smoking ban law are driven by complaints, it’s possible for potential violations to go unreported.
Some local bars still allow smoking and their patrons do not mind, said Stephanie Adams, 44, of Mount Orab.
“People think they should be able to do want they want and that the government should not tell them what to do,” Adams said.
Adams knows some friends who no longer go to bars where they cannot smoke because they enjoy a cigarette with their beverage.
Small bars are more likely to get away with allowing its patrons to smoke than bigger bars, Pitzer said.
“Some bars are so big that the chances of having someone call and report is very high,” he said. “At small bars everyone knows each other and most do not care.”
Not going home smelling like a cigarette is nice, Pitzer said, but he misses the business that he believes the smoking ban has cost him.
Debate about ban’s economics unabated
Not all bars are complying with the law, agreed Pam Parker, regional director of the Buckeye Liquor Permit Holders Association and co-founder of Opponents of Ohio Bans. That’s hurting business for bars that are obeying the law, she said.
Parker and some other bar owners remain adamantly opposed to the law. “It has devastated the industry,” she said.
Enforcement of the law is pushing people to stay home, where they can drink and smoke at the same time, she charged. Parker cites the decrease in wholesale liquor sales – sale to bars and restaurants – over the last four years and the spike in retail liquor sales.
Yet a 2010 health department study of the smoking ban determined no significant economic impacts from the law. Bars showed a minimal increase in taxable sales, while restaurants showed a slight decline in taxable sales, according to the study
Public health groups support the bill as having a beneficial impact on state health.
“Initially the state saw huge drops in smoking rates,” said Shelly Kiser, director of advocacy at the American Lung Association in Ohio. “Heart attack rates have dropped in the state along with other smoking-related complications.”
Ohio’s smoking rate dropped from 22.5 percent of adults in 2006 to 20.2 percent in 2009, though the rate is now back to 22.5 percent, according to the health department.
Kentucky doesn’t have full ban
Kentucky is one of nine states that has not enacted a smoking ban. A statewide ban has failed in the state legislature for the last several years, but state Rep. Susan Westrom, a Fayette County Democrat, has said she will introduce the legislation again in 2013.
Though not a comprehensive ban, Kenton County has a smoke-free ordinance which went into effect in April 2011. The ordinance exempts dozens of businesses, including private clubs and “drinking establishments” that meet certain requirements.
Businesses that violate the ordinance are first issued a warning. A second offense within a year carries a fine of $100, and a fine of $250 for each subsequent offense
within the year.
Through last month the Northern Kentucky Independent Health District has handled 42 investigations and issued 18 warnings. Two fines have been issued, one was paid and the other was waived after the business submitted the proper paperwork.
There have been 60 complaints of violations filed.