Ohio’s voters passed the statewide Smoke Free Workplace Act in November 2006. Challenges filed by several bar and restaurant owners were unsuccessful, and enforcement efforts are underway by the Ohio Department of Health. This article answers some of the questions that often arise now that the required “No Smoking” signs continue have appeared all across Ohio.
Q: Where does the smoking ban apply?
A: The new law applies only to “enclosed areas.” As that term is defined, however, it includes more than just indoor spaces. Decks or patios that are covered overhead—by a roof or even umbrellas or awnings—and on more than two sides are also “enclosed” under the law. Smoking is not allowed if members of the public are invited or allowed into these areas, or if anyone works there as an employee, an independent contractor, or even as a volunteer. Business owners still have the option of making their entire facilities non smoking, both indoors and out.
Q: I have heard that smoking is still allowed in private clubs. Is this true?
A: An exception does exist for some private clubs. At a minimum, the club must be a not-for-profit entity and must be the only occupant of a freestanding structure. Those who perform services for the club must also be members. In addition to these examples, several other conditions apply as well.
Q: Are there any other exceptions?
A: The law includes several specific, narrow exceptions for places like nursing homes and hotel rooms. Certain retail tobacco stores may also be exempted as long as they do not have a liquor license or a restaurant.
Q: What should I do if someone tells me to stop smoking at a bar or restaurant?
A: If the request comes from an owner or employee of the establishment, the Smoke Free Workplace Act requires you to comply immediately. People who refuse a request will get one warning notice; after that, they can be fined $100 each time they refuse. This also applies in outdoor areas that a business voluntarily declares to be non-smoking.
Q: What if I am bothered because someone else is smoking?
A: You should speak with the person in charge of the establishment, such as the owner or manager. If that person in charge refuses to do anything about the smoking violation, you should make a report to the Ohio Department of Health by calling 866-559-OHIO (866-559-6446). E-mail and regular mail addresses are also available on the Department’s website. Reports can be made anonymously, but the violation is harder to prove if you do not give your name. Provide as much detail as possible, such as date and time and the name and address of the business (including the county).
Q: I work at a restaurant, and my boss told me to let people smoke because we need the business. What can I do?
A: Customers are not the only ones who can make a complaint under the Smoke Free Workplace Act. If you contact the Department of Health, the law prohibits your employer from firing you or retaliating against you as a result. The first violation of the smoking ban is punishable by a warning letter, and subsequent violations result in fines between $100 and $2,500, so employers have a strong financial incentive to comply with the law.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA). This article was prepared by Justin D. Flamm, an attorney in the Cincinnati office of Taft Stettinius & Hollister LLP.