The truth about smoke free Ohio

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There has been a lot of romors and speculation surrounding Ohios new smoking ban. I have posted here the new proposed law and its supposed exceptions, which were written in my opinion, with such legal gymnastics that very few organizations could ever possibly meet their requirements. I truly believe that these exceptions were intentionally written in such a way that they could never be met and thus confused the voters, and therefore should be resubmitted on the ballot in a such a way that voters know exactly what rules and exemptions they are voting for.
State Issue 5: Text of Proposed Law
Be it Enacted by the People of the State of Ohio.

Section 1.

3794.01 Definitions.

As used in this chapter:

(A) “Smoking” means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant. “Smoking” does not include the burning of incense in a religious ceremony.

(B) “Public place” means an enclosed area to which the public is invited or in which the public is permitted and that is not a private residence.

(C) “Place of employment” means an enclosed area under the direct or indirect control of an employer that the employer’s employees use for work or any other purpose, including but not limited to, offices, meeting rooms, sales, production and storage areas, restrooms, stairways, hallways, warehouses, garages, and vehicles. An enclosed area as described herein is a place of employment without regard to the time of day or the presence of employees.

(D) “Employee” means a person who is employed by an employer, or who contracts with an employer or third person to perform services for an employer, or who otherwise performs services for an employer for compensation or for no compensation.

(E) “Employer” means the state or any individual, business, association, political subdivision, or other public or private entity, including a nonprofit entity, that employs or contracts for or accepts the provision of services from one or more employees.

(F) “Enclosed Area” means an area with a roof or other overhead covering of any kind and walls or side coverings of any kind, regardless of the presence of openings for ingress and egress, on all sides or on all sides but one.

(G) “Proprietor” means an employer, owner, manager, operator, liquor permit holder, or person in charge or control of a public place or place of employment.

(H) “Retail tobacco store” means a retail establishment that derives more than eighty percent of its gross revenue from the sale of cigars, cigarettes, pipes, or other smoking devices for burning tobacco and related smoking accessories and in which the sale of other products is merely incidental. “Retail tobacco store” does not include a tobacco department or section of a larger commercial establishment or of any establishment with a liquor permit or of any restaurant.

(I) “Outdoor patio” means an area that is either: enclosed by a roof or other overhead covering and walls or side coverings on not more than two sides; or has no roof or other overhead covering regardless of the number of walls or other side coverings.

3794.02 Smoking Prohibitions.

(A) No proprietor of a public place or place of employment, except as permitted in section 3794.03 of this chapter, shall 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 to the public place or place of employment.

(B) A proprietor of a public place or place of employment shall ensure that tobacco smoke does not enter any area in which smoking is prohibited under this chapter through entrances, windows, ventilation systems, or other means.

(C) No person or employer shall discharge, refuse to hire, or in any manner retaliate against an individual for exercising any right, including reporting a violation, or performing any obligation under this chapter.

(D) No person shall refuse to immediately discontinue smoking in a public place, place of employment, or establishment, facility or outdoor area declared nonsmoking under section 3794.05 of this chapter when requested to do so by the proprietor or any employee of an employer of the public place, place of employment or establishment, facility or outdoor area.

(E) Lack of intent to violate a provision of this chapter shall not be a defense to a violation.

3794.03 Areas where smoking is not regulated by this chapter.

The following shall be exempt from the provisions of this chapter:

(A) Private residences, except during the hours of operation as a child care or adult care facility for compensation, during the hours of operation as a business by a person other than a person residing in the private residence, or during the hours of operation as a business, when employees of the business, who are not residents of the private residence or are not related to the owner, are present.

(B) Rooms for sleeping in hotels, motels and other lodging facilities designated as smoking rooms; provided, however, that not more than twenty percent of sleeping rooms may be so designated.

(C) Family-owned and operated places of employment in which all employees are related to the owner, but only if the enclosed areas of the place of employment are not open to the public, are in a free standing structure occupied solely by the place of employment, and smoke from the place of employment does not migrate into an enclosed area where smoking is prohibited under the provisions of this chapter.

(D) Any nursing home, as defined in section 3721.10(A) of the Revised Code, but only to the extent necessary to comply with section 3721.13(A)(18) of the Revised Code. If indoor smoking area is provided by a nursing home for residents of the nursing home, the designated indoor smoking area shall be separately enclosed and separately ventilated so that tobacco smoke does not enter, through entrances, windows, ventilation systems, or other means, any areas where smoking is otherwise prohibited under this chapter. Only residents of the nursing home may utilize the designated indoor smoking area for smoking. A nursing home may designate specific times when the indoor smoking area may be used for such purpose. No employee of a nursing shall be required to accompany a resident into a designated indoor smoking area or perform services in such area when being used for smoking.

(E) Retail tobacco stores as defined in section 3794.01(H) of this chapter in operation prior to the effective date of this section. The retail tobacco store shall annually file with the department of health by January thirty first an affidavit stating the percentage of its gross income during the prior calendar year that was derived from the sale of cigars, cigarettes, pipes, or other smoking devices for smoking tobacco and related smoking accessories. Any retail tobacco store that begins operation after the effective date of this section or any existing retail tobacco store that relocates to another location after the effective date of this section may only qualify for this exemption if located in a freestanding structure occupied solely by the business and smoke from the business does not migrate into an enclosed area where smoking is prohibited under the provisions of this chapter.

(F) Outdoor patios as defined in Section 3794.01(I) of this chapter. All outdoor patios shall be physically separated from an enclosed area. If windows or doors form any part of the partition between an enclosed area and the outdoor patio, the openings shall be closed to prevent the migration of smoke into the enclosed area. If windows or doors do not prevent the migration of smoke into the enclosed area, the outdoor patio shall be considered an extension of the enclosed area and subject to the prohibitions of this chapter.

(G) Private clubs as defined in section 4301.01(B)(13) of the Revised Code, provided all of the following apply: the club has no employees; the club is organized as a not for profit entity; only members of the club are present in the club’s building; no persons under the age of eighteen are present in the club’s building; the club is located in a freestanding structure occupied solely by the club; smoke from the club does not migrate into an enclosed area where smoking is prohibited under the provisions of this chapter; and, if the club serves alcohol, it holds a valid D4 liquor permit.

The SmokeFree Ohio initiative is a near total ban on smoking across the state. It is an unreasonable approach that creates an unnecessary intrusion on the rights of individuals and business owners to make their own decisions.

SmokeFree does not allow exceptions for adult-only businesses and virtually criminalizes smokers with potential citations and fines. It is important to realize that given free choice, many restaurants, hotels and other places that serve families are making “no smoking” rules on their own. Since most Ohioans don’t smoke, we can rely on traditional American freedoms to decide this issue in the marketplace, as we have always done.

Ohio should take reasonable action to protect non-smokers in public places. It is important to protect families from second-hand smoke, but we should use common sense to make the rules, so both health and individual freedoms are protected.

This entry was posted on January 4, 2007 at 2:11 pm and is filed under General Discussions, Politics, Local News, Main Posts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response or trackback from your own site.

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