Most smoking fines in Ohio going unpaid

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

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 Dayton area, with only about 35 percent of its nearly $500,000 in fines paid through Aug. 31, according to a Dayton Daily News analysis of 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 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, following up on complaints, determine the law was broken.

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 about 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 Dayton area.

The referrals seem to work — all have started to settle their debts or chosen to close their business and one license has been revoked.

Miami Valley Sports Bar, on Watertower Lane in West Carrollton, was one of those bars to agree to pay before facing Liquor Control. The bar has been fined $63,100, according to state health department records. Owner Julie Delph said she paid a large lump sum up-front and is paying the balance of the fines at the rate of $1,500 a month.

“I fought it as long as I could,” Delph said. “My first fine was due to a cigarette butt near the front door. Another was because there was smoke in the air, although no one was smoking at the time. It’s been tough, but we’re putting this behind us. We’re taking the party outside.”

Delph said her bar is “doing good now,” preparing for what she considers her busy season. She said business tanked after she started enforcing the smoking ban last summer, but customers are beginning to come back.

“Rather than just shove them outside like outcasts, I want them to be comfortable,” Delph said. “This is also about survival for this business.”

Alan Pierce, supervisor for the Environmental Health division of Public Health Dayton & Montgomery County, said the bar is currently in compliance with the law and keeping up with payments. He said recent site visits have turned up no evidence of smoking there and no new complaints have been reported.

“It would be wrong to single them out just because of the numbers,” Pierce said.

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 sledgehammer and really go after this with the ones who won’t pay the state back the money,” DeWine said.

FOE lodge in Springfield has most complaints

The Fraternal Order of Eagles 3491 has had 183 violations reported since 2007— the most of any establishment in the eight counties analyzed by theDayton Daily News. 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.

“When people, 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 its 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 barmaids and trustees to instantly suspend a member and bar them from entering the establishment if they are caught smoking inside.

At times, Pike said that’s led to resentment. One member is believed to have called in more than 50 complaints after he was suspended as payback. 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.”

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 former 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.

More collected fines mean more money for local health districts. Public Health Dayton & Montgomery County has received a total of $84,772 from collected fines for smoke-free workplace violations since 2008.

The amount has increased each year from $3,510 in 2008 to $25,039 in 2012. The department has received $22,183 in 2013.

But that’s only a fraction of the total fines that remain outstanding in the county — $423,100. The department is due $380,000.

Pierce said compliance in Montgomery County has been very good — an estimated 95 percent — despite the contentiousness of the law.

“We’re talking about 95 percent of every workplace and public place,” Pierce said. “Some of the last few holdouts are starting to get the picture.”

Ziggy’s Ritz Night Club on North Springboro Pike in Moraine used to be one such holdout. The bar has accumulated the second most amount of fines in the Dayton area, with more than $39,000 in outstanding fines, 10 of them at Level 4.

Ziggy’s owner Elizabeth Enterman appealed a citation and $2,500 fine for unpaid citations in court. The 10th District Court of Appeals in December 2012 upheld the fines and the health department’s investigation methods.

Enterman said she agreed to a $1,000 per month payment plan, but the interest on the penalties makes it impossible to pay off. However, Enterman said she has just built a new outdoor smoking deck at Ziggy’s. Outdoor patios are exempt from the law if certain criteria are met.

“I have had to choose between paying the fine and paying my sales tax because business is down by 50 percent because people can’t smoke here anymore,” Enterman said. “This law is not making people quit smoking. It’s making people stay home.”

Public Health Dayton sends sanitarians in pairs to investigate complaints, and they also inspect restaurants, hotels, motels, schools, food trucks and more. Pierce said sanitarians need to have thick skin — they have been threatened, followed and harassed. There have also been instances, he said, where after sanitarians visit the first location, the phone tree starts.

“Others on the list hear we’re coming and we don’t find any other violations,” Pierce said.

Miami Valley Sports Bar owner Delph said her employees had confrontations with a few patrons about smoking indoors, but they’ve always been on good terms with the health department.

“I know they are doing their jobs,” she said.

Delph said she used to wish for long, cold winters, because they were good for business.

“I’ve changed my tune,” she said. “Now I wish for short, mild ones.”

Staff writer Jessica Heffner contributed to this report.

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