Most smoking fines in Ohio are going unpaid

Monday on News Center 7

Health Department officials say an overwhelming percentage of bars and restaurants comply with the state’s smoking ban, but News Center 7 has been inside a number of local businesses that still allow people to light up. On Monday, see what their hidden camera investigation uncovered.

The smoking ban

Ohio’s smoking ban, passed by voters in November 2006, prohibits all forms of tobacco smoke in public places and places of employment. To prove that a bar or restaurant is violating the ban, health department investigators must find people smoking, or ashtrays and evidence of smoking, or a failure to post no smoking signs with the state phone number. Businesses have 30 days to respond, then can ask for an administrative hearing on a violation. Complaints phoned in during those delays are added to the existing case, thus allowing complaints to pile up during the administrative process.

Penalties

Report a violation

To report a smoking ban violation to the Ohio Department of Health, the public can call the Smoking Ban Enforcement Line (1-866-559-6446) or send an email to NoSmoke@odh.ohio.gov.

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Four years to the month after Ohio began enforcing the voter-approved smoking ban, enforcement is plummeting.

From May 2007 through the end of April this year, state and local health departments had levied 2,353 fines worth more than $2.2 million to establishments that were found to have violated the ban. But the Ohio Department of Health and the Ohio Attorney General’s office have managed to collect only a third of that, and the collections are declining rapidly, a Dayton Daily News analysis of state data found.

The percentage of fines collected has dropped every year, from 81 percent in 2007 to just over 26 percent last year.

As a result, some bar owners have decided that they don’t need to follow the law.

Officials are quick to point out that the vast majority of establishments comply with the ban by not allowing smoking indoors, and they believe the law has been effective. But it’s not hard to find establishments — mostly neighborhood bars and taverns — that openly defy the law.

Local health officials admit to being frustrated with the state’s enforcement efforts because 90 percent of the fines collected is supposed to be funneled toward investigations. As of April 30, $1.5 million in fines weren’t paid.

“I think for an enforcement program to be effective, there has to be a hammer,” said Jim Gross, Montgomery County Health Commissioner. “And it’s pretty clear right now this program does not have an effective penalty system to change that behavior.”

The county public health department has levied 158 fines totalling $220,000, Gross said, but has gotten only $15,800 — 7 percent — in collections from the state. Meanwhile, Gross said, the health district has to use Human Services Levy money to cover the $30,000 a year it costs to investigate complaints.

While Gross and other observers agree that the vast majority of establishments are complying, they admit that some continue to flout the law. When the state starts aggressively collecting those fines, they say, you’ll see the holdouts change their behavior.

“It is frustrating for many of the local health departments, including ours, to put the time and effort into it and then not be able to bring the enforcement process to a conclusion,” Gross said.

Indeed, habitual violators are not hard to find.

‘This is putting me out of business’

At one downtown Dayton establishment, bartender Marty Jacobs said most of the patrons come in to smoke while they drink. In fact, on a recent weekday afternoon, 10 of the 12 patrons in the bar were smoking, as was Jacobs. The only non-smokers were a newspaper reporter and a photographer.

“About 80 percent of the people in the bar smoke,” said Jacobs who spoke on condition that his bar would not be identified. “A lot of people don’t, but they still come in because they like the atmosphere. They like that it’s quiet and there’s no trouble.”

State records show the bar has received seven complaints since 2007, although the last one was almost a year ago. It was fined $100 in February 2009.

Jacobs said the bar used to charge customers a quarter for each Altoids mint can offered as an ashtray but quit after collecting $900 in quarters. The tins are now offered free.

Bojangles, a bar in West Carrollton, has received more smoking complaints than any other establishment in Montgomery County. But those complaints, and $1,100 in fines, have not curtailed smoking in the bar.

Last Wednesday during Happy Hour, many of the customers and the bartender were smoking, using disposable plastic cups as ashtrays. The law requires that establishments remove all ashtrays.

Even the bar’s Facebook page has photos showing patrons and band members smoking cigarettes.

Bojangles owner Jo Risk said her bar doesn’t serve food or allow in anyone under 21.

“I am a family-owned business,” Risk said. “This is putting me out of business, and I don’t think West Carrollton or anyone else can afford to lose any more tax dollars.”

State records show that Bojangles, on Alex Road, has been the target of 134 smoking complaints, but as in the state as a whole the complaints have tapered off. After receiving 50 in 2007, the bar got only a dozen last year, and three in the first four months of 2011.

Statewide, annual complaints have fallen by more than two thirds, from close to 22,000 in 2007 to 6,839 last year.

The number of closed investigations is also down sharply from a peak of more than 9,000 in 2008 to about half that last year.

The state department of health doesn’t have an explanation for why complaints are down.

“We can’t really say for sure,” said Jennifer House, public information officer for the health department. “We here at the department believe the majority of businesses in the state of Ohio are in compliance, and that’s why complaints have gone down.”

Bill Wharton, spokesman for the Montgomery County health district, said some non-smokers may just be avoiding bars they know allow smoking. “So if that’s the case and nobody’s complaining, we’re not going out to try to find places where they’re smoking,” he said.

As for the drop in collection of fines, House said her department can only send out invoices for the amount owed. If payment doesn’t come within 45 days, the cases are referred to the Ohio Attorney General Mike DeWine’s Office for collection.

DeWine spokesman Dan Tierney said the attorney general’s collections enforcement section handles all outstanding debts owed to the state of Ohio.

“We try to collect,” said Tierney. “If it sits uncollected, we will many times hire a special counsel to try to collect it on our behalf.”

So far, the Attorney General’s Office has referred 339 smoking cases to the special counsel, according to figures provided by Tierney. Of those, 50 have been paid or settled in court.

Meanwhile, state funding set aside to enforce the smoking ban has been drastically reduced. Gov. John Kasich’s two-year budget calls for cutting anti-tobacco money from $5.36 million this year to $1.1 million in fiscal year 2012 and zero in fiscal year 2013. House has said the smoking ban will still be enforced.

Passed in November 2006, the ban faces a constitutional challenge in a case before the Ohio Supreme Court that alleges state health officials overstepped their authority in citing bar owners for smoking violations and the law infringes upon property rights.

Unfunded mandate?

The state’s collection efforts are far from satisfactory to critics such as Dr. Rob Crane, an associate professor of family medicine at Ohio State University and the co-chairman of SmokeFree Columbus, which helped establish smoke-free indoor air laws for Columbus and a dozen surrounding communities.

Crane, who is also president of the Preventing Tobacco Addiction Foundation, said the smoking ban, like all laws, requires “constant maintenance and supervision.”

“And the state has decided they’re not going to do that,” Crane said. “Therefore, you’re going to find less enforcement and less public compliance.

“The good news is that the public, which supported this with a vote of 57 percent five years ago, now supports in 70 to 80 percent in polls that you see around the state. So the public embraces this law, and they tend to be the ones who enforce.”

But, Crane said, the uncollected fines are in effect creating an unfunded mandate — one that could be easily remedied.

“If you have a fine because you sell alcohol to minors, the state comes down really hard on you, and you end up paying that fine or you lose your license,” he said. “All the state has to do is start pulling licenses for non-compliance and, gee, those fines will get paid.”

Gross and his staff, meanwhile, want the fines to be enforced because it will cause owners to think twice before endangering the health of their employees and patrons.

“One of every five deaths in this county is related to smoking,” Gross said. “Smoking is the leading cause of preventable death.

“If it didn’t make a difference in the community, then we wouldn’t be as passionate about it. One of the most important things we can do is get people to stop smoking, or to prevent people from being exposed to second-hand smoke.”

Contact this reporter at (937) 225-2393 or kmccall@DaytonDailyNews.com.

To see if there are smoking ban complaints in your neighborhood, go to DaytonDailyNews.com