The 60-year-old nonsmoker said he posted no-smoking signs and removed the ashtrays from his nightclub, as required under the law, but he said he doesn’t do anything else to enforce the ban.
“The first week I tried to enforce it, I lost $1,200,” Stiver said. “I’m not a policeman. I’m not with the board of health. I am in business to make money.”
Ohio health officials say most restaurant and bar owners — the most frequent violators — have fallen in line with the statewide smoking ban, approved by voters in November 2006 and effective since May 2007. Complaints against unrepentant repeat offenders like Stiver are overtaking first-time complaints, said Mandy Burkett of the Ohio Department of Health.
Particularly problematic have been fraternal organizations, she said. “A large portion of our violations have come from private clubs, but it’s our observation that they’re getting on board, too.”
In the almost three years since enforcement began, the state has taken almost 49,000 complaints, more than 21,000 of them in the first seven months, a Dayton Daily News analysis found.
More than 3,300 complaints concern establishments — mostly bars — in Montgomery County. Only Cuyahoga and Hamilton counties have had more complaints.
But, following a statewide trend, complaints in Montgomery County have declined — from 1,450 in the last eight months of 2007 to 522 in all of 2009.
Other states that ban smoking also have seen precipitous declines in complaints. “Over time, it becomes accepted,” said Aaron Swanson, executive officer of the Iowa Department of Public Health. “It’s a social norm change.”
Ohio is one of 19 states with full smoking bans in workplaces, restaurants and bars, according to the American Nonsmokers Rights Foundation. Bans take effect later this year in Michigan and Wisconsin.
A Franklin County judge last week ruled that the health department overstepped its legal authority in enforcing the ban against a Columbus bar called Zeno’s. The ruling, which Attorney General Richard Cordray has already appealed, set aside $30,000 in fines and held that bar owners shouldn’t be punished if they’ve taken steps to enforce the ban.
The top Montgomery County offenders in terms of fines are Miami Valley Sports Bar in West Carrollton, with $11,600, and Webster Station in Dayton, with $9,100. Owners of those clubs couldn’t be reached for comment.
Across the region, Froggy Blues Cafe in Monroe has racked up the most fines: $14,100. Owner Bill Jamison declined to comment.
In numbers of complaints, Bojangles in West Carrollton was eighth in the state with 121 complaints, resulting in $4,100 in fines, logged through Monday, Feb. 22.
Complaints statewide, however, have resulted in relatively few fines — only 2,134 through the middle of January.
“It sounds like a startling number,” Burkett said. “But the idea of the law is to get people to stop smoking in those establishments. It’s not to fine them.”
The almost 49,000 complaints statewide have resulted more than 25,000 investigations, the analysis found, but more than 70 percent of those investigations — almost 18,000 — were dismissed after investigators saw no smoking or dirty ashtrays.
Investigations are triggered by complaints phoned into the state enforcement number — (866) 559-6446. The state typically passes complaints to local health departments for investigation.
When inspectors find violations the first action under the law is a warning letter. The next three violations carry escalating fines: $100, $500, $1,000. All infractions after that result in $2,500 fines.
Fined businesses have 75 days to pay the state health department, Burkett said. After that, cases are turned over to the state attorney general for collection and possible court injunctions forcing payment.
Stiver of Zippers said “nobody ever pays” the fines. But Sara Morman of the health department said the state has collected $473,000 of the $1.1 million in fines so far, and “we are actively pursuing those outstanding fines.”
In some states, failure to comply with the smoking ban can cost a business its liquor license. Burkett said the health department had “preliminary discussions” with state liquor authorities, but decided not to tie liquor licenses to smoking ban compliance.
Stiver said his liquor license could be jeopardized if fights broke out while staff was trying to enforce the ban. And it’s dangerous for staff, he said.
“It’s not for us to enforce it. I’m not going to get in a fight with a 500-pound guy that wants to smoke. I don’t think so.”
Stiver said it’s his experience that the ban is roundly ignored. “My patrons, everybody knows it’s, in quotations, a law,” he said. He said his feeling on the ban is, “Hey, if you don’t want to smoke, don’t come in.”
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