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Fuming Over Fines 

In the three years Ohio has been smoke-free, not a single building has qualified for the ''private club'' exemption, according to state officials, leaving some clubs like the VFW Post 1090 in Warren expressing outrage and frustration.

That club on High Street has racked up four smoking violations totaling $1,600 since enforcement began.

Despite a pitch during the 2006 election campaign to make the state smoke-free that smoking would remain permissible at private clubs, Ohio Department of Health spokesman Kristopher Weiss said this week that none of the 280,000 public places covered by Ohio's ban has been able to meet the stringent rules outlining a private club exemption.

''They just want to be left alone,'' said U.S. Marine Corps veteran and Post 1090 member Richard Harvey.

According to Harvey, the post just recently and grudgingly began directing its members to obey the law and smoke outside, but they're filing a brief with the city board of health arguing that they should be exempted as a private club as promised during the election.

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LETTER: Charity funds to go toward smoking fines  

From the greatest generation to our current conflicts, the men and women who've served our country gather in private at our local VFW where those who gave continue giving. Last year alone, we donated more than $40,000 of our own money back into the charities of Warren.

Though our doors are closed to the privacy of war veterans and supporters, we have been singled out and adjudicated by the city as a public entity under the state smoking ban. Mayor O'Brien and the Warren Health Department have fined us anonymously and spuriously in the thousands of dollars.

These same monies, which I used to give to local charities such as the Salvation Army, Warren Family Mission, Hospice, Meals on Wheels and many others, now goes as fines through the health department.

As Veterans Day approaches, on behalf of the men and women of Veterans of Foreign Wars Post 1090 of Warren, I feel personally obligated as charities chairman to apologize to my fellow citizens. Our loss of revenue has caused me to protect our own interests, redirecting an open policy of charity to lesser amounts in a time when the funds are needed most.

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• Court bans mom from smoking near child 

No smoking around your daughter.

That was a Warren County court's order to a mother last December - and now an appeals court has sided with that ruling, taking the unusual step of using "judicial notice" to conclude that second-hand smoke is a danger to a child.

In a decision that could apply to many other child-custody and visitation cases, the Ohio 12th District Court of Appeals in Middletown upheld the Warren court's decision forbidding anyone from smoking around Victoria Anderson, 9. Since she was a baby, she has lived with her great-grandmother in suburban Dayton, Ohio; she gets "parenting time" with her divorced mom and dad.

In April 2008, Victoria's paternal great-grandmother, Marilyn Anderson, objected to the child's mother, Racheal Hill, smoking around Victoria during visits. The child returned home "smelling of cigarette smoke as a result of Racheal smoking in her home and car," court records say.

Eight months later, the court ordered all parties to protect Victoria from second-hand smoke; the appeals court, which oversees an eight-county area, upheld the smoking ban Oct. 26.

Disputes over parental smoking have been cropping up in family-court cases nationwide, legal experts say, and the cases highlight two competing interests: A parent's right to smoke versus a child's right to breathe smoke-free air. . . .

the court did something unusual. It "took judicial notice" - without anyone presenting proof in court - of an "avalanche of authoritative scientific studies" that say second-hand smoking poses risks to children.

Taking judicial notice is fairly unusual, said Marianna Brown Bettman, a University of Cincinnati law professor.

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Taking judicial notice
The Ohio 12th District Court of Appeals "took judicial notice" of an "avalanche of authoritative scientific studies" that say second-hand smoking poses risks to children, and so ordered all parties to protect a 9-year-old from second-hand smoke.

Unlikely to be overturned smoking ban is here to stay 

“Cough, cough, cough,” Jack says while visiting the new Portsmouth Rowing Club boathouse. “Somebody’s smoking! And indoors, too! I’m going to call the law!” Jane, once an elite rower-turned-chain smoker and club employee snaps back, “This is a private club. Therefore we’re exempt from the 2006 Issue 5 smoking ban!” As Ohio law sits right now, Jane’s argument, although appearing correct to Jane when she read the summary to the November 2006 Issue 5 ballot, is wrong. In that election, Ohio voters passed Issue 5 with 2.2 million voters supporting a smoking ban in all Ohio workplaces, including places like Jane’s private rowing club. . . .

Maverick bar owners are still holding firm and fighting for their rights and against the smoking ban in court and in the media. Champions of the ban and sworn enemies of second-hand smoke will continue to claim success and a healthier America. Unless Ohio courts overturn the ban, which is not likely, but not impossible on some constitutional ground, or smoking ever becomes “cool” again, the smoking ban is here to stay. As the rate of smokers decline in America, the amount of smoke sensitivity to folks like Jack will increase and Ohio’s smoking ban may only get more restrictive. Smokers like Jane will be forced outside into the cold, which the American Cancer Society and SmokeFree Ohio hopes will encourage Jane to quit and take up rowing again.

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31st Street neighbors wary of hookah bar 

Although thoughts about a potential hookah lounge on 31st Street are mixed, most of the neighbors are of a single mind: They don't want it.

On Oct. 22, news of the plans to open Braison's Hookah Lounge at 143 S. 30th St. became public when owners Brandon Bowman and Adam Gregg had to go before the Newark Zoning Board of Appeals to ensure the lounge would be allowed in the medium intensity business zoning district. The lounge was expected to open today.

The board approved the establishment, but neighbors say the story in The Advocate was the first they heard of the plans.

"My main concern is that they passed it without anybody's input that lives there," resident Todd Thomas said.

Residents fear the hours and products might make the lounge comparable to a bar.

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Fire victim may have been smoking in bed 

A 64-year-old man died yesterday morning in an apartment fire that Prairie Township firefighters suspect was triggered by smoking in bed.

Roger Robertson apparently was overcome by smoke as he tried to escape the bedroom of his second-floor apartment at 5311 W. Broad St., Fire Chief Steve Feustel said. The building is located in what was once the village of New Rome.

Franklin County Coroner Jan Gorniak listed smoke inhalation as the preliminary cause of death after an autopsy yesterday.

Firefighters who responded to a 911 call at 4:05 a.m. found Robertson's body just outside the bedroom.

"The fire started in the bed," Feustel said. "It appears he collapsed as he was leaving the bedroom."

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Hookah lounge hopes to open in Newark by Oct. 30  

Two local men hoping to build a hookah lounge in Newark received approval from the Newark Zoning Board of Appeals on Thursday to continue the project.

The board ruled the lounge, which will be at 143 S. 30th St., could be considered a place of assembly in a medium intensity business district and is permitted under the city's zoning code.

The lounge, which will be called Braison's Hookah Lounge, will have the atmosphere of a coffee shop, but instead of coming for food and drinks, patrons will come to smoke hookah, co-owner Adam Gregg said. . . .

The owners have been passing out fliers on campuses and using Facebook and MySpace to advertise.

"I'm scared for the opening. I've got a feeling we are going to be slammed with customers," Gregg said.

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• Smoking rate falls slightly for young adults in Ohio  

Some 45 years after the surgeon general issued the landmark Report on Smoking and Health, which documented the health hazards from smoking, young adults continue to smoke at nearly the same rate as they did in 1984, a new report shows.

An analysis published this month by BGSU's Center for Family and Demographic Research showed that 30 percent of young adults ages 18 to 29 in Ohio smoked in 1984. By 2008, that proportion had dropped only slightly, to 28 percent.

Conversely, 30 percent of adults 30 and older were smokers in 1984, but that rate dropped to 19 percent by 2008.

"Somebody's getting the message," remarked Heidi Lyons, an applied demographer with the center at BGSU.

She said she was floored to see the dramatic drop in smoking by older adults, but the almost level rate by younger adults.

"You'd like young adults to not even start smoking, since they've grown up with the message," she said.

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Ohio Judge’s Ruling Represents an Important Step Toward Preserving Tobacco Funds, Protecting the Health of Ohioans  

Today in Columbus, Ohio, Judge David Fais of the Franklin County Court of Common Pleas permanently enjoined the State from dissolving the endowment of the Ohio Tobacco Prevention Foundation (OTPF). This decision is a major step forward in the effort spearheaded by the American Legacy Foundation's to safeguard the state's tobacco prevention money for its intended purpose: to save Ohioans' lives. Two Ohioans were also plaintiffs in the case: Robert Miller and David Weinmann, both longtime smokers who relied on services and programs supported by the Ohio Tobacco Prevention Foundation to quit smoking, brought claims on behalf of the intended beneficiaries of OTPF - Ohio smokers.

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Court: Bar owners can't be held responsible for those who light up illegally  

Bar owners who try to keep their customers from smoking can't be penalized under the state's anti-smoking law just because a patron disobeys, an appeals court ruled yesterday.

The Franklin County Court of Appeals reversed a lower court's decision that a Toledo bar violated the statewide smoking ban because an inspector observed a lit cigarette in a mint tin.

The bartender at the Pour House said she told the patron that he couldn't smoke inside, and that the man left with the cigarette still smoldering.

A Lucas County inspector, operating on a tip about smoking at the bar in early 2008, found the lit cigarette and cited the business for violating the 2006 smoking ban. The bar was fined $500.

Attorneys for the Pour House said it and other bars shouldn't be punished for violating the smoking ban when they try to prevent customers from smoking.

The three-judge appeals court agreed.

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• POUR HOUSE, INC. v. OHIO DEPT. OF HEALTH  

{¶20} Appellee argues on appeal that R.C. 3794.02(A) contemplates a burden shifting analysis. Appellee contends that once it proves that smoking has occurred, the burden shifts to the proprietor to prove it did not permit smoking2500much like an affirmative defense. We disagree. Appellee must prove each of the elements of a smoking violation. Ohio Adm.Code 3701-52-08(E) (requiring findings of smoking violations to be supported by preponderance of the evidence). Permitting smoking is an element of the smoking violation, not an affirmative defense.

{¶21} Because the trial court erred in interpreting R.C. 3794.02(A), we sustain Pour House's first and second assignments of error. This disposition renders the Pour House's third assignment of error moot. App.R. 12(A)(1)(c).

{¶22} Having sustained the Pour House's first and second assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas. We remand this matter to the trial court with instructions to remand it to Lucas County to determine whether or not Pour House violated R.C. 3794.02(A) under the standard set forth in this decision.

Judgment reversed and cause remanded with instructions.

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• Toledo bar wins smoking case 

Bar owners who try to keep their customers from smoking can't be penalized under the state's anti-smoking law just because a patron disobeys, an appeals court ruled yesterday.

The Franklin County Court of Appeals reversed a lower court's decision that a Toledo bar violated the statewide smoking ban because an inspector observed a lit cigarette in a mint tin.

The bartender at the Pour House, 4301 Bennett Rd., said she told the patron that he couldn't smoke inside, and the man left with the cigarette still smoldering.

A Lucas County inspector, operating on a tip about smoking at the bar in early 2008, found the lit cigarette and cited the business for violating the 2006 smoking ban. The bar was fined $500.

Attorneys for the Pour House said it and other bars shouldn't be punished for violating the smoking ban when they try to prevent customers from smoking.

The three-judge appeals court agreed.

"Without evidence that the proprietor permitted smoking, there is no basis for finding the proprietor violated the statute," Judge William A. Klatt wrote.

The Ohio Licensed Beverage Association hailed the ruling.

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Appeals Court Overturns $500 Fine Against Tavern For Violating Ohio's Anti-Smoking Law ($$) 

A state appeals court Thursday overturned a $500 fine imposed against the owner of a Toledo bar and grill for violating Ohio's ban on smoking in public places because authorities too strictly interpreted the law.

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FDA bans flavored cigarettes 

Alex Bojko, junior sports administration major, was 17 when he smoked his first clove-flavored cigarette. He had an older friend who could purchase the product, and figured he would give it a try.

"I think the flavor was either blueberry or vanilla," he said. "They came in a bright blue, white and yellow box. At the time I just figured it was better than a cigarette."

Shortly after smoking his first clove, he began smoking cigarettes.

"I figured, 'Why spend $5 on a pack of cloves when I could spend $2.50 on a pack of regular smokes?" he said. "You do the math."

And nearly five years after taking his first flavor-filled puff of a clove, he smokes about a pack of Marlboro Blend No. 27, a whiskey-flavored cigarette, per day.

Although Marlboro 27s are not part of the ban, on Sept. 22, the Food and Drug Administration used its authority to ban the sale of cigarettes containing artificial flavors such as strawberry, clove, grape, orange, vanilla and cherry.

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OHIO ex rel. MARTIN v. COLLINS 

D E C I S I O N

Rendered on September 24, 2009 . . .

Relator, Robert Martin ("relator"), an inmate incarcerated at the London Correctional Institution, commenced this original action requesting this court to issue a writ of mandamus ordering respondent, Terry Collins, Director of the Ohio Department of Rehabilitation and Correction ("respondent"), to permit relator and fellow inmates incarcerated prior to March 1, 2009, the right to smoke and use tobacco products while incarcerated. . . .

Pursuant to Civ.R. 53 and Section (M), Loc.R. 12 of the Tenth Appellate District, this matter was referred to a magistrate who considered the action on its merits and issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommended dismissal of relator's complaint. First, the magistrate concluded that R.C. 3794.01 through 3794.04 do not grant relator a clear legal right to smoke and determined that respondent is entitled to judgment as a matter of law. . . .

M A G I S T R A T E ' S D E C I S I O N

Rendered on May 21, 2009 . . .

As respondent states in its motion, there is no clear legal right to smoke and relator has misconstrued the Smoke Free Workplace Act in an attempt to assert such a right. Further, relator's reliance on Ohio Adm.Code 5120-9-33, which deals with the right to possess certain items of personal property, is also misconstrued and has no relevance whatsoever to the use of tobacco products. After viewing the complaint and the allegations and reasonable inferences therefrom in the light most favorable to relator, the nonmoving party, it is this magistrate's conclusion that respondent is entitled to judgment as a matter of law.

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