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Opponents of Ohio's indoor-smoking ban said yesterday that they have uncovered evidence of "massive" voter fraud on the part of ban proponents, more than three years after voters approved the curbs on smoking.
The group, Opponents of Ohio Bans, said the petition that placed the smoking ban on the 2006 statewide ballot was tainted by numerous irregularities, such as 47 felons gathering signatures and signature-gatherers in 77 counties wrongly listing the American Cancer Society as their employer.
The new allegations mirror claims raised during the 2006 campaign. However, opponents of the ban say there's now even stronger evidence of wrongdoing.
"What we found is astonishing," said Pam Parker, co-owner of Parker's Tavern in Grove City and co-chairwoman of Opponents of Ohio Bans. "There are petitions that never should have been validated."
Parker spoke yesterday at a news conference with Pat Carroll, president of the Buckeye State Liquor Permit Holders Association.
Even if the bar owners persuade authorities to investigate their allegations, and even if the authorities find merit in their claims, there's no clear path to overturn the smoking ban.
Nearly 59 percent of voters approved the ban in 2006. Officials in Secretary of State Jennifer Brunner's office said there's no precedent to invalidate a law passed by voters on the basis of problems in the petition process. In fact, Ohio law makes that impossible.
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A group of bar owners is fired up over Ohio's 3-year-old smoking ban.
Bar owners and employees met in Grove City on Friday claiming there weren't enough signatures for the ban to appear on the ballot in 2006.
They also say 46 convicted felons were allowed to collect signatures for the petitions -- something not allowed under state law.
The ban prohibits smoking in most public places in Ohio, including bars and restaurants.
Members of the Buckeye Liquor Permit Holders Association want the U.S. Department of Justice to investigate the claims. They want family-owned businesses and private clubs to be exempt from the ban.
The group also is threatening a class action lawsuit for the hundreds of bars they claim went out of business because of the ban.
"We're losing money in our businesses because this never should have gone to a vote and it went to a vote anyway," said Pam Parker of Parker's Tavern in Grove City.
{¶1} Defendant-appellant, Racheal Anderson nka Hill, appeals a decision of the Warren County Common Pleas Court, Domestic Relations Division, regarding custody and parenting time matters involving her daughter. For the reasons set forth below, we affirm the decision of the trial court. . . .
On April 3, 2008, Marilyn moved the court to modify Racheal's parenting time with Victoria, and further moved the court for an order prohibiting all parties from smoking cigarettes in Victoria's presence. Marilyn argued that Victoria had expressed concerns, fears and reluctance over spending time with her mother, and had returned home from parenting time smelling of cigarette smoke as a result of Racheal smoking in her home and car. Marilyn also requested that a guardian ad litem be appointed for Victoria. . . .
In her third assignment of error, Racheal challenges the trial court's imposition of a no-smoking ban upon the parties. Specifically, she argues that there was no evidence before the court that Victoria suffered from any health problems or had an increased sensitivity to smoke, and she contends that there must be some evidence that a child suffers physical harm before the court can restrict a parent from engaging in a lawful activity. Racheal also points to the fact that the smoking ban is not limited to the parties' homes or to the parties themselves, and argues that the ban has effectively restricted the places where she can take Victoria.
{¶31} The trial court adopted the magistrate's finding that although there was no evidence presented to indicate that Victoria has any health problems or an increased sensitivity to cigarette smoke, it was not in Victoria's best interest to be exposed to such an activity. Indeed, other Ohio courts have made reference to the "avalanche of authoritative scientific studies" which indicate that "secondhand smoke constitutes a real and substantial danger to children because it causes and aggravates serious diseases in children, which danger is both a 'relevant factor' and a 'physical health factor'" that a trial court is required to consider in making a best interest determination under R.C. 3109.04(F). In Day, the Fifth District Court of Appeals found no abuse of discretion in the trial court's imposition of a no-smoking ban, noting that the Ohio Supreme Court has recognized conclusions made by the United States Surgeon General, as well as other health agencies, that "secondhand smoke impairs the respiratory health of thousands of young children." Id., quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health . . . . Regardless of the condition of their health, secondhand smoke is considered a danger to all children.
{¶32} Based on the foregoing, Racheal has not shown that the trial court's decision to restrict Victoria's exposure to cigarette smoke was arbitrary, unconscionable, or unreasonable so as to constitute an abuse of its discretion.
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.
Taking judicial noticeThe 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.
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.
{¶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.
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.
The "mints" in your child's pocket might give much more than a sugar high, the Federal Drug Administration is warning.
They might provide a jolt of nicotine.
R.J. Reynolds Tobacco Co. is test-marketing tobacco-infused mints in Columbus and two other markets. The company says the mints are for adults who want an alternative to cigarettes.
Critics warn that the so-called "dissolvable tobacco" products will appeal to youngsters.
"It's in a colorful candy box and looks just like candy," said school nurse Eva Garchar of Cincinnati, who saw the Camel Orbs during a lecture at a nurses convention last spring. "All the people in the audience were disheartened by that."
Test-marketing of the mints started in the spring in Columbus bars, gas stations and markets. Two other flavored tobacco products, Camel Sticks and Camel Strips, joined them in the past few months.
Ohio is poised to reduce its spending on anti-tobacco programs from $40 million a year early this decade to nothing by the beginning of the next decade, anti-tobacco activists said yesterday while calling for cigarette taxes to be applied to other tobacco products.
Last year, state leaders dissolved a $264 million fund stocked with money from a multistate settlement with tobacco companies reached a decade earlier. At the same time, Gov. Ted Strickland's administration set aside a fraction of the money -- $6 million this year -- for the Ohio Department of Health to continue running some of the anti-smoking programs the foundation administered.
The programs include a toll-free quit line, grants to local groups and an annual survey regarding tobacco use.
Most of the foundation's money was redesignated for social services, although a Franklin County judge last month blocked the diversion. The state is appealing the ruling.
A coalition of anti-smoking activists called Investing in Tobacco-Free Youth held a news conference at the Statehouse yesterday to decry the loss of funding.
Tony Marino has moved his business and cut his inventory and overhead by more than half.
The smoking business isn’t what it used to be.
“The government wants this business to basically be zero,” said Marino, who owns A.R.M Cigar Co. in Boardman.
In the last several years, state and local government have led a charge to curb smoking. A voter-approved statewide smoking ban in 2007 has hurt business, and a national tax to fund children’s health care has put a dent in smoke-shop revenue, local owners have said.
Since May 2007 when the ban went into effect, the state has received more than 44,000 complaints from individuals and issued 3,100 warning letters and 1,800 fines, according to The Associated Press.
Enforcement of the ban is in contention now at the state’s 10th District Court of Appeals in Franklin County, an effort the International Premium Cigar & Pipe Retailers Association supports.
“Not only should there be no such thing as legislated smoking bans, but the Ohio inspectors are slapping fines and citations willy-nilly against businesses that are doing all they can to enforce the law, said Chris McCalla, legislative director for IPCPR, in a prepared statement. . . .
The law prohibits bar and restaurant owners from permitting smoking. The Buckeye Institute is challenging whether a smoker’s lighting up in an establishment qualifies as the owner’s permitting him or her to do so, said Maurice Thompson, director of the 1851 Center for Constitutional Law. The case could overturn previous citations, Thompson said, adding that the Buckeye Institute will challenge the constitutionality of the law itself in another case later this week.
“These fines are crippling small businesses,” Thompson said.
Ohio Attorney General Richard Cordray and Ohio Department of Health (ODH) Director Alvin D. Jackson, M.D., today announced the first lawsuits filed against Ohio establishments for violations of the Smoke-free Workplace Act. Complaints were filed in Hamilton County Court of Common Pleas against O'Neal's Tavern in Cincinnati and in Franklin County Court of Common Pleas against Zeno's in Columbus.
The complaints seek a court order requiring the bars to comply with the state smoking ban. The suits were brought against these establishments because of their repeated and extensive violations over the last two years. According to court documents, O'Neal's Tavern has been cited for 12 violations accruing fines of more than $21,000, and Zeno's has been cited for nine violations and fines of more than $28,000.
"The issue at hand is clear disregard for Ohio law," said Cordray. "These establishments have been warned and fined repeatedly over a two-year period to no avail. They continuously push the limits and have given us no alternative but to seek the court's intervention." . . .
With more than 280,000 public places and places of employment covered by the indoor smoking ban, Jackson noted the vast majority of Ohio businesses are complying with the law. Still, he added, ODH and its partners at Ohio's local health departments will aggressively investigate all complaints in their efforts to protect and improve the health of all Ohioans. To date, more than 3,100 warning letters have been issued to violators and more than 1,800 fines assessed.
State officials on Friday sued an Anderson Township bar and restaurant for a "clear disregard" of Ohio's smoking ban.
Ohio Attorney General Richard Cordray and Ohio Department of Health Director Alvin Jackson filed suits in Hamilton and Franklin counties - the first to seek court orders requiring businesses to comply with Ohio's smoking ban.
The suits were brought against O'Neal's Tavern, 7466 Beechmont Ave. in Anderson Township, and Zeno's in Franklin County.
The suit accuses O'Neal's of 12 violations of the law in the last two years, running up unpaid fines of $21,600.
"These establishments have been warned and fined repeatedly over a two-year period to no avail. They continue to push the limits and have given us no alternatives but to seek the court's intervention," Cordray noted.
"It's a continued flouting of the law and an unwillingness to pay the fines,"
A judge ruled Tuesday that state officials had no authority to divert $230 million from an anti-tobacco fund to balance the recently approved state budget.
The decision blows a hole in the $50.5 billion spending plan and means that human services programs that provide health care for the poor and services for abused children and adults could face another round of slashing and burning.
State officials, who said they have every right to the money, immediately appealed.
The ruling by Franklin County Common Pleas Judge David Fais said the state cannot spend the funds, which were frozen after anti-smoking advocates filed a suit seeking to protect the money. . . .
Wurst said the decision was disappointing but not unexpected given that Fais had granted a preliminary order against the state last year.
"We're confident that the state has ability to appropriate state funds and that the governor and the legislature were under their full rights under the law," she said.
House Speaker Armond Budish, a Beachwood Democrat, agreed, saying in an interview with Plain Dealer editors Tuesday that the judge's decision was "not a strong legal ruling." He predicted it would be overturned.
"From what I understand, the law supports our position," he said, noting that lawmakers have repeatedly tapped tobacco funds for the budget in the past.
A judge today permanently barred the state from taking more than $250 million in funds designated for anti-smoking programs and using it for Medicaid services and other state functions.
Judge David W. Fais of Franklin County Common Pleas Court dealt a blow to efforts by Gov. Ted Strickland and legislative leaders to balance the state's budget by draining most of the remaining funds from the Ohio Tobacco Prevention Foundation.
Fais wrote that the state doesn't need the money and could issue bonds instead.
Altoids tins have become the ashtrays of choice at local watering holes.
They've replaced all those old, cheap glass ashtrays that departed more than two years ago after Ohio voters passed a referendum to ban smoking in public places.
While you no longer have to worry about getting lung cancer over breakfast at Denny's, at most veterans clubs and plenty of bars in Richland County, the burn goes on as beery, smoky nights are pretty much the same beery, smoky nights they've always been.
"Right after they passed this, I called the health commissioner and said, 'What do I have to do to comply?' " said Joe Sinnett, owner of Joez Lounge.
"And he said, 'I have no idea.' So I said, 'Okay, you make damn sure you let me know what my obligations are on this law. I have got obligations in the liquor laws. I have got obligations with the food license. You let me know. But I'm not doing anything that goes against the Constitution of the United States.' "
Sinnett's bar, off U.S. 30 east of Mansfield, has received 23 complaints under the smoking law, the last shortly before Christmas 2008. He's been fined at least five times but only paid $200 pending appeals. His last inspection by Sue Osborne, the Mansfield/Ontario/Richland County Health Department's primary inspector, was earlier this month.
"I don't know what it was," Sinnett, 60, said about the latest check, "But I've had it. I've absolutely had it. I ripped down all the signs." . . .
like most area bar owners, doesn't have a beef with the smoking ban itself. It's the onus it puts on bar owners to self-police their establishments that troubles Sinnett and his peers. . . .
"We've had no leadership at all from the state, county, anybody," Hauke said. "We've been given no direction at all on how to handle anything. I didn't go into business to police people. If they light up, they know the law."
Betty Frazier, co-owner of Finish Line Bar & Grill since 2006, says her patrons are like family, and it's not her place to tell a customer to snub out a smoke.