News and Available Resources

Ohio Smoking Ban Update: Ohio Department of Health’s Private Club Exemption Struck Down By Court

On December 31, 2007, the Franklin County Court of Appeals rejected an attempt by the Ohio Department of Health (“ODH”) to carve out an exemption from Ohio’s smoking ban for fraternal and veterans’ clubs.

Ohio’s Smoke Free Workplace Act—effective December 2006—generally prohibits smoking in public places and “places of employment,” which is defined as an enclosed area that employees use for work or other purposes. The Act contains a narrow exception for “private clubs” that have no employees.

In March 2007, the ODH issued rules and regulations to implement the Act. One of its rules sought to broaden the public club exemption by limiting the definition of “employee” as it applied to private clubs. Specifically, the ODH’s rule provided that “the term employee does not include members of the private club who provide services to the private club.”

The Ohio Licensed Beverage Association (“OLBA”) filed suit to challenge this rule, alleging that it would give “so called ‘private clubs’ a massive competitive and commercial advantage over other Ohio businesses.” Finding in favor of the OLBA, the Ohio 10th District Court of Appeals held that the “ODH’s exclusion of ‘members of the private club’ from the definition of employees created a ‘less restrictive’ definition of employee,” which is contrary to the smoking ban’s purpose of prohibiting smoking in public places and “places of employment.”

Accordingly, the Court held the ODH exceeded its rule-making authority and was properly enjoined from implementing the challenged provision. Thus, private clubs with employees must be smoke free.

Full text of the Court of Appeals decision

February 2008 UPDATE: On February 14, 2008, Ohio Attorney General Marc Dann, on behalf of the ODH, asked the Ohio Supreme Court to hear this matter and to reverse the decision of the Franklin county Court of Appeals. We will update our website with further developments.

July 16, 2007
Department of Health Issues Ohio Employers Written Warnings for Violation of Smoking Ban
The Ohio Smoke Free Workplace Act, enacted in November 2006, became enforceable on May 3, 2007. So far, it appears that many Ohio businesses are complying with the new law, which generally prohibits smoking in all public places and places of employment and requires businesses to post no-smoking signs and remove ashtrays.

The Ohio Department of Health, however, recently reported it has issued 58 businesses warning letters for violations of the new law. Following the initial warning letter, businesses are subject to increasingly higher fines for each new violation. The fines generally start at $100 and go up to $2,500.

The state received approximately 8,500 reports of potential violations, of which only 270 have been investigated and found to have merit. Many of those, however, are still in the appeal stage. Under the new law, businesses have 30 days to respond to an alleged smoking ban violation and another 30 days to appeal an initial finding of a violation.

May 18, 2007
Private Clubs Not Exempt From Smoking Ban
As we reported on May 1, 2007, the Ohio Licensed Beverage Association—a trade group of bars and restaurants—recently filed a lawsuit seeking to prevent enforcement of the Ohio Department of Health’s rule exempting private clubs from Ohio’s new smoking ban. The Ohio Franklin County Common Pleas Court has issued its ruling and held that the ODH could not exempt private clubs from Ohio’s smoking ban. The smoking ban passed by Ohio voters in November 2006 prohibits smoking in all “public places and places of employment.”

Although the smoking ban contained an exception for private clubs, according to the Court, private clubs have employees too. Thus, they are places of employment, and smoking is prohibited.

April 16, 2007 Update
On April 16, 2007 the Joint Committee on Agency Rule Review approved the Ohio Department of Health smoking ban implemenation rules. The rules will become enforceable on April 30. Meanwhile the Ohio Licensed Beverage Association has filed a lawsuit in Franklin County Court of Common Pleas challenging the rules on the grounds that they provide an impermissible exemption to private clubs.

Full Text of the Smoke Free Law
Full text of State Issue 5 as approved by the Ohio voters

Revised implementing Rules refiled by the Ohio Department of Health on March 21, 2007.
The Ohio Department of Health refiled the smoking implementation rules with the Joint Committee on Agency Rule Review and JCARR approved the rules on April 16.

Ohio Department of Health Guidance on the Ohio Smoking Ban
Information on Ohio's new smoking ban, including sample signs that, when properly placed, meet the requirements of the law.

Ohio's Smoke Free Workplace Act: What Businesses Need to Know -- November 14, 2006
Bulletin Ohio's new indoor smoking ban, passed by the voters on November 7, 2006 and establishing a statewide smoking ban that applies to almost every public place and business. Note that this bulletin was prepared before the publication of implementing regulations.