NBC4 Investigates: Smoking Fines Go Unpaid - NBC4: Columbus, Ohio News, Weather, and Sports (WCMH-TV)

NBC4 Investigates: Smoking Fines Go Unpaid

By Denise Yost

Cigarette executives of the 1950s and 1960s probably couldn't imagine a time when smoking would be so unpopular that it was illegal to smoke in bars and restaurants and smokers would be relegated to having to smoke outside.

It has been four years since Ohio's smoking ban went into effect.

Bars, clubs and restaurants that don't insist smokers go outside are fined and over the years, those fines have added up to about $800,000 in fresh money to the state.
That money usually goes back to enforcing the fines, but nearly twice as much, about $1.5 million, has gone uncollected.

"We'd like to see those fines collected and we'd like to see that money go towards further enforcement of the law," said Robert Paschen, of the American Cancer Society.

The amount each bar or club owes is usually very small, a few thousand dollars at most, but there are hundreds of them in the state and it adds up.

NBC4 obtained a list from the state of all the establishments and private clubs that have not paid smoking fines since the ban went into effect.

One of the biggest offenders in the state is a bar that refuses to pay it's nearly $40,000 worth of fines – Zeno's in the Harrison West and Victorian Village area.

Owner Dick Allen has been fighting the ban since it began.

"I just don't believe the enforcement was proper. That's why I was kind of targeted as an example," Allen said.

The state or county health department receives a formal complaint and then their investigators must go out and find a smoker in the bar.

They have to identify themselves as a health department worker and explain why they're there.

"There is that time from when they walk into an establishment until they find a proprietor and so you're looking as you come up to an establishment, you're looking to see what's going on, whether they have signs posted at the entrance. When you walk in, you can see if they have ashtrays or something that is being used as ashtrays, but in an area that can be plainly seen by a proprietor and hasn't been removed," said Mandy Burkett of the Ohio Department of Health.

Not paying the fines has become a matter of principal for more establishments than just Zeno's.

At Parker's Tavern in Grove City, they're spending more money fighting their fines than they would just by paying them.

"We just took a $2,000 fine to the 10th District Court of Appeals and we've paid $2,000 fighting a $2,000 fine because of principal," said Pam Parker, of Parker's Tavern.

"Almost all of the fines are issued to these non-profit groups like VFWs and Fraternal Order of the Eagles and then bars on the other hand and they're not paying the fines because they think fines are unconstitutionally issued. Almost all the bars are upset about how the fines are issued," said attorney Maurice Thompson, director of the 1851 Center for Constitutional Law.

Principal or not, the bars still owe the money and the less money that comes in, the fewer investigators can go out, meaning more bars could get away with scoffing the law that was approved by 58 percent of Ohio's voters in 2006.

It is up to the Ohio Attorney General's office to collect the money and since the last election, the unpaid buck stops with Attorney General Mike DeWine.

DeWine told NBC4's Mike Bowersock that he has a plan.

"I've talked to the liquor control people and they're going to start pulling licenses," DeWine said.

In other words, when a bar's license is up for renewal, if it owes fines, it loses it's license until they're paid.

"I think you're going to see the first moves on these within the next month and I think that's going to totally change the dynamics of this whole issue," DeWine said.

It all might become a moot point, however, as the ban itself is in jeopardy of being reversed in Ohio – or seriously changed.

"The ban is in jeopardy as it applies to bars and it's unconstitutionally tenuous," Thompson said.

There are several efforts under way to reverse the ban.

The Ohio Supreme Court has agreed to listen to the case involving Zeno's, and briefs are being filed this summer.

If Zeno's prevails, smoking could once again be allowed in Ohio bars.

"The lawsuit is arguing property rights, taking something that's legal and telling the property owner that I can't do it here," Allen said.

If the lawsuit fails, there's a bill being drafted in the Ohio legislature to reverse part of the ban as it applies to bars and private clubs.

State Rep. John Adams is behind the bill.

"The bill basically says that we're going to repeal the smoking ban in bars," Adams said. "It's their property. It should be their choice on whether they want to serve alcohol, not serve alcohol, have smoking or not have smoking."

If both of those attempts fail, the enforcement of Ohio's smoking ban runes out of money in 2013.

"In fiscal year 2013, they zero-fund this budget, this voter-approved law. So the voters approved it in 2006, they increasingly liked it and our lawmakers at the statehouse and the governor's mansion have chosen to provide zero dollars for enforcement," Pachen said.

On top of that, the ban has become the hardest law to collect fines and enforce, DeWine said.

"Sometimes these businesses are out of business. Sometimes the evidence is not very strong that's been given to us, for the collection. There's also a Supreme Court case which is pending which has frozen some of the legal action we can take," DeWine said.

Voter approved or not, bar owners said they want to see the ban changed.

They claim they never saw the influx of non-smokers becoming their customers as promised by the law's proponents and they say it's all about what they want to do on their own property.

"We own this bar. The voters don't own this bar. The voters always had the ability to vote with their feet and their wallets," Parker said.

The Ohio Department of Health and American Cancer Society, which are both in favor of keeping the ban as-is, are aware and concerned about the movement and what may happen next.

"There's no teeth to the law anymore. There's no consequences to the law. Will that lead to an uptick in people smoking where they shouldn't? We don't know. We're going to have to wait and see," Paschen said.

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