05/02/2007

OHIO'S INDOOR SMOKING BAN GOES INTO EFFECT

By: T. Scott Gilligan, OFDA General Counsel

On May 3, 2007, Ohio's Smoke-Free Law, which was originally approved by voters on November 7, 2006, will become enforceable. The Ohio Department of Health has recently issued final regulations which spell out many of the specific requirements and enforcement procedures for the new Smoke-Free Law.

OFDA has reviewed the Smoke-Free Law, which is found at Section 3794.01 of the Ohio Revised Code, as well as the new regulations from the Ohio Department of Health (ODH). Copies of both the law and the regulations may be found at www.odh.state.oh.us. Based upon our examination of the law and regulations, we have addressed below the new requirements imposed upon funeral homes.

1. Obligations of Funeral Homes. The Smoke-Free Law requires funeral homes to undertake the following actions by May 3, 2007:

Prohibit smoking in all areas of the funeral home, including those areas that are accessible only by employees. This includes offices, break rooms and lounges, hallways, stairwells, storage areas, garages, and company vehicles. Smoking must also be prohibited in areas that are immediately adjacent to entrances, ventilation systems and windows so that smoke does not enter the funeral home or places of employment.

The funeral home must direct anyone smoking in the funeral home or places of employment to immediately cease smoking.

The funeral home must remove ashtrays and other receptacles for the disposal of smoking materials from the funeral home and places of employment. There is an exception if the ashtray or other receptacle is of historic or architectural value, was attached to real property prior to December 7, 2006, and is not used for disposal of smoking materials. Exceptions are also granted for ashtrays in vehicles. Ashtrays and receptacles may be placed at entryways into the funeral home solely for the purpose of disposing smoking materials prior to entering the facility. Also, ashtrays may be stored in an area of the funeral home that has no public access and is used primarily for storage.

Funeral homes must post "No Smoking" signs or the international no smoking symbol at every entranceway into the funeral home or place of employment. Signs must be affixed or posted at a height or location to be easily seen by a person entering the funeral home. On vehicles, the signs must be affixed to the dashboard, to each passenger door window, or to other areas in the vehicle visible to all passengers.

All no smoking signs and symbols must contain language informing readers to call 1-866-559-OHIO (6446) to report violations. While there is no prescribed size for the signs, they must be of sufficient size to be clearly visible to a person of normal vision. Sample signs meeting the requirements of the law may be downloaded from the ODH website at www.odh.ohio.gov/alerts/ohiosmokingban.aspx. OFDA will also have signs available.

2. Exceptions to the Smoking Ban. The following exceptions to the smoking ban may be important to funeral homes:

Although funeral homes are not required to offer smoking areas for the public and/or employees, they may do so outside of the building or in an outdoor patio area. An outdoor patio is defined by the regulations as one that is either enclosed by a roof or other overhead coverings, but has no more than walls on two sides. An outdoor patio area may also be enclosed on all sides by walls as long as it has no roof. Therefore, if a funeral home had a courtyard with four walls around it but with no roof, it could allow smoking in that area. Please be aware that an awning or an overhang covering the area would be regarded as a roof. Similarly, if the funeral home had an area covered by a roof, but which was not enclosed by more than walls on two sides, it could permit smoking. It is important that smoke from these areas not be permitted to migrate into the funeral home through doors, windows or ventilation systems. Additionally, no smoking signs should be posted at all points where pedestrians will cross out of the area where smoking is permitted into an area where smoking is not permitted.

If the funeral home is family-owned and all employees are related to the owner, smoking may be permitted in an area of employment provided it is a freestanding structure that is separate from the funeral home and used only by employees. Examples may include detached administrative offices, a garage or storage building.

Smoking may be permitted in a private residence that is attached to the funeral home as long as smoking is done only in the hours when the funeral home is closed for business and when employees of the funeral home, who do not live in the private residence or who are not related to the owner, are out of the building. Therefore, smoking in the private residence is not permitted unless the funeral home is closed for business and all non-related employees or employees who are not residents of the private living area are absent from the building.

The smoking ban only covers smoke from cigars, cigarettes, pipes or other smoking devices used for burning tobacco or other plants. Therefore, smoke produced by cooking, heating, wood-fired ovens, smokers, grills, fireplaces, wood burning stoves, candles, and incense used in religious ceremonies are not covered by the smoking ban.

Smoking is permitted in a company-owned vehicle that is being used for business purposes as long as it is not occupied by one or more non-smoking persons. Therefore, an employee may smoke in the company car while on business as long as non-smokers are not present in the vehicle. When the company car is being used for non-business purposes, smoking may be permitted regardless of the fact that non-smokers are in the vehicle.

3. Violations. The Ohio Department of Health and local health departments designated by ODH will receive reports of violations, including anonymous complaints, by mail, electronic mail and telephone. Reports of a violation must provide information on the date and approximate time the violation allegedly occurred, the name of the business and the individual alleged to be in violation, and the address of the business. If the Department determines that the complaint is not frivolous or made in bad faith, it will send a notice to the proprietor of the business requesting a response to the complaint. The Department may also investigate the complaint.

A business that violates the Smoke-Free Law will receive a warning letter for the first violation, a fine of up to $100 for the second violation, a fine of up to $500 for a third violation, a fine of up to $1,000 for a fourth violation and fine of up to $2,500 for any subsequent violations. For purposes of determining fines, violations which occur more than two years prior to a subsequent violation shall not be considered. The Department may consider mitigating factors, such as the good faith effort of the proprietor, in decreasing the amount of the fines.

OFDA members with questions regarding the Smoke-Free Law may contact Scott Gilligan at (513) 871-6332.