S.B.
346
127th General Assembly
(As Introduced)
Sens. Schuler, Buehrer, Cafaro, Cates, Grendell, Mumper, Niehaus, Padgett, Roberts, Schaffer, Seitz, Smith, Spada
BILL SUMMARY
· Modifies the state smoking ban exemptions for family-owned businesses, outdoor patios, and private clubs.
CONTENT AND OPERATION
Current law generally prohibits a proprietor of a public place or place of employment[1] from permitting smoking in (1) the public place or place of employment or (2) in areas directly or indirectly under the control of the proprietor that are immediately adjacent to locations of ingress or egress to the public place or place of employment (R.C. 3794.02(A), not in the bill). There are several exemptions from this general prohibition. Among the exemptions are family-owned businesses, outdoor patios, and private clubs.
The bill retains the exemptions but modifies them by redefining the terms used to create the exemptions.
Current law provides an exemption for family-owned and operated places of employment in which all employees are related to the owner, but only if the enclosed areas are not open to the public, are in a freestanding structure occupied solely by the place of employment, and smoke does not migrate into an enclosed area where smoking is prohibited.
The bill defines "family-owned and operated place of employment" as a business or corporate structure that: (1) is not publicly owned or traded, (2) has a president or chief operating officer who comes from a family having controlling interest in the structure, and (3) is located in a freestanding structure or is separated from any other business by a firewall.
Current law provides an exemption for an "outdoor patio," which is defined as an area that is either (1) enclosed by a roof or other overhead covering and walls or side coverings on not more than two sides or (2) has no roof or other overhead covering regardless of the number of walls or other side coverings. An outdoor patios must be physically separated from an enclosed area. If windows or doors form any part of the partition between an enclosed area and the outdoor patio, the openings must be closed to prevent the migration of smoke into the enclosed area. If windows or doors do not prevent the migration of smoke into the enclosed area, the outdoor patio is considered an extension of the enclosed area and subject to the smoking ban.
The bill defines "outdoor patio" as any area not enclosed with permanent walls, that is not a parking lot, and that is attached or immediately adjacent to the permanent structure of a building. In the case of a county community-based correctional facility or a facility licensed by the Department of Rehabilitation and Correction as a halfway house or community residential center, "outdoor patio" includes an area that (1) is immediately adjacent to the permanent structure of the facility, (2) has at least one side of the enclosure consisting of one wall of the facility, and (3) is otherwise enclosed with a fence or other material used for security purposes.
Under current law
private clubs are exempt from the smoking ban.
"Private club" is defined as a corporation or association of individuals organized in good faith for
social, recreational, benevolent, charitable, fraternal, political, patriotic,
or athletic purposes, which is the owner, lessor, or occupant of a permanent
building or part of a permanent building operated solely for those purposes,
whose membership entails the prepayment of regular dues and meets the following
additional requirements: (1) has no
employees, (2) is organized as a not-for-profit entity, (3) allows only members
of the club to be present in the building, (4) has no persons under the age of
18 in the building, (5) is located in a freestanding structure occupied solely
by the club, (6) does not permit smoke from the club to migrate into an
enclosed area where smoking is prohibited, and (7) if the club serves alcohol,
holds a D4 valid liquor permit.[2]
The bill limits the
additional requirements an entity must meet to be a "private club" to
two that the club: (1) is organized as a not-for-profit entity
and (2) if it serves alcohol, holds a valid D4 liquor permit (see Comment).
Comment
In Ohio
Licensed Beverage Association v. Ohio Department of Health, 2007 Ohio 7147,
the Ohio Licensed Beverage Association filed a complaint against the Ohio
Department of Health claiming that the Department improperly attempted to expand
a limited statutory exemption to the smoking ban to create an expansive
loophole for private clubs. Among other
requirements, a private club is exempt from the smoking ban only if the club
has no employees.
The Department adopted a rule that excluded from
the definition of "employee" members of private clubs who provide
services to the club. The court[3] found that this rule impermissibly added
to the scope of the exemption for private clubs and conflicted with the
enabling statute, creating an exemption that did not exist.
The bill removes the requirement that to be exempt from the smoking ban a private club have no employees.
HISTORY
ACTION |
DATE |
|
|
Introduced |
06-10-08 |
s0346-i-127.doc/kl
[1] "Public
place" means an enclosed area to which the public is invited or in which
the public is permitted and that is not a private residence. "Place of employment" means an
enclosed area under the direct or indirect control of an employer that the
employer's employees use for work or any other purpose, including, but not
limited to, offices, meeting rooms, sales, production, and storage areas,
restrooms, stairways, hallways, warehouses, garages, and vehicles (R.C.
3794.01(B) and (C)).
[2] A D4 permit may be issued to a club to sell beer and
any intoxicating liquor to the club's members (R.C. 4303.17).
[3] The 10th District Ohio Court of Appeals. The Ohio Supreme Court declined to hear an
appeal of the 10th District Court's decision, 2008 Ohio 2595.