11/17/2006

OHIO'S NEW SMOKE FREE LAW

By: T. Scott Gilligan, OFDA General Counsel

December 7, 2006 will not only be the 55th anniversary of Pearl Harbor, it will be the day that Ohio becomes the 15th state to have a smoke free law go into effect. That law, which was overwhelmingly approved by Ohio voters on November 7, 2006, prohibits the smoking and burning of tobacco in enclosed areas of public places and enclosed areas of places of employment. Obviously, as places where the public is invited and where individuals are employed, Ohio funeral homes are subject to the new smoke free law.

Set out below are questions which we have fielded from OFDA members regarding the impact of the law on their businesses:

1.What does the Smoke Free Act require of funeral home owners?

ANSWER: The Smoke Free Act not only prohibits individuals from smoking in enclosed areas available to the public or enclosed areas of employment, it requires owners of those places to ensure that no smoking is permitted. Therefore, if a funeral home allows smoking in public areas after December 7, 2006, it violates the law. Additionally, the law provides that lack of intent to violate is not a defense to a violation. Therefore, owners who unknowingly allow smoking to take place in prohibited areas violate the law.

2.Our funeral home has a smoking room for families to use. Does the new law require that we discontinue it?

ANSWER: Yes. Any part of the building where individuals of the public are allowed must be smoke-free. The only exception would be outdoor areas which either have no roof or, if equipped with a roof, have walls only on two sides. Therefore, while funeral homes may no longer have enclosed smoking rooms, they may allow smoking on their property as long as the smoking area is outside and has no roof or, if it has a roof, has walls or side coverings on no more than two sides.

3.Our funeral home allows smoking on the front porch near our entranceway. Is this still permitted?

ANSWER: No. Smoking is not permitted immediately adjacent to the places of ingress or egress to the enclosed area. Therefore, funeral homes should not permit smoking immediately outside of doorways. Funeral home owners also have to ensure that tobacco smoke from the outside does not enter the enclosed area through open doors, windows or ventilation systems.

4.Our funeral home would like to prohibit smoking everywhere on funeral home property, including all outside areas. Does the law allow us to do this?

ANSWER: Yes. If a property owner wishes to prohibit smoking in all outdoor areas of its property, it may do so by posting no smoking signs. Signs should be posted declaring the facility and all outside areas to be non-smoking areas.

5.Will the Smoke Free Act require us to place no smoking signs throughout the funeral home?

ANSWER: Yes. The law will require the posting of no smoking signs in all public places and places of employment. However, until the Ohio Department of Health develops rules implementing the Act, we are not sure how many signs will be required, where the signs must be posted, how big the signs must be, etc. Therefore, until the regulations are implemented (which may not occur until Spring of 2007), the funeral home should not invest in any new no smoking signs.

6.Should the funeral home remove our cigarette disposal cans that are outside our front doors?

ANSWER: Yes. Prior to December 7, 2006, the funeral home should remove all ashtrays and receptacles for disposition of smoking material from areas where smoking will no longer be permitted.

7.While our funeral home will maintain a strict no smoking policy for public areas of the funeral home, we intend to allow employees who smoke to do so in an "employees-only" smoker's lounge. As long as this is clearly marked, may we do so under the Smoke Free Act?

ANSWER: No. All enclosed areas of employment must be smoke free, even if they are open only to smokers. Therefore, you may allow employees only to smoke in an outside area without a roof or which is open on two sides. However, the outside smoking area may not be located in the immediate vicinity of doors, windows or ventilation systems that could draw the smoke inside.

8.Does the new Smoke Free Act require that all vehicles owned by the funeral home be smoke-free?

ANSWER: Yes. Enclosed areas under the control of the funeral home include not only physical buildings, but also vehicles that are owned and operated by the funeral home. Therefore, company cars, even those that are occupied only by employees who smoke, must be maintained as a smoke-free area.

9.The funeral home has a detached maintenance garage which is only used by our maintenance man who smokes. May he smoke in that garage?

ANSWER: No. Since the garage has a roof on it and has four walls, it is an enclosed area. Despite the fact that it is used only by an employee who smokes, it must be maintained as a smoke-free area.

10.Are there any exceptions that could apply to funeral homes?

ANSWER: Yes. There is an exemption for family-owned and operated places of employment where all employees are related to the owner. In order for the exemption to apply, the enclosed areas of employment must not be open to the public and must be in a free-standing structure which is occupied solely by the place of employment. Therefore, in order for this exemption to apply at the funeral home, all employees would have to be related to the owner and the smoking area would have to be in a building which is separate from the funeral home and used only by employees. Examples might include detached administrative offices, a garage or storage building.

11.What are the fines for violating the Act?

ANSWER: The Ohio Department of Health will be developing a schedule of fines for violation of the Act. However, the Act does provide that for a first-time violation, a warning would be issued to the owner. Any subsequent violation within a two-year period would carry a civil fine from $100 to $2,500 against the owner. The fines can be imposed civilly by the Department of Health or its representatives with an opportunity to appeal any fine to the Franklin County Court of Common Pleas in Columbus, Ohio.
Members with questions regarding the new Smoke-Free Act should contact Scott Gilligan at (513) 871-6332.

Free signs provided by the Ohio Department of Health may be downloaded at www.MyOFDA.org/forms