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Thursday, October 4th, 2007

Smoking fines' appeals will not cost health department

By Shelley Grieshop
A local attorney has agreed to work for free to hear appeals lodged by business owners accused of violating the no-smoking law.
Mercer County-Celina City Health board members meeting Wednesday learned that attorney Angela Nickell of Coldwater has offered to reign pro bono as an independent decision maker for the local appeals process, which gives alleged violators an opportunity to argue the validity of the $100 fines filed against them by the Mercer County-Celina City Health Department.
Nickell's service will save the county a lot of money depending on the number of appeals filed, board members agreed.
All health department's in Ohio must have a licensed attorney to fill the position of independent decision maker for the local appeals process, as stated in the new law passed by voters in November. That attorney must be accompanied at the hearing by a board member and the attorney for the county health department. Locally, Assistant Prosecutor Amy Ikerd is the board's attorney of record.
The business owner filing the appeal also can be represented by an attorney at the hearing, which will take place at the health department in Celina. After each side is heard, the decision maker submits his/her findings to the county health board for a final judgment. If the appeal is rejected, the business owner has the option of taking the case to the state health department's appeal board in Franklin County.
Because the local appeals hearings must be recorded on tape, it was decided that board Secretary Denise Brown look into the purchase of better quality tape recording equipment. If a case is appealed to Franklin County, the local recording must be transcribed and sent with the case.
The first administrative review in Mercer County is slated for Oct. 16. That case is being appealed by Robert Uhlenhake, the owner of Wendelin Tavern of rural St. Henry. The bar/restaurant was issued a $100 fine in August after an on-site investigation allegedly revealed "no smoking" signs were not posted, ashtrays were visible and patrons were smoking.
Michelle Kimmel, the director of environmental health, told board members she knows of another business that is preparing to appeal its fine, also.
Mercer County has received more than its share of complaints compared to other counties with like populations, according to data filed with the state. More than 200 complaints have been filed in Mercer County since enforcement of the smoking ban began in May; eight businesses have been issued fines, so far, following investigations into complaints.
Kristopher Weiss, spokesman for the state health department, said the local department should be commended for its work trying to bring about compliance. He also believes there is light at the end of the tunnel.
"It might take a year or more, but other places where there's been smoking bans in place much longer, people have gradually complied," he said.
County Health Commissioner Dr. Philip Masser told board members Wednesday he understands the issues frustrating businesses and individuals such as anonymously-filed complaints, the confusion of the law as it was presented to voters last fall and the rights of smokers.
"We're hearing it loud and clear, the general attitude is they're not changing," Masser said. "There's a lot and lot of resistance from businesses who feel their bottom line is being affected."
Business owners have told officials they'd rather pay the $100 fine to keep their customers from going elsewhere.
Masser said health departments are just following the rules they've been asked to enforce "whether we want to or not."
"If the complaints don't slow down, we'll have to think seriously about surrendering (the job of investigation and enforcement) to the state," Masser said.
Masser said the no-smoking law is extremely important but local health officials need to prioritize their resources.
Also, safety issues were discussed including Kimmel's visits - some during evening hours - to area bars and veterans clubs where complaints have been filed. If she is refused entry, the law allows her to be escorted by a uniformed officer. The next step would be the issuance of a search warrant for the business.
Board members discussed the issue further but took no action.
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