12/06/2006

Follow-Up Information To Ohio's New Smoke Free Law

By: T. Scott Gilligan, OFDA General Counsel

OFDA previously published a Q&A piece on Ohio's new Smoke Free Law which took effect on December 7, 2006. Following the publication of that document, members have posed several new questions regarding the Smoke Free Law. Additionally, the Ohio Department of Health has issued statements on enforcement procedures. Set forth below, we have addressed those questions and issues:

Has the Smoke Free Act been put on hold until June, 2007?

ANSWER: Yes and No. The law took effect on December 7, 2006. However, the law directs the Ohio Department of Health to issue regulations to flesh out the particular requirements of the law. The Ohio Department of Health has until June 7, 2007 to issue those regulations.
The Department of Health announced on December 7, 2006 that it will not enforce the Smoke Free Act until the final regulations are in place. Therefore, while the law is on the books and technically in effect, from a practical standpoint there are no legal consequences for violating the law. Ohio funeral homes may want to use this period to phase out smoking lounges, post no smoking signs, remove ashtrays and smoking receptacles, and relocate outside smoking areas away from entryways. Printable "No Smoking" signs may be downloaded from www.myofda.org/forms.

The new law specifies that smoking is not permitted immediately adjacent to places of ingress or egress to an enclosed area, like a funeral home building. How far away from an entrance to the funeral home must we restrict smoking?

ANSWER: Unfortunately, we do not have guidance on the precise distance of "no smoking" areas around doors and windows of a funeral home. Until the Ohio Department of Health has issued regulations defining how large the smoke-free area around entryways must be, we cannot know for certain.
In the absence of any precise guidance from the Department of Health, we would recommend that the funeral home restrict smoking within a 30-foot radius of any entryway into the funeral home. We believe that a 30-foot radius would probably comply with the laws requirement that no smoking take place within the immediate vicinity of an entryway.

Our building serves as both the funeral home and our residence. We live upstairs but use the downstairs as the funeral home. We have two employees that are not family members. Are we allowed to smoke in our upstairs residence?

ANSWER: Section 3794.03(A) of the Smoke Free Law does provide a partial exemption for private residences that are also used as a place of business. In your case, the private residence would be exempt from the Smoke Free Law during the hours that the funeral home is not operated as a business and when employees of the funeral home, who do not live in the private residence nor are related to the owner, are present. Therefore, in your case, you may smoke in the upstairs residence as long as all employees who are not related to you have left the building. If the employee is related to you or is a resident of the building, you may smoke in the residence as soon as the funeral home is closed for business.

Our funeral home has two apartments where we allow mortuary students to live rent-free in exchange for performing light duties at the funeral home. We permit these students to smoke in the apartment. Are they still permitted to smoke in the apartment under the new Smoke Free Law?

ANSWER: Yes, but under the same restrictions as set forth in question no. 2 above. Once the funeral home is closed for business and the only persons residing in the building are residents of the building or are related to the owner, the exemption from the Smoke Free Law applies. In this case, although the students are not related to the owner, they are residents of the apartments in the building, and therefore, the exemption would apply. Whenever, however, employees who do not reside at the funeral home are present in the building, smoking would not be permissible.

Our funeral home has a smoking lounge which we understand is no longer permissible under the Smoke Free Law. However, we are concerned that if we remove ashtrays from the smoking lounge, attendees at a visitation or funeral may continue to smoke in the lounge and flick their ashes on the carpet because no ashtrays are present. Is there any way for us to continue to keep ashtrays in the smoking lounge as long as we post the no smoking signs.

ANSWER: No. Section 3794.46(B) of the Smoke Free Law requires an owner of a building to remove all ashtrays and other receptacles used for the disposing of smoking materials from any area where smoking is prohibited by the Smoke Free Law. Therefore, your only alternative to protect rugs and furniture is to police the former smoking lounge and to post signs to prevent smoking in the area.
OFDA members with questions regarding the Smoke Free Law may contact Scott Gilligan at (513) 871-6332.