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Here we go again!
By Bob Rhoades
Back in 2006 some well-meaning people got together and proposed that a
referendum be put on the ballot asking that smoking be banned from
commercial establishments, including bars, taverns and
restaurants. The petitions were drawn up and passed around and
with the needed signatures being acquired it was placed on the ballot
in a general election. This folks is an exercise of the basic
rights that we enjoy in the United States of America. If we don’t
like something, and we can find enough other people who also don’t like
it we can put it to a vote and if the MAJORITY feels the same way it
becomes law, sounds simple enough.
These basic rights seem to be unknown to about 80% of the population
who still think that THE GOVERNMENT did it to them. Those people
weren’t paying attention when this all happened. Your neighbors
did it to you! There was much wailing and gnashing of teeth over
it but it went into effect and most people seemed to have accepted it,
sort of. After we’ve all gotten content with not leaving a
restaurant smelling like a combination of smoke, nicotine, and whatever
oil the restaurant was using to fry our food, someone is going to
challenge the law in the Supreme Court of Ohio, like they don’t have
enough to do. Like the taxpayers of Ohio need to pay for another
unneeded thing.
So let’s look at the whole deal. What these well-meaning people
didn’t understand was that their new law being in place isn’t even half
of the battle. The law was then entrusted to the Ohio Department
of Health do come up with the rules on how it would be enforced and
administered. The process to develop the rules is very time
consuming. ODH has to develop the rules, enforcement and
punishment and then the whole mess is taken to the Joint Committee on
Administrative Rules (JCARR). The committee consists of five
State Representatives and five State Senators. In odd-numbered
years, the chairperson is a House member and in even-numbered years, a
Senate member.
The primary function of JCARR is to review proposed new, amended, and
rescinded rules to ensure the following:
• the rules do not exceed the scope of the
rule-making agency's statutory authority;
• the rules do not conflict with a rule of that
agency or another rule-making agency;
• the rules do not conflict with the intent of the
legislature in enacting the statute under which the rule is proposed;
and,
• the rule-making agency has prepared a complete and
accurate rule summary and fiscal analysis of the proposed rule,
amendment, or rescission (RC 127.18) and if the agency has incorporated
a text or other material by reference, the agency has not met the
standards stated in ORC sections 121.72, 121.75, or 121.76
All this being said and with the blessing of JCARR, the law can now be
enforced. Big Problem! The exercise of our basic rights had
one stumbling block. MONEY! The law didn’t come with a
funding mechanism. This meant that ODH or local health
departments or both had to come up with a way to enforce it. Once
again, an unfunded mandate and this one didn’t even come from the
legislature, it came from the people. There wasn’t then and still
isn’t a Health Police to enforce the problem. At one point, one
person was assigned at ODH to enforce, manage and prosecute if
necessary.
At any rate, it became law and most people seem to be pretty happy with
it except those who smoke. They just can’t do it every place they
used to do it. A business owner in Dayton said on TV that his
cigar sales went down but his food business went up. Isn’t that a
good thing?
Similar laws are in place in California and other places and all have
been tested in their respective Supreme Courts. WHIO reports that
in every case the Court has upheld the law. So it looks like
someone will always be mad about it here in Ohio until all of those
people are dead and gone which will probably come sooner than later
given the problem at hand.
Many bar and restaurant owners blatantly broke the law and defied the
state to enforce it. This is where things get a little cloudy for
those opposing the law. Most people, including the courts, feel
that a law is supposed to be followed even when a person doesn’t like
the law. This is sort of why we have speed limits, laws against
murder, burglary, assault and a lot of other things. The bar
owner in Columbus who is making the case will probably have a huge
lawyer bill and still have to pay his $30,000 fine. Perhaps we
should all be happy that he’s OK with not murdering people but wonder
how many other laws he doesn’t like.
It’s OK that the law is tested in the Supreme Court because that is
also their right. It just seems once again that people need to
remember where this law came from. Thank your neighbor for the
fresh air.
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