How the Ohio Smoking Ban Affects Apartment Living
Submitted by Jeffrey J. Greenberger, KATZ, GREENBERGER & NORTON LLP

The new Ohio Smoking Ban went into effect on December 7, 2006 and is now codified at Ohio Revised Code 3794.01 et seq. How does the new smoking ban affect apartment owners and apartment communities?

While the answer to some question is unclear because the Department of Health has six months to promulgate its regulations regarding the new ban, there are certain things we know about the ban, there are certain other things we will have to wait until regulations are promulgated to answer the apartment owners’ questions and concerns.

Specifically pertaining to apartment owners we know the definition of smoking means inhaling/exhaling, burning or carrying any lighted cigar, cigarette, pipe or other lighted smoking device for burning tobacco or any other plant. Thus, smoking includes in addition to tobacco what are commonly known as clove cigarettes and of course the burning of marijuana. Smoking specifically does not include the burning of incense in a religious ceremony.

Smoking will be banned in any “public place” or “place of employment”. A public place is defined as “an enclosed area to which the public is invited or in which the public is permitted and that is not a private residence.” We take from that definition any place in an apartment community where the public may be invited or permitted to certainly include clubhouses, rental offices, meeting rooms available, business centers, and the like. The real question is areas such as laundry rooms, exercise rooms, or other rooms which are suppose to only be for resident use. At this time (and as we will add additional reasons below), we are recommending smoking be banned from all indoor portions of any apartment community except the apartment homes themselves (with exceptions we will describe below) because it is possible the public may come in contact with these areas for example, guest may be allowed to be brought by a resident to a community exercise room.

Some of our concerns regarding the use of these additional areas are moot because, place of employment is defined as “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, storage areas, restrooms, stairways, hallways, warehouses, garages and (company) vehicles”. Thus, any of the rooms discussed above which might be in question should they be in any way connected to the place of employment for example if the laundry room is part of the clubhouse where the rental office is located smoking would have been banned anyway by the place of employment definition.

For now, we believe it is safe to allow smoking in individual apartments. This may change and should be of particular concern to any apartment community which has a common HVAC system between multiple apartments. Since “private residence” is not defined in the statute we will treat apartments as a private residence until said time as regulations are issued to the contrary or until complaints are received and adjudicated in a different manner.

As an employer or a proprietor the apartment community is prohibited from permitting smoking in any public place or place of employment or “immediately adjacent to the locations of ingress or egress to the public place or place of employment”. The definition of “immediately adjacent” has not yet been resolved thus, for now we cannot express an opinion about whether smoking may be permitted at or around the exterior doors of a public place or place of employment. We believe that conservatively people are recommending smoking occur at least 10 feet away from all places of ingress or egress until the regulations are issued and we have a definitive answer to this question. However, you are required under 3794.02(B) to “ensure” tobacco smoke does not enter any area in which smoking is prohibited under this Chapter including entrances, windows, ventilation systems, or other means. From this we can begin to see some distance away from every ingress, egress, doorway, ventilation air intake, etc. will be part of the regulations promulgated by the Health Department so for now we can at least be certain smoking should not occur immediately around doorways, windows or ventilation system air intake areas, how far away smoking must occur from these items is unknown.

Also of interest is a protection under the statute of employees or others who retaliate against an individual for exercising any right including reporting a violation or performing an obligation under the smoking ban. Thus it would be illegal to discharge or refuse to hire an employee who “calls in” a smoking violation at one of our member’s properties.

Getting back to the concept of a private residence, there are exceptions to the private residence permission to smoke. If the private residence is used as a child care or adult day care facility for compensation, then smoking is prohibited during the hours of operation. While we would assume most communities prohibit the operation of a day care, there is potential exposure to an operator of an apartment community who knows a day care center is being operated in an apartment or in the community and does not work to prohibit smoking, at least during business hours.

Finally, there have been some discussions amongst apartment owners about issues surrounding outdoor patios and creating a private club. An outdoor patio must be physically separated from the enclosed area. If windows or doors from any part of the partition between the enclosed area and the outdoor patio, the opening should be closed to prevent the migration of smoke. If windows or doors do not prevent the migration of smoke in an enclosed area then the outdoor patio is considered an extension of the enclosed area and is subject to the smoking ban. Thus, if the rental office wanted to create a “smoking patio” it would have to be set up in such a way that smoke could not migrate through doors or windows back into the office. Setting up a private club is probably not going to work in an apartment community because the club must have no employees and must be organized as a not for profit entity and only the members of the club may be present in the building and no person under the age of eighteen (18) must be allowed in the club building. So this is not a good option for creating a smoking area in the apartment community.

At this time, until regulations are promulgated we cannot express an opinion about whether or not patios and balconies of apartment communities should ban smoking. It is possible someone smoking on the first floor on their patio could allow smoke to “waft” up into the second floor apartment that is a private residence allowing smoke into that apartment which could cause a complaint. Until regulations are enacted we are conservatively recommending smoking on outdoor patios or balconies be prohibited simply to avoid the issue of complaints an apartment community operator may have to deal with from the Department of Health until we have more firm answers on regulations.

The apartment owner is also, along with all other businesses required to post a sign in a conspicuous place which states no smoking and contains the international no smoking symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it (sample signs are available on the Ohio Department of Heath website at www.odh.state.oh.us). This must be posted at a minimum at each entrance to a public place or place of employment. The signs must be sufficient in size and clearly legible to a person of normal vision throughout the areas that are to be intended to mark. All signs must contain the telephone number for reporting violations. That number is 1-866-559-6446. Thus, if a large area is covered by the no smoking ban, signs must be posted in enough places anyone entering the area or looking around the area would be able to see a no smoking sign. All ashtrays and receptacles used for the disposing of smoking materials must be removed from any area where the smoking would be prohibited by the statute. This includes the “smoke pots” outside the door of your offices or clubhouses. These must be moved to a place so that they are not “adjacent to” or allow smoke to enter any area covered by the smoking ban.

Fines have not yet been fully established however, the statute does provide maximum fines. After one warning letter the second violation shall be a fine of not less than $100.00 and not more than $2,500.00 for failing to prohibit smoking in a place of employment, public place or place immediately adjacent to ingress or egress and, the requirement the proprietor ensure smoke does not enter areas through entrances windows, ventilation systems, etc. The fine for a person refusing to discontinue smoking after being told to discontinue is $100.00 per day. However each violation constitutes a separate violation.

The Health Department, we are not sure whether it will be the state or local departments, has six months to promulgate rules to enforce this statute. Until said time as the rules are promulgated we obviously have many more questions than answers. But at this time, this is the best and most accurate information we have available and we will supplement this information when rules and regulations are promulgated.