“Cough, cough, cough,” Jack says while visiting the new Portsmouth Rowing Club boathouse. “Somebody’s smoking! And indoors, too! I’m going to call the law!” Jane, once an elite rower-turned-chain smoker and club employee snaps back, “This is a private club. Therefore we’re exempt from the 2006 Issue 5 smoking ban!” As Ohio law sits right now, Jane’s argument, although appearing correct to Jane when she read the summary to the November 2006 Issue 5 ballot, is wrong. In that election, Ohio voters passed Issue 5 with 2.2 million voters supporting a smoking ban in all Ohio workplaces, including places like Jane’s private rowing club.

Controversy arose after the 2006 election when voters like Jane began to discover that although the summary provided with the Issue 5 ballot by the Ohio Secretary of State’s Office specifically lists “private clubs” as exempt from the proposed smoking ban, the full truth was that these clubs were only exempt if they had no employees. This detail was not included in the ballot summary, but was available for view online or anywhere the full text of the bill was displayed. Sen. William Seitz (R- Cincinnati) voiced his dissatisfaction with this ballot language exclusion when he called it “misleading” in a July 2008 letter to SmokeFree Ohio, an American Cancer Society-spearheaded campaign in opposition to all things smoke. At that time, Senator Seitz was a cosponsor of a bill that allowed exemptions to clubs such as the fictitious Portsmouth Rowing Club, used in our example. The 2008 bill, however, didn’t have enough momentum to move out of the Health, Human Services, and Aging committee’s legislative dungeon.

In April 2009, the main sponsor of the failed 2008 smoking ban exemption legislation, Senator Bob Schuler (R- Cincinnati), brought to life a similar bill with his introduction of Senate Bill 120. Senate Bill 120 contains beefed-up smoking ban exemptions for outdoor patios, cigar bars, retail tobacco stores, family-owned businesses and not-for-profit private clubs. Although Senator Schuler gave the bill life, any hope of its passage may have ended with his untimely June 2009 death. Currently, the bill has less than half of Senator Schuler’s 2008 cosponsors, all Republicans, and is in a different committee with no signs of a pulse and apparently no House bill to compliment it.

Senate Bill 120 won’t pass because of the different tunes sung by bar owners. Ohio legislators realize that it would be next to impossible to get these business men and women to come close to singing the same song. For example, the owner of the Marietta Brewing Company, Kevin Laughery, was originally opposed to the 2006 smoking ban. Now, however, he believes the ban is actually helping his business. Conversely, Will Mault who is associated with the local Portsmouth Brewing Company says, “I believe that the smoking ban has infringed upon our rights to allow people to choose to make their own decisions.” Mault further believes that the specific provisions of Senate Bill 120 are unfair to private for-profit establishments because he fears many people will only go to drink where they can smoke indoors.

Maverick bar owners are still holding firm and fighting for their rights and against the smoking ban in court and in the media. Champions of the ban and sworn enemies of second-hand smoke will continue to claim success and a healthier America. Unless Ohio courts overturn the ban, which is not likely, but not impossible on some constitutional ground, or smoking ever becomes “cool” again, the smoking ban is here to stay. As the rate of smokers decline in America, the amount of smoke sensitivity to folks like Jack will increase and Ohio’s smoking ban may only get more restrictive. Smokers like Jane will be forced outside into the cold, which the American Cancer Society and SmokeFree Ohio hopes will encourage Jane to quit and take up rowing again.

Jeremy Burnside is a practicing Portsmouth attorney who formerly served as a legislative analyst for the West Virginia Senate Committee on the Judiciary. He can be reached at 622 Sixth St. Portsmouth, OH 45662 or by e-mail at jeremy@

kimbleclarkburnside.com.