Why are you facing an Administrative Review?
What exactly is an Administrative Review?
When will I know what the Board of Health decided?
How did the Health District hear about smoking occurring at your business?
What is an ashtray?
What is the required burden of proof under the law?
Why is my fine doubled?
Can I have an attorney at the Administrative Review?
What if I change my mind about going foward with the Administrative Review?
Why are you facing an Administrative Review?
You or your business has been cited for violating Ohio’s SmokeFree law. In general, this means that smoking, the use of ashtrays, or lack of no smoking signs has been observed taking place inside at your business operation. You have appealed the citation you received and the first step in the appeal process is an Administrative Review before the Board of Health.
What exactly is an Administrative Review?
The Administrative Review is a formal hearing before the Board of Health where you have a chance to tell your side of the story, under oath, in order that your fine might be rescinded. You may not like this law. You may think that the law, or parts of it, is unconstitutional. The Board of Health does not have the power to change state law so this will not be discussed at the Administrative Review. Save your thoughts and arguments for the Ohio Supreme Court. You may believe that you have a private club exemption. The courts have so far ruled that in all practicality there is no such thing so this also will not be discussed at the Administrative Review.
When will I know what the Board of Health decided?
You will not find out the Board’s decision concerning your appeal on the night of your appeal. The Board will deliberate concerning your case later in the meeting and you will receive a copy of their decision within a few weeks of your hearing. After your hearing is over you may stay for the remainder of the Board of Health meeting or you are free to leave.
How did the Health District hear about smoking occurring at your business?
The Health District receives complaints from your customers, employees and/or members through the toll-free SmokeFree number at the Ohio Department of Health. To date, all of these complaints have been anonymous. It is your membership, your customers or possibly your employees who want a SmokeFree environment. The law allows complaints to be anonymous to protect the complainant from retaliation. At your hearing you will not find out their identity. We do not know who they are nor does the Ohio Department of Health. That being said, fine notices are never issued solely on the basis of anonymous complaints. The complaint triggers an on-site investigation by a Health District employee. Many of the complaints investigated are found to be invalid or they cannot be substantiated and those complaints are dismissed. If the complaint is determined by the on-site investigation to be valid then you are cited. At this time, your accuser is the Clermont County General Health District and you will face the Sanitarian making the charge at your Administrative Review.
What is an ashtray?
An ashtray is anything that is used for disposing of smoking materials including but not limited to ashes and filters. It could be the glass or plastic receptacle that is typically pictured when someone refers to an ashtray. It also could be a beer can, a disposable cup, an Altoids tin or even a trash can.
What is the required burden of proof under the law?
The burden of proof is the “preponderance of evidence” standard, which means that based on the investigation the smoking violation is more likely to have occurred than not.
Why is my fine doubled?
The law permits the fine to be doubled if the violation is intentional. Your first violation was a warning that carried no fine. If you are allowing smoking at your business after you have been warned that you must stop allowing smoking, then the Health District will likely assume you knew exactly what you were doing and that the violation is intentional.
Can I have an attorney at the Administrative Review?
The proprietor or individual being cited has the opportunity to be represented by counsel at their own expense. If the proprietor is a corporation or a limited liability company it must be represented by an attorney licensed to practice law in Ohio.
What if I change my mind about going forward with the Administrative Review?
You may rescind your request for an Administrative Review at any time prior to the review but you must provide your request in writing to the Board of Health at least one day prior to the scheduled hearing.
Updated 02/25/2008