Ohio Legal Rights Service
50 West Broad Street, Suite 1400, Columbus, Ohio 43215-5923 www.olrs.ohio.gov Telephone 614-466-7264 TOLL FREE 1-800-282-9181 TTY TOLL FREE 1-800-858-3542 FAX 614-644-1888
August 17, 2007 Terrence M. Ryan, Ph.D Superintendent Cuyahoga County Board of MR/DD Michael A. Donzella Administration Building 1275 Lakeside Avenue East Cleveland, OH, 44114
RE: Response of Cuyahoga County Board of MR/DD to Smoke Free Workplace Act Dear Dr. Ryan: We are writing to you regarding the Cuyahoga County Board of MR/DD’s response to last year’s enactment of the Smoke-Free Workplace Act, specifically the County Board’s prohibition on individuals smoking in all residential environments when staff are present and on duty. According to documents we have been provided, the Cuyahoga County Board has provided all agency providers in the county with a memorandum by the Board’s in-house attorney Chuck Corea which is considered the Board’s official legal opinion. The memorandum opines that the Act bans smoking in private family homes, supported living homes, and licensed group homes while staff are present or on duty. The only exception may be licensed facilities with designated smoking areas meeting certain stated requirements. Because of the effect upon the rights of individuals served by the Cuyahoga County Board, Ohio Legal Rights Service (OLRS) wishes to notify you of our concerns and questions regarding aspects of the ban and its enforcement. The analysis essentially concludes that the right to smoke of an individual receiving services and supports in his or her own home will be limited or eliminated, as will the right to smoke of an individual who resides in a supported living facility. In the definitional section, R.C. § 3794.01 of the Revised Code specifies that: (B) “Public place” means an enclosed area to which the public is invited or in which the public is permitted and that is not a private residence. § 3794.03, headed “Areas where Smoking is not Regulated by this Chapter”, provides a number of exemptions to the Smokefree Workplace Act, including:
Ryan letter August 17, 2007 Page 2
(A) Private residences, except during the hours of operation as a child care or adult care facility for compensation, during the hours of operation as a business by a person other than a person residing in the private residence, or during the hours of operation as a business, when employees of the business, who are not residents of the private residence or are not related to the owner, are present. These provisions are interpreted by the Cuyahoga County Board in the May 18, 2007 memo to mean that an individual receiving supports or services in his/her own home cannot be permitted to smoke in his own home during those times a provider is present providing services, as “the provider would be conducting their (sic) business.” The only way the above language could prohibit smoking in a private residence would be during the hours of operation as a child care or adult care facility for compensation, during the hours of operation as a business by a person other than someone residing in the private residence, or during the hours of operation as a business when employees who are not residents or are not related to the owner are present. The sole businesses referred to in § 3794.03 are the business(es) of operating a child care or adult care facility for compensation, and even those are limited to the hours of operation as a business. It is also unlikely individuals on HCBS waivers or receiving supported living are operating these business(es). The exceptions to the exemption for a private residence are those stated above. One of the reasons for this is found in an Ohio Administrative Code provision, 3701-52-01, which provides: O) "Private residence" means, except as otherwise provided by division (A) of section 3794.03 of the Revised Code, a dwelling or area of a dwelling where there is a reasonable expectation of privacy and used as an individual's residence, including employer-provided housing. This language regarding a privacy interest is also protected by the MR/DD Bill of Rights (see R.C. § 5123.62(B),(D)), and is recognized by many county boards throughout Ohio.
In addition to the effect upon an individual’s rights, an equally problematic area is how the Cuyahoga County Board proposes to enforce its ban, especially for an individual residing in his own home.
Ryan letter August 17, 2007 Page 3
Finally, we are available should you or your staff wish to meet on these issues.
Yours truly,
Harry B. Keith Attorney at Law