MOUNT VERNON — The Knox County Board of Health took action against AMVETS Post 95 when it met Wednesday evening, approving a motion recognizing that the organization had violated the statewide smoking ban for the fourth time. AMVETS now faces a $1,000 fine as a result of the board’s action.
Mike Deem, commander of AMVETS Post 95 in Mount Vernon, was on hand to represent the organization. Assistant prosecutor Jennifer Springer was in attendance as legal counsel for the health department, and referred to the hearing as an administrative review.
In response to Springer’s question whether AMVETS Post 95 was a limited liability corporation, Deem responded it was incorporated, but he had never seen documentation of this. Springer then advised Deem that he could potentially violate the law by representing a corporation without being a licensed attorney or having one present.
“I have to advise you, if you’re incorporated under the laws of Ohio, you cannot represent AMVETS ... you have to be represented by an attorney,” said Springer. Deem responded that his organization is unable to hire an attorney due to the cost.
“This is not a criminal proceeding. Under the Constitution of the United States and the state of Ohio, you’re not entitled to appointed representation,” said Springer. “If you do represent AMVETS here tonight ... you’d be engaging in the unauthorized practice of law.”
Deem said he did not know of AMVETS’ incorporation status. Because Deem did not know if AMVETS Post 95 is officially incorporated, Springer said that in order to move forward on the issue, the review could proceed.
Brian Benick, director of environmental health for the health department, presented a list of instances in which he had found AMVETS to be in violation of the smoking ban. Benick went over the history AMVETS’ reported smoking violations and the investigations he performed as a result of those reports.
He also spoke of the violation that led to Wednesday’s hearing. The violation was reported in December 2007; Benick investigated the incident in January 2008.
“I found four individuals smoking at the table near the door with ashtrays present. [I] questioned two bartenders who indicated that they had not been instructed to prevent smoking, and then they stated [that] no one was smoking.
one was smoking. [I] pointed out the individuals near the door,” said Benick.
The December incident constituted the fourth violation and a $1,000 fine.
“I’m getting kind of tired of being a babysitter for [these] smoking regulations,” said Benick, adding that he felt that AMVETS should be handling the smoking violations internally with their chain of command.
“I’d also like to think that the AMVET members ... should be disciplined enough to follow the rules,” Benick said. “The way I look at it is, if somebody is smoking in the club, they ought to be given a warning; if they smoke again they ought to be kicked out, but [Deem] said he doesn’t have the authority to remove anybody’s membership. It’s kind of a complex issue.”
Benick said he had seen a change in attitudes at AMVETS in regard to the smoking ban this year.
“I think there has been a shift with the club this year ... not as many complaints [have been] called in,” said Benick.
He also acknowledged that there have been “chronic complainers” against the AMVETS.
Deem said that although several of the complaints were justified, some of them were unfounded.
“I’m not going to deny all of it, but a lot of this is vindictive ... [Someone] called in a complaint that we were smoking one evening when we were closed,” said Deem. “We do the best we can do.”
Springer asked Deem if he was referring to AMVETS as a private club as defined under the Ohio Revised Code. Deem said the organization was a private club, but under questioning said AMVETS has employees. According to the definition of a private club under the ORC, a private club must not have employees. If a private club meets all the definitions under the ORC, it is exempted from the statewide smoking ban.
Debbie Deem, Mike’s wife, said she had worked as a bartender for AMVETS for 10 years, and that when the smoking ban went into effect, Mike instructed AMVETS employees to inform club members they could not smoke at the establishment.
Dr. L. Keith Plocki of the heath board said the reason for the law was to protect the health of people.
“I understand that it can be frustrating to make these rules and regulations enforced. However, they are designed to protect the health of your employees as well as your membership,” said Plocki.
“I get a sense that you’re trying [to enforce the rules,] but I’m also not getting a sense there’s a real, major, full-hearted commitment that ... your organization is taking it seriously,” said Plocki.
In his earlier testimony, Benick said that when he arrived at the AMVETS’ building, it took several minutes before he was allowed in. Plocki questioned Deem as to why there was a delay admitting Benick or other health department employees when they arrive. Deem said that according to AMVETS regulations, only an AMVETS officer may admit people into the building.
“I would expect ... that all of your officers are well informed of the regulations, and ... your officers then take the responsibility of making sure that these regulations are enforced,” said Plocki.
Deem agreed with Plocki, and said that his organization is doing its best at informing officers of the current smoking regulations.
“We have nothing to hide,” said Deem.
Deem said AMVETS paid the first two fines for violating the smoking ban because the organization was guilty. However, he said that because of the recent efforts by the organization to inform officers and members of the smoking ban, and because they were trying to enforce the ban, AMVETS should not have to pay the $1,000 fine.
“I’m willing to make a motion that we ... suspend the fine of $1,000,” said Plocki. The condition, he said, would be that Deem institute a policy to inform the members of AMVETS that if they smoke in the building, they would be asked to go outside or extinguish the cigarette.
However, Springer advised the board that passing a motion of this nature would be ambiguous, as it would not cite AMVETS for a fourth violation of the smoking ban.
“Would it be better to say that we upheld that there was a fourth violation and suspend the $1,000 fine?” asked board member Scott Harmon.
Springer said that this was not possible.
“Either you’re ... finding that AMVETS violated the ... Ohio laws, or you’re saying, ‘no, you didn’t’ and dismissing the fourth violation,” Springer said.
Board member Gary Mizer said the board could not simply dismiss Benick’s testimony about the incident. However, Benick said the details of his latest investigation into the AMVETS’ fourth smoking violation could be interpreted that no employees of the organization knew that smoking was occurring on the premises.
“Nobody was smoking around the bar, there were four people smoking around the table by the door, and the bartender said they didn’t see them,” said Benick. “The details of the incident can support Dr. Plocki’s motion.”
However, Mizer said Benick was investigating for the health department and saw people smoking at a facility in violation of the state smoking ban. Health Commissioner Dennis Murray agreed, and said that because Benick saw people smoking, the organization was in violation of the smoking ban.
Benick said that this was so, but furthermore stated that if an establishment was crowded and there was one person smoking, “it is ridiculous to hold that place accountable if they didn’t see that guy,” Benick said.
Harmon asked if he could make a motion finding a violation, but then make another motion rescinding the $1,000 fine. Springer replied that in her understanding of the law, a finding of a violation was accompanied by the appropriate fine.
Board member Shirley Timpe then made a motion to find AMVETS in violation of the smoking ban for the fourth time; the motion passed unanimously.
