Arrests and attempted arrests by law enforcement officials on criminal complaints filed by the Mid-Ohio Valley Health Department has raised more questions than answers. Late Monday Wood County Prosecutor Jason Wharton responded to a request from The News and Sentinel for a list of the nine people against whom the MOVHD had sworn out criminal complaints on charges of violation of the Clean Indoor Air regulations.
The health department provided Wharton with a list of people, all women, charged in 2011, in Wood County. Eight of the individuals had arrest warrants filed. A ninth had a charges pending.
Of the complaints filed in Wood County none were against the actual Chesterfield smokers or the establishments’ owners. Instead, officials targeted business employees, such as Lisa Bradley, Sandy Rhine and Cookie Kaptis.
In the case of Kaptis, officials filed criminal complaints after witnessing students at the Valley Beauty School smoking outside the building, allegedly inside the 15-foot limit. Kaptis, who is a manager at the school, said it is impossible to keep track of 70-80 students to keep them 15 feet away from the building to smoke.
“I was the manager on duty. It was my students outside smoking.”
The complaints are also similar, with sanitarians alleging cigarettes and ashtrays were found in many of the establishments.
There were two warrants sworn out against employees of the Beachcomber (the Improved Order of Redman No. 95) for smoking violations. The business owner Jim Murphy, who is represented by attorney Bill Merriman, claims the private room where the smoking occurred is legal.
Health department officials claim the Beachcomber and other businesses targeted have been the source of numerous complaints.
On Monday, The News and Sentinel filed a Freedom of Information Act request with the MOVHD seeking copies of “any and all documents or complaints related to businesses and employees against whom the MOVHD swore out arrest warrants for violations of the Clean Indoor Air regulations.”
Wood County Commissioner Blair Couch, who serves as chairman of the MOVHD’s Board of Health, was asked why warrants were issued against business employees and not owners. Couch said he’s talked to two business owners who both indicated the matter was an employee issue.
“The business owners don’t want smoking in there,” he said. “They would rather see it on their employees.”
According to the Clean Indoor Air regulations, violators include any person who owns, manages, operates or otherwise controls the use of a premise. In the regulation, under penalties, it states the board of health may seek civil relief and/or file a misdemeanor complaint against any person who willfully violates the clean indoor air regulation.
MOVHD Executive Director Dick Wittberg said it is hard prove a willful violation against business owner. And Couch noted health department sanitarians don’t have the ability to write citations and are not accompanied by a law enforcement official on inspections.
Wittberg said complaints are the only way to enforce the regulations. According to Wittberg, the MOVHD lacks the power to shut down a business for violating the regulations. In fact, Wittberg said the department is limited in what it can do to force compliance.
“We can’t fine them. We can’t take their food permits away,” he said. “The only recourse we have is to fill out the criminal complaint.”
Wittberg said health department officials could work with the state’s Alcohol Beverage Control (ABC) Administration.
ABC ” has shown a high willingness to pull their license to sell alcohol if they flaunt these regulations. It is a much more severe economic impact than what we are doing,” he said.
However, Wittberg said health department officials do not anticipate taking that course of action. They would rather work within regulations for compliance.
“That doesn’t mean we won’t go there,” he said.
Kaptis, Bradley and Rhine all claimed the MOVHD sanitarian told them the violations would be treated as a citation and they could expect to receive something in the mail.
“She told me it would be like a traffic ticket,” Kaptis said. “She told me I would have to go down and pay it.”
Kaptis said she was “taking a hit for the team.”
Bradley and Rhine said they had no idea there were warrants out for their arrest. The same was true for Kaptis, who was approached by off-duty state police troopers serving the warrant.
I thought it was joke,” she said. “I thought they were kidding.”
Rather than take her away, officers contacted officials and arranged for Kaptis to turn herself in the following morning at Wood County Magistrate Court. Rhine was also allowed to surrender.
Following Rhine’s arrest, health department officials were advised to issue summonses instead of warrants for future violations. That failed to stop a Wood County sheriff’s deputy from arresting Bradley shortly after news of Rhine’s attempted arrest became public. Bradley was arrested at her home. On her way downtown, law enforcement officials and the prosecutor’s office agreed to return Bradley and dismiss the charges. Wharton then asked for a list of all complaints related to the smoking violations from the health department so they could be dismissed, pending an Aug. 3 hearing in Wood County Circuit Court regarding the clean air regulations.
Wittberg said prior to health department officials swearing out the warrants in Wood County, officials had previously sworn out two criminal warrants against an offender in Ritchie County.
Kathy Dowler, owner of the Hughes River Tavern, has been charged three times by health department officials for violating the clean air regulations, according to records in Ritchie County Magistrate Court. Twice in 2009 warrants were sworn out against Dowler, by health department officials and again in July 2010.
Unlike Wood County, law enforcement officials in Ritchie opted not to arrest Dowler.
“We have shootings, drug dealers, meth labs and better things to do than haul in smokers,” Ritchie County Prosecuting Attorney Judi McCullough said.
McCullough said summonses were mailed for Dowler to appear. Dowler is the only person in Ritchie County to be charged, according to McCullough.
McCullough thinks the MOVHD’s regulations are ridiculous and unequally applied. She noted Ritchie residents can drive to neighboring Doddridge County and smoke in a bar.
“Free enterprise in the United States should be just that,” she said. “I have a choice as a patron to go into that establishment.