BOARD OF HEALTH MINUTES
OCTOBER 9, 2008

President Doyle Webster called the Board of Health to order on October 9, 2008 at 7:00 p.m.

Attendees:    Rita Hart, Lynn Jones, George Kellner, Dr. Kevin Ketring, Pam Willis, Jean Hicks, Cammie Mitrione, and Mayor Doyle Webster

The minutes of September 11, 2008 were approved.

SMOKING VIOLATION HEARING
An administrative hearing was held concerning smoking violations at The Boulevard, 328 Northland Boulevard. Ella Jergens, sanitarian and Dan Comer, owner were sworn in by Cindy Miller, notary.

Mayor Webster stated someone smoking has been observed at the place of business and the proposed fine is $1,000.

Jeff Forbes, City Attorney, said letter of proposed civil fine, #18662, indicates that there have been three violations in the past two years and the civil fine is $1,000.

Scott Nazzarine, attorney for Mr. Comer, stated that violation #18673 has been dismissed.

Jeff Forbes said before we get to any testimony from Ella Jergens we would both like to make a statement. Mr. Forbes said I am here on behalf of the Springdale Health Department. We are here for an administrative review hearing for a proposed civil fine #18662. I think the evidence you will hear tonight is rather simple. The Springdale Health Department received a report about a possible violation at The Boulevard. The department investigated the complaint and based on those personal observations, they did, in fact, discover a violation. I know that legal counsel for the proprietor tonight, has made some written arguments prior to this. I’d be happy to address those but probably at the conclusion of all the testimony by way of a brief closing statement. At the close of evidence I think it will be clear that a violation did occur and we will be requesting that the Board sustain the report and proposed fine.

Mayor Webster said just for the record the date of violation was June 11, 2008 at approximately 2:00 p.m.

Scott Nazzarine said initially this was based on an anonymous complaint and we believe that is going to violate the confrontation clause of the constitution. Mr. Comer, owner of the bar, had no chance to confront the person who accused them of violating this in the first place. The Health Department has not brought that person forward, we don’t believe; therefore, that violates the confrontation clause. Additionally, we believe that this finding of violation violates due process because the Health Department did not cite the individual who was smoking. The evidence will show that the person who they witness violating the law they don’t cite as a matter of practice, yet they are going to hold my client and his establishment vicariously libel for the actions of another person. The investigator actually witnessed a person violating the law and didn’t cite them. We believe that violates due process. As Mr. Forbes indicated we raised other issues in a letter written to this body. We believe that this law on its face violates substantive due process and it violates my client’s rights to privacy and property rights, and he has a right to control what happens on his property. I believe the evidence will not show that The Boulevard, Mr. Comer, its proprietor, the employees or agents permitted smoking on the date in question. The notice of violation says “for smoking in a prohibited area.” If you read the law, there is no violation for smoking in a prohibited area. There is a violation for permitting smoking in a prohibited area. We don’t believe that there is any evidence that The Boulevard or Mr. Comer or any of his employees permitted smoking on the date in question. We believe that once you hear the evidence, the charges should be dismissed.

Jeff Forbes called on Ella Jergens, Public Health Sanitarian, Public Health Inspector. Mr. Forbes asked, in that capacity are you responsible for dealing with complaints or reports related to the Smoke-Free Workplace Act? Mrs. Jergens answered yes.

Mr. Forbes asked are you familiar with an establishment known as The Boulevard? Mrs. Jergens answered yes.

Mr. Forbes asked in the capacity of your employment did you ultimately receive a report or complaint about a possible violation of the Smoke-Free Workplace Act at The Boulevard. Mrs. Jergens replied yes.

Mr. Forbes asked what was your next step after you received that? Mrs. Jergens said upon receiving a report, I print a copy of the report and a letter stating that we have received the report and mail it certified to the operator so that they know there is a report at the facility.

Mr. Forbes asked did you do that in this case and do you know if it was received? Mrs. Jergens replied yes I did and I have a signed receipt.

Mr. Forbes said it is my understanding that the Board received a packet of information. I think it may be easiest to look at that at the end and stipulate documents. After you send notice of the report what do you do? Mrs. Jergens responded I would inspect the premises and investigate the report at the site.

Mr. Forbes asked did you do that in this case? Mrs. Jergens replied yes, I did.

Mr. Forbes asked do you remember when you did that? Mrs. Jergens replied on June 30.

Mr. Forbes asked what did you personally observe during that investigation? Mrs. Jergens replied I observed a patron smoking at the south end of the bar inside the establishment. He had a lighted cigarette.

Mr. Forbes asked did you observe the proprietor or any of the employees or agents of the proprietor making any effort to stop that smoking? Mrs. Jergens replied, no. Vicki, the bartender, was on duty and this gentleman was sitting at the end of the bar and she was across the bar where she could physically see him smoking. She made no effort to ask him to extinguish his cigarette or to go outside.

Mr. Forbes asked based on those personal observations were you able to reach any conclusion of whether there was a violation. Mrs. Jergens replied yes, they were indeed smoking inside the establishment and they were not being asked to stop smoking. They were permitting smoking.

Mr. Forbes asked what is the next step after you finish that investigation? Mrs. Jergens stated we would print and mail a proposed civil fine letter. In this case it would be civil fine 3. We would send it certified and I have proof that it was received and signed notifying them that they have been found in violation and there is a proposed civil fine of $1000.

Mr. Forbes asked are you aware of any prior smoking violations of the Smoke-Free Workplace Act by this proprietor within the last 24 month period. Mrs. Jergens replied yes.

Mr. Forbes said then based on that history that you are aware of, what was the amount of the proposed civil fine? Mrs. Jergens replied $1000.

Mr. Nazzarine said I want to object to the fact that there were previous violations and that’s the reason they are at this level of the fine. I don’t think we should be going into the facts of previous acts.

Mr. Forbes responded the only reason I raise it is because that’s why we’re here. The prior acts only have to do with why we are at this level of fine.

Mr. Nazzarine asked when did you received this notice of report? Mrs. Jergens replied it was created 6/11/2008 at 3:55 p.m. The violation date was 6/11/2008 at 2 p.m.

Mr. Nazzarine asked do you have any knowledge of what actually occurred June 11 at 2:00 p.m. other than what you’ve seen in this report? Mrs. Jergens responded the report lists they were smoking in prohibited areas and ashtrays present. I don’t know about that particular day.

Mr. Nazzarine asked does it say who created the report? Mrs. Jergens stated it says it was anonymous.

Mr. Nazzarine said with it being anonymous you have no way of confirming who made the report. Mrs. Jergens said no, I do not.

Mr. Nazzarine said so it’s fair to say that you don’t know if there was an actual violation on the date that that report came alleging there was a violation.? Mrs. Jergens replied no.

Mr. Nazzarine asked do you only go in when you receive a report? Mrs. Jergens replied we only do investigations when we receive a report.

Mr. Nazzarine asked if there is any allegations you do an investigation? Mrs. Jergens responded there was a notice of report through the State of Ohio. I received that report. I investigated that report. That is my duty.

Mr. Nazzarine asked what were the alleged violations in the report? Mrs. Jergens said under violation types it had smoking in prohibited areas, ashtrays present. There is a line item that says additional violation information. Customers and owner are using little clear plastic cups as ashtrays. Caller unsure if ODH signs were posted. That’s under additional violation information.

Mr. Nazzarine asked when you went in on the 30th to do your investigation did you see that there were signs posted? Mrs. Jergens replied there were signs posted.

Mr. Nazzarine asked have you done an investigation of this establishment before. Have you been in there previously? Mrs. Jergens replied I’ve been in there for food service inspections and for smoking report investigations.

Mr. Nazzarine asked have you ever noticed that the signs were up on a previous time you have been in there? Mrs. Jergens replied yes.

Mr. Nazzarine said you saw the signs so it can only be assumed that the person who made this report was lying, didn’t see them. Do you have any explanation why they said they were not sure about the signs? Mrs. Jergens replied I don’t know. I’m not sure why I would know.

Mr. Nazzarine said you wouldn’t know. That’s exactly my point. Did you see any ashtrays when you went in to do your investigation? Mrs. Jergens said it was slightly dark in there and I saw a man with a cigarette which is a violation of the Smoke-Free Workplace Act. I don’t remember if he was using an ashtray, beer can, altoids tin. I have no idea.

Mr. Nazzarine asked how long were you there for your investigation? Mrs. Jergens replied ten or fifteen minutes.

Mr. Nazzarine asked did you only notice the one person at the bar? Mrs. Jergens replied I noticed the one person at the bar.

Mr. Nazzarine asked how long was that person smoking while you were there? Mrs. Jergens responded the whole time. Mr. Nazzarine asked the whole ten to fifteen minutes? He was smoking while I was there. Mr. Nazzarine asked did you see him light up a cigarette? Mrs. Jergens said I saw him hold the cigarette to his mouth, take a puff, hold it out, take another puff. I didn’t see him extinguish it.

Mr. Nazzarine asked did you see him light the cigarette? Mrs. Jergens replied I don’t remember.

Mr. Nazzarine asked do you know how long it takes to smoke an average cigarette? Mrs. Jergens responded it has been about ten years since I had a cigarette. Mr. Nazzarine said if I told you it took five to seven minutes would that surprise you? Mrs. Jergens replied I have no idea anymore.

Mr. Nazzarine said this person was sitting at the bar. Mrs. Jergens stated yes he was. Mr. Nazzarine asked did you see any interaction between the bartender and this person? Mrs. Jergens replied she was telling him to be quiet. She was hushing him because he became argumentative. He said I don’t know why you are out here anyway. I said I’m just out here doing my job, sir. She kept going shh, shh to him.

Did you see her serving him any drinks, anything other than the shushing? Mrs. Jergens replied I don’t remember if he had a drink or anything. Mr. Nazzarine said paying or anything like that? Mrs. Jergens replied I know he was sitting at the bar and there were glasses on the bar or cans.

Mr. Nazzarine asked did you talk to the person at the bar? Mrs. Jergens replied as I previously indicated I told him I was doing my job. Mr. Nazzarine asked did you interview him, ask him how long he had been in there? Mrs. Jergens responded no, I did not.

Mr. Nazzarine said you didn’t ask him if the bartender had asked him to extinguish the cigarette. Mrs. Jergens answered I was right in front of the bartender looking at her. She was looking at him and I did not see her ask him.

Mr. Nazzarine said so you don’t know if the minute before you walked in if he was already smoking that she asked him not to. Mrs. Jergens replied no and I assumed that if he was asked and he didn’t, that she would have called the police.

Mr. Nazzarine said if she asked him to extinguish the cigarette and he didn’t do so, what steps is she supposed to take at that point? Mrs. Jergens replied she is supposed to ask him. She hadn’t to my knowledge asked him?

Mr. Nazzarine said but you don’t know if she had asked him. Mrs. Jergens replied she didn’t ask him in my presence which might be prudent.

Mr. Nazzarine asked did you start talking to her when you came in? Mrs. Jergens said I introduced myself as I am required to do.

Mr. Nazzarine asked were you discussing it with her the whole ten minutes while you were in there? Mrs. Jergens responded I was discussing it with her. I was filling out my worksheet. I was scanning the room.

Mr. Nazzarine asked were you interacting with the bartender the whole time you were in there? Mrs. Jergens replied partially, and partially keeping my eye on the situation.

Mr. Nazzarine said so if she had asked him right before you walked in to extinguish his cigarette and he had not done so, what steps was she supposed to take at that point? Mrs. Jergens replied I’m having trouble answering theoretical questions, i.e., what if, if she would have, if I would have.

Mr. Nazzarine said you don’t know if she asked him to put out the cigarette before you walked in? Mrs. Jergens replied no. Mr. Nazzarine asked if she had done that and he said, what steps was she supposed to take? Mrs. Jergens replied I would assume call the police because he would obviously say no, I will not and he is breaking the law much like people who continue to drink when they’ve been told they cannot drink. In an establishment it is their duty to notify the police that they are disturbing the police and creating a nuisance, and possibly risk doing something like driving intoxicated.

Mr. Nazzarine said okay, we are not talking about driving intoxicated. Mrs. Jergens said we are talking about disturbing the peace. If someone says no, I will not stop smoking, you cannot make me, I think that’s a police issue. That would be for me.

Mr. Nazzarine said the alleged violation of this Smoke-Free Act is not a criminal matter, is it? Mrs. Jergens responded it is a civil fine but disturbing the peace and this is an establishment that has a liquor permit.

Mr. Nazzarine said so you are saying if a person doesn’t put out the cigarette the reasonable step to take is to call the police. Mrs. Jergens replied no, it’s to ask him not to smoke but she at no time indicated to me that she asked the gentleman to quit smoking.

Mr. Nazzarine asked did you ask her? Mrs. Jergens replied she never volunteered. Mr. Nazzarine asked did you ask her if she had asked him to quit smoking? Mrs. Jergens said I don’t recall. It would seem prudent that if someone would go shh, shh, shh, they might also ask them to extinguish their cigarette.

Mr. Nazzarine said maybe she was just trying not to escalate the situation between him and you. Mrs. Jergens said so she wouldn’t have to call the police.

Mr. Nazzarine said short of calling the police, are there any other steps the bartender is supposed to take if a person does not put it out. Mrs. Jergens responded they can exclude that person from being in the facility.

Mr. Nazzarine asked are they supposed to take the cigarette from them? Mrs. Jergens replied no. Actually she could fill out an affidavit identifying that person which she has not volunteered to do. Mr. Nazzarine asked did you ask her to? Mrs. Jergens replied no, because to my knowledge she had not asked him to quit smoking.

Mr. Nazzarine said you witnessed him smoking. Is that a violation of the law for a person to be smoking in an establishment? Mrs. Jergens replied it is a violation for the management to not ask them to not smoke.

Mr. Nazzarine said I asked that but is it a violation for the person to be smoking in the establishment? Mrs. Jergens replied yes. Mr. Nazzarine asked did you cite the person who was smoking? Mrs. Jergens replied no, it is the duty of that owner or person in charge to ask that person. It is not my duty to ask someone to quit smoking.

Mr. Nazzarine said I didn’t say ask them to put it out. Did you cite them? Mrs. Jergens said at this time we don’t really have a mechanism to cite people to court of to fine them. You could probably consult ODH about that.

Mr. Nazzarine said the Ohio Administrative Code, Section 3701-52-08 Section F2 states “if a department determines that a proprietor or individual violated a provision of Chapter 3794 the proprietor or individual will be notified via certified mail and afforded an opportunity to request an administrative review just like we’re having it here. That’s the way you would go about citing an individual for smoking, the same way you did for the establishment. You said you weren’t sure how you would go about doing that.

Mrs. Jergens stated it’s the manager’s responsibility to notify people and inform them to cease smoking upon entering the establishment.

Mr. Nazzarine replied I understand that but isn’t it the Health Department’s duty to fine somebody in violation if they witness it?

Mayor Webster said Mr. Nazzarine, by your own admission there it says OR so in our policy of administering this smoke-free environment, we have elected to cite the proprietor and not have her act as a policeman to try to demand to see somebody’s ID and to cite them. That’s not within her realm of responsibility to do that.

Mr. Nazzarine said that’s what I’m getting at. You are trying to hold the establishment liable for somebody else violating the law when you yourself are witnessing somebody violating the law, that same person and you are not citing that person. As we have established, if she asked them to extinguish their cigarette they’ve done their job.

Mrs. Jergens said If, If, If. The previous times I’ve been in there she has never asked anyone to extinguish anything.

Mr. Nazzarine said we are not talking about the previous times. I move to strike that. Mrs. Jergens said that needs to be stricken from the record. If.

Mr. Nazzarine said so you didn’t interview this person and ask them if they had been asked to extinguish their cigarette. Mrs. Jergens replied no, I did not.

Mr. Nazzarine said I’d like to submit a couple of cases to this body. One is Traditions Tavern vs. the City of Columbus. It’s 171 Ohio App Third 383.

Mayor Webster asked is that pertinent to this case. Mr. Nazzarine replied yes, I will tell you how. It’s a definition from the Court of Appeals of Ohio and Franklin County which is where these appeals will go to eventually if there is a finding of violation. I’ll read it to you and then submit it. It says “the word permit is defined as to suffer, allow, consent, let, to give leave or license, to acquiesce by failure to prevent or expressly assent or agree to the doing of an act. Thus, the band prohibits a proprietor to allow, consent, or expressly consent to smoking within his/her establishment such as forbidden to acquiesce in smoking by failing to take the appropriate measures to prevent people from using tobacco on the premises such as posting “no smoking” signs or removing ashtrays. I’d like to submit this for your consideration. It’s just a definition of the word permit as used in these types of cases. I have no more questions at this time.

Mayor Webster asked Mr. Forbes, do we have anything else we need to do, any other evidence to present? Mr. Forbes replied I don’t have anything.

Mayor Webster asked Mr. Nazzarine, do you have any witness you want to call or anything you want to say?

Mr. Nazzarine asked if I light up a cigarette right now would the City of Springdale be in violation? Mrs. Jergens said if they did not ask you to quit smoking and I’m sure about everyone in this room would.

Mr. Nazzarine asked if they asked me to quit smoking would they no longer be in violation? If they asked it with the intent and knowledge that, you can’t say something like, okay guys, everybody quit smoking and then everyone goes ha, ha and no one quits smoking. The intent must be something that is meant to be said, not a joke or a sign – let’s just say I put up a sign that says no smoking but everyone has this knowledge that I can go in and smoke and nobody will say anything to me but I have the sign in case the inspector drives by. We have a sign.

Mr. Nazzarine said but that’s not my question. Would the City be in violation? Mrs. Jergens replied only if they did not ask you to quit smoking and only if they did not make a reasonable effort. Reasonable can be construed in a number of fashions. That’s almost a case by case thing.

Mr. Nazzarine said so if I lit up a cigarette and they said I had to put it out and I just kept smoking? Mrs. Jergens responded at that point we’d probably call the police.

Mr. Nazzarine asked would they be in violation then? Mrs. Jergens replied not that I know because they made an effort to cease that. We’ve had a couple of instances where people smoked where they weren’t suppose to and it came down to that indicated it is a violation of your lease and you are violating your lease by doing this. They sort of put it to people in that fashion. They did everything in their power to make that person quit smoking, everything in the bartender’s power to make them quit smoking. Everything in their power, not a half-hearted attempt or half-heartedly comply with the law to give it lip service.

Mr. Nazzarine said so you are saying the only reasonable steps if a person does not extinguish their cigarette is to call the police. Mrs. Jergens replied no, that’s not what I’m saying. You are misconstruing what I am saying and you’re trying to twist it.

Mr. Nazzarine said no, I’m asking you a question. Mrs. Jergens said you’re asking me a hypothetical question and I’ve answered it. You said what if I were in here and I were smoking.

Mr. Nazzarine said I know what I said. I’m not trying to be argumentative. It’s my job to ask you question.

Mrs. Jergens said we’d like him to get his money’s worth. What else?

Mr. Nazzarine said again, if they had asked someone to extinguish their cigarette.

Mayor Webster said Mr. Nazzarine, you are drawing on my patience here. You’re badgering the witness here. You’ve asked the question and she’s answered it. Do you want me to answer the question for you as the Chief Executive Officer of this City?

Mr. Nazzarine said no, okay, no more questions.

Mayor Webster said at this time we will open discussion for the board for any questions.

Mr. Forbes said if the board would like to ask questions they can. I think we both would like to make a summation closing statement.

Dr. Ketring said the only question that I have and maybe in your closing statement if you could give us the intent of the ordinance that is prohibiting smoking. My understanding is that the establishment is supposed to prohibit this from happening and it’s clear that if you want to prohibit it from happening that you would have ways of doing that. You call 911 and smoking is going to stop. Is that how the law reads, that they are to prohibit smoking in their establishments?

Mr. Forbes said I am going to make a closing argument and I can address that. All I can tell you and Mr. Nazzarine would agree, is what the statute says. It says they shall not permit it. I’ll argue what that means and he’ll argue what that means.

Dr. Ketring said just hearing that gives me the ability to determine what the meaning is there.

Mayor Webster asked Mrs. Willis, Mr. Kellner, Mrs. Jones and Mrs. Hart if they had any question. All responded no. Mrs. Mitrione had nothing to add.

Mr. Forbes said on behalf of the Springdale Health Department I would like to address a few of the points raised by Counsel for the proprietor. They have raised the issue that this was based on an anonymous complaint and that that’s not sufficient for finding a violation. I would agree if that’s all it was, that would not be sufficient for finding of violation, but all the statue really says and means is if there is an anonymous complaint then the Department of Health does exactly what they did in this case. They go investigate it. Then based on the personal observations of the investigator they make a finding. They got a complaint that said somebody was smoking. She went and investigated it and on the day that she was there, she made a determination, she made an opinion that there is a violation. To the extent that their argument that this is based on an anonymous complaint and that’s all, that’s not all. There’s much more to it than that. This is sufficient for a finding. Then there’s the big question. I think we all agree that the statute says what the statute says. The proprietor shall not permit it. The question then is what does that mean. The testimony and in fact, the uncontroverted testimony, uncontested testimony is that the representative from the Health Department saw someone smoking, saw the bartender there, and at no point did the bartender ever make any effort to tell the person to stop. This is the first I’ve seen this but the case that was submitted (it can be made part of the record. I don’t have any objection to it.) It defines what permit means. It’s a whole bunch of things but one of them says to acquiesce by failure to prevent. So permit means if you just sit back and let it happen and you don’t actively try to do something, that’s permitting. And that’s what the testimony shows in this case. The bartender who is the immediate representative there of the proprietor at least in front of the representative from the Department never took action to tell him to stop. By the very case they have submitted that meets the definition of permit. If you sit back and let it happen, you permitted it. And that’s what happened, that’s what the evidence shows in this case. Very briefly I’ll address the issue that it’s unconstitutional. It’s not unconstitutional so it is constitutional. That’s been decided. Hamilton County Court of Common Pleas Case Number A0610614 Judge Fred Nelson has already decided it’s constitutional. Mr. Nazzarine is probably aware of that. I think he was involved in that case. It was appealed to the Court of Appeals and then it was voluntarily dismissed. So the state of the law right in Ohio, but at the very least, in Hamilton County is that this law is constitutional and that’s not up for debate tonight. That being said, all the arguments that they proposed tonight, I don’t think they have any merit. They did permit it. The evidence shows that. It’s a constitutional law. That much is a given. And it was not based solely on an anonymous complaint. It was based on the investigation and personal observations of Mrs. Jergens. Based on the uncontroverted evidence the Department would respectfully ask that the Board sustain the finding of a violation and sustain the proposed fine of $1,000.

Mr. Nazzarine said I just want to say that I was not trying to badger the witness. I’m just doing my job. I apologize if I asked the same question too many times. I’ll start with the constitutional issue. Mr. Forbes is absolutely right. It was held by Judge Nelson that this statute is constitutional. That was in Hamilton County only. We did appeal it but the clients voluntarily dismissed it. We won’t get into why. That ruling only said it was constitutional on its face. It was a facial challenge to the statute itself. We said the statute on its own was unconstitutional. What was left open in that case was whether it was constitutional as applied to a particular business. Essentially the judge pretty much said there are ways that this could be constitutional but that doesn’t mean that as applied in a particular circumstance it couldn’t be unconstitutional. He never said that. I think this is a good case which shows that. Once again, one of the issues we raised in that case was the due process issue of the fact that these are individuals violating the law and an establishment cannot be vicariously liable for what individuals are doing and the fact that these reasonable steps they are supposed to take to prevent this type of thing is vague. It doesn’t say what reasonable steps are. Are they supposed to make a citizen’s arrest? Are they supposed to call the police on their own customers? Are they supposed to take it out of their mouth? We don’t know what that is. It doesn’t say in the statute. I don’t believe Mrs. Jergens answered the question about exactly what reasonable steps they are supposed to take in any particular circumstance. So the fact that they are not citing the individual who the investigator saw smoking violating the law themselves was not cited, yet the establishment was cited for permitting them to smoke when the investigator didn’t call the police on that person. Once again the evidence doesn’t show that The Boulevard permitted smoking, that any of its agents permitted smoking. They had their signs up. They didn’t have ashtrays. She didn’t hear them say extinguish your cigarette but again, she was only in there for ten minutes. They could have said that two minutes before and the person hadn’t extinguished their cigarette. She was speaking to the bartender the entire time she was in there but that doesn’t really add anything to it. Based on those facts we would ask that the finding of violation be dismissed.

Mayor Webster said it is up to us to make a decision. Do we want to sustain the ruling, the finding and the fine or whether we want to not sustain that? Just bear in mind that the standard of proof will be a preponderance of evidence which means that there was a greater than fifty percent likelihood that a violation occurred. It’s not 100% but it should be more than fifty percent. With that I would entertain a motion to sustain – I’ll leave it up to you to make the motion however you want.

Lynn Jones made a motion that we vote to sustain the fine. Dr. Kevin Ketring seconded the motion.

Mr. Nazzarine asked may I ask a procedural question? Is the board going to do a written report on this or like findings of facts and conclusions or anything like that or is it just going to be a sustain or not sustain?

Mayor Webster replied sustain or not to sustain.

The motion passed with five affirmative votes.

Mayor Webster said the board has voted unanimously to sustain the report and the proposed penalty.

FOOD LICENSING FEES
Mrs. Mitrione read R1-2008 proposing the new fees for food service operations, retail food establishments, vending and mobile locations.


BUDGET REVIEW   
Mrs. Mitrione went over the Health Department budget for 2009. She said with GE leaving Springdale, the departments have been asked to reduce their budgets by 5%, i.e., $16,500 in the Health Department. Mrs. Mitrione stated the part-time sanitarian position has been reduced from 17 hours to 6 hours a pay period. The food sampling program has been pulled. Employees taking leave without pay is a possibility. The uniform, travel and lodging, seminars and conventions line items have been reduced. She continued that the donations to Springdale Offering Support and Health Care Connections have been cut from the budget. The blackberries and cell phones will be paid for out of the infrastructure grant. Mrs. Mitrione said laboratory services will be cut and the animal control program reduced. She stated that the new vehicle purchased in 2005/2006 will have its last payment in 2009. She said the 2009 budget is to be cut also but it’s hard in a service oriented department.

Mr. Kellner asked what about the pools? Mrs. Mitrione responded that they will continue to test the water but they will not be collecting samples. She said it is an effective tool but it is not mandated.

Mrs. Jones asked about the Gold Standards for Restaurants program. Mrs. Mitrione said they will continue to do regular inspections but she didn’t think the food sampling program was part of the criteria for that.

Mayor Webster said we are trying to prepare the City for the exit of GE and loss of $2.5 million. He said if we can cut 5% and then another 5% we can ride it out. We would like to have discussed it with you but time did not allow it.

In response to questions Mrs. Mitrione stated that the Health Department would continue to do food samples in case of illness and places with risks are inspected more frequently.

HAVE A HEART TRAP
Mrs. Mitrione said she has come up with a form for residents who would like to borrow the Have a Heart trap. Mayor Webster said once we tell someone they’ve used their one freebie with the trapper service, they may want to utilize the trap.

Mrs. Mitrione said the SPCA will euthanize an animal for $40.

MOBILE MAMMOGRAPHY VAN
Mrs. Mitrione said two people who used the mammography van were diagnosed with breast cancer.

HAMILTON COUNTY ENVIRONMENTAL SERVICES
Mrs. Mitrione stated that Hamilton County Environmental Services responded to air quality control issues in our area. She said metallic parts would fall and rust on cars near Inotech. Inotech said they would put a steel plate over the stack to cause particles to fall straight down and turn the fan off 70% of the time. They also agreed to make right the damage caused to autos and buildings. Hamilton County Environmental Services asked them to minimize the dust and add a cyclone vacuum cleaner as the particles are a fire hazard.

MISCELLANOUS
Mrs. Mitrione said the hotel/motel inspection program is our own local program. She over half of the rooms were inspected during the La Quinta Motel inspection.

Mrs. Mitrione stated she checked with ODNR about feeding of deer and there are no regulations against it but it is recommended not to feed them.

Mrs. Mitrione continued that Ruby Tuesday’s flooded with sewage water. She said she talked to all parties and had the water shut off. She said a huge length of sewer pipe was totally crushed and had to be replaced.

Mrs. Mitrione said during/after the power outage she and Mrs. Jergens visited several food service operations. She said only one area had lost power for a significant amount of time.

NURSE’S REPORT
Mrs. Hicks said she has set dates for the flu vaccine clinics. She said she will have the assistance of an Xavier student and the Sharonville nurses to help with those who don’t qualify for free shots, and Maxim will handle the others.

Mrs. Hicks stated there was a salmonella case in Springdale. It was part of an investigation of a specific strain followed by CDC. She said there are 67 cases in the US, 11 to 13 in Ohio, 2 in Hamilton County and 2 in Butler County.

Mrs. Hicks said Heritage Hill School requested help with bedbug bites, mostly with Hispanics. She said they are afraid to tell management. We let them know that management has changed and is being proactive. She said we are working on translating a flier into Spanish. She said we encourage families to report bedbugs to management and if that doesn’t work to call us.

Respectfully submitted,




Cammie Mitrione, Secretary