Lawrence smoking ban undergoes Supreme Court scrutiny
Decision on bar owner’s constitutional challenge could come in June
7:56 a.m. Thursday, April 26, 2007
You can still smoke outdoors in the city of Lawrence.
That fact, a city attorney told the Kansas Supreme Court on Wednesday, is a major reason the city’s nearly three-year-old smoking ban doesn’t violate the Kansas Constitution.
Whether that argument is enough to keep the smoking ban on the books now rests in the hands of the state’s seven Supreme Court justices. The court heard oral arguments Wednesday on a case filed by Lawrence bar owner Dennis Steffes, who contends the city’s smoking ban is unconstitutional.
The court said the earliest it would issue a ruling on the legality of the ban, which prohibits smoking in essentially all indoor work places, is June 8.
An attorney for Dennis Steffes, who owns Last Call and Coyotes in Lawrence, argued today the city overstepped its bounds in July of 2004, when the smoking ban took effect.
He says state law does not allow a city to ban smoking in all enclosed public spaces and that the city did not provide businesses with resources to enforce the law.
"It was an impossible task and yet not the person committing the act after full disclosure to him is being prosecuted," Steffes said. "I am personally."
Much of the hearing focused on whether the city had illegally superseded a state law that Steffes and his attorney contend allows the city to limit — but not entirely ban — smoking in public places.
But Toni Wheeler, director of legal services for the city, said a total ban is not what has happened in Lawrence.
“There are still many places where people can smoke in Lawrence,” Wheeler told justices.
The city ordinance does not prohibit people in public places from smoking on outdoor decks, patios or other open-air spaces. But some businesses — such as some downtown bars, for example — don’t have the necessary property to allow them to have an outdoor smoking area.
Billy Rork, Steffens' attorney, said the fact the city’s ordinance makes it impossible for some businesses to have any smoking areas at all makes it illegal under the statewide law.
“That is the heart of the issue,” Rork said after the hearing. “Smoking wasn’t just restricted. It was abolished.”
The issue appeared to pique the interest of some justices. Justice Lee Johnson questioned Wheeler on a part of the state law that says proprietors may designate smoking areas in their businesses.
“It says smoking areas may be designated by the proprietors, not the [Lawrence] City Commission,” Johnson said.
Wheeler, though, said the city does have the ability to pass “reasonable restrictions to protect public health.” She also said the state law clearly says cities can pass ordinances that are more restrictive than the state law.
As for enforcing the ban, Wheeler said a business owner always could call the police for help in removing a smoker who became belligerent and refused to stop smoking or refused to leave the premises.
Justice Carol Beier, though, questioned Wheeler about why the city ordinance didn’t have more specifics about what business owners could do to comply with the law. Wheeler said she believed the city wasn’t legally required to provide such specifics. She also said the lack of specifics provided business owners with flexibility in how to best deal with their customers.
The case is attracting statewide attention. The League of Kansas Municipalities formally joined the city in defending the ban. League representatives have said if Steffes wins the case it could threaten all city smoking bans in the state.
Members of the bar and hospitality industry also were on hand. Phil Bradley, executive director for the Kansas Licensed Beverage Association, said Lawrence bar and restaurant operators continue to be keenly interested in the issue.
“I will say that I think it is unfortunate that we weren’t able to work something out with the former City Commission before it came to this,” Bradley said.
Residents who helped push for the ban in Lawrence also continue to monitor the progress. Kathy Bruner, a leader of Clean Air Lawrence, said she’s confident the majority of Lawrence residents support the ban.
“I think the citizens of Lawrence wouldn’t hesitate to become very vocal if this ban were overturned,” said Bruner, who attended the hearing. “I think they love it.”
"I think individuals need to be responsible for their own conduct and that in addition to that, property owners need to make sure the laws are enforced within their establishments," Lawrence City Attorney Toni Ramirez Wheeler said.
Steffes received five citations from the city when people were reported smoking in his nightclubs.
Charges were dropped, or Steffes was found innocent, in all of those cases.
The Court could issue a ruling anytime after June 7th.
Comments
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Apr. 26, 2007 at 5:11 a.m. (Suggest removal)Gregory (anonymous)
I am amazed reputable news organizations have not done a full expose on the propaganda behind the smoking-ban hysteria sweeping the country.
Our media outlets have become pundits and do not do serious research journalism any more.
They are missing this issue just like they missed the road to iraq issue.
Apr. 27, 2007 at 9:35 a.m. (Suggest removal)smokinglobby (anonymous)
Let's hope the state Supreme Court sees this smoking ban for what it is - an infringment on civil liberties and our freedom.
http://www.smokinglobby.com/
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