Smoking ruling to be on Wed

With only hours before a statewide smoking prohibition is to go into effect Thursday, a Shawnee County District Court judge will issue a ruling today on whether to block the ban in nightspots.

Following a two-hour hearing Tuesday morning, District Judge Franklin Theis said he would issue the ruling before 5 p.m. today.

The statewide smoking ban was signed into law March 12 after the Legislature passed it. Exemptions apply to some class A and B clubs; private clubs, which are outdoor facilities; and state-owned casinos.

The legal flap started June 8 when the Downtown Bar and Grill in Tonganoxie filed a lawsuit seeking a court order to permanently block the state statute from becoming law. Ten days later, the Bingo Palace, HEAT, Shooters and the Bingo Royale LLC, all in Wichita, filed a motion to intervene in the case.

About 40 spectators, most of them opposed to the smoking ban, filled seats in the small courtroom, and the rest sat on chairs and a bench in the doorway to the courthouse hallway.

Mary Conrad, owner of Mary’s Jack of Clubs, a Hutchinson drinking establishment that is open to the general public, said she was “positive” she would lose about 90 percent of her customers if the smoking ban took effect Thursday.

Customers would leave her business to go to private clubs, she said. State authorities told Conrad she couldn’t switch her club over to a class A or B club, she said.

Connie Anderson, owner of Whispers Club in Hutchinson, which is exempted from the smoking ban, said customers of nightspots impacted by the law wouldn’t simply step outside to smoke, then re-enter.

“People playing pool, people playing cards, they don’t want to go outside,” Anderson said.

Assistant attorney general Tim Reimann had argued customers wouldn’t abandon a business because they couldn’t smoke inside.

“It’s sad that places have to fight to stay open,” Anderson said.

All nightspots in Kansas should have the option to be exempt from the smoking ban, Anderson said. While she is exempt for the time being, Anderson fears she could lose that exemption due to future legislation. Anderson wore a pink shirt inscribed with “I’m feeling a hissy coming on.”

Earlier, Michael Merriam, an attorney representing the Tonganoxie bar, and Tuck Duncan, an attorney representing the Wichita businesses, urged the judge to block the smoking ban and conduct a hearing on whether to permanently block it.

Merriam wants the judge to rule the smoking ban violates the equal protection clause and to issue an order prohibiting enforcement of the new law or the judge could cut out the Jan. 1, 2009, date, making all class A and B clubs exempt from the ban. Merriam says the statewide smoking ban creates two classes of class A and B clubs, which would be identical in all ways but whether they were licensed as of Jan. 1, 2009, or after that date.

Rules governing establishments where you can smoke or can’t smoke are arbitrary, Merriam said.

“Brunettes can smoke, and blondes and redheads cannot,” Merriam said. These classifications have nothing to do with smoking. They aren’t rationally related to smoking, he said.

“Smoking is legal,” Duncan said.

“No one is putting a shotgun to someone’s head and saying you must go in and breathe that (smoky) air,” Duncan said.

Reimann urged the judge to deny the injunction that would block the smoking ban.

He said no court or jurisdiction in the United States has overturned a smoking ban.

Merriam retorted no courts have ruled on smoking in businesses with statutory classifications of A and B clubs.

By Steve Fry
Cjonline, June 29, 2010

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