Advertisement

Lawrence and Douglas County

Lawrence and Douglas county

Smoking ban now in judge’s hands

Bar owner claims law violates his constitutional rights; city says evidence lacking

December 17, 2005

Advertisement

The question of whether the enforcement of Lawrence's smoking ban should be halted - at least temporarily - is now with a judge.

Douglas County District Court Judge Jack Murphy on Friday heard arguments - but made no immediate ruling - on a request from Lawrence bar owner Dennis Steffes that the 18-month-old ban should be halted until a lawsuit claiming the ban has violated his constitutional rights has been decided.

City attorneys, though, vigorously defended the need for the ban, arguing that Steffes produced no evidence the smoking ban caused decreased sales at Coyotes and Last Call, the two bars owned by Steffes.

"It is a possibility that you are just a bad businessman, isn't it?" Scott Miller, a city attorney asserted in court.

Steffes presented records indicating that since the smoking ban went into effect in July 2004, Coyotes has never had a month of sales better than in the same month prior to the ban.

"We are suffering damages," Steffes said. "We are suffering extinction really, if this pace continues."

But city attorneys said that Steffes had done no study other than randomly asking customers and acquaintances about whether the smoking ban was responsible for his drop in sales.

Steffes

Steffes

"Perhaps his business just fell out of favor, perhaps he hasn't been playing the right mix of music," said Toni Wheeler, a city attorney.

City attorneys also questioned why Steffes presented no evidence showing his actual profits - the dollars he actually pockets - had fallen.

After the hearing, Steffes said his profits, in addition to his sales, had fallen since the smoking ban. He said he did not offer that information to the court because he did not have exact figures, and he believed a loss in sales was enough to show that the ban had harmed him.

"I can't attribute the decline to anything else but the smoking ban," Steffes said after the hearing.

City attorneys also urged the court to reject Steffes' request to suspend enforcement of the ban because it would do more harm than good by confusing city residents.

Murphy said he would issue a written ruling determining whether the ban should be suspended. Until then, the ban remains in effect. He did not issue a timeline for the ruling.

After attorneys finished their arguments Murphy said only: "Thank you, I guess."

Comments

ThePoolBoy 9 years ago

All just a bunch of bunk.

Just tonight (actually, Friday night) at 10:15 p.m. three bars on Mass street were at maximum with a wait line.

10:15 p.m. Friday night. Students all gone.

Hmmm...

Red Lion was one of them. Wasn't Red Lion one of the bars complaining that their business had dropped almost to the point of putting them out of business since the smoking ban?

Strange how things like that happen. Lines at bars where no one goes anymore. Huh. Especially when the students have all migrated back to their "permanent" places of dwelling.

Smoking ban my ass... Just like the article indicated. Poor business management. Or, in the case of RL, good management, good prices, good product (the band tonight was kickin'). Overcome perceived obstacles and step up to the plate.

Besides, Last Call?!? Shoot. There isn't enough urban clientele in the whole Topeka/Lawrence/KC metro area to make that bar be successful. It's not a local niche. No local market.

Fair market... ready: Go!

Hong_Kong_Phooey 9 years ago

I'm all for the ban. However, I do believe that they should amend the ban so that the person who is actually violating it gets the ticket (see: the person smoking the cigarette). If a bar gets a certain number of violations in a predetermined amount of time then they get a citation as well.

Godot 9 years ago

Got to admit I like it, too, but that's because I'm not a smoker. I still think the way it was implemented sucks.

jayhawks71 9 years ago

I thought the city "tossed" the citations written against Steffes. If so, how does he have standing in a court of law on this issue? If there was no case pending against him, he doesn't. Can someone clarify? Did he receive additional citations in the near past that were not thrown out?

Judge's don't make decisions regarding law because a citizen "makes a request."

Richard Heckler 9 years ago

The smoking ban is more fun for our family.

Perhaps if the bars this man owns did not require so much attention from LPD patrons might partake. Coyote seems to attract a rowdy crowd as well.

A lady was raped after leaving Last Call very recently as if a couple of dudes were waiting for her to leave (speculation)is not good PR. I'm not sure taxpayers can afford Last Call.

Last Call brawls in the middle of New Hampshire street is great PR.

It could be this guy cooks the books so as not to pay taxes.

Godot 9 years ago

"Judge's don't make decisions regarding law because a citizen "makes a request."

Right, the city commission makes a law that seriously impinges on property rights and individual liberty based on one self-appointed health police person's demand.

just_another_bozo_on_this_bus 9 years ago

Any establishment in town could allow smoking tomorrow, regardless of what the business is. They just can't have employees present.

Sigmund 9 years ago

This is not about whether you 'like' or 'dislike' smoking or smokers. Let the businesses, employees, and customers decide if they will own, work, and patronize smoking or non-smoking establishments. We are all grown up and make our own choices, thankyouverymuch.

Sigmund 9 years ago

There is a simple test of the financial impact. Allow businesses to choose to allow smoking for 18 months, then compare the data sets of those that allow and those that continue to ban smoking.

Sigmund 9 years ago

Does anyone have a publicly available link to all the filiings in this case?

hawkbygod 9 years ago

Telling employees that don't want to be subjected to second hand smoke is like saying the following:

"If you don't want to work for a boss that sexually harrassess you, work somewhere else";

"Employers should be able to decide whether they provide you with protective eyewear or safety suits while you are handling dangerous chemicals, and if you don't like what they give you, work somewhere else"; or

"Oh you got passed up for a promotion because you are a women, I guess you can just go work somewhere else".

Workers in the hospitality industry are at a great risk of increased health problems due to second hand smoke. You are asking these people to choose between their health and their job. A lot of these employees are working second jobs, or don't have any other options. Also, think about this...

Balance these two issues: A bartender breathing dangerous air for 6 hours a night, 5 days a week, compaired to a smoker stepping outside for 7 minutes, once an hour or so, a couple times a week.

Lets have a little prospective, it is only 7 minutes outside.

just_another_bozo_on_this_bus 9 years ago

If a small group of owners wanted to open a small bar or coffee shop and staff it with only owners, they could do so tomorrow, and the law would not affect them. They might have to do some interesting maneuvering with delivery and service personnel, though.

dream 9 years ago

Poolboy

Friday night was the last night of finals, of course it is going to be busy. Try walking around Mass any other Thusday, Friday or Saturday. Compared to pre-ban, the number of people going out has decreased, big time. Try asking other owners what downtown traffic has been like. Pre-ban, almost every bar on Thursday and Friday was packed. In fact, many required a wait to get in. Not anymore. GHOST TOWN!

Yep, the ban has definately killed downtown Lawrence...

Jamesaust 9 years ago

"I thought the city "tossed" the citations written against Steffes. If so, how does he have standing in a court of law on this issue?"

We'll have to leave to detail to any legal expert out there. But this situation is not uncommon for such regulatory-type issues. The threat to rights, property, etc. hasn't gone away just because the regulator (the City) has withdrawn its citations. The lawsuit is not about the citations received but the citations that will quite likely BE received in the future.

For example, if the City said that your house wasn't compliant with some rule and threatened to make you make significant changes to the home. You might object. You might even defend yourself in a lawsuit. But, it would not be satisfactory if the City withdrew its citations of rule breaking. Are you the property owner supposed to exist in limbo wondering when the City will return? Can you sell the property without disclosing the problem? Would someone buy it if you did disclose the cloud over the property? Could you rationally invest money in a house that might need significant changes somewhere, sometime? No, you have a right to ask the court to force clarification of the issue.

Here, the business owner can show a high liklihood that there will be a future harm and so the district court can make a determination if there is in fact a problem with the underlying ordinance (the problem as I recall is whether the owner can be cited for ordinance violation by the customer; I suspect he can but it is a fair question.).

Lulu 9 years ago

I love taking my kids with me when I have a drink or two or three at one of our local bars. The smoking ban is wonderful for parents and families. Thank you for letting my children attend my outtings. I no longer have to hire a baby sitter. I also go out more often which is good for businesses I guess, even though I don't care to be a contributor to the capitalist pig society we live in.

Thanks again smokiing ban yeah! Banning automobiles should be next! I'm tired of the polution.

pelliott 9 years ago

Several cities allow places to have special smoking (ventilated) rooms, seperated from the other parts of the establishment,non service, you drink, eat, order in the main establishment. They seem to be expensive additions but sending people outside, no matter the weather,etc seems like punishment for a crime rather than protection of rights. I would think that not allowing for even expensive accommadation is too much about sin not enough about justice.

CrazeeJ 9 years ago

I am not a smoker but since the ban I make it a point to not give any of my business to the establishments in Liberal Lawrence. I will drive to Overland Park to eat out. What happened to smoking sections? They seemed to work before and they are still working in resturants in other cities. Like I said, I don't smoke and I am smart enough to ask for the no smoking section. Believe it or not, I am not bothered by the smokers sitting on the other side of the building

bthom37 9 years ago

I like the chutzpah Lawrence displayed when it suggested that repealing the ban would be unfair to the bars that had built outdoor smoking areas. Why did they build them in the first place? Because of the smoking ban!

Ah, the size of the huevos on whoever came up with that defense!

jayhawks71 9 years ago

Well ya know Marion, if you don't like it you can move, just like those who work(ed) in smoking establishments, right?

Ragingbear 9 years ago

I used to smoke. I managed to quit a few years ago. But there were some issues that I had with the entire smoking/non-smoking issue. First of all, smokers run around claiming that they have a right to smoke. Apparently they don't believe that people don't have a right to expect not to choke on smoke nearby, or smell an ashtray shoved up their noses. Ok, to non-smokers, it stinks. And to ex-smokers, it smells even worse. Also, even when I smoked, I never wanted the taste or texture of that smoke to get into my food. And found it horrid that I couldn't go into a bar and not find myself gagging on the excessive amount of stale smoke floating throughout the entire place.

The big issue I had was that there were no non-smoking options in places like this. It was either a smoke free bar, or you would suffer minor smoke inhalation. Even non-smoking areas commonly got contaminated with taste smells and smoke from the smoking area. In this regard, I like the smoking ban.

On the other hand, I feel that it should be left up at least in part to the individual business owners. I feel they should have been given an option. Either establish an area where smoke would not disrupt those in the area at all, or not allow any smoking in there whatsoever. That way, you could have smoking areas at bars and dance clubs. All you need is some lowered walls at come places and a nice exhaust fan or two.

blakus 9 years ago

This article did not elaborate on the issue of 'constitutional rights' for the bar owner or the employees who work in establishments that were traditionally smoker friendly. You have to weigh the 'life' of the employees and the right of the business owner to a profit. I would much rather choose the life of the employees working at these establishments than the owners of a couple of bars loosing an unsubstantiated amount of sales.

bthom37 9 years ago

blakus:

So you feel declining sales doesn't affect the employees?

Have you worked in a bar/restaurant?

Ember 9 years ago

Since this ban was enacted to protect the health of individuals working in the hospitality market, are there any reports showing a decrease in health problems?

What are the immediate health risks for these people?

I know that it is wrong, somehow, to ask these kinds of questions, but if a claim is going to be made, that claim should, in all truth, be backed up with some kind of facts. With the exception of asthmatics and those with emphysema, does cigarette smoke, primary or secondary, pose any direct threats to one's health?

Anybody?

Godot 9 years ago

'Since this ban was enacted to protect the health of individuals working in the hospitality market, are there any reports showing a decrease in health problems?"

Who could ever tell? Who knows what people were exposed to before they worked in a smokey bar? Who knows what they did/do in their "off time?" For that matter, who knows what they are exposed to while riding the diesel-smoke-spewing "T," sitting next to people-reeking-of-incense-to-cover-their-pot-smoke, to get to their jobs?

gccs14r 9 years ago

Having a designated smoking area in a building is like having a designated peeing area in a swimming pool.

The smoking ban is the latest in a long line of health and safety measures undertaken in this country since its founding. Rodent control, handwashing and hair nets, aprons, clean prep areas, containers, and utensils, poultry separation, and other measures all "infringe" on the manner in which a business is run. Thank goodness we're not in the 18th century and now have a reasonable expectation of not being poisoned by the food and beverages we're served in an establishment (the Replay notwithstanding). Now we can breathe, too.

Calliope877 9 years ago

I'm glad that I'm no longer a part of the bar scene. A beer in one hand with a cigarette in the other was a pretty common thing in the night clubs I visited. Maybe it's just me, but drinking a beer accompanied with a cigarrete is like a custom. Drinking alcohol is a pretty self-destructive behavior if done habitually, and so is smoking a cigarrete...but smoking a cig doesn't cloud your judgement, allow you to justify sleeping with various strangers, or cause you to blackout while driving down the road...yet alcohol is legal.

Calliope877 9 years ago

Posted by observer (anonymous) on December 17, 2005 at 6:11 p.m. (Suggest removal)

"It affects a lot of people long term. Also, have there been any studies based on this short a period of time? NO. Do you know how to or can you design a valid study to determine this? At this point everything is annecdotal and baised according to your pre-conceived ideas."

Drinking alcohol affects people in the long term AND short term. But the banning alcohol thing was tried before with the prohibition and it didn't hold. Smoking IS NOT harmless, but neither is drinking beer. Both of them are poisonous to the body, and both effect outsiders.

Commenting has been disabled for this item.