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Archive for Friday, December 23, 2005

Judge upholds city smoking ban

Nightclub owner vows appeal in wake of district court ruling

December 23, 2005

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The city's smoking ban has won a major legal victory.

Douglas County District Court Judge Jack A. Murphy has ruled that enforcement of the city's smoking ban should continue while a lawsuit challenging its constitutionality makes its way through the court system.

In an order made public Thursday, Murphy also rebutted many of the arguments made by Lawrence bar owner Dennis Steffes, who claims that the 18-month old ban is unconstitutionally vague and illegally supersedes state law.

City leaders took the judge's decision as a good sign for the future of the ban, which essentially prohibits smoking within all indoor workplaces, including bars and restaurants.

"I think the judge's order indicates that the plaintiff is not likely to prevail in this case," Lawrence Mayor Boog Highberger said.

At least not yet, Steffes said. He said he had not yet read the order but had long been prepared to lose the case in district court; he is committed to appealing the ruling to the Kansas Court of Appeals.

Steffes

Steffes

"It seemed obvious from the very beginning that this case was going to end up in Topeka one way or the other," said Steffes, who operates Coyotes, 1003 E. 23rd St., and Last Call, 729 N.H. "This isn't even close to being over."

Murphy's order allows the case to continue. However, it removes the threat of a temporary injunction that would have forced the city to stop enforcing the ban while the lawsuit is being argued, which likely will take several months.

"I think a temporary injunction would have caused a lot of confusion for the public," Highberger said.

Murphy wrote in his order that Steffes failed to meet several of the legal hurdles required to obtain an injunction. The most important one was the court agreeing that Steffes had a likelihood of ultimately winning the lawsuit. Murphy said that was unlikely.

Specifically, Murphy said he did not find evidence the city's ban was too vague.

"The city's smoking laws are clear in what conduct is prohibited: smoking is prohibited in most enclosed places and places of employment," Murphy wrote.

But Steffes - and his attorney, William Rork, of Topeka - have argued the law is vague because it does not give business owners enough specific instructions on what to do if a patron begins to smoke in their establishments.

Murphy also wrote that Steffes' argument that Lawrence's ban illegally supersedes state laws governing smoking was unpersuasive. He said the Lawrence law was more stringent than state regulations but did not conflict with them.

Steffes, who testified in court that sales at his two bars have declined significantly since the smoking ban, thinks his case still had merit.

"Private enterprise should be allowed to run their business without the government taking it over," Steffes said.

Comments

Richard Heckler 9 years ago

U.S.A. States that have enacted smokefree workplace legislation for all workers, including restaurant and bar workers 1. California 2. Delaware 3. New York 4. Connecticut 5. Maine 6. Massachusetts (2004) 7. Rhode Island 8. Montana 9. Vermont (2005)

Beaches and Piers that have banned smoking (or restricts smoking to designated areas) in order to decrease litter: Hawaii -- Hanama Bay, Oahu, HI 1993 NJ-- Belmar (2001) California -- Solana Beach (2003), San Clemente (2004), Santa Monica (2004), Los Angeles (2004?), Malibu, Huntington Beach, Carpinteria and Newport Beach. Capitola City. Los Angeles County enacted a temporary ban in late June that will run through Thursday on two county-run beaches, Topanga and Marina (2004) New York -- Florida -- Ormond Beach, FL

Australia -- Manly, Sydney, Queensland

UK -- Bournemouth

Local parks that ban or severely restrict smoking: ¢ Bellaire, TX in public parks ¢ Eastchester, NY, in some sections of Lake Isle Park ¢ Greenburgh, NY, has limited smoking at Anthony J. Veteran Park, its primary recreation area, leaving only two designated smoking sections there. ¢ Mesa, AZ, bans smoking in just about every outdoor space where the public congregates ¢ Mount Olive, NJ, smoking is forbidden at outdoor recreation areas ¢ New York City, NY, smoking is prohibited at children's playgrounds and in public places like work sites, sports arenas, schools and restaurants ¢ Putnam County, NY, banned smoking on its public lakeside beach ¢ Rye, NY, Kiddyland section of Playland Park banned smoking in all lines for rides at the amusement park ¢ Scarsdale, NY, recently adopted a no-smoking policy for all public parks that have play equipment for children and at playing fields and pools as well as in all village-owned vehicles. Sharon, ME, smoking is prohibited on beaches and in public playgrounds ¢ Westchester County, NY

topflight 9 years ago

hey DEN"ASS" STEFFES, LEAVE IT ALONE, MOST ARE HAPPY THE WAY IT IS.

Richard Heckler 9 years ago

Marion no one has told you that you cannot smoke so carry on. I just hope you don't die a painful death.

conservativepunker 9 years ago

Why is Smoking so important? It killed my Father, it killed my Mother. Do these people think of themselves as some latter day Sartre or Kerouac sipping cappucino or demitasse solving all the worlds problems while on their butt in a cafe?

Hong_Kong_Phooey 9 years ago

Old Steffes ought to look at the fact that his bars are trashy and filled with thugs for the decline in business, not the smoking ban.

Rossp 9 years ago

Aren't most "bars" trashy? The last time I was in Coyotes it had improved a lot with cleaness.

Liberty 9 years ago

The question is not whether you like smoking or not. The question is: Do you really want government to intrude into a new area of banning things or stay in the area in which government was originally intended to function? We have government intruding and reaching into areas in which they should not function. This is called tyranny, and they get it by picking on these types of things like smoking to get useful idiots to back them up so they can implement more and more control. Make sure that you really want more and more government control, because once they have it, they will want more.

mom_of_three 9 years ago

For all those who support the smoking ban - what happens when you walk on the sidewalk downtown and are next to a smoker? You will encounter smokers your entire life, and even if the smokers aren't lighting up at the moment, the smell will get you. I am not a smoker, but I think the smoking ban is stupid. If there was too much smoke, I CHOSE not to go there.

Liberty 9 years ago

Since the judge is basically working for the city/state, he is in the position of having to protect the system and government made laws. If the judge was impartial, he would not have the burden of proof on Mr. Steffes, but on the Constitutionality of the ban. The law should be on trial, not Mr. Steffes. This is called Jury nullification, where the law is being judged, not just Mr. Steffes.

gccs14r 9 years ago

The government regulates lots of things to "promote the general welfare" of the citizenry, from water usage to toxic waste disposal. Be happy (I guess) that you can smoke at all. In two generations, I think tobacco will be completely illegal.

gccs14r 9 years ago

mot,

I generally hold my breath until I'm upwind of them.

just_another_bozo_on_this_bus 9 years ago

Apples and oranges, Marion. Even if marijuana were legal, smoking it in public would be banned along with smoking tobacco. And despite your attempts to muddy the waters, tobacco is still legal-- just not in enclosed spaces in places of employment. Really not much different from alcohol-- there are places where it is legal to consume, and places where it's not. Same goes for sex and excretory functions-- definitely not illegal, but there are certainly places where they aren't allowed.

And try this one out-- go to an empty, isolated field and yell "Fire!" Then go to a crowded theater and do the same thing.

Rainy 9 years ago

The government of Lawrence did not just one day wake up and say "Hey, I think I'll pass a smoking ban today". There were numerous studies done, and input listened to from both sides of the issue via email, letters, letters to the editor, and community feedback sessions at city commission meetings.

Secondly, the people of Lawrence had the opportunity to put this issue to a vote and a certain group of individuals chose not to turn that petition in and call a referendum.

Most likely, high chance, the ban would have been upheld by public vote.

I do not agree with a lot of things "government" is doing. However, I know for a fact the Lawrence commission did not arbitrarily pass the smoking ban. Personally, I'd like to see tobacco regulated in general as it is severely hazardous to health.

just_another_bozo_on_this_bus 9 years ago

My personal opinion is the ban should be relaxed, with limits on the size and number of smoking establishments. Places like the Pig or Java Break could be smoking joints, Granada and Bottleneck wouldn't be. Restaurants should stay non-smoking.

ive_got_my_ascot_n_my_dickie 9 years ago

Places like the Pig or Java Break could be smoking joints, Granada and Bottleneck wouldn't be. Restaurants should stay non-smoking.

Let's reverse it because I'm a nonsmoker and I like going to the Pig and Java Break, but I don't go to the Granada.

Liberty 9 years ago

Jury nullification is where the people have more power than the government and more power than the judge. That is why the judge doesn't want anyone in the jury to know about the power that they have through jury nullification of a bad law to keep government power in check. I noticed that the questionare to be on a jury asks if you know about jury nullification. This is evil. It should not be counted against you because you know your power in the system and know that you have more power than the judge or government which created the bad law. The law can even be constitutional, and the people have the power to strike the law down. You people should read the Citizens rule book/Jury handbook.

Here is a web site to read the Jury Handbook: http://www.geocities.com/Heartland/7006/rulebook.html

just_another_bozo_on_this_bus 9 years ago

I also said limit the number of smoking establishments. That would mean that there would also be a number of non-smoking places like the Pig or Java Break. Places like bottleneck and granada are about being venues for live entertainment, not places primarily for swillin' and smokin'-- keep the ban in place for them.

Jury nullification doesn't strike down laws-- it merely prevents conviction one case at a time.

gccs14r 9 years ago

All it takes is one smoker to make a place a smoking establishment. How fair is that to the 200 non-smokers who are in there? Do you know how expensive dry cleaning is?

I didn't realize just how much I appreciate the smoking ban until I traveled through the South last summer. Holy cow. Those people smoke everywhere and everything is sticky with a thick coating of brown tar. Gross.

wonderhorse 9 years ago

Marion

"oh

that means choice and we're not talking about abortion.

never mind"

I'm not quite sure I know what you mean by this. Currently, Lawrence has decided to set aside letting the market decide whether there should be smoking establishments or not--taking away choice. That I understand. There is no choice for the owners, and the non-smoking patrons don't have to choose which establishments to support with their non-smoking dollars.

Currently, abortion is legal, and pregnant women can choose to have an abortion. What is the comparison? I'm confused.

gccs14r 9 years ago

Marion is infamous for red herring arguments.

cowgomoo 9 years ago

Excellent observations Pywacket. My father died recently of smoking caused respiratory illness. It was horrible watching him struggle for breath. I was holding his hand when he could struggle no more.

I recognize the limited government argument (and I hope someday we're not going to try to take away my double cheeseburgers) but I agree that a smoking ban in enclosed public meeting areas is not a bad thing and not over intrusive.

wonderhorse 9 years ago

Pywacket

"And a side benefit to this one is that those who do not wish to immerse themselves in smoke no longer are forced to when they go out to a public venue."

That's the point--a bar is not a public venue, it is a privately owned business. You are not forced to go into it. As a matter of fact, they have the right to refuse you entry. Businessmen would not allow smoking on the premises if enough of their clientele objected, but as has been pointed out, there was a very nice, non-smoking bar called the Bella Lounge that had to go out of business because the non-smokers wouldn't come in. At the time, it was the only non-smoking bar in Lawrence, but the non-smokers voted with their $'s and put it out of business.

gccs14r 9 years ago

There's a reason why a non-smoking bar can't succeed in a city full of smoking bars and it has everything to do with non-smokers' appeasement of the addictions of their smoking friends.

If you're so certain that a smoking bar will be a big hit, put one up in the county. The city limits are thataway.

wonderhorse 9 years ago

gccs

Let me get this straight--the non-smokers (and someone on this board has said that we are in a majority) wouldn't go to a non-smoking bar just to appease their smoking friends? Well, I guess it's a good thing that gov't stepped in so that the non-smokers wouldn't have to put their collective feet down and say, "No, let's go to the non-smoking place tonight". It would be disturbing if they would actually have to take a stance.

And as to opening my own bar--no thanks. I've been here for 30 years and seen too many go out of business, some for little or no reason that I could discern.

just_another_bozo_on_this_bus 9 years ago

" Well, I guess it's a good thing that gov't stepped in so that the non-smokers wouldn't have to put their collective feet down and say, "No, let's go to the non-smoking place tonight"."

I believe that's exactly what happened, and why there is now a ban.

wonderhorse 9 years ago

Yep, sad commentary that gov't needs to be involved in our relationships with our friends, isn't it? When I went out with my smoking friends, we didn't always go to the smoking place. Now, we don't go anyplace--they, because they can't smoke anywhere, me because I am following my own advice and voting with my $'s

just_another_bozo_on_this_bus 9 years ago

The need to exercise personal responsibility is as present as ever, but with the ban in place, the all-too-pravalent tendency of too many smokers never to do so has been somewhat mitigated.

wonderhorse 9 years ago

By trampling on the right of the business owner to run his/her business as they see fit--smoking or non-smoking.

just_another_bozo_on_this_bus 9 years ago

I guess none of us gets to do exactly as we wish all the time. Ain't life a bitch?

gccs14r 9 years ago

Marion,

Perry doesn't have a smoking ban. If you're dissatisfied with the socioeconomic climate of Lawrence, I'm sure they'd be happy to have you for a resident. If Perry isn't appealing, the State of Kentucky, with its whopping 3 cents per pack tobacco tax (lowest in the nation), beckons.

corporate_sleaze 9 years ago

Marion is right, too much government meddling in private affairs.

Godot 9 years ago

Out this evening with some smokers, some non-smokers. The smokers had to go outside, in the cold, to smoke. They had to, because they are addicted.

They are already prone to coughs and colds. Making them go outside, in the cold and wind, to tend to their addiction, actually makes them more susceptible to colds and infections.

We make all sorts of exceptions for drunks and drug addicts, but we force smokers to expose themselves to further health risk, all in the name of health for those who don't smoke.

Why do we coddle some people with addictions, and put others with an addiction that is, at this time, perfectly legal, at further health risk?

Do we just want them to die and go away?

gccs14r 9 years ago

"Why do we coddle some people with addictions, and put others with an addiction that is, at this time, perfectly legal, at further health risk?"

Because the emissions from their drug of choice harm innocent bystanders.

mr_sassy_pantsss 9 years ago

It's disgusting. I hate it, hate it, hate it. Just stop it everybody.

mr_sassy_pantsss 9 years ago

To Marion,

Hi. well, I don't know if I should cry or laugh. Are you trying to hurt my feelings? The emotional tug of war is too stressful for me. Please clarify your comments Mr. Marion.

just_another_bozo_on_this_bus 9 years ago

Yea, it's really friggin cold out there tonight, poor babies.

"They are already prone to coughs and colds."

Why don't they quit smoking, then?

"Making them go outside, in the cold and wind, to tend to their addiction, actually makes them more susceptible to colds and infections."

An old wives' tale. Exposure to extreme elements doesn't cause colds and other infections-- viruses other microbes do. But smoking does lower resistence to these microbes, so why should their indulgence in their addiction mean that others should also have their immune systems compromised?

mr_sassy_pantsss 9 years ago

Mr. Marion,

You're are an entertaining person for only being a sophomore in high school.

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