Smokers, even when they're caught red-handed by fire department officials, are almost never issued a ticket as part of the city's smoking ban, court testimony revealed Thursday.
At a Municipal Court trial that began Thursday, Dennis Steffes, owner of the bars Coyote's, 1003 E. 23rd St., and Last Call, 729 N.H., blasted the city's enforcement of the ban. He said city officials were unfairly targeting business owners for punishment but were not issuing tickets to bar patrons who were actually violating the ban by smoking.
Steffes was on trial for five alleged violations of the ban on indoor public smoking, which began July 1.
The city's ordinance gives city officials the ability to issue a ticket to both a business owner and the patron who is smoking. But thus far, officials with Lawrence-Douglas County Fire & Medical, the agency designated to enforce the ban, have not issued a single ticket to a patron. A city police officer has issued one ticket to a patron.
The lack of tickets is not because city officials haven't been able to catch patrons in the act. Four fire and medical officials testified Thursday that they witnessed smokers violating the city's ban on indoor public smoking at Coyote's and Last Call on four occasions. In each case, Steffes was issued a ticket, but no patron was.
"I can't understand why we're expected to police the general public," Steffes said. "We get punished when people don't comply. I'm being victimized as much as anyone.
"My biggest objection is we're punishing the wrong people. The people who are breaking the law by smoking are not in this courtroom today. None of this activity will stop until you start punishing the right people."
At least some city commissioners said they also were concerned about the city's enforcement practices. No commissioner advocated that businesses shouldn't continue to be fined, but some said they were concerned about equal enforcement.
"I would be disappointed with our enforcement procedures if we would ignore somebody who is violating the law," said City Commissioner David Schauner. "I don't want to see our enforcement people winking at this ordinance."
Mayor Mike Rundle also said he thought patrons should be ticketed when a fire officer observed a violation.
"That seems very logical and reasonable to me," Rundle said. "We depend on staff to make these ordinances work. I just hope there is a good explanation from staff."
David Corliss, assistant city manager and director of legal services, said the official protocol that spells out how fire officials are to deal with offenders does not require the fire official to issue a ticket or to even make contact with the patron.
Though the protocol doesn't prohibit a fire official from making contact with a smoking patron that may be a job better left to police officers, Corliss said. The city did not want to put fire code officers into a situation that could become confrontational or violent.
"Safety is definitely an issue," Corliss said.
Fire department officials do not enter bars specifically to conduct smoking checks, but they do routinely enter bars to ensure that the buildings aren't overcrowded or in violation of other city fire codes.
Dave Kingsley, who helped craft the city ordinance as the former chairman of the Mayor's Task Force on Smoking, said he didn't have a problem with the city rethinking its enforcement policy. But he said none of the issues should threaten the viability of the ban.
"All these guys are doing is trying to find another way to come at this ordinance," Kingsley said. "It sounds really bogus to me."
Municipal Court Judge Randy McGrath did not make any rulings at the trial Thursday. As part of his defense, Steffes, and his Topeka attorney, William Rork, filed a motion challenging the constitutionality of the smoking ban. They argued the Lawrence ban is superseded by a less restrictive state law and is "unconstitutionally vague."
McGrath continued the trial until April 15 to give city prosecutors time to respond to that motion. Corliss has said the city believes the ban is constitutional and will defend it.