City commissioners Tuesday night moved ahead on changes to the city's workplace smoking ban despite warnings from an attorney representing the hospitality industry that the ordinance was unconstitutional.
Dan Owen, an attorney representing the Lawrence-based Kansas Licensed Beverage Assn., said the ban has been flawed since its inception last year because it punishes bar and restaurant owners for the illegal actions of their patrons.
"The act of making one person criminally liable for an act that they did not participate in is just not found in American jurisprudence," Owen said.
Under the city's ban, business owners can be cited for violating the law if a patron in their establishment is caught smoking. Among the changes made to the ordinance Tuesday were clarifications about when a business owner could be prosecuted under the law. Essentially, the new ordinance will allow business owners to be charged if they knew a person was smoking but acquiesced to the activity.
The new ordinance also allows employees to smoke in company-owned vehicles. The current ordinance bans that activity. City staff members said the change was needed to improve the enforceability of the ordinance.
But Owen argued that it was an exception that would violate the equal protection clause of the Constitution. He said a previously granted exception to allow Hallmark to keep a specially-ventilated break room for employees also made the ordinance unconstitutional.
He said commissioners should allow businesses, including bars and restaurants, to create similar specially-ventilated rooms where patrons could smoke.
City commissioners, though, did not waver in their support for the ban, which began in July 2004. Mayor Boog Highberger said the idea of allowing bars and restaurants to build specially-ventilated rooms was not feasible.
"It would be absolutely impossible to enforce," Highberger said.
Highberger also said he felt nonsmokers could deal with the issue of smoking in company vehicles by simply asking fellow passengers to refrain from smoking while they are in a company car.
Commissioners also heard from supporters of the ban who urged that it be kept intact because it was improving the health of the community.
"Don't forget that this is a public health issue," said Dr. Steven Bruner, who also urged commissioners to keep the provision that bans smoking in company vehicles.
The city currently faces a lawsuit from Lawrence nightclub owner Dennis Steffes, who alleges that the ban is unconstitutional. Staff attorneys for the city told commissioners Tuesday night that they had reviewed many other smoking ban ordinances and believed Lawrence's would pass constitutional muster.
Smoking ban
More about the smoking ban
- 6News video: Report spurs talk of state-wide smoking ban (06-27-06)
- On the street: Do you think Kansas should adopt a statewide smoking ban?
- Ban could snuff smoking statewide (06-28-06)
- Report: Dangers of secondhand smoke more pervasive than previously thought (06-28-06)
- 6News video: Judge rejects smoking ban suspension (06-06-06)
- Judge again upholds city's smoking ban (06-07-06)
- 6News video: Smoking ban remains contentious 18 months in (01-15-06)
- Effects of city's smoking ban still in dispute (01-15-06)
- 6News video: Judge rules in favor of city smoking ban (12-22-05)
- Judge upholds city smoking ban (12-23-05)
- 6News video: Suspension of smoking ban in hands of judge (12-17-05)
- Smoking ban now in judge's hands (12-17-05)
- Kansas Health Foundation Grant
- Douglas County receives grant to expand anti-smoking efforts (12-05-05)
- More stories about the smoking ban »»
Comments
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pelliott (anonymous) says…
I
Anchorage Alaska had such rooms in bars and cafes. They were small. Smoking was confined to that area, you could take your drink in but they didn't serve in the room. The wait people said they worked well. Certainly better than sending me out into the elements.
dflygrl (anonymous) says…
"Don't forget that this is a public health issue." Bah! When bartenders and waitstaff are treading water financially because their income from tips has dropped since the ban, how can they afford to take good care of their health?
truekansan (anonymous) says…
i think it should be left up to the owner. after all it is there money. as a patron you have the right not to visit an establishment that allow smoking. there were several places in lawrence that already was smoke free even before the ban. all the city govermant did was loose tax money and cause hard feelings. as far as health it is my choice to smoke or not! as well as if i want to be around smoke or not! i am an american that is my choice that our fore fathers fought and died for! the govermant on all levels are taking more and more of our civilian rights away from us. whats next i can't smoke in my own home or car? where does it stop
bearded_gnome (anonymous) says…
cigarettes-bad, pot good.
"its just a little pot" said the Lord Mayor Boog.
how about "its just a little tobacco?"
TopJayhawk (anonymous) says…
What BG, is the pot calling the kettle black? I say the whole thing is stupid. Let people vote with their feet and their wallet.