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Topeka You can still smoke outdoors in the city of Lawrence.
That fact, a city attorney told the Kansas Supreme Court on Wednesday, is a major reason the city's nearly three-year-old smoking ban doesn't violate the Kansas Constitution.
Whether that argument is enough to keep the smoking ban on the books now rests in the hands of the state's seven Supreme Court justices. The court heard oral arguments Wednesday on a case filed by Lawrence bar owner Dennis Steffes, who contends the city's smoking ban is unconstitutional.
The court said the earliest it would issue a ruling on the legality of the ban, which prohibits smoking in essentially all indoor work places, is June 8.
Much of the approximately one-hour hearing focused on whether the city had illegally superseded a state law that Steffes and his attorney contend allows the city to limit - but not entirely ban - smoking in public places.
But Toni Wheeler, director of legal services for the city, said a total ban is not what has happened in Lawrence.
"There are still many places where people can smoke in Lawrence," Wheeler told justices.
The city ordinance does not prohibit people in public places from smoking on outdoor decks, patios or other open-air spaces. But some businesses - such as some downtown bars, for example - don't have the necessary property to allow them to have an outdoor smoking area.
Billy Rork, an attorney for Steffes, said the fact the city's ordinance makes it impossible for some businesses to have any smoking areas at all makes it illegal under the statewide law.
"That is the heart of the issue," Rork said after the hearing. "Smoking wasn't just restricted. It was abolished."
The issue appeared to pique the interest of some justices. Justice Lee Johnson questioned Wheeler on a part of the state law that says proprietors may designate smoking areas in their businesses.
"It says smoking areas may be designated by the proprietors, not the City Commission," Johnson said.
Wheeler, though, said the city does have the ability to pass "reasonable restrictions to protect public health." She also said the state law clearly says cities can pass ordinances that are more restrictive than the state law.
Justices also spent time on one other argument made by Steffes, who owns two local bars, Last Call and Coyotes. Steffes has argued the city ordinance is unconstitutionally vague because it does not tell business owners what they are required to do when they find someone smoking in their businesses. Steffes said specific instructions are important to protect business owners.
"If we have to drag someone out by their feet because they're smoking, that is my liability that we're dealing with," Steffes said. "Has the city deputized us to enforce this ordinance?"
But Wheeler said a business owner always could call the police for help in removing a smoker who became belligerent and refused to stop smoking or refused to leave the premises.
Justice Carol Beier, though, questioned Wheeler about why the city ordinance didn't have more specifics about what business owners could do to comply with the law. Wheeler said she believed the city wasn't legally required to provide such specifics. She also said the lack of specifics provided business owners with flexibility in how to best deal with their customers.
The case is attracting statewide attention. The League of Kansas Municipalities formally joined the city in defending the ban. League representatives have said if Steffes wins the case it could threaten all city smoking bans in the state.
Members of the bar and hospitality industry also were on hand. Phil Bradley, executive director for the Kansas Licensed Beverage Association, said Lawrence bar and restaurant operators continue to be keenly interested in the issue.
"I will say that I think it is unfortunate that we weren't able to work something out with the former City Commission before it came to this," Bradley said.
Residents who helped push for the ban in Lawrence also continue to monitor the progress. Kathy Bruner, a leader of Clean Air Lawrence, said she's confident the majority of Lawrence residents support the ban.
"I think the citizens of Lawrence wouldn't hesitate to become very vocal if this ban were overturned," said Bruner, who attended the hearing. "I think they love it."