Topeka — Four Wichita-area business operators have gone to court to prevent Kansas from banning smoking in many public places, partly because its new law contains an exemption for state-owned casinos.
Their attorney said Monday that the law is unconstitutional because it treats similar businesses differently. Starting July 1, smoking will be banned in most public places, including bars and restaurants, and in some private clubs, though not all of them.
Critics have pointed out repeatedly that smoking still will be allowed in the gambling areas of up to four new casinos to be built and operated by private developers for the Kansas Lottery. Smoking will be banned in bingo parlors.
The Wichita-area businesses argue the law restricts customers' right to associate with whom they choose and denies the businesses equal protection of the law, guaranteed by the U.S. Constitution's 14th Amendment. They want a judge to intervene and block the law's enforcement.
"Equal protection is probably the primary issue," said Topeka attorney Tuck Duncan, who is representing the four businesses.
Duncan's clients operate Bingo Royale in Haysville, several Bingo Palace sites in Wichita and HEAT bars and Shooters billiard clubs in Wichita. They filed a motion to intervene Friday in an existing lawsuit in Shawnee County District Court.
That lawsuit, filed earlier this month by a private Tonganoxie club, challenged only one provision of the anti-smoking law that allows some clubs to avoid the smoking ban. It specifically did not attack the rest of the law.
District Judge Franklin Theis plans to have a hearing June 29, only two days before the law takes effect. The lawsuit names only the state of Kansas as the defendant.
"We do believe the law as passed is constitutional," said Gavin Young, a spokesman for the state attorney general's office.
Public health advocates pushed for the law, arguing it will decrease illnesses and deaths associated with smoking or secondhand smoke. Business owners said they'll lose customers.
The initial lawsuit was filed by the Downtown Bar and Grill in Tonganoxie, which received its private club license in May 2009.
The new law says the smoking ban does not apply to clubs licensed before Jan. 1, 2009, if the club owner notifies the state health department before Sept. 30 that the owner wishes to allow smoking.
"Such a classification scheme has no rational basis connected to the legislative purpose," the lawsuit said.
But the lawsuit also said the intention was only to deal with private clubs and "not to prohibit the general statewide smoking ban."
Duncan's clients have a different objective: making sure the entire law never takes effect.
They argue in their request to intervene that allowing smoking in some private clubs and not in other places selling alcohol is arbitrary.
They said it's also arbitrary to allow smoking in state-owned casinos while prohibiting it in other "gaming" venues.
Bingo once was considered a form of lottery, banned by the Kansas Constitution. In 1974, voters approved an amendment making an exception to the general ban for bingo.
And, Duncan noted, voters added another exception to the same section of the constitution in 1986, for a state-owned and operated lottery. The new casinos are covered by that exception, with the lottery owning the rights to the new gambling and the gambling equipment, down to the cards and dice.
One state-owned casino opened in December in Dodge City, and another is under construction in Kansas City, Kan. State law also allows casinos south of Wichita and in the state's southeast corner, but there are no prospective developers.
"They all have their genesis from the same grant of power from the people," Duncan said, comparing bingo parlors and casinos.
Comments
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thebcman (anonymous) says…
no smoking in public places .. period.
cancer is evil people. get a grip.
kansastruthteller (anonymous) replies…
I agree, no smoking in public places, however these are private establishments catering to the public. Big difference.
rando1965 (anonymous) says…
awesome let the buisness owners choose after all it's their pockets your talking about.
rando1965 (anonymous) says…
awesome let the buisness owners choose after all it's their pockets your talking about.
rando1965 (anonymous) says…
awesome let the buisness owners choose after all it's their pockets your talking about.
misterlee (anonymous) says…
rando, it's my health we're talking about.
jajacut (Jeff Cuttell) replies…
Don't go in there then.
misterlee (anonymous) says…
rando, it's my health we're talking about.
misterlee (anonymous) says…
rando, it's my health we're talking about.
gccs14r (anonymous) says…
There should never have been an exemption for any establishment, including tobacco shops.
DRsmith (anonymous) says…
misterlee...it is your health. Therefore if you value your health and don't want any part of it, then don't go to the establishment.
BigPrune (anonymous) says…
Is it true that no smoking will be allowed within 10 feet of a business' front door? Doesn't this mean that outside smoking in front of businesses along Mass Street will be no more?
jafs (anonymous) replies…
Yes.
bblbfolks (anonymous) says…
I say we need more smoking permitted businesses. If you, as a non-smoker don't want to be exposed to it, then simply don't go there. The same goes for employees. The hiring process would include the questions; "Are you a smoker?", and "Are you aware of the dangers of smoking and second hand smoke?"
The anti-smoking advocates have violated one of the fundamental rights of smokers; that of the Right To Pursue Happiness. Think of it this way; thousands of people ecah year die on our highways in brutal car wrecks. Does that mean that we are going to ban cars? No. If you don't want to risk being killed in a twisted wreck, you don't get in a car.
Sounds simple enough to me.
verity (anonymous) replies…
You're making a fallacious analogy.
Agnostick (anonymous) replies…
How so? Please explain.
somedude20 (anonymous) says…
It seems to me that some places are trying to meet their customer's demand for smoking by paying thousands of dollars to create those outside patios. Maybe the State of K should keep their hands out of those people's pockets
jhwk215 (anonymous) says…
Oh no, people will have to walk into business and not be able to smoke for like the 45 minutes max that they are there, the world is ending! Get over it! If anything the law is helping them and they shouldn't throw tantrums for not being able to smoke for the while they are at a particular business.
themagicswami (Apollo Hernandez) says…
I plan on opening up my own business one day. As much as I don't always appreciate someone else's cigarette smoke, it is constituionally wrong to allow it casinos but not other businesses such as bars, or any other for that matter. The proprietor should be allowed to make their own choices regarding smoking. There is no denying the affects of first hand smoke, however, every few years you hear differnt results about second hand. Meanwhile, things which we know are bad on the body...things loaded with MSG are sold to the general population. What's next? Banning the sell of chips at gas stations?
No one, forces a person to go somewhere with cigarette smoke. If you don't like the place you should simply leave and go somewhere you appreciate.
neolib (anonymous) says…
No-brainer equal protection violation, but of course the courts will twist the interpretation of the laws to the advantage of the privileged, as is always the case.
izzybear (anonymous) says…
i happen to agree that the government needs to stay out of peoples right to choose. i hate drinking does that mean i should have the right to enforce people not to drink? let's get real more people die every day to drinking than to smokeing but are we stopping that ? no. i don't like or approve of drinking so i stay away from bars, but i sure as crap don't tell people that they can not drink. so why don't all you people who think you have the right to control what i do tell me how many people do you know for A FACT who died for second hand smoke and it better be on death certifacate, because i promise you i can give you 10 times as many people who have died who was not drinking but killed because someone else was so back off and get off your high horse you don't know crap and leave the people alone to do what they want to themselves it is none of your business nor is it the governments.