Archive for Tuesday, June 29, 2010

Judge hears arguments for, against statewide smoking ban

With a statewide ban on smoking set to go into effect in the next few days, a group of local business owners is doing what it can to help stop the ban from taking effect. The ban would prohibit new establishments from having indoor smoking sections.

June 29, 2010, 8:42 a.m. Updated June 29, 2010, 6:09 p.m.

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— Attorneys representing bars and bingo parlors asked a Kansas judge to put a hold on the state’s smoking ban Tuesday, arguing it would hurt their businesses and violate their constitutional rights to property.

Shawnee County District Judge Franklin Theis said he would decide by the end of the day Wednesday whether to issue an injunction preventing the law from taking effect Thursday or dismiss the lawsuit filed against the state.

The challenge was filed by a group of businesses that claim the new law does not treat all of them equally, in violation of the Constitution.

The law bans smoking in most public places, including bars, restaurants and some private clubs. It allows smoking in the gambling areas of state-owned casinos but not bingo parlors.

Leading the lawsuit was the Downtown Bar and Grill in Tonganoxie, which would close if the ban went into effect, said attorney Mike Merriam of Topeka.

“It’s not just losing the customers, it’s losing the investment,” he said.

Merriam said the bar’s property rights were being violated because the new law set a cutoff date of Jan. 1, 2009, for a business to convert to a private club, where smoking is allowed. It received its private club license in May 2009.

Merriam said the bar converted to a private club because at the time it didn’t meet Leavenworth County requirements that drinking establishments derive 30 percent of their revenues from food sales, not because of the smoking ban. But the owners had hoped that by being classified as a private club, they could continue to allow smoking.

“When they put (the cutoff date) in retroactively, we were in the soup,” he said.

While smoking bans in other states have stood up to court challenges, none had the kind of complicated classification for determining where smoking was allowed that Kansas does, Merriam said.

Topeka attorney Tuck Duncan represents four Wichita-area businesses who say the law treats the state-owned casino different from their businesses. Only one casino is open, in Dodge City, with a second under construction in Kansas City.

Duncan’s clients operate Bingo Royale in Haysville, several Bingo Palace sites in Wichita and HEAT bars and Shooters billiard clubs in Wichita. Duncan argued that the same law that allows bingo parlors also permits casinos. And while the state maintains it has a financial interest in permitting smoking to attract customers, so do bingo and billiard halls.

“All my clients want to do is further their success and contribute to the Kansas economy,” Duncan said. “It really needs to go back to the Legislature to correct the problem they created through their political process.”

Assistant Attorney General Tim Reimann defended the state law, saying the businesses are only speculating they would lose money and customers.

“There is no evidence of harm here at all. It’s just not that big a deal,” Reimann said, adding that smokers in other states and Kansas cities that already have bans have proven willing to “take three steps” from a bar door to light a cigarette and go back inside for a drink.

Smoking is not a fundamental right, he said, and the state has the right to establish exceptions to bans, he said. He also said the state has an economic interest in the casinos permitting smoking, adding that the Dodge City casino has generated $3.5 million in revenue for the state, compared to less than $500,000 over the same period by the bingo parlors.

“The United States Constitution does not require fairness,” Reimann said.

Duncan said customers who enter casinos, bingo parlors and other businesses do so voluntarily and thus the owners have a right to decide whether to permit smoking.

“Smoking is legal,” he said. “It’s legal. No one is forcing you to walk into an establishment.”

Comments

lawrenceguy40 4 years, 9 months ago

Hopefully the beginning of the end of this liberal nanny state law. We have to fight these controls before the liberals control every aspect of our lives.

125

Janet Cinelli 4 years, 9 months ago

hummmm??? aren't the smokers controling my right to clear air? And, don't use the argument that I choose to or not to go into an establishment -- that is just a dumb argument. I am all for the smoking ban because I don't another person controling whether I get cancer. I am for seat belt and helmet laws because I don't want someone else to control whether I have to pay to keep them alive because they didn't wear a seat belt and they don't have health insurance.

ModSquadGal 4 years, 9 months ago

Yeah - if YOU want to kill yourselves (smokers), go right ahead. I prefer to have clean air wherever I go. Until your habit doesn't impinge on my right to clean air, TOO BAD. Live with it. (And that goes for when I'm walking down the street and you are in front of me; when I'm in the car behind you and your smoke is coming in my window; AND when I'm walking into or out of a restaurant where smoking is BANNED.)

Seth Peterson 4 years, 9 months ago

Wait...

Hopefully the beginning of the end of this state law. We have to fight these controls before the conservatives control every aspect of our lives.

There, fixed it for you.

chzypoof1 4 years, 9 months ago

It's funny. The only place its legal to smoke is a place the state makes money from.....

poof

fester0420 4 years, 9 months ago

shows what you know it was the conservatives that passed this they all suck

somedude20 4 years, 9 months ago

Ah pee on it. Non-smokers will never be happy when it comes to smoking. No smoking in airplanes, busses, buildings, cars. No smoking in homes, restaurants, trains, outside (south park/10 feet from doors), concerts/shows. It is easier to list where one can smoke rather than where you can't. Secondhand speed (car not drugs)kills much quicker and is much more dangerous but hey, don't let that get in the way of things. Hell, almost anything secondhand is deadly. Secondhand bullets (which guns do smoke so that is secondhand lead and smoke) kill many people a year. Secondhand cars (hit buildings/people/dogs/our children) are killers and let us not forget secondhand popcorn lung (it is a real thing) Face it peeps, even life brings death and a lot of the things that we use or are around can kill us much quicker then the 20,30,40,50,60,70,80 years of smoke or secondhand smoke it takes for death.

ModSquadGal 4 years, 9 months ago

Yes, and there are LAWS restricting their use. And the fact that it kills you quicker is really a sad argument. If you don't give a crap about your own health/life, fine. But you don't have the right to make that assumption about me.

KawHawk 4 years, 9 months ago

The heck with you, smokers. You stink, you're rude, you litter, and you cost ME money through you higher health costs. Don't like it ? Tough beans. People better than you want a smokeless world, and they have the political power to make it happen.

Cait McKnelly 4 years, 9 months ago

To heck with you, fatties. You stink from excessive BO, you're rude stuffing your face in front of me, you liter the sidewalk with candy bar wrappers and you cost ME money through your higher health costs from diabetes and cardiovascular disease. Don't like it? Tough beans. People better than you want a skinny world and they have the political power to make it happen. (Just trying things on for size. You can also substitute other "social" drugs.)

cellogrl 4 years, 9 months ago

Okay, I'm not a smoker, but I do have a problem with the fact that the bars and restaurants around here spent a lot of money to get smoking patios that they will now not be able to use because of the 10 feet from a door rule. I think that sucks for them. Let people smoke if they got 'em.

IndusRiver 4 years, 9 months ago

The state says there is no proof the ban will harm businesses.

That's because the ban hasn't gone into effect, yet.

Ding!

IndusRiver 4 years, 9 months ago

KawHawk - You'll be allright if you just don't sweat the petty things and don't pet the sweaty things.

Darwin 4 years, 9 months ago

As a former smoker (quit in Oct. 2002), I can see both sides of the aurgument. Personally, I feel that all Kansas casinos (Tribal and State-Run) should be non-smoking. The smokers would piss and moan about it for awhile and boycott the casinos for a few weeks and then they would be back at it. If you need a smoke that bad...then you'll step outside the building for a few minutes. Those who gripe the most are usually the ones who are the rudest of people. Whether a smoker or non-smoker, no one is forcing you to enter a casino or any other facility. However, as most people have to work...they should not be subject to second hand smoke. On the other hand, the law should apply to everyone with no discrepancies.

I know...let's just build separate buildings strictly for smokers. Gee...if you still don't have enough, then pipe some more smoke in.

Kind of ironic...the Golden Eagle casino in Kansas has a "smoke free" enclosure with slot machines and all (or at least they used to). They meant well, but the problem is you still have to go through the smoking parts to get to it.

kansasmutt 4 years, 9 months ago

The state says " There is no proof the ban will hurt business" The state wont feel it, you can smoke in the state owned cassino. I am going to smoke in my business. I own it i make the rules. The lawsuit will void the law anyway. The law is bogus and unconstitutional and illegal. Choice is what i will provide. I will post signs stating smoking allowed and if you dont like smoke, you can opt out of the business. Very simple to do and wont cost the state any money. (( Golden Eagle is trying it out, but the word is non smokers dont like it. They want to be able to go anyplace and make everyone quit smoking. SUCK IT NON SMOKERS !!!!

ModSquadGal 4 years, 9 months ago

So do you feel the same way about ALL laws? You don't have to abide by them because you disagree and you can just say f-you to the powers that be? You wouldn't care if people came in and sold drugs there, or if your workers get hurt or harassed because you JUST DON'T CARE? Nice attitude.

jafs 4 years, 9 months ago

And what business do you operate, km?

IndusRiver 4 years, 9 months ago

From reading last night, the government cannot take away a right that it did not give, and the government never gave us the right to smoke.

Smoking is a natural right, and one we've always had. It is not a legal right nor is it one of the Unenumerated rights. The issue is not even found in this country's Constitution anywhere, therefore no one can base their "ban" on any statement that says "tenants do not have a right to smoke."

You did not give me "my right." You shall not take it away, period.

IndusRiver 4 years, 9 months ago

If we did have "the right to smoke" as either a legal or an unenumerated right then the government can take it away.

It's not the case for the government.

Richard Heckler 4 years, 9 months ago

Business does increase when smoke no longer travels from one table to the next or one beer mug to the next or to the upstairs dining areas.

Cannot contain tobacco smoke from being invasive.

Jeremy DeBoard 4 years, 9 months ago

Is there any other legal act a person is not allowed to do inside a business that is banned by the government, or is this the first?

Jeremy DeBoard 4 years, 9 months ago

In a sense, yes. It was given as an example to the limits of the first amendment. It has, I believe, been carried over into each theater's building codes. Although, this would also prevent outside "wolf criers" from doing the same thing.

kansastruthteller 4 years, 9 months ago

Depends. If there is really a fire in the theater then of course you can shout fire.

Limits on our rights are appropriate when exercing that right infringes upon another person's righ or endangers them. Hence, shouting fire in a theater when there is no fire endangers the other patrons. Consequently, it is rightfully limited.

However, smoking in a private establishment open to the public does not infringe upon anyone else's right nor does it endanger anyone because no one is required to patronize an establishment that allows smoking. One can choose not to enter and there is no risk to them.

And regardless of your feelings on the smoking ban, everyone should be outraged that the government exempted itself - why? Because the state said the state-owned casinos would suffer economically if they had to comply with the state smoking ban.

Hypocritical and unjust.

Bob_Keeshan 4 years, 9 months ago

You can't use the same plate twice in a buffet line.

Jeremy DeBoard 4 years, 9 months ago

That's a ban set forth by the government? I would think that was something each establishment has set forth and is more of a "common law". And I'm sure all you would get if you did this would be looks from the attendants.

Bob_Keeshan 4 years, 9 months ago

That's a ban set forth by the government and if you are allowed to do this the establishment is subject to fines. Just like with the smoking ban.

IndusRiver 4 years, 9 months ago

Business does increase when smoke no longer travels from one table to the next or one beer mug to the next or to the upstairs dining areas.

Cannot contain tobacco smoke from being invasive.

Never in my life have I cared for those smoked up burger or bar joints so I don't go in and cloud up anybody's business. Still, it's a pretty sure bet that enough of those beer mugs is gonna kill a patron lot quicker than if he or she got in their Ford sober, lit up, then drove home.

Why not query the cops and paramedics on what they would rather roll up on - drunk driving wreck or house on fire.

Jeremy DeBoard 4 years, 9 months ago

Aren't both tragic? I would think most would prefer to roll up on neither of them.

IndusRiver 4 years, 9 months ago

aren't the smokers controling my right to clear air?

No, because you do not have a "right to clear air." Your rights are those that are specifically written in the Constitution. For instance, Freedom of Speech is a right you have. Some Unenumerated rights are rights that we all have, but because they are not specifically written into the Constitution, they can be restricted by the government (I believe that's all they would do is restrict them). Unenumerated rights are the right to privacy, the right to travel, and the right to vote. We can all enjoy these "rights" today, but they could be gone tomoorow.

ModSquadGal 4 years, 9 months ago

Your right to hit me ends when your fist touches my nose. Same thing with smoke.

IndusRiver 4 years, 9 months ago

I just want to add that I do smoke, but I am really hoping that one day the non-smokers will have the kind of world that they wish for.

IndusRiver 4 years, 9 months ago

Aren't both tragic? I would think most would prefer to roll up on neither of them

Well, yeah.

jafs 4 years, 9 months ago

Inalienable rights of life liberty and the pursuit of happiness.

There is no such thing as a "natural" right - in nature, without societies, you have the right to be born, live and die. All "rights" are created by societies.

It seems to me that this issue ultimately resolves into a conflict between two "pursuit of happiness" claims - smokers claim that their pursuit of happiness involves smoking, and non-smokers claim theirs involves not being forced to inhale smoke.

We, through various legislation, seem to be concluding that the non-smokers have the better claim in public places.

IndusRiver 4 years, 9 months ago

NOT TRUE jafs, sorry. No court, no man, no nothin' gave me a right to smoke. I just started smoking one day on my own.

Non-smokers have their natural right to not smoke, but they have no legal ground to say I have no right.

IndusRiver 4 years, 9 months ago

Because I have no right, I have the right.

I know, weird. I'm outta here.

stly999999 4 years, 9 months ago

You know I have a right to take a dump or have sex with my wife, but not when I am sitting in public, so why make the insane argument that smoking in publice is somebody's right??? Just because something is legal to do, does not make it a right to do wherever and whenever you want.

notajayhawk 4 years, 8 months ago

In most places you're not allowed to drink in public, either. You can, however, do so in a bar. So again, why not smoking?

jafs 4 years, 8 months ago

Because I don't get drunk if I sit next to someone who's drinking.

notajayhawk 4 years, 8 months ago

Then again, you're not going to catch an STD if the people next to you are having sex.

kansasmutt 4 years, 9 months ago

The right of a business owner is called Free Enterprise. The right of the business owner to decide if they will have or have no smoking is simple choice. The consumer has the choice to enter or pass by a business wich allows smoking, that is your non smoking freedom. For the state to tell me , a business owner i or my tax paying customers can not smoke in my business, but they can walk into a State owned business and smoke , that my friends is illegal as hell. If you do not smoke, look for signs stating Smoking permited and patronize another business if you like.I will allow smoking in my business until i see fit it doesnt fit the business style.When the socialist leaders of Kansas ban smoking in there business, i will ban it in mine.Unitl then , smoking is leagal.You non smokers who feel this ban is legal and constitutional , your just controll freaks who need a life. Us smokers want to inform you this, More non smokers die every day then do smokers. This is only the begining of a billion dollar fight the state will fail at.You who compare taking a dump or sex in public are goofs and have no clue as to what the real issue at hand is. I smell victory in the air for smokers.

jafs 4 years, 9 months ago

"their" "legal" "you're" "control"

What business do you operate?

Armored_One 4 years, 9 months ago

Why not just establish smoking permits? You have to have a liscense to sell liquor in your business, so why not have it established in the same manner for smoking?

kansasmutt 4 years, 9 months ago

Armored one ) You got it. That is simple and leaves it up to the business and the consumer. The state has no reason to get so deep into this legal battle and ilegal law making.

IndusRiver 4 years, 9 months ago

Why not just establish smoking permits? You have to have a liscense to sell liquor in your business, so why not have it established in the same manner for smoking?

Why not just move on and see if you can find your life somewhere?

brujablanco 4 years, 9 months ago

IR - Did ya happen to notice that your faux activist "friend" Choke, has left the area? Got you all stirred up, tried to get you to post incriminating , possibly libelous info about another, then, POOF! just went away ?

You would be much more convincing if you would stop with the middle-schoolesque insults and communicated with civility. The only thing you have convinced most of the readers of is the very certain need for thorazine, the chemical lobotomy.

IndusRiver 4 years, 9 months ago

Where Do Rights Come From?

The Ninth Amendment raises the question of what a "right" is, and where it comes from. A right is a power or privelege that belongs to a person by law, nature, or tradition. Natural rights are based on the belief that all people have certain rights simply by being human. Therefore, the government cannot create or destroy natural rights, but it doesn't necessarily protect them, either. Legal or positive rights are those recognized by the statutes and court decisions of a society's government. Since legal rights are created by the government, the government can also take them away. The Ninth Amendment says that just because certain rights are not listed in the Constitution doesn't mean they don't exist. But does the Ninth Amendment refer to legal rights, that should be enforced by courts, or natural rights?

                              - The Words We Live By

IndusRiver 4 years, 9 months ago

Where Do Rights Come From?

The Ninth Amendment raises the question of what a "right" is, and where it comes from. A right is a power or privelege that belongs to a person by law, nature, or tradition. Natural rights are based on the belief that all people have certain rights simply by being human. Therefore, the government cannot create or destroy natural rights, but it doesn't necessarily protect them, either. Legal or positive rights are those recognized by the statutes and court decisions of a society's government. Since legal rights are created by the government, the government can also take them away. The Ninth Amendment says that just because certain rights are not listed in the Constitution doesn't mean they don't exist. But does the Ninth Amendment refer to legal rights, that should be enforced by courts, or natural rights?

                              - The Words We Live By

IndusRiver 4 years, 9 months ago

Where Do Rights Come From?

The Ninth Amendment raises the question of what a "right" is, and where it comes from. A right is a power or privelege that belongs to a person by law, nature, or tradition. Natural rights are based on the belief that all people have certain rights simply by being human. Therefore, the government cannot create or destroy natural rights, but it doesn't necessarily protect them, either. Legal or positive rights are those recognized by the statutes and court decisions of a society's government. Since legal rights are created by the government, the government can also take them away. The Ninth Amendment says that just because certain rights are not listed in the Constitution doesn't mean they don't exist. But does the Ninth Amendment refer to legal rights, that should be enforced by courts, or natural rights?

                              - The Words We Live By

IndusRiver 4 years, 9 months ago

Sorry, but the JW didn't post the first time I hit the button.

IndusRiver 4 years, 9 months ago

This comment was removed by the site staff for violation of the usage agreement.

jafs 4 years, 9 months ago

The "belief" that all people have certain natural rights just by virtue of being human is just that, a belief.

Armored_One 4 years, 9 months ago

"Why not just move on and see if you can find your life somewhere?"

-- Quoted from IndusRiver

Not the best argument that has been brought to me, but it possibly one of the most sussinct.

Why is it that you ask me, and if I am wrong in this conclusion I do apologize, to basically drop the issue and find something else to discuss?

Does it somehow offend you that I actually formulate an actual argument, instead of just tossing together a mix of words and hoping they are coherant enough to convey my point? Or is it the simple fact that I maintain a specific level of emotional distance in the words I choose, instead of simply lobbing insults in every direction possible the instant that I am confronted by a differing viewpoint?

I hold nothing worse than irritation against those that are against smoking. It IS a habit of choice, not force. No one ever put a gun to my head and forced me to either light, inhale or exhale. It should be other people's choice as to whether or not they wish to be around it. But it is not the non-smoker's right to dictate whether or not I am allowed the choice to light a cigarette or not. It is no more their right than it is my right to dictate what is an appropriate color to paint the inside of someone's house.

In the state of Kansas, smokers pay an additional tax that non-smokers don't yet benefit from immensely. Those taxes are used to fill potholes, build infrastructures, fund primary and secondary education.

How many more cuts in education will be required if smoking is no longer allowed? If you would like, I can present the mathematics of the taxes in a basic format, but I will not be bothered to do so if it will serve no purpose. There is a previous thread that I commented on that contains said mathematics, and it is exceptionally rudimentary but 100 percent factual.

Thousands of Kansas residents rely on state funded health care. Perhaps if the prices weren't so meteoric, the price tag wouldn't be so high. Look to the actual causes, not the tertiary effects that cause something. If the roof of your house had a 10 foot diameter hole in it, would you fix that hole to stop the rain from coming in, or would you repair the half a dozen shingles 5 feet away that were partially damaged when the hole was created?

That same basic logic should be applied everywhere, not just to where it's obvious. Sadly, it isn't, and the citizens of this nation, regardless of their stance on smoking, will pay the price for it.

jafs 4 years, 9 months ago

It's interesting, given the extremely addictive nature of cigarette smoking, that smokers refer to it as a "choice". Once addicted, I'd imagine it's not really much of a free choice any more.

And again, for the smokers, you still have the right to smoke, just not somewhere where it will affect others' health.

We're not talking about the inside color of one's house here.

notajayhawk 4 years, 8 months ago

And yet smokers also have a choice to not patronize a business where smoking is allowed, they have a choice not to associate with smokers, etc. Why is it the smokers have to modify THEIR behavior to accommodate the choice of the non-smokers?

And we're not even talking about public places, here. The bar owners and restaurateurs were dropped from the suit. We're talking about private clubs. A person actually has to join, to become a member in order to subject themselves to that smoke - why would they do that?

jafs 4 years, 8 months ago

I believe you mean "non-smokers" in your first sentence.

And, I agree that perhaps private clubs should be exempt. Although, I'd like them to be required to process the smoke somehow so that it doesn't spill out onto the street while I'm walking past.

notajayhawk 4 years, 8 months ago

Yep, that's what I meant, thanks.

Glad you agree about private clubs, but I would like to see more. I believe someone up above already mentioned something I've said in previous threads on the topic - why can't there be a certain number of specifically licensed smoking establishments? I have no problem with that number being limited (e.g., if 20 percent of the population smokes, why can't 20 percent of the establishments allow smoking?). Nor do I have a problem with those places being regulated somehow, perhaps by paying more for their license; the extra cost can be passed on to the people who choose to patronize those places, and the extra money collected can go into whatever fund the state uses to pay for all the alleged costs of treating smokers.

Armored_One 4 years, 9 months ago

Life is nothing but choice. If you are incapable of grasping that rudimentary concept, the rest of this conersation is fully and completely useless.

jafs 4 years, 8 months ago

If you think that smokers, once addicted, are making some sort of free choice, then you are insane.

Ask any who've tried to quit how hard it is to do so.

notajayhawk 4 years, 8 months ago

Quitting is easy! Heck, I quit three times just last week! :)

(Wasn't it Ozzie Osbourne that said something to the effect of 'Cocaine isn't addictive - I should know, I've been doing it for 35 years!')

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