Topeka 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.”