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Archive for Wednesday, December 7, 2011

State Supreme Court hears Tonganoxie bar’s case to continue allowing smoking

December 7, 2011

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— Kansas Supreme Court justices were asked Wednesday to reverse a lower-court's temporary injunction blocking enforcement of a narrow portion of the state's 2010 smoking ban on grounds legislators had a rational basis for its provisions.

But justices and Mike Merriam, attorney for Downtown Bar and Grill in Tonganoxie, said to do so would leave little reason for the northeast Kansas club's case to move forward.

"From a practical matter, Mr. Chief Justice, we'll be dead in the water," Merriam said. "We can't just litigate for the sake of litigating."

At issue is whether a deadline that legislators said bars like Downtown Bar and Grill had to have switched their liquor license to be exempt from the 2010 smoking ban. Legislators set that cutoff at Jan. 1, 2009, while the bar got its license in May 2009. Merriam argues that the date was arbitrary and had no rational basis.

The law prohibits indoor smoking in most public places, including bars, restaurants, bingo parlors and some private clubs. The gambling areas of state-owned casinos are exempted. Legislators rejected efforts in 2011 to amend the smoking ban to remove the casino exemption. No efforts were made to revise the deadline for private clubs.

In June 2010, Shawnee County District Judge Franklin Theis issued a temporary injunction blocking enforcement of the smoking ban on Downtown Bar and Grill and a handful of other similarly situated clubs. He ruled the cutoff deadline was arbitrary and issued the temporary injunction on the ground the bar had a substantial likelihood to prevail as the case moved forward.

Kim Lynch, an assistant attorney general arguing for the state, said that legislators had a rational basis for the deadline in that they wanted to prevent a rush of bars seeking to circumvent the law.

She said Theis was wrong to block the enforcement and that legislators acted within their authority in setting the deadlines. Lynch said the state was within its right to appeal the temporary injunction because there was little new evidence that would be presented at the district court level should it go forward.

"This case ripe to be before this court," Lynch said.

She said the state was taking steps to ban smoking through incremental steps, but being mindful that there were businesses that had financial interests in preserving the ability of their customers to smoke.

Attorneys cited a 1976 U.S. Supreme Court Case that upheld an ordinance in New Orleans that banned the use of pushcarts in the French Quarter. The ordinance applied to pushcarts that had been operating less than eight years, arguing that those businesses did not have a significant financial reliance from operating in the area.

The court ruled that the city had a rational basis for setting the grandfathering date for older pushcarts, which had become part of the New Orleans charm.

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