To allow the statewide smoking ban to become the law of Kansas on Thursday would violate the equal protection clause of the U.S. Constitution and the Kansas Bill of Rights, an attorney representing a club in Tonganoxie said.
Blocking the statewide smoking ban against smoking in enclosed public spaces would be bad for your health, an assistant attorney general has countered.
Today, Shawnee County District Court Judge Franklin Theis will hear arguments from the assistant attorney general and five businesses seeking to dismantle the law before it hits the statute books Thursday. Legal arguments before Theis will be at 9:30 a.m. at the Shawnee County Courthouse.
The statewide smoking ban was signed into law March 12 after the Kansas Legislature passed the ban. Exemptions are some class A and B clubs; private clubs, which are outdoor facilities; and state-owned casinos.
The legal flap started June 8 when the Downtown Bar and Grill in Tonganoxie filed a lawsuit seeking a court order to permanently block the state statute from becoming law.
Ten days later, the Bingo Palace, HEAT, Shooters and the Bingo Royale LLC, all in Wichita, sought to join the fray when they filed a motion to intervene.
On Friday, assistant attorney general Tim Riemann objected to the Wichita businesses joining the lawsuit, saying their claims are without merit. Riemann urged Theis to dismiss the case.
Michael Merriam, attorney representing the Tonganoxie business, contends the statewide smoking ban creates two classes of class A and B clubs, which would be identical in all ways but whether they were licensed as of Jan. 1, 2009, or after that date.
“The legislative intent to eliminate smoking generally in public places cannot be served by grandfathering licensees based upon their date of license and prohibiting later licensees with identical state licenses from allowing smoking upon their premises,” Merriam wrote. “Such a classification system is arbitrary.”
Merriam wants the judge to rule the smoking ban violates the equal protection clause and to issue a temporary and permanent injunction prohibiting enforcement of the new law.
In the alternative, the judge could cut out the Jan. 1, 2009, date, making all class A and B clubs exempt from the smoking ban, Merriam said.
Attorney Tuck Duncan, who represents the four businesses seeking to intervene, argues that allowing smoking in some private clubs and not in other places selling alcohol is arbitrary.
Duncan said equal protection is the primary issue and contends it also is arbitrary to allow smoking in state-owned casinos while prohibiting it in other “gaming” venues.
The new casinos are exempted from the ban, but smoking will be banned in bingo parlors.
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 southeast Kansas, but those haven’t been developed.
The negative health impact on smokers and nonsmokers “are well known and have been recognized by multiple courts in many jurisdictions, including Kansas,” assistant attorney general Tim Reimann said. The practical effect of a court order barring the smoking ban and allowing people to smoke in enclosed public settings “will be deleterious to public health. Thus, granting this injunction is adverse to the public interest.”
Given that the five businesses didn’t provide evidence they will be harmed by the smoking ban, “the injunction would cause more damage to the Kansas public than it would to plaintiff or intervenors,” Reimann said.
From cjonline.com, BY STEVE FRY, June 29th, 2010