Temporary Injunction Stalls Statewide Smoking Ban

By: Jared Cerullo Email
By: Jared Cerullo Email
A judge has interrupted plans to enact a statewide smoking ban, at least in Wichita, as three local businesses are suing the state to keep smoking a choice of their patrons.

Smoking Ban in need of second look

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Saturday, June 26, 2010

A judge has interrupted plans to enact a statewide smoking ban, at least in Wichita, as three local businesses are suing the state to keep smoking a choice of their patrons. Those businesses are Morts Cigar Bar, Walts Sports Bar and Grill, and The Heat Hookah Lounge and Cigar Bar. All of them cater to patrons who smoke, but say the state law set to start next week would kill their businesses.

As Ali Issa draws from a hookah pipe inside The Heat, he comments that business owners should be able to allow smoking if they want and that customers should be able to make their own decisions on whether to patronize him.

"It should be the customers choice and a business owners choice," Issa said. "That's a free market."

Issa has owned restaurants that did not allow smoking, but now he owns The Heat, which obviously caters to cigar and Hookah smokers.

"The people of Wichita, the city council and mayor came out with a brilliant smoking ban," he explained. "The ordinance protects minors and protects the rights of non smokers. At the same time, there's still a choice for people who choose to smoke."

The businesses contend that the Kansas Constitution allows for local ordinances to have precedence over state law if their ordinances are more stringent. Attorney Harry Najim says Wichita's smoking ban ordinance is extremely comprehensive and should trump the state law.

"These clients have built businesses around providing a place for their customers and patrons to smoke," Najim said. "Some have gone to the expense of retrofitting their ventilation facilities. The city issues licenses to smoke friendly businesses."

Issa says it's all about choices instead of government dictating what anybody can or can't do.

"We know smoking is bad for you," he said. "We know a smoking ban is a necessity. We presented the Wichita ordinance to the state of Kansas and I wish they had adopted it."

Najim contends the state law was not thought out and is full of holes. Add that to the fact that the state has exempted its own state-owned casinos and Najim says the politicos in Topeka are hypocrites.

"If you can't smoke, what are you supposed to do when you go to a cigar bar or a hookah lounge? Play parlor games? I think the city ordinance is reasonable."

The temporary injunction means the smoking ban will not go into effect in Wichita only starting July First. A judge will determine if the case has merit to proceed on July 15.

Friday, June 25, 2010

A Sedgwick County judge has granted a temporary injunction against the statewide smoking ban after a lawsuit filed by three Wichita businesses effectively prevents the ban from taking place July 1.

The lawsuit was filed in the district court of Sedgwick County by three plaintiffs, Heat Cigar & Hookah Lounge at 338 North Rock Road, Mort's Cigar Bar located at 923 East 1st Street in Wichita, Walt's Sports Bar Grill at 7732 East Central Avenue, all of Wichita.

Harry L Najim, the attorney for the businesses, says the lawsuit has been brought against Kansas Attorney General Steve Six, the director of the Kansas Department of Revenue - Alcoholic Beverage Control (ABC) and the acting director of the Kansas Department of Health and Environment. These are the enforcement arms of the new statewide smoke ban.

According to Najim, the lawsuit asks for injunctory relief both temporarily and permanently.

"The theory is that when they amended the state statute that governs smoking in public places, they left intact a section of the law that says if the local or city/county ordinance is at least as stringent as the state law, then the local law would control the statute," Najim said Friday.

Najim and his clients believe the Wichita city ordinance is more strict than the state law passed earlier this year because it allows for businesses to choose to have separate smoking rooms with completely separate ventilation systems.

"My clients are challenging this," Najim said. "I feel that this new state law steps on the Kansas Constitution." Najim adds, "Cities and counties are capable of governing themselves."

Judge Eric Yost granted the temporary injunction Friday, June 25.

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