Thursday, August 19, 2010

A judge's action on Wichita's public smoking law has both sides fired up. The judge ultimately decides not to allow the statewide smoking ban to take effect in Wichita... at least for now.

The issue will ultimately come down to the judge's interpretation of each law. What is more strict? A law that allows smoking, but requires businesses to buy permits and be heavily regulated? Or a law that completely bans smoking everywhere?

"Stringency does not mean that the act be excluded," argued Harry Najim, the plaintiffs attorney. "It means that the act be controlled."

Fifteen businesses are now on board with suing the state, saying their businesses and livelihoods will go up in smoke if the statewide smoking ban takes effect. They argue that the state picks and chooses where smoking can occur... and where it does occur, it's not regulated at all.

"For those who do not wish to be exposed to smoke, the answer is really simple," Najim told Judge Jeffrey Goering. "Do not patronize those plaintiffs establishments."

"Clearly, the state ban is more stringent," argues Tim Riemann of the Kansas Attorney General's Office. "That's why we're here, because under the state ban they can't smoke. Under the Wichita ordinance, they can."

But smoking - is - allowed under the state law in places such as state-owned casinos, country clubs, 20% of hotel and motel rooms, and nursing homes and long-term health care facilities.

The local office of the American Lung Association contends that many people don't have a choice where they work and are forced to work in establishments that allow smoking.

"They have to put food on their table for their kids and family," explained Dianne Tinker. "And sometimes that place may be a place that allows smoking and they don't want to be around that smoke, but they have to because they have to feed their kids."

Ali Issa disagrees, however, saying if the state law goes into effect, he'll consider moving his Heat Cigar and Hookah Lounge to a country club where smoking won't be regulated at all. That, he says, is hypocritical, considering the state claims they want to ban smoking to better the health of all citizens.

"Either keep Heat where it is and not let minors go there or non smokers be exposed," Issa said. "Or I can move Heat to a facility where the state will allow me to, but minors will be exposed and second hand smoke would be exposed."

Judge Jeffrey Goring took the issue up for advisement. He is expected to make a ruling on the matter within a couple of weeks. That ultimately means the Wichita city smoking ordinance remains in effect until his decision.