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TOPEKA — With only hours before Kansas is scheduled to go smoke-free in public places, owners of bars, bingo parlors and private clubs are seeking to block the ban in court.
A Shawnee County District Court judge said he would rule by 5 p.m. today on a request for a temporary injunction against the statewide smoking prohibition. The business owners hope to delay the ban while they challenge the law.
Starting Thursday, a new state law is to ban smoking in all restaurants, bars and workplaces — except certain private clubs and state-run casinos.
But that is unfair, according to those seeking to delay or kill the ban. Attorney Tuck Duncan, representing a bar, pool hall and bingo parlors in the Wichita area, said state lawmakers unfairly exempted casinos because they generated money for the state.
"If it is good for the goose, it's good for the gander," Duncan told Judge Franklin Theis on Tuesday during two hours of oral arguments.
Duncan said the new law should be returned to the Legislature.
"They really need to cure the problem they created," he said.
But Tim Riemann, an attorney for the state, argued that the U.S. Constitution "does not require fairness" and that the state was within its rights to protect its state-run casinos. He said there was no evidence the smoking ban would hurt private businesses.
"It's just not that big of a deal," Riemann said. "Smokers know this, which is why they don't leave their favorite bar after it goes smoke-free."
Duncan's clients moved to intervene in a lawsuit filed by a private club in Tonganoxie. The Downtown Bar and Grill is challenging specific provisions of the law that treat some private clubs differently than others. The smoking ban would apply only to clubs that were licensed after 2009. The Tonganoxie club opened more recently.
The club's attorney, Mike Merriam, said it was as if the Legislature said "brunettes can smoke, blondes and redheads cannot."
Whether or not Theis moves to delay the ban, the legal challenge will continue.
"We're still looking at a trial later on," Merriam said. "Meanwhile, Constitutional rights are at stake."
In a separate lawsuit, a Sedgwick County District Court Judge on Friday issued a temporary injunction delaying the start of the smoking ban in Wichita until at least July 15.
Harry Nijam, an attorney, sought the ban on behalf of three Wichita bars.
Judge Eric Yost scheduled a hearing for July 15 to deterimine whether the injunction should be extended.
