Kansas goes smoke-free

Wichita bars among exceptions to new law

07/01/2010 12:00 AM

07/01/2010 7:08 AM

TOPEKA — Smokers at Wichita bars and at private clubs across Kansas can continue to light up, but much of the state goes smoke-free indoors today. In a last-minute ruling Wednesday, Shawnee County District Judge Franklin Theis allowed 31 private clubs statewide that received licenses after Jan. 1, 2009, to continue to allow indoor smoking. Private clubs licensed earlier already were exempt from the ban.

Wichitans can continue to smoke indoors where the city's partial ban allows — in bars and in restaurants with separate smoking rooms — at least until a court hearing July 15.

The state's ban prohibits smoking in bars, restaurants and other public places. It also bars smoking within 10 feet of an entrance, open window or air intake for a building. It is one of several new laws taking effect today.

"We think today is a victory for the principal of the smoking ban and how it is going to help public health around the state," said Attorney General Steve Six after the judge's ruling.

The law passed by the Legislature exempted tobacco shops, some private clubs, long-term-care facilities and state-owned casino gaming floors from the smoking ban. Those exemptions prompted a handful of legal challenges.

"We're claiming that clubs should all be treated the same regardless of when they were licensed," Mike Merriam, attorney for the Downtown Bar and Grill in Tonganoxie.

The Downtown Bar and Grill was licensed as a private club May 4, 2009. The state's exemption applied only to private clubs licensed Jan. 1, 2009, or earlier.

In his ruling for a temporary injunction, Theis wrote, "The result is the January 1, 2009, cut off for class A and class B exemption from the state wide smoking ban seems, at best, an unintended consequence, and nevertheless, wholly arbitrary."

No hearing has been set in the case, Six said.

Gov. Mark Parkinson, a Democrat, said it was encouraging that most of the ban would take effect. The law would help prevent teenage smoking and save thousands of lives, he added.

"While a temporary ruling has been issued affecting a small number of private clubs, this does not deter the State from pursuing this legislation's ultimate goal," Parkinson said in a written statement.

The plaintiffs had asked Theis to declare the entire smoking ban unconstitutional because of the exemptions. Theis ruled it was not unconstitutional for the state to allow smoking in casinos while barring it in bingo parlors because the state already made a legal distinction between the two.

He also ruled that drinking establishments did not have a claim in the lawsuit because they "can claim no equal protection violation in relation to any other differently classified establishment dispensing alcoholic beverages."

Meanwhile, Wichita bars and restaurants with smoking rooms can continue to allow smoking. District Judge Eric Yost issued a temporary restraining order June 18 on behalf of three Wichita businesses: Mort's Cigar Bar, Walt's Sports Bar, and Phoenician Room and Heat Cigar Bar & Hookah Lounge.

He set a July 15 hearing to determine whether the temporary restraining order should be extended.

The Wichita smoking ban does not have the same exemptions as the state ban but says proprietors can allow smoking if they buy a special permit, upgrade their ventilation systems and limit smoking-optional rooms to adults.

The new state law allows communities to enact laws that are more stringent than the state law. The Wichita plaintiffs maintain that the city's law is stricter than the state's because it doesn't include the exemptions for private clubs and casinos.

Bryan Burkhead, who was smoking in the Alibi Room on Monday, said he's going to "take advantage of the next two weeks" to keep smoking indoors. He doesn't like the idea of the ban. "These establishments that serve alcohol don't serve food. Smokers are their clientele," he said.

Smoking at Emerson Biggin's in Old Town earlier this week, Andre Burchette said he had been following news of the smoking ban and had heard about the restraining order.

"I don't like it (the ban) too much. It's kind of a good thing and a bad thing," he said.

He sees the importance of protecting children from secondhand smoke but thinks the current system in Wichita is a fair balance between protecting nonsmokers and still giving smokers places they can go.

Burchette said it is going to be cold for smokers when they have to stand outside in the winter, but he expects they'll weather it because "smokers are still going to smoke."

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