A decision last week by the Kansas Supreme Court may have clarified the exemption in the 2010 indoor-smoking ban for some private clubs that serve liquor. But it remains up to the Legislature to toss out the hypocritical exemption for state-owned casinos.
The Downtown Bar and Grill of Tonganoxie had challenged the smoking ban’s cutoff date for private clubs exempted under the law, claiming it qualified even though it wasn’t licensed as a Class B club until May 2009. Considered by the 2009 Legislature but not adopted until 2010, the law had said that only such private clubs licensed as of Jan. 1, 2009, could be exempt from the smoking law.
A Shawnee County District Court judge had issued an injunction in June 2010 in favor of the Tonganoxie club, which argued in its lawsuit that it was denied equal protection of the law because the act’s cutoff date had no rational basis connected to a legislative purpose.
But the state Supreme Court reversed the district court’s injunction last week, returning the case to district court. The justices agreed with the state that the Jan. 1, 2009, cutoff date was not arbitrary, but conceivably was meant to prevent bars from rushing to change their liquor license and become private clubs before the law went into effect in July 2010.
What happens next is unclear, though it seems likely the injunction will be lifted and the ban will be allowed to go into effect as written.
That would allow the private clubs licensed as of Jan. 1, 2009, to remain exempt, along with tobacco shops, casinos, up to 20 percent of the rooms in a hotel and designated areas of adult care homes.
Chris Masoner, of the American Cancer Society’s Kansas chapter, told the Kansas Health Institute News Service that “as far as legal challenges, this ought to put everything else to rest.”
But that should not be that.
The Legislature now should do what it should have done in the first place – make the smoking ban apply to state-owned casinos as well as most private businesses.
Like the 2011 session, the current one has seen little effort to deal with the hypocrisy of the casino exemption. Anti-smoking lawmakers and groups fear pressing the issue could backfire and lead to a weakening of the law. Casino operators argue that revenues would fall off if smoking were banned (though 19 states ban smoking in casinos and April 2 saw the opening of Atlantic City’s first smoke-free casino, the gleaming $2.4 billion Revel resort).
Research done last year by Stanford and Tufts universities found that in more than 9 of 10 smoking casinos surveyed, the indoor pollution levels exceeded the World Health Organization standard for fine particulate matter.
Given that the health threat of secondhand smoke doesn’t make an exception for gamblers and casino employees, Kansas’ smoking ban should not be making an exception for state-owned casinos.
For the editorial board, Rhonda Holman