The Kansas Supreme Court has scheduled arguments for Wednesday in a case being appealed by the attorney general, asking the justices to lift a temporary injunction issued in June 2010.
Shawnee County District Judge Franklin Theis issued the injunction after attorneys for the Downtown Bar and Grill of Tonganoxie filed a lawsuit over a deadline in the law that allowed a certain class of licensed private clubs to permit smoking. During debate on the law, legislators inserted a Jan. 1, 2009, cutoff date for clubs as an amendment on the House floor.
The Downtown Bar and Grill received its license in May 2009 and would not qualify, even though the smoking ban didn’t go into effect for nearly a year later.
Attorney Mike Merriam of Topeka argued that there was no rational basis for the Legislature to choose the earlier date and that by grandfathering some but not all clubs that held a license before the smoking ban took effect was arbitrary.
“Arbitrary, by definition, is not rational,” Merriam wrote in a brief filed with the Kansas Supreme Court.
Merriam said the smoking ban would cause his clients to go out of business. He said they would lose business to clubs that permit smoking.
He said the bar converted to a private club in 2009 because at the time it didn’t meet Leavenworth County requirements that drinking establishments derive 30 percent of their revenues from food sales, not because of the smoking ban. But the owners had hoped that by being classified as a private club, they could continue to allow smoking.
The state’s attorneys argued that legislators had to pick some date and it was inevitable that some establishments would be excluded, regardless of the date selected.
“Preventing drinking establishments from circumventing the statewide smoking ban by reorganizing as class B clubs is a rational basis for picking the Jan. 1, 2009, date,” state attorneys wrote in briefs filed ahead of Wednesday’s hearing.
The law prohibits indoor smoking in most public places, including bars, restaurants, bingo parlors and some private clubs. The gambling areas of state-owned casinos are exempted. Legislators rejected efforts in 2011 to amend the smoking ban to remove the casino exemption. No efforts were made to revise the deadline for private clubs.
Theis, who upheld the statewide ban, ruled in favor of the Downtown Bar and Grill and the injunction has been in place for the past 18 months. No trial date has been set, pending the state’s appeal.