By Sarah Green
KHI News Service
TOPEKA, April 25
The constitutionality of one of the state”s most comprehensive local smoking bans was debated before the Kansas Supreme Court on Wednesday.
Justices heard competing arguments from attorneys for Dennis Steffes, a Lawrence bar owner, who was convicted of violating the ordinance, and the City of Lawrence.
William Rork, Steffes” attorney, said the
city”s ordinance
was too vague to be constitutional and violated the state statute that allows cities to override existing state laws.
Lawrence was one of the first
Kansas cities to adopt a smoking ban
aimed at protecting employees and the public from secondhand smoke. It is one of the state”s strictest clean air ordinances, prohibiting smoking in workplaces and indoor public places.
But there”s no language in the ordinance that tells business owners exactly what to do if a patron lights up, nor who is liable when the ordinance is violated
the smoker, a business employee or its owner, Rork said.
City officials received reports of patrons smoking in Steffes” nightclubs; the smokers were not cited, but Steffes was, even though he was not there.
“Mr. Steffes was at home in bed, and the next day he finds out in the paper that he”s a criminal,” Rork said.
Toni Ramirez Wheeler, the city”s director of legal services, said the ordinance isn”t too vague. But it does not stipulate how business owners should enforce it because the possible ways it could be violated were “myriad” and they didn”t want to tell the owners how to run their businesses.
“The law doesn”t require that level of specificity,” she said.
The city”s ordinance requires employers to post “no smoking” signs, maintain a written no-smoking policy and inform all employees of the rules.
Rork also said that the city takes away proprietor”s rights to designate smoking and non-smoking areas inside their business, which is allowed under state law.
Under the so-called home rule provisions of state law,
the city is allowed to override state laws
as long as the local law is more stringent, Wheeler said. State law specifically prohibits smoking in certain areas, such as buses, trains and day care centers. The Lawrence ordinance merely extended the list of prohibited areas to include indoor work and public places, she said.
Rork said his client had lost business because of the smoking ban and his image had been tarnished after reports of his citations. He asked for injunctive relief from the ban.
Rork described a situation where his client was “arrested” four times for smoking ban violations. That wasn”t the case, Wheeler said
Steffes was cited four times and given a court date, but never taken into custody.
“Mr. Rork, was your client arrested?” asked Justice Carol Baier during Rork”s rebuttal.
“It was put in the paper that he was charged,” Rork replied. “The good citizens of our city see that someone was charged, they can”t figure out that doesn”t mean he wasn”t taken to jail.”
In Douglas County District Court, Steffes was found not guilty of three charges; the city offered to drop the remaining count but Steffes instead challenged the constitutionality of the ordinance and lost. He appealed the district court”s decision directly to the Supreme Court.
A decision in the case is expected in early- to mid-June.
After the hearing, Steffes said he was not opposed to smoking bans
in fact, he said, he would favor one at the state level
but he did not think Lawrence”s ban was appropriate for businesses, especially bars.
“I think we should be protected,” he said. “If you”ve got little children trapped in high chairs, they can”t choose what goes into their lungs. But for our establishments, you have to qualify to get in by being the legal age. You”re making a conscious choice of what you”ll be exposed to.
“If I had customers coming up to me saying they didn”t want smoking, it would have changed by now,” he said.
Kathy Bruner, chairwoman of the Clean Air Lawrence coalition, said she has heard many compliments about the ban from Lawrence residents and visitors. If necessary, the language in the ordinance can be “easily fixed,” she said.
“People have embraced the ordinance so wholeheartedly, as have visitors,” she said. “We won”t be without it.”
Bruner cited health costs to the state of more than $600 million that are attributed to smokers. Clean air ordinances could help reduce that amount, she said.
“This is one positive thing we can do,” she said.
-Sarah Green is a staff writer for KHI News Service, which specializes in coverage of health issues facing Kansans. She can be reached at
sgreen@khi.org
or at 785-233-5443, ext. 118.