News from the Tennessee Valley Business
SUNDAY, OCTOBER 21, 2007
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Bars likely to lose smoking battle

Savor the smoke if you patronize one of the three bars that have escaped the city’s no-smoking ordinance, because it might not last.

On Wednesday, Morgan County Circuit Judge Sherrie Paler let stand a previously issued temporary restraining order barring the city from enforcing its no-smoking ordinance against Nash Bar and Grill, TK’s Bar and Frontier Entertainment.

The judge said she would, in mid-November, either grant the city’s motion to dismiss the complaint by the three bars or schedule the matter for a hearing on whether to grant a more permanent injunction.

Fair or unfair, the ordinance appears to be valid. Odds are Judge Paler either will dismiss the complaint or dissolve the restraining order.

The bars are making three basic legal arguments.

Pre-emption

Argument No. 1 is that the ordinance conflicts with the state’s Clean Indoor Air Act.

The state’s Clean Indoor Air Act prohibits smoking in public places, but it includes an exception for bars and lounges.

The problem for the plaintiffs is another provision of the Clean Indoor Air Act that makes clear nothing in the law “shall be construed to restrict the power of any city to adopt local ordinances,” provided they are not less restrictive than the state law.

A city is pre-empted from action only when the state government has expressed an intent that the city refrain from acting, or when the city’s action is in direct conflict with a state law.

Nothing prevents a city from enacting an ordinance that is more restrictive than a state law.

Equal protection

The bars’ next main argument is that the ordinance violates the Equal Protection Clause of state and federal constitutions.

Again, bad news for the bars. Courts interpret the Equal Protection clause simply to require that an ordinance be “rationally and reasonably related to furthering some legitimate governmental interest.”

Whether secondhand smoke truly creates a health risk is not even the standard.

The city only has to show that it is not being irrational or unreasonable in concluding there is a health risk, and many courts have held that there is enough scientific evidence to pass muster.

Due process

When a city takes property, it has to follow more elaborate procedures than it does in some other instances. The bars argue that the no-smoking ordinance effectively takes property because it makes it impossible for them to remain in existence.

Even if they could convince a court that operating a non-smoking bar is impossible, the law is against them.

Courts hold that a city only “takes” property when it destroys any economically viable use of the owner’s land. Even if a bar cannot operate under the ordinance, other businesses could.

If you are reading this in one of the three bars not complying with the ordinance, inhale deep. The air soon may be disturbingly fresh.

Contact Eric Fleischauer at eric@decaturdaily.com.

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