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Holding off
the ban

3 businesses get order to stop ordinance enforcement

By Sheryl Marsh 340-2437

For now the smoke won't vanish in three businesses after a judge issued a temporary restraining order against the Decatur City Council and Mayor Don Kyle.

Owners of the businesses argue that city officials are superseding federal and state laws.

Morgan County Circuit Judge Sherrie Paler granted a motion Friday that attorney Catherine Halbrooks sought for Jerry Nash, owner of Nash Bar and Grill; Jeffrey Hitt, owner of Frontier Entertainment; and Steven Torbert, owner of TK's Bar.

Paler's order states that the ordinance, which became effective Monday, will not apply to the bars at this time.

In addition, Paler ruled that officials cannot enforce the ordinance at the businesses until she makes a ruling or holds a hearing on the complaint. A hearing is set for Oct. 17.

The owners had to post $5,000 with the circuit clerk's office for security for potential court costs.

Nash said he and co-litigants want the ordinance returned to its original state.

"Our ultimate goal is to get the city to take the ordinance back to its original form where you can allow patrons to have a smoking section, to allow a business to choose whether they will be smoking or nonsmoking," said Nash. "If the ordinance stays the way it is, it would definitely affect my bar business because 80 or 90 percent of my customers are smokers."

"I have two businesses and one is totally no-smoking," Nash added. "I am a non-smoker, but I want to have the right to choose. The people should have a right to choose. If it says smoking, they don't have to go there. I've been in business since 1999, and this is a hard pill to swallow."

Halbrooks' complaint states, "The defendants' (city officials) no smoking ordinance violates both the procedural and substantive due process protections contained in the 14th amendment of the U.S. Constitution. The defendants must act in a way that is fair and reasonable when making decisions affecting private individuals and must not engage in arbitrary action."

The civil complaint further states that city leaders provided no education about the ordinance.

"Specifically, the plaintiffs have provided no information as to what will be required in their specific businesses for compliance, their responsibility for ensuring compliance and how to address the additional safety issues that implementation of the no smoking ordinance will create."

The council held a public hearing and gave participants limited time to speak.

The complaint cites state law, also.

"The Alabama Clean Indoor Air Act states that its prohibition does not apply in bars and lounges," the complaint states.

The Alabama Constitution states, "The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general law of the state."

Halbrooks states in the complaint that the business owners would "suffer irreparable harm" that could lead to closure of their businesses.

Judge's order

In granting the restraining order, Paler stated that to an extent the ordinance requires the mayor or a designee to make clear the requirements of the city ordinance so that business owners will know how to comply.

"The court finds that enforcement of the ordinance as to the plaintiffs without resolution of this anticipated ambiguity clearly threatens the plaintiffs in the operation of their businesses with immediate and irreparable injury, loss or damage that will result before the defendant can be heard in opposition," Paler's order states.

Halbrooks noted that the city benefits from tobacco taxation.

"It is also interesting to note that the no smoking ordinance prohibits the legal act of smoking while the City of Decatur makes substantial revenue from the tax imposed from the sale of cigarettes."

The council majority passed the ordinance in August to make Decatur smoke-free like six other smaller cities in the state.

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