State supreme court to hear smoking case

Publication Date: 2011-12-07

• Author:John Milburn, AP
• Publication:The Topeka Capital-Journal

Kansas Supreme Court justices were asked Wednesday to reverse a lower-court's temporary injunction blocking enforcement of a narrow portion of the state's 2010 smoking ban on grounds legislators had a rational basis for its provisions.

But justices and Mike Merriam, attorney for Downtown Bar and Grill in Tonganoxie, said to do so would leave little reason for the northeast Kansas club's case to move forward.

"From a practical matter, Mr. Chief Justice, we'll be dead in the water," Merriam said. "We can't just litigate for the sake of litigating."

At issue is whether a deadline that legislators said bars, such as Downtown Bar and Grill, had to have switched their liquor license to be exempt from the 2010 smoking ban. Legislators set that cutoff at Jan. 1, 2009, while the bar got its license in May 2009. Merriam argues that the date was arbitrary and had no rational basis.

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.

In June 2010, Shawnee County District Judge Franklin Theis issued a temporary injunction blocking enforcement of the smoking ban on Downtown Bar and Grill and a handful of other similarly situated clubs. He ruled the cutoff deadline was arbitrary and issued the temporary injunction on the ground the bar had a substantial likelihood to prevail as the case moved forward.

Kim Lynch, an assistant attorney general arguing for the state, said legislators had a rational basis for the deadline in that they wanted to prevent a rush of bars seeking to circumvent the law.