Smoking ban survives constitutional challenge

Publication Date: 2012-04-06

• Publication:The Capital-Journal

The statewide ban on smoking in public places survived a constitutional challenge Friday when the Kansas Supreme Court ruled against a Tonganoxie bar that contested the 2010 law.

In a unanimous opinion authored by Chief Justice Lawton Nuss, the high court overturned a temporary injunction issued by Shawnee County District Court Judge Franklin Theis that blocked the state from enforcing the ban on the Downtown Bar and Grill of Tonganoxie, a Class B establishment that argued it should be exempt from the ban under terms of the statute.

In remanding the case to the district court, the Supreme Court ruled that Downtown Bar failed to establish “a substantial likelihood of eventual success on the merits (of its case).”

The 2010 legislation, commonly known as the Kansas Indoor Clean Air Act, generally prohibits smoking in public places and areas of employment. But it exempts Class B clubs -- establishments generally considered private clubs -- that had a Class B license in effect as of Jan. 1, 2009.

The Downtown Bar applied for and received a Class B license on May 4, 2009, nearly a full year before the law passed the Kansas Legislature.

In its court challenge, the club contended the law violated the Equal Protection clause of the 14th Amendment to the U.S. Constitution. It argued that the law differentiates -- without a “rational basis connected to its legislative purpose” -- between Class B clubs organized before January 2, 2009, and Class B clubs like itself that organized after Jan. 1, 2009.

Theis agreed at the district court level, holding that the cut-off date was arbitrary. He issued a temporary injunction prohibiting the state’s enforcement of the statute on the Downtown Bar. The state appealed and the case ended up before the Supreme Court.

In the opinion issued Friday, Nuss wrote that an essential factor in any issuing of a temporary injunction is “a substantial likelihood of eventually prevailing on the merits.”