Eatery sues, claims smoking ban unconstitutional

Publication Date: 2005-06-16

• Author:Naples (FL) Daily News
• Publication:DENISE ZOLDAN

An East Naples restaurant has filed what may become a landmark tobacco case in Florida -- a suit that contends the state's Clean Indoor Air Act violates the U.S. Constitution.

The Castaways Backwater Café Inc. filed the suit in U.S. District Court in Fort Myers this week against the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco. The suit alleges that the unequal application of Florida's Clean Indoor Air Act makes it unconstitutional.

The law allows patrons of bars and outdoor dining areas to smoke, but denies the same right to patrons of restaurants. It does so because bars pay thousands of dollars more for state liquor licenses than restaurants pay for their licenses, the suit alleges.

Castaways attorney Ludwig Abruzzo states in court documents that the law is "illegal and invalid in that it contains exceptions to its provision which are based solely on economic consideration, that is it allows smoking in taverns, bars, and other locations wherein less than 10 percent food is served. The exceptions are enacted to grant special economic privilege to those holding liquor licenses which are the most costly. There is no other rational reason for these distinctions."