Jun 3, 2008

Nebraska Supreme Court says exceptions to smoking bar are unconstitutional

In a decision that may have repercussions for Michigan, the Nebraska Supreme Court recently ruled exceptions – or “carve outs” – to Omaha’s newly enacted smoking ban are unconstitutional.

Bars that did not served food, a racetrack and licensed Keno establishments were exempt from the October 2006 ban until 2011, but the ruling made that moot. The common sense ruling said "Nothing in the ordinance's stated purpose would explain why employees of the exempted facilities or members of the public who wish to patronize those establishments are not entitled to breathe smoke-free air or to have their health and welfare protected.”

Late last month the Michigan House approved a smoking ban bill in all workplaces, including bars and restaurants, with the exception of non-Native American casinos, bingo-halls and so-called “cigar bars.” A few weeks earlier the Senate had approved version, House Bill 4163, that had no carve out outs.

The House sent their substitute bill, HB 5074, to the Senate, and it is currently awaiting action in the Senate, and it is unclear if they will even allow a second vote.


Anonymous said...

That's an interesting ruling. In general, most state supreme courts have given fairly wide latitude to lawmakers on smoking ban exemptions.

Connecticut's law exempts private clubs and the two big Inidan casinos and it was upheld. New York's exempts cigar bars and volunteer-only membership clubs. Florida exempts stand-alone bars and members-only clubs, and Rhode Island exempts the racetrack slot parlors and cigar bars (although the court struck down a private club exemption).

All survived court challenges.

I don't know how Michigan's court would rule, although a legal challenge is all but certain no matter what gets passed.

Communications guru said...

I agree and disagree. I agree it is an interesting ruling, but I am not a lawyer or really up on legal issues.

The Michigan Supreme Court is very anti-individual and very pro-business, so it’s a lock that they will rule in favor of whatever position business takes. However, I don’t believe there will be a court challenges. Indoor smoking bans are increasing all over the world as people realize second hand smoke kills, and this is simply a public health issue that government has a duty to protect people from.

Anonymous said...

I found an Omaha World-Herald article from 2006 that noted the lawsuit was a long-shot based on rulings in other states. I'm still surprised it suceeded in Nebraska:

Similar arguments against other smoking bans nationwide have failed to carry the day, a fact not lost on Engdahl.

"It's an uphill battle. . . . I'm out on a limb," he acknowledged in an interview.

The courts have consistently thrown out constitutional challenges to smoking bans that carve out exemptions for gambling, tobacco-only retailers and other establishments. Judges in Colorado, Wisconsin, Texas and elsewhere have rejected similar challenges to state and city smoking bans.

The Group to Alleviate Smoking Pollution has filed a friend-of-the-court brief in defense of the city's law, saying smoking is a risk to the public health.

Engdahl interprets the state law as prohibiting government from giving special treatment to certain businesses -- namely those with exemptions allowing smoking to continue.

"The question then becomes: Why does a bartender at Horsemen's Park have a different expectation regarding their safety than a person who works at . . . the Marylebone?" Engdahl said.

A law professor thinks Engdahl has a point.

"If I were a judge, I'd listen," said Rick Duncan, who teaches at the University of Nebraska College of Law. "When you've got some bars in and some bars out, that strikes me as horrendously unfair."

Similar challenges to smoking bans have failed because courts tend to uphold the right of governments to restrict business activities, particularly when public health is at stake.

Coalitions that challenge partial smoking bans by invoking the U.S. Constitution's equal protection clause, arguing that bans must apply to all businesses in the same way, also have fared poorly.

Unlike members of a particular race or gender, businesses such as restaurants are not deemed a protected class under the Constitution and therefore do not have a right to equal treatment, courts have ruled.

"There's no way you can be completely fair to everybody under all circumstances," said John Banzhaf, executive director of the anti-smoking group Action on Smoking and Health and a law professor at George Washington University in Washington, D.C.

A coalition of bar and restaurant owners challenged New Jersey's statewide smoking ban, which exempts casinos. It lost its bid for an injunction after a federal court ruled that the state had a public health reason -- the hazards posed by secondhand smoke -- for enacting the ban. The court also didn't buy the coalition's arguments that restaurants and bars were being discriminated against.

The court, in denying the injunction, said a smoking ban would affect casinos more profoundly than restaurants and bars.

New Jersey's statewide ban took effect in April.

Anonymous said...

I'm no legal expert, either, but do follow state smoking laws and I can't think of any statewide ban that wasn't challenged in court. Most cases are dismissed.

The longtime pro-business stance of the Michigan Supreme Court acknowledged, it would still be interesting to see how it would rule, since any law passed would likely lead to some businesses opposing it and some supporting it.

Let's say the legislature passes exemptions for cigar bars, Detroit's casinos and bingo halls.

The bar-restaurant lobby will likely sue, claiming the law is not "fair." But owners of those businesses would support the exemptions, of course.

But if the legislature passes a ban that does not exempt Detroit's casinos, it is possible the restaurant lobby would still sue because of the Native American casinos would still operate untouched. Detroit's casinos could join the suit.

I doubt either strategy would succeed, but lawsuits are all but certain, I think. Public support for the law has nothing to do with it.