Smoking ban battle reignites

Judge snuffs out part of ban; if bar owners take necessary steps, the onus is now on smokers
By Kate Alexander, Isadora Vail
American-Statesman
Oct. 05, 2006

A federal judge on Wednesday struck down part of Austin's smoking ban and found that some of its enforcement provisions were "unconstitutionally vague."

The decision by U.S. District Judge Sam Sparks did not overturn the smoking ban, enacted by voters in May 2005. But Sparks did clarify what steps a business owner must take to be in compliance with the ordinance. Sparks was presiding over a lawsuit filed last year by a group of bar owners.

Sparks said the businesses must post "no smoking" signs and remove ashtrays and other smoking accoutrements. However, the owner can no longer be held liable for not taking additional steps if patrons continue to smoke, Sparks ruled.

"Thank goodness there was a judge that finally had some sense," said Rebecca Davis, a bartender at the Elephant Room, a Congress Avenue cellar-turned-jazz club, where a faint odor of smoke permeated the air and smokers were already celebrating Wednesday night. "This is going to help my happy hour business so much."

Several customers said they've smoked cautiously at the bar since the ban went into place, holding their cigarettes out of sight when somebody new walked in. But on Wednesday, Davis told everyone about the ruling as they approached the bar.

Anne Morgan, chief of litigation for the city, however, said the practical effect of the ruling would be minimal. The overall ban is still in place, and most businesses are fully abiding by it.

But the focus of enforcement will now turn to the individuals smoking in public places rather than the owners of those establishments, Morgan said. The city has not cited individuals up to this point.

The city has not decided whether to appeal the decision, Morgan said. The ordinance, stemming from a citizen-initiated referendum, cannot be changed by the City Council for two years after its enactment.

Jennifer Riggs, a lawyer for the bar owners who sued, said her clients were delighted and relieved.

One plaintiff, Ego's owner Gail Johnson, is facing multiple criminal misdemeanor charges for allowing smoking in his bars. Riggs said those charges should be dismissed; prosecutors will have to review the cases based on this ruling, Morgan said.

Before this decision, the city's rules required the bar owner to take several "necessary steps" to enforce the ordinance, including posting signs; removing ashtrays; asking the patron to stop smoking or to leave if he or she refuses; and denying service to a person who is smoking.

Under those rules, Sparks found that bar owners could still be held liable, even if they followed the city's guidelines.

"The city persists in dodging the question and failing to give definitive guidance to business owners and operators about how they might avoid liability under the ordinance," the judge wrote in his ruling.

"Although the court suspects that there are some bar owners and operators purposely flouting the ordinance and/or enforcing it with a wink and a smile, this does not lessen the importance of the constitutional right of citizens to know what conduct is and is not prohibited by law," Sparks continued.

Randall Stockton, co-owner of Beerland on Red River Street, was thrilled with the ruling.

"That sounds like the most rational take on the situation. . . . It puts the onus on the person who actually commits the act," he said.

Click's Billiards on East Oltorf Street was packed with smokers who used plastic cups filled with water as ashtrays Wednesday night. The bar is no stranger to the no-smoking ordinance, as it has been fined several times, but that hasn't stopped them from allowing their customers to smoke.

"We are now inviting smokers back into Click's," said owner Nick Alexander. "The city had a chance to change the vague language, because you can't enforce this. It is rare to see anybody stand up for our constitutional freedoms."

Rodney Ahart, government relations director of the local chapter of the American Cancer Society, said he was disappointed that a small group of people were challenging the will of the voters. But the ruling did not undermine the ban.

"The main objective of the ordinance was to supply smoke-free public places," Ahart said. "That will continue to happen."

The voter-approved ban prohibits smoking inside but not outside most public places, including restaurants, bars and music venues.

Ten bars sued over the ban shortly after it took effect last September. Lawyers Marc Levin and Riggs have argued that rules about how bar managers should enforce the ban are unclear and that the city is unfairly punishing bar owners whose patrons smoke rather than the actual smokers.

Assistant City Attorney Lynn Carter has said the city asks bar owners to take only reasonable steps to enforce the ban, such as posting signs and asking patrons who light up to stop. And Austin/Travis County Health and Human Services Director David Lurie has said bar owners are held responsible because they create an atmosphere that is either conducive or not conducive to smoking.

At an August court hearing, Sparks seemed skeptical of each side's arguments, saying he doesn't believe that bar owners can't find a way to enforce the ban and is incredulous that the city penalizes bar managers instead of smokers.

Since the ban took effect, the city has investigated about 278 citizen complaints, issued 95 notices of violation and filed criminal complaints against 10 bars out of about 350 citywide. Bars can get three violation notices before the city pursues legal action.

A recent Austin American-Statesman analysis of beverage-tax receipts found that, on average, liquor sales at Austin bars have dipped slightly since the smoking ban began, but so did alcohol sales at bars statewide.












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