Kansas Health Institute | Information For Policy Makers. Health for Kansans.

WICHITA — The statewide smoking ban is now being enforced in Wichita.

Earlier, a temporary restraining order had allowed the city’s “smoker friendly” businesses to continue to allow smoking after the statewide ban took effect on July 1. A handful of bars, bingo parlors and other businesses successfully petitioned the Sedgwick County District Court to implement the order in Wichita until the court could decide if the city’s existing ordinance was more or less stringent than state law.

District Court Judge Jeffrey Goering lifted the restraining order Tuesday.

Business owners had argued that Wichita’s city ordinance was more stringent because, in order to allow smoking, businesses had to meet a number of conditions, such as prohibiting minors from entering those establishments.

But Goering ruled there was “no question” that the state’s law was more stringent than the Wichita ordinance.

House Bill 2221, the legislation that established the new law, banned smoking outright in most public places, including bars, restaurants and workplaces.

In Kansas, cities are allowed to adopt ordinances that are stricter than state statutes under the so-called “home rule” law.

“Although the City of Wichita has the power, under the Home Rule Amendment, to enact ordinances that regulate smoking, the City of Wichita does not have the power under the Home Rule Amendment to authorize by ordinance what state law prohibits,” Goering wrote.

Goering heard arguments on the matter on Aug. 19.

The ruling also addressed bar and restaurant owners’ complaints that state law allows smoking in state-owned casinos.

While state law bans smoking in most public places, it allows for a handful of exemptions: private clubs, retail tobacco shops, 20 percent of the state’s hotel and motel rooms, and the gaming floors of state-owned casinos.

Opponents to the statewide ban said the decision to allow smoking in the state’s casinos – which may, by law, only be constructed in six counties – makes the entire statewide law unconstitutional because it creates an unequal balance between counties with casinos and counties without.

But Goering ruled the state law has been applied uniformly to all counties.

“The fact that some counties are not impacted due to the fact that they have no casinos does not create constitutional problems,” he wrote.

The casino exemption has been a sore spot for advocates and opponents alike.

Goering cautioned Attorney General Steve Six, who represented the state, against using “public health” as a defense.

“The Plaintiffs are justifiably upset that they are being forced to make an economic sacrifice in the name of public health that the State of Kansas is unwilling to impose on casinos,” he wrote. “If the State of Kansas is willing to risk the health of the general public by allowing smoking in casinos in order to protect the revenue stream into the State’s general fund, Defendants cannot credibly argue that a preliminary injunction in favor of the Plaintiffs is adverse to the public interest.”

A trial to determine whether a permanent injunction should be established had been scheduled for Monday, but was postponed until after Goering released his ruling. A date has not been set.

Gavin Young, a spokesman for Attorney General Steve Six, said if bar and restaurant owners want to pursue their case, they may appeal Goering’s ruling or seek a permanent injunction.

Six issued a statement Tuesday afternoon in response to the ruling.

“Judge Goering’s ruling makes clear that policy decisions should be made by the legislature, not by lawsuits. Today’s ruling is another victory for public health in Kansas, and my office will continue to defend the smoking ban passed by the legislature,” he said. “While I understand the nature of the concerns of the plaintiffs, the proper forum for their concerns is with the legislature and not in the court system. Like most Kansans, I am weary of legislation by litigation, and today’s ruling recognizes that.”

The Sedgwick County case is unrelated to a separate temporary injunction granted in Shawnee County District Court in late June that stopped enforcement of the ban in some class A and B private clubs.