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TOPEKA — Several businesses have joined a lawsuit against the state, asserting that the statewide public smoking ban that becomes effective July 1 is unconstitutional.

Earlier this month, a private club in Tonganoxie became the first to sue. This week, four more businesses joined

A hearing has been set in Shawnee County District Court for 9:30 a.m. on June 29.

Tonganoxie private club

The Downtown Bar and Grill in Tonganoxie was licensed as a Class B private club May 4, 2009, as the 2009 Legislature wrapped up its final days. According to Kansas Department of Revenue records, the club is licensed to Kevin Haislip of Tonganoxie.

Earlier in the session, the Kansas Senate during floor debate approved an amendment to exempt private clubs, including non-profits such as VFWs and American Legion halls, from the smoking ban if they had been operating on Jan. 1, 2009.

The “grandfather” clause was added to prevent bar owners from relicensing as private clubs after the law became effective in order to avoid the ban, said Senate Majority Leader Derek Schmidt, R-Independence, during debate on the bill.

According to the lawsuit filed by the Tonganoxie club, a private club's licensing date should not matter.

The club owner claims in the suit that the Jan. 1, 2009 grandfather date created an arbitrary classification system and asks the court for temporary and permanent injunctions prohibiting enforcement of the clause. It also asks, as an alternative, that the grandfather clause be removed from the law.

“I and my clients are not challenging the statewide ban, and we’re not promoting smoking,” said Mike Merriam, who is representing the club. “We’re trying to be treated the same as every other Class B club.”

Wichita jumps in

Earlier this week, a group of Wichita-area businesses joined the lawsuit.

The group, represented by Topeka attorney R.E. “Tuck” Duncan, consists of two drinking establishments and two bingo parlors, he said.

The lawsuit seeks a temporary restraining order against the state, preventing it from implementing the statewide smoking ban until a full trial to debate the constitutionality of the law can take place, Duncan said.

The businesses are specifically concerned with a provision in the law that allows smoking on the gaming floors of state-owned businesses, he said.

“The state of Kansas has said it’s OK to smoke in their gaming facility but not OK in any other gaming facility,” he said. “That violates equal protection provided in the 14th amendment of the United States Constitution. There’s no rational basis for that distinction.”

The law treats other businesses uniformly, Duncan said. For instance, all hotels must abide by a provision in the law that allows smoking in no more than 20 percent of their rooms.

“This will come out at the hearing, but it’s because (the state) knows (the ban) will reduce their revenues” at casinos, he said. “If they know it will reduce their revenues, why wouldn’t anyone think it will reduce the revenues of other businesses that are similarly situated?”

“We’ll be defending House Bill 2221 as constitutional,” said Gavin Young, a spokesperson for Attorney General Steve Six.

Few changes in other states’ laws

Lawsuits aren’t unusual after states pass statewide smoking bans, said Peter Fisher, vice president for state issues at the Campaign for Tobacco-Free Kids in Washington, D.C.

“You see the occasional group file a lawsuit, but the vast majority (of smoking bans) go into effect with minimal fuss and are widely supported and enjoyed by the populace of the state,” he said. “My sense is that most of them are about technical things around exemptions. Occasionally you see a group that claims the law is unconstitutional, but they don’t really go anywhere.”