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

TOPEKA — A Shawnee County District Court judge is expected to rule Wednesday on whether a new statewide smoking ban will begin on Thursday.

A Tonganoxie private club owner and four Wichita-area businesses have asked for a temporary injunction on the smoking ban, approved earlier this year by the Legislature. The new law, scheduled to become effective Thursday, would ban smoking in most public places.

Judge Franklin Theis heard from attorneys representing the Tonganoxie club and the Wichita businesses, which include bingo parlors and bars, during a hearing Tuesday. The attorneys claim that the statewide ban is unconstitutional because, among other things, it treats certain businesses differently from others.

Theis said he would announce his decision by 5 p.m. Wednesday.

Mike Merriam, representing the Downtown Bar and Grill in Tonganoxie, said he wasn’t arguing against the statewide ban, but a specific exemption regarding private clubs.

Merriam said the business was originally licensed in 2007 as a drinking establishment, which in Leavenworth County carried a requirement that 30 percent of the business’ sales come from food.

The bar couldn’t meet that requirement, Merriam said, and instead became a Class B private club in May 2009. Class B private clubs are generally for-profit, requiring those who wish to drink to purchase a $10 membership and wait 10 days before becoming a full member. There are no requirements of food sales for that license category.

The Kansas Senate twice in 2009 approved smoking ban proposals that included exemptions for class A and B private clubs licensed before Jan. 1, 2009. That “grandfather clause” was intended to prevent bars and taverns from converting to private clubs to skirt the law, which as it turned out was not approved by the full Legislature and signed into law until this year.

Merriam argued that the clause created two kinds of class B clubs – those established before the Jan. 1, 2009 date, and those after.

The distinction creates a situation where “brunettes can smoke, but blondes and redheads cannot,” Merriam said. “People who have an even number of letters in their name can smoke, but people who have an odd number of letters cannot.”

Merriam said the club’s owner was concerned about losing customers to businesses in neighboring towns. Many of the club’s customers live in Lawrence or Kansas City, he said, and stop by on their way home from work. About 80 percent of the club’s customers smoke, according to court filings.

“We’re just trying to be treated like other class B clubs,” Merriam said.

Merriam has asked for temporary and permanent injunctions prohibiting enforcement of the grandfather clause. He has also asked, as an alternative, that the clause be removed from the law.

Assistant Attorney General Tim Riemann, arguing on behalf of the state, said the closest class B clubs to Tonganoxie were more than 20 miles away.

“It’s simply unbelievable that someone would drive a half-hour to the next closest club” to smoke inside, he said.

Both Merriam and Topeka attorney R.E. “Tuck” Duncan, who represents the Wichita-area businesses, said their businesses were not equally protected when compared to the gaming floors of state-owned casinos, which legislators also exempted from the smoking ban.

Two of Duncan’s clients are bingo halls.

“I find it ironic that the casinos won’t be economically viable unless we give them the ability to smoke, but all these other establishments which have gaming activity, such as the bingo parlors, will become economically viable when they become non-smoking,” Duncan said. “My client tells you that he’s going to lose 90 percent of his customers.”

But Riemann argued that the casino exemption did not violate equal protection rights and that moreover the state has a “legitimate economic interest” in casino revenues.

The state general fund received more than $3.5 million from the Boot Hill Casino and Resort in Dodge City in 2010, Riemann said. During the same time, it received $424,677 in fees from all the state’s bingo parlors.

The Constitution does not require the state to treat all businesses fairly, Riemann said, and courts in other states have routinely upheld smoking ban exemptions for casinos.

Theis said he had not yet decided whether to allow Duncan and the four Wichita-area businesses to intervene in the case, but allowed Duncan to speak at Tuesday’s hearing.

Should they be allowed to intervene, Duncan has asked Theis for a temporary restraining order against the ban until a full trial to debate the constitutionality of the law can take place.

Riemann asked Theis to dismiss the case.

In a separate court proceeding late last week, Sedgwick County District Judge Eric Yost granted a temporary restraining order that will keep the smoking ban from taking effect in Wichita until July 15.

The restraining order, Duncan said, is based on an argument that Wichita’s city ordinance on public smoking is more restrictive than the new state law.

A 2007 decision by the Kansas Supreme Court found that state law sets a “floor, not a ceiling” for restrictions on smoking in public places and that cities may pass their own restrictions on smoking as long as they are more strict.

The Wichita ordinance, approved in 2008, has a number of exemptions and allows smoking in businesses that receive “smoker friendly” permits by paying a $250 license fee, ban minors and construct separate ventilation systems. But the Wichita ordinance doesn't include other exemptions included in the statewide ban such as casino gaming floors.

Opponents of the statewide ban have been supportive of the Wichita ordinance, saying it gives businesses the right to chose whether to allow their patrons to smoke. Public health officials and advocates have spoken against it, saying that too many people will continue to be exposed to secondhand smoke.