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

TOPEKA — A Shawnee County judge has ruled that some private clubs will be temporarily exempt from the statewide smoking ban that becomes effective Thursday.

District Court Judge Franklin Theis issued a temporary injunction in favor of 31 class A and B private clubs that were granted licenses after Jan. 1, 2009. The injunction will not halt enforcement of the ban at other businesses, such as bars and restaurants.

Attorney General Steve Six, in a press conference held shortly after the ruling late Wednesday afternoon, said the law would still apply to most businesses.

“We think it’s a victory for the principle of the smoking ban and how it’s going to help public health around the state,” he said.

The new law was intended to allow private class A and B clubs licensed before Jan. 1, 2009 to opt out of the statewide smoking ban, provided they notified the Kansas Department of Health and Environment of their intent.

The case was filed on behalf of the Downtown Bar and Grill in Tonganoxie. 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. When the bar couldn’t sell enough food, they became a Class B private club in May 2009.

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.

Twenty-eight class B clubs and three class A clubs across the state were licensed after Jan. 1, 2009, according to court documents.

As of Wednesday, 175 out of 393 eligible clubs have said they wish to continue to allow smoking in their establishments, according to the Kansas Department of Health and Environment.

Theis did not set a date for future hearings on the matter.

Four Wichita-area businesses had asked the judge to be included in the challenge to the new law. They claim the entire smoking ban is unconstitutional.

Theis in his finding wrote that the businesses could withdraw their petition to intervene within 10 days. If the businesses did not withdraw their petition by then, he wrote, he would grant their request to join the case but the dismiss it.

One of the businesses, a Wichita hookah bar, is also party in a case in Sedgwick County. 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 Sedgwick County restraining order was granted until the court could rule on an argument that the Wichita city ordinance addressing smoking in public places is stricter than the statewide law, and therefore would supersede the new statute.

Gov. Mark Parkinson, a supporter of the smoking ban legislation, said Theis’ decision was “encouraging.”

“Starting tomorrow Kansans will begin benefiting from this historic, bipartisan legislation that will prevent secondhand smoke exposure, reduce teen smoking, and ultimately save thousands of Kansas lives for years to come,” he said in a prepared statement. “While a temporary ruling has been issued affecting a small number of private clubs, this does not deter the State from pursuing this legislation’s ultimate goal. I appreciate the Attorney General’s pledge to defend this legislation and look forward to the benefits the Clean Indoor Air Act will bring all Kansans.”