St. Joseph Bar Owner Challenges Smoking Ban In Court
Date 2014/4/30 4:20:00 | Topic: News
|(newspressnow.com)- A local bar owner has filed a civil lawsuit against the city of St. Joseph seeking to block the smoking ban on grounds it illegally excluded the casino.|
The petition for declaratory and injunctive relief was filed Tuesday in Buchanan County on behalf of Peterman, LLC. Stephen Peterman is the owner of Peterman’s Shamrock, 1805 St. Joseph Ave.
He referred questions to Jonathan Sternberg, his attorney from Kansas City who specializes in appellate law.
Mr. Sternberg said the voter-approved smoking ban violates the Missouri Constitution (article III, sections 40.28 and 40.30) because it does not “bear equally on all persons.” Of main concern is the ordinance should be considered invalid and unenforceable because it excludes the St. Jo Frontier Casino gambling floor.
“This case is definitely not about whether St. Joseph can ban smoking in bars, because it can,” Mr. Sternberg said. “It’s about whether the way the city has done it is what the state has given it the power to do. And it hasn’t.”
The clean air ordinance was approved by voters in April with almost 53 percent of the votes. It bans smoking in all enclosed places of employment, with the exception of the casino, in 10 percent of hotel rooms and in private clubs when no employees are present.
Mr. Sternberg argues the casino is also considered an enclosed place of employment, with the only difference between it and “his client’s little dive bar” is the St. Jo Frontier Casino “is owned by a large corporation with more political power than (Mr. Peterman), a one-member LLC.”
While many communities in Missouri have successfully exempted their casinos from a ban, the local case does have precedent.
In February, the Indiana Supreme Court struck down the city of Evansville’s smoking ban, which exempted the local riverboat. The high court said the city’s smoking ban violated the equal privileges and immunities clause of the Indiana Constitution.
“They certainly can’t do this,” Mr. Sternberg said.
A hearing on St. Joseph’s case is scheduled for 8:30 a.m. July 26 in Buchanan County Circuit Judge Randall Jackson’s court. The ban is expected to take effect June 7, however, Mr. Sternberg has filed a temporary injunction to delay the start date until this case can be resolved.
A hearing on that matter has yet to be scheduled.
Bruce Woody, city manager, said as of noon Tuesday the city had yet to be served, and as a result has not reviewed the petition in its entirety.
But, “for legal reasons, we’ll refrain from making comment,” he added.
City staff is currently working on a seven-page “implementation guide” that will be sent to all area businesses, which includes information on the ban, as well as frequently asked questions.
Mr. Woody said another packet will be sent next week that provides information for bar or restaurant owners who want to build an outdoor smoking section.