A co-owner of an Omaha bar hopes the state Supreme Court will agree with her that the exceptions to the city's smoking ban unfairly benefit certain businesses.
JOSH FUNK / The Associated Press | Posted: Tuesday, March 25, 2008 7:00 pm
OMAHA — A co-owner of an Omaha bar hopes the state Supreme Court will agree with her that the exceptions to the city’s smoking ban unfairly benefit certain businesses.
But the lawyer for Marylebone Tavern co-owner Michelle Hug will also have to convince the high court’s judges that this case is worth their time in light of the new statewide smoking ban the Legislature approved last month.
Otherwise the court may not consider the fairness of the exceptions included in the 2006 Omaha ban. Most businesses have already had to comply with the Omaha ban, but the City Council allowed a five-year grace period for bars that don’t serve food, for keno parlors and for Horsemen’s Park, a horse track.
The new statewide smoking ban will eliminate most of the exceptions to the Omaha ban when it takes effect in June 2009, so the Supreme Court asked the lawyers in Hug’s case to explain why it should bother with the appeal. The only workplace exemptions to the statewide ban are for retail tobacco shops and places where smoking research is done.
Hug’s lawyer, K.C. Engdahl, said the statewide ban is still more than a year away, so the Supreme Court should examine the Omaha exceptions.
The Marylebone is a bar that serves food, so under the city ban people cannot smoke there.
Engdahl argues that the Omaha ban creates an arbitrary classification between those businesses regulated by the smoking ban and those businesses temporarily exempted.
He said the only difference between the Marylebone and many of the 176 keno vendors exempt from the ban is the presence of gambling. But Engdahl said protecting the city’s roughly $3 million in annual keno revenue shouldn’t be a valid reason to create exceptions to the ban, which is supposed to protect public health.
“Is protection of the city’s tax revenues a legitimate object when the only stated purpose for the ordinance’s existence is to prohibit smoking and grant people the right to breathe smoke-free air?” Engdahl said.
Judge John Hartigan of Douglas County District Court rejected Hug’s challenge of Omaha’s ban in March 2007.
Hartigan ruled the city had the authority to phase in the smoking ban and designate which businesses could be phased in. He said the state constitution does not forbid classification of subjects for legislative purposes as long as the classification is “reasonable and not arbitrary.”
The city’s attorney, Jo Cavel, said that if the high court doesn’t decide the new statewide ban makes Hug’s case moot, then it should uphold Hartigan’s ruling.
The city argues that there are enough differences between the businesses where smoking is banned and the businesses exempt from the ban to justify the exemptions.
Cavel said the Omaha ban was developed as a compromise, but it still initially targeted the businesses of the greatest concern because children and nonsmokers frequent them.
“The (city’s) ultimate goal of protecting the public health through smoke-free places of employment and public gathering was served by establishing a way to get to that point without a protracted and divisive public debate,” Cavel wrote in her filing.
The high court will hear arguments in the smoking ban case and four other cases on April 3 during a special session at Creighton University’s law school.