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Bar owners file suit over smoking ban

Group also seeking exemption from law

Wednesday, December 08, 2004

Mark Ferenchik and Jodi Andes

THE COLUMBUS DISPATCH

FRED SQUILLANTE | DISPATCH

Jim Talbot, owner of the Main Street Bar, worries that the smoking ban will wipe out his happy-hour business.

Columbus bar owners opened a two-front fight against the city’s smoking ban yesterday, asking a judge to stop it and working toward a May vote to exempt bars from the law.

The Columbus Bar Owners Political Action Committee, known as BarPAC, said in a lawsuit filed yesterday that the ban, which the city plans to begin enforcing Jan. 31, is unconstitutionally vague because it subjects business owners — but not smoking patrons — to citations and fines.

BarPAC attorney Phil Harmon also said the city law conflicts with state law, which says bars, restaurants and bowling alleys are not "places of public assembly" and, therefore, aren’t required to have no-smoking areas.

He said the arguments are similar to those used by opponents of a smoking ban in Toledo. A lawsuit fighting the Toledo ban is now in the 6 th U.S. Circuit Court of Appeals. Lower courts have upheld that law.

Harmon filed the lawsuit against Columbus yesterday with Franklin County Environmental Judge Harland Hale on behalf of Traditions Tavern on Kenny Road, Sunset Lounge on N. 4 th Street and GJ’s Lounge on S. Kellner Road. Hale has scheduled a hearing for 2 p.m. today.

City Attorney Richard C. Pfeiffer Jr. said he briefly reviewed the lawsuit yesterday but had no comment.

Harmon also filed paperwork with the Columbus City Council clerk’s office to circulate a petition to exempt bars from the ban. If the bar owners collect

4,991 signatures of registered Columbus voters by Feb. 10, the City Council would have to either vote to place the issue on the May ballot or approve an ordinance exempting bars, Harmon said.

That’s the same number of signatures the Coalition to Can the Ban collected to place a referendum on the city’s smoking ban on the Nov. 2 ballot after the City Council approved the ban on June 28.

The referendum failed, with 55.7 percent of Columbus voters approving the smoking ban.

BarPAC is pursuing the bar exemption now because the lawsuit could take years to resolve, Harmon said. "Meanwhile, we’ve got 100 bars that are facing serious business consequences."

Business owners violating the ban, a minor misdemeanor, can be fined $150, although the city plans to give warnings to firsttime offenders.

Marie E. Collart, president of the Central Ohio Breathing Association, said she thinks the ban will stick.

"I think it’s unfortunate they can’t accept the will of the people. Now they’re going to cost taxpayers money," said Collart, who was heading to a reception last night to celebrate the ban’s win. Six Columbus suburbs have approved similar bans.

Columbus Councilwoman Charleta B. Tavares, who backed the ordinance, said, "They’re wasting people’s time, people’s resources."

But news that there are renewed efforts to end the ban brought a smile to Jim Talbot’s face. As owner of the Main Street Bar, he has been worried that the ban will snuff out his happy-hour business. "About 75 to 80 percent of my patrons smoke, and smoking and drinking go hand in hand," Talbot said.

The city was wrong to lump bars in, said Eli Haffner, a regular patron at the bar.

"It’s absolutely a right," Haffner said as he took a drag on a Marlboro and sipped a Budweiser.

"It’s part of the American culture to be able to smoke. If it bothers you, don’t go in. It’s like if you don’t like what you are watching on TV, change the channel."

Thom Coffman, president of the Central Ohio Restaurant Association and owner of the Clarmont restaurant in German Village, said restaurant owners are going in another direction. The Ohio Restaurant Association is trying to line up state legislators to sponsor a bill that would exempt bars and restaurants with nine or fewer employees from smoking bans. The bill also would allow larger restaurants to designate smoking areas for up to 50 percent of their dining areas.

Those provisions are similar to ones Toledo voters approved Nov. 2 to amend that city’s ban.

mferenchik@dispatch.com

jandes@dispatch.com

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