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Smoking ban fight suffers setback

Charles Emerick//January 6, 2009

Smoking ban fight suffers setback

Charles Emerick//January 6, 2009

Kansas City’s smoking ban has again withstood challenges that seek to strike it down.

Two judges on Monday denied motions filed by a pair of bartenders fighting citations they received from the city’s health department.

Jonathan Sternberg, attorney for the bartenders, said he plans to contest both rulings, arguing that the Missouri Clean Indoor Air Act allows smoking in certain establishments and that Kansas City’s ban encroaches upon that.

“Bars, taverns and restaurants that seat less than 50 people are not public places,” Sternberg said. “They are expressly permitted to not even have a nonsmoking section.”

Lowell Gard, an assistant city attorney representing Kansas City in the cases, has argued the Clean Indoor Air Act doesn’t give small bars and restaurants a license to allow smoking.

So far, Sternberg’s clients, Georgia Carlson and Ricky Moore, have lost their argument.

Jackson County Associate Circuit Judge Richard Standridge overruled Carlson’s motion to dismiss her charge in his two-page order issued Monday. Carlson was fined for allowing patrons to smoke in JC’s Sports Bar on Vivion Road in the Northland.

Standridge wrote the Clean Indoor Air Act “contemplates that there are circumstances that would allow regulation beyond what is covered by its terms.”

Sternberg said the order didn’t specifically address his argument.

“Kansas City is free to prohibit smoking, and even prohibit it entirely, in the areas where state law allows it to,” Sternberg said, adding: “The problem is, the act does not tell Kansas City, ‘You can enact things in places where we say they can have as much smoking as they want.’ ”

Also on Monday, Kansas City Municipal Judge Ardie Bland denied Moore’s motion to dismiss his fine. Moore received a citation for allowing smoking at another Northland bar, Shooter’s, where he is a bartender and night manager.

Bland, who also denied Carlson’s motion in November, did not offer any reasons for rejecting Moore’s challenge during a brief hearing Monday afternoon.

Both Carlson and Moore will continue to fight the citations.

Sternberg said he will file a motion asking Standridge to reconsider his decision in Carlson’s case. A hearing is set for Jan. 16.

If Standridge rejects the motion to reconsider, Sternberg said he will appeal.

Moore’s case is moving to Clay County Circuit Court, where a hearing is set for March 16 with Associate Judge Don Norris.

In addition to Carlson and Moore, Sternberg also represented several Kansas City establishments that filed a civil lawsuit last year challenging the smoking ban.

The plaintiffs dismissed their case last month after Jackson County Circuit Judge John O’Malley denied a motion seeking an injunction.

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