While Fargo residents woke to a new smoking ban Friday, a federal judge snuffed out a request to temporarily suspend the city ordinance.
Buffalo Wild Wings, with two Fargo locations, and three of its employees, sought a temporary restraining order against the city’s smoking ban Wednesday.
In a petition filed in federal court, the restaurants and employees asked a federal judge to suspend the ban, pending the outcome of a lawsuit they filed the same day.
They hope to overturn the ordinance, arguing in their lawsuit that it’s unconstitutional.
U.S. District Court Judge Ralph Erickson on Friday refused to sign a restraining order, saying the plaintiffs failed to convince him it was the right thing to do without first giving city officials a chance to defend the ban.
The restaurants and workers failed to show they would be permanently harmed if the ban was not immediately suspended, Erickson said.
But the judge didn’t completely close the door to suspending the ban.
He set a hearing for next week, on Wednesday, during which the plaintiffs’ attorney, Craig Campbell, will again press to temporarily shelve the smoking ordinance. City attorneys will argue to keep it in place.
Fargo’s smoking ordinance is arbitrary and violates the 14th Amendment’s equal protection clause, Campbell said.
Under the ordinance, Buffalo Wild Wings’ bartenders will work among smokers, but the city’s ordinance protects other employees from the health risks of second-hand smoke, he said.
Campbell said he also will argue on Wednesday, among other things, that a North Dakota law adopted in 1919 prohibits employers from exposing employees to heath risks in the work place.
City Attorney Garylle Stewart said the law gives the state labor commissioner the authority to regulate smoking in the workplace — authority that would trump the city’s smoking ordinance.
But the commissioner hasn’t taken a stand on the risks of second-hand smoke, nor has she banned smoking in the workplace, Stewart said.
Campbell said two of his clients, the restaurants, would like to see a complete smoking ban or no restrictions at all.
Businesses throughout Fargo are affected differently by the ban.
In general, all public indoor workplaces must eliminate smoking, even in places like employee lounges. Bars are exempt, but restaurants that don’t serve alcohol in enclosed areas have no choice but to ban smoking.
Campbell singles out an exemption for truck stops, saying it illustrates his point that the ordinance is confusing and unfair.
The exemption allows truckers and their companions to smoke.
“Where’s the rational connection to a legitimate public interest?” he asked.
Originally written By Jeff Zent,
The Forum
