Court rejects constitutional challenge
A provision that exempts certain businesses from Omaha’s smoking ban has been upheld by a Douglas County District judge.
Judge John Hartigan on Thursday ruled against Marylebone Tavern co-owner Michelle Hug, who contended in a lawsuit against the city of Omaha that the smoking ban violates the Nebraska Constitution by creating special privileges to a class.
The smoking ban passed last year by the City Council allows a five-year grace period for bars that don’t serve food, for keno parlors and for Horsemen’s Park, a horse track.
The Marylebone operates as a restaurant and as a bar, with a wide array of menu items. Under the ban, patrons cannot smoke there.
But for the next five years, customers will be able to smoke at nearby businesses that don’t serve food or that have a keno license.
Hug argued that the ordinance creates an arbitrary classification between those businesses regulated by the smoking ban and those businesses temporarily exempted.
Hartigan ruled that it is within the council’s right to phase in the smoking ban and within its purview to designate which businesses can be phased in.
Hug attorney K.C. Engdahl said he was surprised by the ruling.
“Obviously, we’re disappointed in the result, and we’ll be filing an appeal as soon as we can,” Engdahl said.
Hartigan wrote that the state constitution does not forbid classification of subjects for legislative purposes as long as the classification is “reasonable and not arbitrary.”
But Hug said there is no reason for distinguishing between the public gathering places where smoking is prohibited and those places that are exempt until 2011.
Hartigan ruled that Omaha successfully argued that the exempted businesses are substantially different from the regulated businesses.
“The exempted businesses have different clienteles and different relationships with smoking,” Hartigan wrote. “As to stand-alone bars, there is a ‘bar culture’ in which smoking accompanies the drinking of alcoholic beverages.
The clientele of stand-alone bars without food is less likely to include children. … The same holds true for keno locations where the establishments must hold a liquor license, seldom serve food and are patronized by a great deal of smokers.”
Horsemen’s Park is exempt, Hartigan wrote, because it caters to gamblers and, thus, attracts a different, older clientele. And tobacco retail outlets are substantially different because they cater to those wishing to buy tobacco products and are less likely to include children, Hartigan wrote.
As to phasing in the ban, Hartigan wrote: “This two-step approach fulfills the ordinance’s stated purpose of prohibiting smoking in public gathering places and granting residents and visitors the right to breathe smoke-free air. It is not for this court to decide if the two-step approach is the best way to implement such a regulation.”
