Law Suits: TX Crazy Frogs Saloon in Federal lawsuit

Federal lawsuit challenges Houston’s smoking ban

Aug. 6, 2007
By MATT STILES

Mary Price opened her neighborhood sports bar, Crazy Frogs Saloon, eight years ago thinking she’d made a wise investment as her retirement approached.

Now, she’s not so sure.

The bar sits in a 2,000-acre island deep into northwest Harris County near Willowbrook Mall that former Mayor Bob Lanier reached out and annexed in 1993.

Next month, when the city’s near-total smoking ban takes effect, she fears her customers won’t have to drive far to find her competitors in the county, which doesn’t restrict bar patrons’ ability to light up.

“I’m going to lose my business,” Price said. “It’s kind of devastating.”

Price and a coalition of bar, nightclub and cabaret owners last week challenged Houston’s smoking ordinance in a federal lawsuit. They argue that city officials overstepped their authority last fall in passing the ordinance, scheduled to take effect next month, creating an unfair competitive environment for them to operate.

The ordinance bans smoking in most public places, but exempts bars with significant tobacco sales or outdoor patios. The lawsuit claims the city does not have the authority under state law to regulate differently businesses licensed to sell alcohol for on-premises consumption.

“They’re creating an unbalanced playing field by stating that certain types of operators, such as tobacco bars, who meet their arbitrary definition of what a tobacco bar is, can allow smoking while the guy across the street doesn’t meet that definition cannot,” said Houston attorney Al Van Huff, who represents Price and the other owners in the Houston Association of Alcoholic Beverage Permit Holders.

He is asking U.S. District Judge Gray Miller to enjoin the city from enforcing the ordinance and ultimately rule it invalid with respect to alcohol establishments licensed by the state..

The fairness argument isn’t new to the council or other major Texas cities, such as Dallas and Austin, which have passed smoking bans in recent years.

Mayor Bill White and City Council members heard those complaints in a series of hearing last year, before passing the ban to prevent the negative health effects of second-hand smoke on bar patrons and employees.

City Attorney Arturo Michel said Houston is on firm legal ground.

“We’re not really treating them differently, in terms of alcohol,” he said. “We’re actually not just regulating this industry in terms of smoking. We regulate a lot of other public places, in terms of smoking.”

But owners like Gregg Alston, who operates Mugsy’s on Kirby and Leon’s on Main, said he’ll now have to compete with cigar bars like Downing Street, also on Kirby. It could be exempt from the rules because at least 20 percent of its gross sales come from tobacco — and because it provides extra ventilation and health insurance to employees.

Alston also doesn’t have a patio. Competitors who do generally can allow their customers to smoke outside.

“It puts us at a disadvantage with cigar bars, or bars that sell tobacco, which are still allowed to have smoking because of the type of business that they are,” he said.

Lawrence Daniel, managing partner at Downing Street, a cigar bar frequented by the Houston’s political and legal elite, said the ordinance also puts pressure on his business.

He’s concerned that a flood of new smoking customers who purchase mostly alcohol might prevent him from keeping the “cigar bar” exception.

Van Huff, a hospitality industry lawyer also suing over a city ordinance regulating topless clubs, said the city’s ordinance is unconstitutionally vague.

The ordinance also allows smoking in “private functions,” leading to confusion among owners about whether they could designate all or part of their establishments as private clubs.

Michel disputed the notion that the ordinance, modeled on other cities’ rules, is vague.

“We took care to look at that,” he said. “We tried our best to make sure our terms were well defined for constitutional purposes.”
matt.stiles@chron.com