People Ban: AR Fayetteville Page 2

By Jonathan On Jul 5, 2017

Council agrees to wait on changes to smoking ban

Smoking ordinance fails
June 7th, 2011
By NWA Media
Fayetteville residents will be able to continue to light up inside bars that allow smoking for the foreseeable future. Even though a majority of the City Council voted in favor of a proposal to expand Fayetteville’s smoking ordinance to include all bars in the city on Tuesday, the measure failed to garner six of eight votes needed for an expanded ordinance to go into effect early next year.
(Picture caption) : A large crowd fills the council chambers during a meeting of the Fayetteville City Council Tuesday, June 7, 2011, during which the council failed to pass an amendment to the city’s current smoking ordinance to remove the exemption made for bars.

Police Should Be Free To Enforce Smoking Ban, City Attorney Argues

August 9, 2007
By Ron Wood

FAYETTEVILLE — Enforcement of Fayetteville’s smoking ordinance should be left to the police department, City Attorney Kit Williams said in a brief filed Thursday.

Four business owners sued the city April 27, 2006, claiming that a new interpretation of the smoking ban is unfair to bar and restaurant owners in the city.

The group says they aren’t challenging the city’s authority to regulate businesses, but rather what they see as arbitrary enforcement of the ordinance and ever-changing interpretations.

Williams’ brief contends that the enforcement policy is designed to better reflect the City Council’s intent and the language of the smoking ordinance is not arbitrary or confusing.

The smoking ban, passed by the council and approved by voters in 2004, prohibits smoking in restaurants and most other public places, but exempts bars. At issue is how establishments serving both food and alcoholic beverages are categorized.

According to Williams, a test that used a 70-30 split for alcoholic beverages and food sales was dropped in March 2006 because it was unworkable and unfair to business owners. The ordinance now defines food as “any food served has to be prepared, warmed or cooked; it will not be considered customary bar food.”

?The language of the ordinance has not changed, according to the brief.

Williams said the city does not have staff or resources to investigate or audit an establishment’s claim that 70 percent or more of its total revenue comes from the sale of alcoholic beverages.

The brief also contends the council has not delegated its legislative power to police, but rather the police are ultimately responsible for the enforcement of all city ordinances.

Officers on the scene must use common sense and judgment to determine the facts and if the law has been broken, whether it’s the smoking ordinance or traffic situations, according to Williams.

Police have sent letters telling owners how the law will be enforced and held a question-and-answer session with owners so everyone would know, according to the brief.

Williams contends the owners can’t point to any citations that have been issued in an establishment they claim to be a bar.

And, if a citation is issued, the person ticketed has ample opportunity to contest the citation by arguing he was in a bar. Courts will then consider the ordinance’s language and make a determination based on the law.

Both sides have asked the judge in the case to rule from the pleadings rather than having a trial. They say everyone agrees on the facts and the judge can rule based on the law.

Smoking Ban Enforcement Changes Delayed

3 May 2006
Dan Craft

FAYETTEVILLE — Enforcement of a Fayetteville smoking ban will not change until a lawsuit brought by four business owners is resolved, city leaders decided Tuesday.

The city was sued April 27 by a group claiming a new interpretation of the smoking ban was unfair to bar and restaurant owners in the city. The group asked for an injunction preventing the enforcement of the smoking ban until the matter was taken to court.

The Fayetteville City Council authorized city attorney Kit Williams to sign a consent agreement granting an injunction against changing the enforcement rules for bars until the matter is resolved.

“What we’re looking to do is keep the status quo. They’re only arguing about the portion of the ordinance that applies to bars and restaurants, and this order will keep that from changing while the issue is litigated,” Williams said. “A general injunction like they originally asked for wouldn’t have let us enforce the smoking ordinance at all.”

The ordinance exempts bars, where food service is “incidental” to the primary business of alcohol sales. Police have used a 70-30 ratio, where 70 percent of revenue is from alcohol, to define a bar in the past. A council committee, however, defined “incidental” as any food that does not require heating, cooking or preparation.

The lawsuit claims the city cannot change the definition of the ordinance arbitrarily, and the proposed definition does not reflect the intent of voters who approved the ordinance. The plaintiffs want the ordinance thrown out on constitutional grounds.

“I think the city is in a very strong position,” Williams said. “The citizens of Fayetteville voted on this issue, and courts traditionally give deference to city councils taking legislative action.”

Fighting back

BY ADAM WALLWORTH Northwest Arkansas Times
April 28, 2006

Four Fayetteville business owners filed suit Thursday seeking to stop enforcement of the city’s ban on tobacco smoke in most public places and asking for more than $100,000 in damages.

The suit was filed by attorney W. H. Taylor on behalf of: Tony Catroppa, owner of Platinum Cabaret, Wild On and Tony’s Bar and Grill; Mark Wright, owner of On the Mark; Rick Schweik, owner of Cool Water Cafe; and Jerry Stiles, owner of Art’s Place.

Taylor said he wants enforcement suspended until a court can review the ordinance, which he claims is unconstitutional and arbitrary. “I don’t want to have the criminal law process involved until the court has time to rule,” Taylor said.

Taylor argues that the owners should be compensated for the money that has been spent to comply with the ordinance as it has been enforced, even though that interpretation is now being changed. Because the law has been interpreted differently by the two police chiefs in office since voters approved the measure in 2004, he said. The law allows smoking in establishments where food is “incidental” to the sale of alcohol, but incidental has not been clearly defined by the city or police department, and the suit argues there is a good chance that the next chief will have his own take on what “incidental” should mean.

Beyond the inconsistency of the ordinance thus far, Taylor argues that the police chief should not be the one to interpret the laws, but only enforce them.

Police Chief Frank Johnson proposed changing the definition of incidental food sales after the council’s ordinance review committee made it clear that it was unhappy with the previous chief’s interpretation. Former Chief Rick Hoyt had opted to use the 70/30 rule — allowing smoking in business where alcohol accounted for at least 70 percent of sales — which is used by other communities and had been offered as part of an unsuccessful bid for a statewide smoke ban.

Hoyt’s definition worked for about two years, before a restaurant decided it wanted to switch to bar status by changing its menu to comply with the 70/30 rule, a scenario not discussed in the city ordinance. When Johnson sought direction for allowing a business to change, he was informed that some aldermen had been unhappy with the definition used since the stricter ban went into effect.

The new definition would prohibit smoking in establishments that serve food that is “prepared, warmed or cooked.”

City Attorney Kit Williams said that while he could not support suspending enforcement of the ordinance, he would ask the City Council to maintain the current definition of incidental, as it relates to food sales. He said Mayor Dan Coody has agreed to wait until the council has a chance to discuss the issue before implementing the new definition, which is set to become the standard Monday.

The council will have to suspend its rules of procedure to add the item to its agenda, but can make a decision at its regular meeting Tuesday, Williams said.

The council meeting is set to begin at 6 p.m. in Room 219 of the Fayetteville City Administration Building.

Taylor hopes the definition of incidental can be clarified and expects “common sense” to intervene. “Almost everybody can tell what incidental means — not of great consequence,” Taylor said.

Business owners should not be limited to peanuts and pretzels, but should be allowed to serve more food while still being a bar, Taylor said. An example of a bar that gradually became a restaurant is Herman’s, which started out as bar that served food, but is now a restaurant that also serves alcohol, he said. “I know what a bar is when walk into one,” he said. “I’ve been alive for 53 years.”

Taylor said the latest interpretation of the ordinance only allows “customary bar food,” which can differ based on the community. He said a U.S. Supreme Court ruling suggests that local business owners should determine what the standard is, though it is up to the city to address the law. “I think we’ve got to come back to a realistic, common-sense community approach,” Taylor said. “(But) it’s the city of Fayetteville’s problem. It shouldn’t be bar owners’ problem. Maybe the city ought to try to sit down with these people and get a little input.”

Williams said that while it is the council’s decision how to proceed from this point, it is important to note that the statewide ban will take effect in early June, which may have an effect here. In some respects, the city’s ordinance is more stringent than the state ban, he said, though there are some instances where the state’s ban is more strict.

The state law exempts bars and restaurants licensed by the state, as long as they do not allow anyone under 21 years of age on the premises.

Taylor said he is still reviewing the state law and is not sure whether he will attack that law as well.