The House today decided against debating a bill that would allow smoking in bars.
Instead, members voted 62-49 to send the bill back to committee, likely ending this year's sole legislative challenge to the statewide smoking ban.
House Bill 2690 would allow smoking in bars or other businesses where all workers and patrons are at least 21 years old. The statewide smoking ban that began in 2010 currently exempts casino gaming floors, private clubs, retail tobacco shops, certain hotel rooms and designated spaces in adult long-term care facilities.
Under the bill, about 1,700 drinking establishments in the state would be eligible to allow smoking, too.
Rep. Brenda Landwehr, a Wichita Republican, said the double standard allowing smoking in casinos but not in bars was hurting businesses in her district.
"We look to see the loss of bars on the south side of Wichita at some point with the casino not being that far away," said Landwehr, chair of the Health and Human Services Committee. The floor vote sent HB 2690 to her committee.
Landwehr said adding another exemption to the smoking ban would be preferable to doing nothing, since the Legislature is unlikely to remove the exemption for casinos.
"There are a lot of people on this floor who say they oppose smoking in public places but they will not vote to ban it in the casinos and that's just wrong," Landwehr said. "If you take the exemption away from casinos, then you level the playing field. I think the bar owners would prefer to have smoking back in place, but we can only do what may be feasible up here."
Chris Masoner of the American Cancer Society's Kansas chapter said that today's vote should put an end to challenges to the smoking ban this year.
"I think technically there are ways it could be brought back up again, but my hope would be that today's vote indicates the House is willing to let the existing law stand," Masoner said.
Last month, the Kansas Supreme Court upheld a legal challenge to the smoking ban seeking to exempt more recently licensed private clubs.
The Kansas Supreme Court today reversed a lower court decision that temporarily exempted some private clubs from the statewide public smoking ban.
The decision reverses a Shawnee County District Court decision that had permitted smoking in 31 class A and B private clubs in the state while a lawsuit challenging the constitutionality of the smoking ban was considered.
When legislators first drafted the smoking ban bill in 2009, they exempted private clubs licensed before Jan. 1, 2009. But the ban didn’t become law until July 2010. Clubs licensed after the 2009 grandfather date but before the new law became effective cried foul, saying they were being treated unfairly.
In June 2010, District Court Judge Franklin Theis issued a temporary injunction in favor of the clubs granted licenses between the grandfather date and the new law's effective date. Steve Six, attorney general at the time, appealed that ruling in August 2010.
In his ruling, Theis said that the grandfather date was "at best, an unintended consequence" and "wholly arbitrary" — that is, there was no rational basis for it.
The Supreme Court, however, reversed the injunction, returning the case to the district court. In the ruling, Chief Justice Lawton R. Nuss disagreed that the cutoff date was arbitrary. He wrote that it was conceivable the Legislature selected the grandfather date to prevent bars — once they caught wind of the legislation — from rushing to get private club licenses and thereby get around the coming smoking ban:
"If the 2009 legislature conceivably chose the January 1, 2009, date as a cut-off — which would eliminate any incentive [for a mere ‘drinking establishment’] to rush to Class B club status during the pendency of the 2009 legislation — then it is exceedingly difficult, if not impossible, to conclude that the 2010 legislature could not conceivably have retained that same cut-off date for the same reason during its own session."
The ruling today likely will put an end to the lawsuit challenging the ban's constitutionality. During oral arguments in December, attorney Michael Merriam, representing the clubs, predicted that if the court were to rule as it did today, his client's suit would be "dead in the water."
"If this court says there is a rational basis (for the injunction), that Judge Theis got it wrong as you posit it, I don't see where we would go with that, frankly. ... We can't just litigate for the sake of litigating."
Chris Masoner, of the American Cancer Society's Kansas chapter, said he doesn't anticipate further challenges to the law.
"I do think as far as legal challenges, this ought to put everything else to rest," Masoner said. No state has overturned a public smoking ban, he said. "There have been legal challenges in the past and in every case it's been upheld as a legitimate state function."
A bill to widen exemptions to the smoking ban is before the Legislature, but doesn't seem to be going anywhere. A similar bill was considered last year and failed to pass.
In addition to certain private clubs exempted by the ban's grandfather clause, the current law exempts gaming floors of state-licensed casinos, smoke shops, a certain percentage of hotel rooms and designated spaces in nursing homes.session."