THIS IS TRUE BULLSH!T!
Kevin Lipka is the true hero of Smoking Lobby, and this has got to stop!

Judge: Go-go bar must pay $41K in fines
Smoke-Free Air Act is 'flagrantly violated' by Smiles II

DAILY RECORD
Thursday, August 16, 2007

A Superior Court judge on Wednesday upheld $41,103 in fines imposed against the owner of the Smiles II go-go bar in Roxbury, finding the owner flagrantly violated the state's law against smoking inside bars and restaurants.

Judge W. Hunt Dumont, sitting in Morristown, gave Smiles II owner Kevin Lipka 14 days to consider an appeal to the state's appellate division before being required to pay the fines first imposed last year by Roxbury Municipal Court Judge Carl Wronko. Lipka paid $5,000 of the fine already, but the rest was put on hold pending his appeal to Dumont.

Lipka, who has owned the go-go bar on Route 46 for 14 years, does not dispute he never posted no-smoking signs and allowed patrons and employees to smoke indoors after New Jersey's Smoke-Free Air Act went into effect on April 15, 2006. Instead, defense lawyer Jeffrey Advokat attacked the violations levied by a Roxbury health officer against Smiles II as unenforceable because the state had not finished formalizing administrative regulations to support the law when it went into effect.

Advokat also argued that Lipka, in the time frame the violations were issued, was actively seeking recognition from Roxbury as a cigar bar so Smiles II could be exempt from the law. Advokat contended that unless or until Roxbury decided whether Smiles II qualified for an exemption it should have refrained from giving him violations.

Dumont disagreed, siding with township attorney James Bryce's position that Lipka waited until two days before the law was in effect to try to get an exemption and should have barred smoking on his premises until he knew whether he qualified. Dumont said Lipka had months to prepare for the new law.

"Everyone knew this smoking ban was more than likely to become law in indoor establishments. Everyone saw this coming unless you had your head in the sand," Dumont said.

In Lipka's case, the judge said, "The violations are flagrant."

Lipka received 41 notices of violations of the law between April 27 and Oct. 13, 2006. Two days before the law's enactment, Lipka wrote the township a letter he hoped would serve as registration as a cigar bar. The town responded, in part, that a business must have generated 15 percent of its total annual gross income in the year ending Dec. 31, 2004 from the on-site sale of tobacco products to qualify.

Advokat told the judge Wednesday that the condition for an exemption is virtually impossible to meet because how could his client know in 2006 he would need specific revenue documents from 2004 to support an exemption? The judge agreed the condition is onerous -- likely designed to limit the number of available indoor places to smoke -- but said Lipka had no choice but to comply if he wanted to be free of the law.

Dumont noted that Roxbury sent certified letters to Lipka on April 20 and 21, 2006 ordering him to "cease and desist" smoking inside the bar. Another township-sent letter said an inspection for signage and smoking would be done on April 26, 2006. Smoking continued at Smiles II despite the warnings, and the first violation was issued April 27, 2006. They continued into October.

The judge at first questioned the need for 41 violation notices but then ruled the township was justified in its effort to get Lipka to comply. He found that the municipal court judge, Wronko, acted within his authority when he followed the law's penalty schedule to mete out $41,103 in fines.

Lipka, meanwhile, would not comment on whether he will appeal. He said he believes he generated, before the law, 15 percent of his income from cigar and cigarette sales and rentals of humidors. Since the law's passage, he said, only a handful of his 75 humidors are rented and passersby call the police department when they see his dancers outside smoking in their skimpy outfits.

"I have customers who are sitting mesmerized by the dancing. They want a cigarette with their drink. They have a nic-fit. It breaks the mood when they have to go outside," Lipka said during a break in the hearing.

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Injunction granted to end smoking at bars owned by foe of ban
The Arizona Republic
Jun. 15, 2007 05:53 PM

The smoke will finally clear from four Phoenix bars where the owner was fighting the statewide smoking ban on a technicality.

Maricopa County Superior Court Judge Pendleton Gaines on Friday granted the state's request for a preliminary injunction to stop smoking at the bars owned by Alfonso Larriva.

Larriva, the first business owner to run afoul of the smoking ban that went into effect May 1, argued that windows converted into vents with louvered slats meant his bars were not technically "enclosed areas" and therefore smoking was allowed.

Gaines was not persuaded by the semantical argument, which focused primarily on the definition of "window" and "enclosed."

"It is an effort to defend the indefensible and explain the inexplicable," he said. "I don't think you can take the glass out of a window and make it something else."

In granting the injunction, Gaines said the state has a strong likelihood of winning further arguments if the case goes to trial. The state is seeking more than $100,000 in fines for dozens of smoking violations at Larriva's four bars - Metro Sportz Bar, Boomerang, Maverick Saloon and River City Pockets.

The state argued that every day that smoking continues at those bars, Larriva's competitors could lose business and the state loses credibility.

"We are losing confidence with the public that we have the ability and are effective and can get folks subject to the law complying with the law," said Will Humble, deputy assistant director of the Arizona Department of Health Services. Humble pointed out that Larriva had sent a letter to other bar owners suggesting ways that they, too, could get around the law.

Gaines, a smoker himself, said he agreed that there was a strong public interest in stopping smoking at the bars. Voters passed the law in November, he noted, and it doesn't really matter if everyone likes it or not.

"It may be that a lot of people think it is a dumb law," Gaines said, noting that there is a price to living in a democracy.

"You either believe in a democracy or you don't believe in a democracy, but the people have spoken," he said.

In defending himself, Larriva and his attorney, Douglas Erickson, offered engineering definitions of enclosed spaces and dwelled on how the slats on the openings meant they were no longer windows but vents. Larriva also testified that other state employees with the liquor department and gaming department agreed with him that the law was stupid and that he had found a loophole.

Larriva is the only business owner that has been cited since the law went into effect, though officials have received nearly 1,500 complaints about smoking violations. Humble said that the health department has received more than 50 complaints about Larriva's businesses.

After the hearing, Larriva said that he is weighing an appeal. He is also considering how he can further modify his bars to comply with the law, such as by putting in a large door that could open up a full wall of the building.

The injunction goes into effect when signed by the judge, which is expected within the next 10 days. In the meantime, Humble said health officials will continue to visit Larriva's bars to see if they are coming into compliance and continue to issue citations.