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Lawsuit filed to stop Houston smoking ban

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HOUSTON — A coalition of bar, nightclub and cabaret owners has filed a federal lawsuit challenging a city ban on smoking in most bars that's scheduled to take effect next month.

Members of the Houston Association of Alcoholic Beverage Permit Holders claim the ordinance will create an unfair competitive environment for them to operate.

The law extends the city's smoking ban to most public places, but continues to allow smoking in outdoor patios and in bars that promote cigar smoking and derive significant revenue from tobacco sales.

The City Council approved the ban in October to protect bar patrons and employees from the health effects of second-hand smoke.

The lawsuit claims the city does not have the authority under state law to create different regulations among 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 (who) doesn't meet that definition cannot," said Al Van Huff, a lawyer representing the group.

The lawsuit asks the court to stop enforcement of the ordinance and rule it invalid for alcohol establishments licensed by the state.

City Attorney Arturo Michel said Houston's ordinance is legal. Various bars are not being treated differently in terms of alcohol, he said.

"We're actually not just regulating this industry in terms of smoking," he said. "We regulate a lot of other public places, in terms of smoking."

Van Huff also argued that the ordinance is unconstitutionally vague. The ordinance allows smoking in "private functions." Some owners have wondered whether they could designate all or part of their establishments as private clubs.

Michel said the ordinance is modeled on rules from other cities and is not 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."

Gregg Alston, the owner of two Houston bars, said the ordinance will make it harder for him to compete with nearby cigar bars. Alston's bars doesn't have a patio.

"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.

Aug 10, 2007 12:03 pm   Email to a Friend

Comments

J Pierson on Oct 11, 2007 7:09 pm

Is it just me or does any one else notice how the government really does not care for our supposed health as much as they strive to make us believe? Alcohol related deaths and injuries number into the millions per year. Logic would dictate the obvious solution would be to make alcohol illegal. But instead we have a decrease in legal tolerance for the amount of alcohol in one system and an increase in taxes and license costs payable to the state. Smoking is said to cause so many illnesses and is a public health risk based on the government’s research studies. Yet all we see as far as stopping the problem is more taxes on cigarettes. In other words the more severe the health hazard, the more profitable for the government. If community and national leaders are so concerned about our health and well being maybe they should have the nerve to take care of the problem all together and stop making life so inconvenient by pulling our strings the way their annual budget sees fit.

Curt on Sep 14, 2007 1:14 pm

Its time we get organized, this includes individuals as well as restaurant and bar owners, this "New Temperance" that is sweeping AmeriKa, is nothing short of fascism. Our rights as individuals and business owners are being erased, everything we do, say and think is being monitored. The "Brave New World", where corrupt government and small minded people decide whats healthy for the rest of the country is at odds with the very fabric of the Constitution. We the people can decide for ourselves what we eat, drink, think, or Smoke.

I'd like to suggest a Smoke-In, why not? I can't think of a reason, we can come together and fight this hypocrisy on all fronts, not just as Smokers but as Citizens who give a damn about the rights of the Individual. Anyone interested?

Lisa Balla on Sep 11, 2007 3:38 am

Why isn't city counsel smart enough to figure out the simple solution to please everyone? Have smoking and non-smoking bars, which should be determined by the owners and patrons. Small owners will probably close down (like they did in other cities) and only the big will survive. If you don't like 2nd hand smoke, why is one dumb enough to work in one (thats a minority of employees). Its like being afraid to drive a car and getting a job as a taxi driver....DUH!!

1. The non=smoking law discriminates against many people...the average person that smokes.

2. Why should cigar bars be allowed when the smell of cigar smoke is so more stifeling. Is it because most lawyers and politicians smoke them? Discrimination!!!

3. Why are hispanic bars allowed to sell liquor after 2 a.m.?
I bet you can smoke in them without any problem. Discrimination again.

4. Fat City Houston. With some people quiting, having the usual weight gain when one quits; we'll have even more fat people in Houston with more health problems.

5. Smoking causes 1/3 of all cancers; why isnt something being done about the other 2/3.

6. Smoking only causes lung cancer, emphazema & wrinkles.

7. Obesity is worse as it causes a lot of different cancers, heart attacks, diabetes, etc.

Why isn't city hall more concerned about our polluted air, our cancer causing water and our pesticide & chemical-loaded foods.
We all have to eat, drink and breathe; smoking is secondary and is by choice by a minority group of people; EXCEPT when they are a majority in a bar.

ANOTHER STUPID POLITICAL LAW!!!!

Richard on Sep 07, 2007 11:22 am

This ban is unjust and will cuase many establishments to close due to loss of income. I could guess that 90% of all bar patrons are also smokers. Many will stop going to bars and the transition from smoking patrons to non-smoking patrons will take about a year based on what has happened in other cities. Well financed establishments will ride it out without too much of a problem, but small to mid-range bars (a lot family owned) will close withih a couple of months. Also to be considered are the employees of these bars, mostly under educated, female and single parent. A lot of the owners are elderly retired, veterans or legal immigrants. Their bar is their only source of income which has now been ripped from them by King White and his royal council. Any such proposed law must be put on a ballot and voted on by the people is is going to effect and not just shoved down our throats by those at city hall. I do not like living under a city dictatorship that can put laws into affect based on their personal beliefs or lifestyle. This law must be overturned and all of city council replaced on the next elections, including the mayor. Email, fax, phone or write a letter to the mayor expressing your outrage and demand your rights as a tax paying citizen. Together we can beat city hall and get this ignorant law thrown out.

Cheryl A. on Sep 06, 2007 2:49 pm

Just say NO to smoking--Ms. Banta--what do your children think of you smoking?

Pat Mahan on Aug 31, 2007 6:20 pm

If a proprietor wants to allow smoking, that's his business. The non-smokers can go elsewhere. People who go for a job know the place and if they don't want to be subjected to second hand smoke - don't fill out the application.

Jim on Aug 31, 2007 4:01 pm

What are the fines and who pays them?

Debbie on Aug 22, 2007 10:14 am

and why your at it lets ban all fat people....they are killing our health insurance rates.....WHEN IS THIS BELLY aching ALL gonna STOP?! America is getting less free every minute.....and our soldiers are fighting for others freedom? JEESH

Donna Banta on Aug 11, 2007 1:11 pm

Maybe we should ban bar's and sales of alcohol!! Drinking and driving kills many but yet there seems to be a great contradiction here with the non smokimg issue.The non smokers who drink and there are many out there filling the bar's complaining about second hand smoke don't give a thought to the many being killed by drunk drivers.This is not restricted to bar's.Next time your out eating check to see how many people are having cocktails at lunch or dinner.Some have their children with them and they are drinking and then driving with their children in the car, but god forgive my second hand smoke being the cuplrit that puts them and their children in danger.Non smokers want it all, they want to ban me from smoking in public but it is ok for them to get behind the wheel of a car and maybe kill me or some one else.Fair is fair,if you are drinking any where you should be required to have a non drinker do the driving and if you can not prove to have one then you can not drink because you may kill me in the process. Get the point?

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