State Update
Duncan ready for long-awaited day in court
11/16/2009
Legality of Iowa's smoking ban to be weighed on Tuesday
By CHRISTINIA CRIPPES
West Burlington bar owner Larry Duncan has been trying since mid-2008 to fight Iowa's statewide smoking ban in court.
At 9 a..m. Tuesday, the owner of Otis Campbell's Bar and Grill finally will get his opportunity.
Since before the ban went into effect, Duncan has insisted the Iowa Smokefree Air Act is unconstitutional.
Opponents of the smoking ban cite Article 1, Section 6 of the Iowa Constitution, which states the "general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."
In a series of legal arguments and briefs filed with the Iowa Alcoholic Beverages Division and the Des Moines County Court, Duncan's attorneys have expanded on the point..
In a brief supporting a petition for judicial review before the Des Moines County District Court, Duncan's attorneys -- Burlington-based Darwin Bunger and Stratford-based George Eichhorn -- made eight arguments, five of them on constitutional violations in the law.
Along with equal protection, the attorneys claim the law violates the U.S. and state constitutions under clauses relates to privileges and immunities, uniform operation of laws, interstate commerce, and due process.
Equal protection
In arguing that Duncan and others like him are not being denied equal protection, assistant attorney general John Lundquist used, among other cases, the Iowa Supreme Court decision that ended the ban on same-sex marriage.
"The courts of our state generally view the federal and state equal protection clauses as 'identical in scope, import, and purpose,' " the attorney wrote in his brief, citing the Varnum v. Brien case. "A court would certainly 'break new ground' to establish a fundamental right to smoke in public commensurate with such a fundamental right as the right to travel, the right to vote, the right to marry and the right to procreate."
The state argues that the exempted businesses -- including casino gaming floors, tobacco stores and hotels -- are not equal in scope, import and purpose.
Duncan's attorneys, however, seek to put all businesses on a level playing field.
"The real issue is whether Otis and Aunt Bea's are similar to other businesses in relation to the reduction of exposure to 'environmental tobacco smoke,' " Duncan's attorneys argued in their response to the state's brief. "Gambling customers are not more immune to 'environmental tobacco smoke' and their employees are not less subject to harm."
With the state's reliance on gaming revenues to pay for infrastructure -- including an $830 million bond for Gov. Chet Culver's I-Jobs program -- the battle whether to prohibit smoking in casinos likely will attract wide attention.
During the legislative session that saw the Iowa Smokefree Air Act pass, and subsequent to it, some lawmakers and the ban's enforcers agreed there shouldn't be any exemptions to the ban. However, they argue that just because there is, it doesn't negate the ban.
In its brief, the state argues that other laws infringe on how Duncan runs his business and on his and his customers' "pursuit of happiness," but that does not mean he will be allowed to, for example, sell alcohol to a minor at 4 a.m.
Interstate commerce
Duncan's attorneys argue that the cumulative effect of a cigarette tax, the smoking ban and other anti-tobacco legislation results in effectively killing interstate commerce of a legal product.
They said it doesn't matter that the law's impact on interstate commerce is indirect, but that it hinders commerce. They go on to say the science behind the dangers of secondhand smoke is inconclusive.
According to the American Cancer Society Web site, however, "secondhand smoke is classified as a 'known human carcinogen' (cancer-causing agent) by the U.S. Environmental Protection Agency, the U.S. National Toxicology Program, and the International Agency for Research on Cancer, a branch of the World Health Organization."
Rebutting the interstate commerce argument, Lundquist states in the brief that the Smokefree Air Act does not regulate where or who can sell tobacco products. Lundquist argues that simply because a law is not perfect does not mean it's unconstitutional, nor has Duncan been denied due process as there have been multiple hearings -- through the alcoholic beverages division -- on the issue of smoking in his business.
Due process
"The ABD's proceedings in this case are not constitutionally suspect just because Otis Campbell's would have preferred a different venue in which to adjudicate its admitted misdeeds," the attorney wrote.
Duncan's attorneys say, though, initial constitutionality concerns should have been addressed by a judicial magistrate and not the Iowa Alcoholic Beverages Division.
Because the Iowa Smokefree Air Act says license revocation is "in addition" to other monetary penalties, the attorneys argue the ABD had no right to revoke Duncan's license in April. He has since been granted a temporary stay, with the understanding that he adhere to the ban while the constitutionality of the law is decided in court.
Even without the "in addition" wording, the attorneys argue the alcoholic beverages division is not granted any authority to oversee the smoking ban, as the law gives jurisdiction to the Iowa Department of Public Health.
The state argues the alcoholic beverages division has the right to penalize bars for noncompliance since the Iowa Beverage Control Act requires that liquor licensees abide by all applicable laws. The health department and the alcoholic beverages division also have a joint agreement to work together on tobacco enforcement issues.
Lundquist said regardless of the ban's constitutionality, the alcoholic beverages division had the right to regulate the business as it saw fit under the Alcoholic Beverage Control Act.
History lesson
Duncan, who has owned Otis Campbell's more than 15 years, raised the state's ire when he refused to follow the statewide smoking ban that was enacted on July 1, 2008.
Though Duncan received three notices of potential violation from the health department, he got neither a citation nor any punishment until Jan. 2, when an administrative law judge within the ABD ordered his liquor license suspended.
All he's wanted since Day One -- and why he continued to flagrantly violate the law until his revocation -- was his day in court. By Tuesday, it will have been 505 days, though he has had several hearings with the alcoholic beverages division.
Duncan said he's optimistic of his chances. His attorney has been more cautious.
"No matter how clear constitutional issues may seem on the surface to us, they are thorny," Bunger has said. "So, it's very hard to predict. But I would say that our opportunity to prevail here is better than some might think."
Duncan said he believes that if he wins on interstate commerce, it will have ripple effects in about 30 states, which have some sort of smoking ban.
Lundquist, though, cited nine other challenges to state smoking bans that ended with rulings against ending the prohibition. Bunger said a recent case in Omaha, Neb., found the law did not offer uniform operation of laws.
He also has said the losing party likely will appeal.
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Duncan rallies support
Non-profit Freedom Fighters gear up for ongoing battles against statewide smoking ban
April 23, 2009
By CHRISTINIA CRIPPES
Fundraising, a legal lesson and a whole lot of venting frustration were on the agenda Wednesday when the Freedom Fighters for All Citizens of Iowa met at the Eagle's.
Owner of West Burlington's Otis Campbell's, Larry Duncan, organized the meeting with his non-profit group on just a few days notice, planning to do it once he got a conditional stay on his liquor license. Duncan has been fighting an ongoing battle with the statewide smoking ban since it went into effect July 1, 2008, which almost cost him his liquor license.
At times, the Freedom Fighters meeting seemed like the taxation protests of last week, with definite signs of concern with the way things are and occasional veers from the topic at hand.
Mostly, though, they stayed on task to rally against the state that they feel is taking advantage of them.
"I think Mr. Duncan's spite is basically a result of what I'm going to call the cigarette that broke the camel's back," said Burlington resident Bradley Bourn, who was introduced as a retired Army major. "This battle is going to go on. It's going to get uglier."
Now that the state has started to take action against violators of the Smokefree Air Act, the opponents of the statewide smoking ban are taking up arms of sorts.
Fundraising
With the short notice, the crowd was noticeably smaller than it has been in past meetings. However, attendees were no less avid Wednesday afternoon, raising almost $2,000 among them.
They also showed no signs of letting up. Duncan offered suggestions for raising money, ranging from selling merchandise to putting out jars to setting aside sums earned for the sale of Jell-O shots.
In this area specifically, two Otis Campbell's staff members Matt Smith and Chad Christofferson are organizing concert events to raise money and rally around the cause.
"I can tell you right now we haven't been too proud to take a nickel and we're grateful for whatever we get," Duncan said.
Legal issues
Duncan's attorney Darwin Bunger addressed the group, acting as a voice of calm amongst the panic of the bar owners, who fear they're losing business at a rate that will soon cause them to close their doors for good.
Bunger said he's not fighting the smoking ban for the fees but rather because as a citizen he feels the state is not right. However, he admitted to the crowd the constitutional fight will be difficult.
"I was asked at church Sunday, 'Darwin, do you think you're going to win this?' I said, 'Yeah, I do think I'm going to win it, but it's not going to be easy. But I think so. We should,' " Bunger said.
He said, however, the bars should be fighting on two separate tracks, the legal one and the legislative one.
As far as Duncan's case he estimated it will be more than four months before there would be any decision on Duncan's Des Moines County District Court case. Regardless of the decision, Bunger said the case will go to the Supreme Court.
"That will go on, I don't know, another nine to 12 months," Bunger said, adding that the delay makes the temporary stay all that much more important.
Airing frustration
Ottumwa VFW Commander Denny Whitson also expressed frustration with the state and its lawmakers. But he added that he's received calls of support from states like Nevada, North Dakota and Missouri.
"I think the nation is watching what we're doing here, and if we lose, this the whole nation is going to lose," Whitson said.
Gary Gibson of Grinnell's John and Gary's Gametime spoke up about strong-arming tactics he experienced, as did Walford bar owner Connie Greene.
"They're not doing anybody alike," Greene said of the deals being offered to bar owners.
Bill Duncan, Larry's brother and owner of Fort Madison's Two of a Kind, said the law was passed due to the arrogance of the lawmakers.
Christofferson, like a few others, said he is fighting the statewide smoking ban for the sake of his children's freedom.
He, however, urged the group to act as one, something he said should have been done from the outset of their battle against the smoking ban. Duncan said also the bars should not just target fellow liquor licensees but all businesses.
"I hope people don't get scared of the fact that they think the state actually won a fight," Christofferson said. "Now all we're going to do is fight even harder."
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Dissent dilutes Iowa's smoking ban
January 7, 2009
By JENNIFER JACOBS
Smokers in certain parts of Iowa know they can defy the smoking ban — and local authorities won't do much to stop them.
In the town of Hampton, for instance, police have never dished out a $50 ticket although everyone from City Council members to the police chief has known for months that bar-stool rebels there are flouting the law.
Violations have been spotted at 460 businesses and other public places since Iowa's Smokefree Air Act took effect in July, records show. Yet local authorities have not taken action against a single one.
The county attorney in Mitchell County has taken perhaps the boldest stand against the law. He sent a letter to the Iowa attorney general that declares that he thinks the law is unjust, and that he won't enforce it until it applies to all workplaces.
Authorities at the state level are cracking down on bar owners who let their customers smoke by going after their liquor licenses. But they're counting on local authorities to take some action on their own against bars, or other businesses such as beauty salons or auto body garages.
"What's breaking down at this point is the local action, the city and county attorneys taking action," said Bonnie Mapes of the state health department's tobacco enforcement division. "We're still trying to work with them."
Local authorities cite various reasons for their unwillingness: confusion about their role in enforcement, the expense of enforcement, or sheer distaste for the law itself.
State officials, including Iowa Attorney General Tom Miller, are trying to turn that tide. Miller sent letters to county attorneys in November stressing the importance of local and state authorities working together to enforce the law.
However, the reality is that most Iowa employers are obediently self-policing by asking anyone who lights up inside to step outside. Of the 82,000 workplaces touched by the smoking ban, complaints have been lodged against fewer than 1 percent of them.
Even in Mitchell County, residents said they're not aware of any business where smokers indulge indoors, despite the county attorney's promise not to penalize them.
City says smoking ban is too costly to enforce
Local authorities in West Burlington, a Des Moines County city of about 3,300 people, have decided not to enforce the law at all, saying it would be too expensive.
Des Moines County has had a spate of smoking in 19 businesses, more than any other county except Polk County, where complaints were logged on 66 businesses, Scott County at 27 businesses, and Woodbury County at 21.
Because West Burlington doesn't have a staff attorney, it would have to pay an attorney fee of $180 an hour to go after a bar to get a $100 penalty, City Administrator Dan Gifford said.
"In my talks with the attorney general's office, I said, 'You have attorneys that work for you. You guys come and do it because this is your law,' " Gifford said.
The attorney general's office has so far taken action against four bars — but under the state liquor laws, not the smoking ban law. Fro's Pub n' Grub in Wilton and Otis Campbell's Bar & Grill in West Burlington face proposed liquor license suspensions; hearings are pending for the Outer Limits in Des Moines and Manning's Whistle Stop in Clinton.
Anyone in Mitchell County, population 10,000, can smoke in a bar without fear of the county attorney cracking down.
County Attorney Mark Walk, 52, believes the smoking ban is unjust because individual business owners are being denied the opportunity to decide whether a legal product can be consumed in their businesses, he said.
"I rely on our code of conduct, which says we are to 'do justice,' " he said. "I wanted people to know if there are laws that are unjust, we would choose not to prosecute those."
However, if a bar owner chooses to be smoke-free and asks local authorities to pursue a customer who is smoking, "we would," said Walk, who lives 15 miles from the farm where he grew up and owns the Osage movie theater.
Republican legislative leaders had different reactions to local authorities' hesitation to enforce the smoking ban.
"The law's the law and a county attorney, especially, has taken an oath to uphold the law," said House Minority Leader Kraig Paulsen, a lawyer.
Senate Minority Leader Paul McKinley said he finds the law "very, very troubling" himself.
"I think each one of those officeholders has to judge whether they're doing the right thing. I would not pass judgment on them one way or the other," he said.
Attorney's position on ban draws praise
The Mitchell County attorney's stance is essentially a symbolic one. There aren't many bars in the county, and no bowling alley, veterans association or tavern has allowed patrons to smoke indoors, as far as Walk knows.
Becky Wagner, owner of the Teluwut Grille House & Pub in Osage, applauded Walk's position.
"I respect him for it, for speaking up and saying his piece of mind," Wagner said.
The Teluwut has been smoke-free since it opened four years ago, but Wagner agrees the law is unfair.
Mick Comisky, the owner of the Town Pump in Osage, is too leery of potential pitfalls to set out his ashtrays again. "It doesn't matter what anybody says; how can you trust what's going to happen?" Comisky said. "I'm not saying the county attorney's wrong or right, and I'm not saying the state's wrong or right, I'm just saying: Make. Up. Your. Mind."
Comisky's bar was demolished by a fire ignited by a careless smoker in 2001. He bought a new place in Osage, no longer smokes himself, and still thinks it should be the bar owner's choice to allow it.
But he said wryly: "The state and the insurance companies run us."
Some are perplexed over who has authority
Confusion over enforcement roles led to an absence of action in Hampton, where smokers have known for several months that the owners of the Pit Row Pub, Kevin and Vickie Pralle, don't mind if they light up there.
Hampton Police Chief Jim Wobschall told the City Council in October that it wasn't his job to enforce the ban, and that if anyone had complaints, they should call the state's toll-free number.
That was just fine with some city officials, including Republican Councilman Bill Hodge.
"I think the smoking ban is a joke myself," said Hodge, a smoker. "I think maybe we have too much government. ... If you don't want to see nude dancing, don't go to a strip club. If you don't want to smell smoke, don't go to a bar."
But Hampton council member Pat Palmer, a Democrat and a nonsmoker, complained to the state.
Since then, the police chief has made several calls to the state to clarify his authority. Wobschall, a Republican, said he will order his officers not to walk away from an obvious violation, but to keep criminal matters a priority.
"I'm not saying I'm a real fan of this law. It is a civil thing. And we have a lot of criminal stuff going on," said Wobschall, whose officers handle about 6,000 calls a year in the town of about 4,200 people.
The other two bars in Hampton — Willie's Sports Bar, whose owner was cited for a gambling violation last year, and the Coconut Lounge, which caters to a Hispanic clientele — don't allow smoking.
Willie Knipfel, the owner of Willie's, said he thinks the Pit Row Pub has an unfair advantage in wintertime. "Why freeze ... when you can go next door to the other bar and have a beer and smoke a cigarette?" he said.
A certified warning letter from the state health department is waiting for the Pit Row's owners at the post office, but they have refused to sign for it, the police chief said.
Authorities in various counties are choosing not to hunt down smoking violators.
"I disagree with the law," said Keith Davis, the sheriff in Wayne County, population 6,300. "I'm not a smoker. I just think it's just another infringement on private businesses' rights; that's just kind of my opinion."
If state officials ask sheriff's deputies to check out a smoking complaint at a particular business in Wayne County, "we will do our job, but we're not actively pursuing enforcement," said Davis, a Republican.
Register staff writer Chase Davis contributed to this article.
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Owner: Smoke Ban Forced Me To Close My Bar
Amanda Lewis, KCCI.com"
November 14, 2008
JOHNSTON, Iowa -- After a decade in business, the Nest Bar and Grill in Johnston is empty.
The owner, Rich Marx, said the smoking ban drove him out of business.
"We just celebrated our 10 year anniversary last Wednesday and then shut the doors three days later," Marx said.
He said former customers who used to smoke at the Nest are now smoking at home with a 6-pack or visiting a casino.
"Since the smoking ban went into effect July 1, we've lost just over 40 percent of our business," he said.
That made paying the bills impossible.
The Nest isn't the only bar taking a hit. The Iowa Restaurant Association said members who catered mainly to smokers are down this earnings quarter.
However, government numbers show gains in the hospitality industry. Iowa Workforce Development shows 2,400 more jobs in hospitality this month than last year at this time. Likewise, bar and restaurant earnings are up 1.5 percent.
Iowa Department of Revenue public information officer Renee Mulvey said bar losses could be getting lost in restaurant gains.
"That's very possible that's happening," Mulvey said.
And as Marx points out as he cleans up, closed businesses don't have any earnings to factor.
"We're not the first to have to close up because of the ban and we won't be the last," Marx said.
Mulvey said the smoking ban appears to be having no effect on cigarette sales. But, the ban was also meant to protect workers from the effects of second-hand smoke. There is no way to measure that impact.
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