Bingo parlors and clubs, including one in Tonganoxie, challenge Kansas smoking ban
Four Wichita-area business operators have gone to court to prevent Kansas from banning smoking in many public places, partly because its new law contains an exemption for state-owned casinos.
Their attorney said Monday that the law is unconstitutional because it treats similar businesses differently, according to the Associated Press. Starting July 1, smoking will be banned in most public places, including bars and restaurants, and in some private clubs, though not all of them.
Critics have pointed out repeatedly that smoking still will be allowed in the gambling areas of up to four new casinos to be built and operated by private developers for the Kansas Lottery. Smoking will be banned in bingo parlors.
The Wichita-area businesses argue the law restricts customers’ right to associate with whom they choose and denies the businesses equal protection of the law, guaranteed by the U.S. Constitution’s 14th Amendment. They want a judge to intervene and block the law’s enforcement.
“Equal protection is probably the primary issue,” said Topeka attorney Tuck Duncan, who is representing the four businesses.
Duncan’s clients operate Bingo Royale in Haysville, several Bingo Palace sites in Wichita and HEAT bars and Shooters billiard clubs in Wichita. They filed a motion to intervene Friday in an existing lawsuit in Shawnee County District Court.
That lawsuit, filed earlier this month by a private Tonganoxie club, Downtown Bar and Grill, challenged only one provision of the anti-smoking law that allows some clubs to avoid the smoking ban. It specifically did not attack the rest of the law.
District Judge Franklin Theis plans to have a hearing June 29, only two days before the law takes effect. The lawsuit names only the state of Kansas as the defendant.
“We do believe the law as passed is constitutional,” said Gavin Young, a spokesman for the state attorney general’s office.
Public health advocates pushed for the law, arguing it will decrease illnesses and deaths associated with smoking or secondhand smoke. Business owners said they’ll lose customers.
The initial lawsuit was filed by the Downtown Bar and Grill in Tonganoxie, which received its private club license in May 2009.
The new law says the smoking ban does not apply to clubs licensed before Jan. 1, 2009, if the club owner notifies the state health department before Sept. 30 that the owner wishes to allow smoking.
“Such a classification scheme has no rational basis connected to the legislative purpose,” the lawsuit said.
But the lawsuit also said the intention was only to deal with private clubs and “not to prohibit the general statewide smoking ban.”
Duncan’s clients have a different objective: making sure the entire law never takes effect.
They argue in their request to intervene that allowing smoking in some private clubs and not in other places selling alcohol is arbitrary.
They said it’s also arbitrary to allow smoking in state-owned casinos while prohibiting it in other “gaming” venues.
Bingo once was considered a form of lottery, banned by the Kansas Constitution. In 1974, voters approved an amendment making an exception to the general ban for bingo.
And, Duncan noted, voters added another exception to the same section of the constitution in 1986, for a state-owned and operated lottery. The new casinos are covered by that exception, with the lottery owning the rights to the new gambling and the gambling equipment, down to the cards and dice.
One state-owned casino opened in December in Dodge City, and another is under construction in Kansas City, Kan. State law also allows casinos south of Wichita and in the state’s southeast corner, but there are no prospective developers.
“They all have their genesis from the same grant of power from the people,” Duncan said, comparing bingo parlors and casinos.
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