May 21, 2009 08:00 AM

[Update: Some commentary on the oral arguments that occurred today are available here.  I've also linked to .pdf copies of court filings at the bottom of this story.]

On July 18, 2008 the Kansas City Health Department cited JC's Sports Bar, a northland billiards bar, and its bartender and night manager, Georgia Jean Carlson, for violating the new city ordinance banning indoor smoking.  Carlson had been permitting her patrons to smoke, clearly displaying signs that read, “Non-smoking areas are unavailable.” If her conviction stands, she faces a $100 fine plus court costs.

That’s about all that the parties involved can agree upon.

At the heart of the complaint is an 1889 Missouri statute that says that cities can only pass ordinances that do not conflict with state law.  Carlson’s attorney Jonathan Sternberg says this is “a basic principle of municipal law” that exists in all states.

By not exempting bars, Kansas City ran afoul of state law.  In the appeal, Sternberg argues, “In Missouri, any municipal ordinance prohibiting something a state law expressly or implicitly permits conflicts with that state law and, therefore, is preempted and void.  The State of Missouri’s indoor smoking law singles out and authorizes any licensed bar or billiard parlor to maintain no nonsmoking areas indoors, so long as signs warning that ‘Nonsmoking Areas are Unavailable’ are conspicuously posted.”  Inasmuch as the ordinance conflicts with state law, it is invalid.

Kansas City disagrees.  City prosecutor Lowell Gard argues in his response to the appeal that, “The language [of the law] does not grant a license to smoke in small bars. It just puts those bars outside the scope of the statute and leaves smoking in them unregulated.”  Municipalities, he argues, are permitted to regulate further, a situation he says is contemplated by the legislature when it adopted statute reading, “A smoking area may be designated by persons having custody or control of public places, except places in which smoking is prohibited by the fire marshal or by any other law, ordinance or regulation” [emphasis added].

Sternberg counters that in 1996 a Missouri State Senator asked then-Attorney General Jay Nixon whether the state’s Indoor Clean Air Act “preempt[s] more stringent regulation of smoking by fourth class cities.”  Nixon replied that while the Act does not expressly preempt all more stringent regulation of indoor smoking by local governments, any local ordinance regulating indoor smoking still “must not attempt to permit what [the ICAA] prohibits or prohibit what [the ICAA] permits.”

Sternberg points out that every Missouri city that has considered a smoking ban since Kansas City’s ordinance has been sure to include these state mandated exemptions.  He further asserts that if the Kansas City ordinance is thrown out by the Appeals or Supreme Court, it will nullify similar ordinances in Ballwin, Chillicothe, Columbia, Independence, Kirksville, Lee’s Summit, Nixa and North Kansas City—all because they did not draft their ordinance in concert with Missouri law.

This round of wrangling is not the same as Sternberg’s previous civil suit to have the ordinance declared invalid—an effort the plaintiff bar owners gave up in December.  This time around, Sternberg is representing a defendant in a criminal prosecution.  In criminal cases, says Sternberg, the courts are much more eager to make sure that authorities have not violated any laws or infringed upon any rights.  “So far,” he says, “the court of appeals has been taking us very seriously.  They have permitted us a full-airing of our case, including allowing General Cigar Holdings, Inc. of Richmond, Virginia, to file an amicus brief on our behalf.”

Here are the relevant court filings:

City of Kansas City v. Carlson - WD70576 - Brief of the Respondent

City of Kansas City v. Carlson - WD70576 - Brief of the Appellant

City of Kansas City v. Carlson - WD70576 - Brief of General Cigar Holdings Inc

City of Kansas City v. Carlson - WD70576 - Reply Brief of the Appellant

Ordinances to Conform to State Law

Areas Not Considered Public Places

 

 


Patrick Tuohey is president of Market and Communications Research Inc., a public opinion and communication research firm he founded in 1999.  He and his wife Michelle live in Kansas City, Missouri with their three daughters.

 

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By not exempting bars and restaurants Kansas City ran afoul of state law. 

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