Legal challenge to Kansas City smoking ban fails

This story, which ended with a decision in the Missouri Supreme Court earlier this year, has a long history, going back to shortly after the Missouri Clean Indoor Air Act was originally signed into law in the summer of 1992 by former Governor John Ashcroft.

Missouri GASP opposed the bill because it contained a couple of tobacco industry poison pills but the good thing about the bill finally approved was that a preemption clause, inserted by the tobacco lobby to make this very weak bill the strongest in the state, had been stripped out before it got to the governor’s desk.

However, one thing I had wanted to see was explicit language stating that nothing in the bill prevented stronger local ordinances from being enacted. I raised this concern on May 27, 1992, during negotiations with Mr. Phil Irons, Governor Ashcroft’s lobbyist handling the legislation. He assured me that, if the bill didn’t explicitly mention preemption of local ordinances, then a local ordinance can be stricter than state law.

However, it was troubling that the section of the law relating to the sale of tobacco products to minors specifically allowed stronger local ordinances while lacking similar language for local smokefree air ordinances.

That omission came back to haunt us the following year when Ald. Paul Paradise of the City of Crestwood wanted to make Crestwood Plaza smokefree by local ordinance. The attorney advising the city, Shulamith Simon, of the law firm Rosenblum, Goldenhersh, Silverstein & Zafft, referred to this omission and wrote:

“It is my judgement that the City does not have authority to impose such prohibition.”

Based on that advice Ald. Paradise subsequently withdraw this prohibition from his bill but asked me if Missouri GASP could assist in getting an opinion from the state. I contacted my state representative at the time, Rep. David Hale, and prepared a formal request for an Attorney General’s Opinion on February 22, 1993, which Rep. Hale submitted. Despite numerous repeated requests for a response to Mr. Hiram Watson, who was in charge of legal opinions in the office of the Attorney General, no opinion was obtained.

The matter lapsed until I resurrected it with Sen. John Schneider, who was my state senator at the time. In a 1229/94/1 note in my daily log I have this record:

Called Donna Mueller [751 4106/f2230], Sen Schneider’s secy. re AG Opinion. Donna Mueller said had spoken to Asst Attorney General, Larry Weber, who said that “probability of getting an opinion was slim to none.” Attributed to shortage of staff; prioritization – this has low priority.

However, on January 9, 1995, Sen. Schneider submitted a new Opinion Request to the AG’s office with significantly simplified wording to that submitted in February, 1993, by Rep. Hale, as follows:

1. Can the language of section 191.777 RSMo be interpreted to prohibit stronger local ordinances that regulate smoking?

2. The attorney advising the city of Crestwood has interpreted section 191.777 to prohibit local ordinances that are stronger than state law. The president of the Group Against Smoking Pollution (GASP) disagrees with this interpretation. He interprets section 191.777 as allowing a local government to have stricter regulations on smoking.

There were several subsequent communications with Sen. Schneider but it wasn’t until February 15, 1996, over a year later, that he wrote advising me that:

“At long last and after a great deal of concentrated effort we have secured the enclosed Attorney General’s opinion regarding more stringent regulation of smoking by fourth class cities.”

The opinion ran to just over two pages:

TO ADD

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 1


Attorney General Jay Nixon\'s opinion 80-96 Jan. 12, 1996 page 2

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 2


Attorney General Jay Nixon\'s opinion 80-96 Jan. 12, 1996 page 3

Attorney General Jay Nixon's opinion 80-96 Jan. 12, 1996 page 3

For me, the important conclusion, based on several references in the Attorney General’s letter, was that stronger local ordinances than the state law were expressly allowed. E.g. near the bottom of page 2:

“A smoking area may be designated … except in places in which smoking is prohibited …. by other law, ordinance or regulation.”

There the matter rested until apparently earlier this year when there was a legal challenge to a stricter local ordinance in Kansas City. Bill Hannegan jumped on the bandwagon, claiming that soon local ordinances stronger than the state law would be overturned, and offering a $100 wager. If I hadn’t been so absorbed in working to promote local legislation I would have taken him up on that bet. Unfortunately, by the time I checked my file and dug out the original letter from the Attorney General it was too late! It would have been satisfying to display a $100 check from Mr. Hannegan, a trophy in the smoking wars to relish.

As I was going through my past notes to compile this blog I came across the phone number for Alderman Paul Paradise and on impulse called to see if he was still alive. His wife, Pat, answered the phone and said he had died in 1998 after a long illness and she missed him.

I’m sure his loss is not lessened by this knowledge, but he was the inspiration for the original Attorney General’s opinion which eleven years later is upheld by the Missouri Supreme Court.

Below is Post-Dispatch reporter Phil Sutin’s on-line report, plus some reader comments, both pro and con:

politicalfix2

Legal challenge to Kansas City smoking ban fails

Post-Dispatch reporter Phil Sutin

Post-Dispatch reporter Phil Sutin

By Phil Sutin
St. Louis Post-Dispatch
10.08.2009 4:10 pm

The state Supreme Court has rejected a challenge to Kansas City’s smoking ban in indoor public places. The court did not accept to an argument that the city could not ban smoking in places where it was allowed or not mentioned in a state law.

Charles Gatton, chairman of County Citizens for Cleaner Air, the campaign committee for a ban in St. Louis County, said on Thursday said the court’s decision makes clear that “there is no question about the legality of” the county smoking ban proposal.

Although the court has dealt with one major issue on smoking bans, others may arise, Bill Hannegan, an opponent of smoking bans for St. Louis and St. Louis County, said. County voters will consider a smoking ban Nov. 3. A committee of St. Louis aldermen sent a city smoking ban to the full board.

In Kansas City, Georgia J. Carlson, operator of JC Sports Bar, violated that city’s smoking ban to set up a test case. She argued the state law gives bars an exemption and the city could not prohibit smoking there.

Kansas City Associate Circuit Judge Richard Standridge in January ruled Kansas City could impose stricter requirements. The state law did not prohibit other entities from regulating smoking, he said.

The western district of the Missouri Court of Appeals in June agreed. And in August, the state Supreme Court declined to hear the case.

Meanwhile, the Clayton Chamber of Commerce has scheduled a short debate for Oct. 26 between County Councilwoman Barbara Fraser, D-University City, the sponsor of the smoking ban, and Hannegan. The session will start at 6:30 p.m. at the Clayton community center, 50 Gay Avenue Clayton.

The candidates to fill a vacancy in the 73rd state representative district in the Richmond Heights area also will debate. They are Stacey Newman, a Democrat, and Daniel O’Sullivan Jr., a Republican.

Assistant Clayton Fire Chief Paul Mercurio will make a three-minute presentation about the proposal on the Nov. 3 ballot for a 0.1-cent sales for a countywide emergency communications system.

Reader’s Comments:

Charlie Gatton is wrong about the legality of Councilman Fraser’s smoking ban. Look for her smoking ban to be challenged on the constitutionality of its casino exemption if it passes.

— Bill Hannegan
4:32 pm October 8th, 2009

Bill – you mean the same exemption that is legal in the Kansas City ordinance will be not be legal in the St. Louis County ordinance?

You know, as long as you keep paying the attorneys, they will keep telling you what you want to hear. How many bets did you lose – I notice that Ballwin and Clayton still have smoking ordinances, despite your promise to have them gone by last month.

— Wino
4:43 pm October 8th, 2009

A casino exemption has never been challenged in Missouri. An attorney I spoke with believes it violates the Special Laws Clause of the Missouri constitution.

— Bill Hannegan
5:28 pm October 8th, 2009

Bill – have you read Prop. 4? It contains a severability clause. I understand that to mean that if any clause if ruled invalid, the rest stay in force. So if you are foolish enough to go to court and try to get the ordinance thrown out, if you are successful all that would do is eliminate the casino exemption. I don’t think that would make you real popular with Harrah’s.

— Wino
5:51 pm October 8th, 2009

Wino, I am not promoting any lawsuit. I am simply warning Harrah’s that they should not feel safe if this passes.

— Bill Hannegan
6:27 pm October 8th, 2009

As we all know, in the USA you can sue (or be sued) by anyone for anything! Just because you sue, Mr. Hannigan, doesn’t mean you’ll win.

Why don’t you do something productive with all the time and energy you have?

— Get a Life
9:55 pm October 8th, 2009

Comments are closed.