Anti-Smoking Ordinance Wins Federal Round

Judge tells bar owners they filed in the wrong court

Anti-Smoking Ordinance Wins Federal Round
Illustration By Doug Potter

"I'll of course deny the application for a temporary injunction and dismiss this lawsuit," said U.S. District Judge Sam Sparks from the bench March 17. "There are no ripe federal claims, and this is a lawsuit to stop an election." That was Sparks' blunt conclusion last week, in his response during a preliminary hearing to the lawsuit filed against the city of Austin by several local bar owners who oppose the new, more restrictive smoking ordinance scheduled to appear on the May 7 ballot. The bar owners, members of the Keep Austin Free political action committee organized to fight the proposed ordinance, were hoping the court might prevent the ordinance from appearing on the spring city council election ballot, arguing that it violates the city charter and is unconstitutional on its face. But Sparks responded that such a lawsuit would be possible only "when and if an ordinance comes into existence," and that in any case the likely legal venue would be a state, not a federal court. And if the case does eventually end up back in federal court, Sparks speculated wryly, "Hopefully, the [scheduling] computer will give the case to Judge [Lee] Yeakel," Sparks' Western District colleague.

The attorney for the bar owners, Marc Levin, gamefully maintained that there are both state and federal constitutional questions at issue in the case. Sparks eventually acknowledged that Levin might have some future grounds for action, but the judge repeatedly rejected the argument that his court is the likely place to start this particular fight. "Too many people, including lawyers," the judge complained, "think the federal court is the vacuum cleaner for all issues. … We've got a [Travis Co.] courthouse three blocks from here." Levin explained that the plaintiffs had expected the case would move to federal court in any case, and they had hoped to win a decision soon enough to keep the anti-smoking ordinance off the city ballot, which must be ready to go to the printer by the end of March. (Early voting for the May 7 election begins April 20.)

Judge Sparks, with a reputation of little patience for foolishness, was visibly annoyed that the plaintiffs had delivered revised and expanded pleadings to the court only a couple of hours before the hearing was to begin. "If you weren't ready, Mr. Levin," he asked, "why did you file a lawsuit?" Levin said he had added plaintiffs and claims – including the novel addition of a couple of local Catholics, Edward Check and Celeste Adams, who say a prohibition on "burning materials" may prevent them from using incense in religious ceremonies. The incense claim was among a host of arguments in the pleadings, which more directly claim the anti-smoking ordinance is unconstitutional, vague, and an unfair and illegal imposition on the due process and property rights of bar and club owners. They also said the new ordinance, as drafted, would effectively allow smoking at (open-air) local swimming pools while banning it at bars – more testimony to its vagueness and ineffectiveness.

Attorneys for the city responded that the club owners' quarrel is with the petitioners – brought together by the anti-smoking organization Onward Austin – who gathered the signatures to put the measure on the ballot. Under state law and the city charter, said Assistant City Attorney Lynn Carter, the City Council has only two choices: either to enact the measure directly or to place it before the voters.

Sparks said he would issue a formal ruling in about a week. Afterwards, Levin told reporters that the plaintiffs would consider additional legal options, and that he was encouraged by the judge's acknowledgment that the club owners might have some future claims. But plaintiff Paul Silver, owner of 219 West and one of the leaders of Keep Austin Free, said he was disappointed in the judge's decision, and that the proposed ordinance is an unnecessary expansion of the current ordinance, adopted last spring. He said the approximately 200 bars and clubs to be most directly affected by the ban may not have any legal recourse, "and unfortunately, 20 or 30 live music venues may go out of business" in the wake of the new ordinance. "This was why we were here – to try to stop this potential damage from happening," he said. "We were going to Daddy and asking, 'Please stop these people from beating up on us.' After the damage has been done, the courts and City Council will be saying, 'Gee, we're sorry, but there was nothing we could do.' We were trying to prevent this damage from happening – we're the ones that are going to have to take the risk."

Rodney Ahart of Onward Austin, which has led the petition campaign, said he was pleased by the court's decision, because "citizens have a right to petition their government." He said the proposed ordinance is "a matter of protecting public health," and that similar ordinances enacted in New York, San Francisco, Los Angeles, and Boston did not have the negative economic impact feared by opponents. "There is a thriving bar and music scene in all those places," Ahart said. "There may even have been a positive economic impact" from new customers at the smoke-free venues. "But the No. 1 priority is to protect public health and the quality of life. … There is overwhelming evidence that tobacco is toxic, and that secondhand smoke kills."

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More anti-smoking ordinance
Smoking Ordinance Headed for the Ballot
Smoking Ordinance Headed for the Ballot
Onward Austin gets its anti-smoking signatures

Daniel Mottola, March 4, 2005

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anti-smoking ordinance, Sam Sparks, Keep Austin Free, Marc Levin, Onward Austin, Lynn Carter, city council, Paul Silver, Rodney Ahart

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