The future of smoking in bars and restaurants in Lawrence hangs in the balance as a case challenging the city's smoking ban now lies in the hands of the Kansas Supreme Court.
The court heard a Lawrence bar owner's argument against the city's ban on April 25 and is expected to hand down a decision no sooner than June 8.
The decision is sure to get attention from restaurant and bar owners across the state.
See what students think about the ordinance
Phil Bradley, executive director of the Kansas Licensed Beverage Association, is keeping a close eye on the case, but he said that even if the court overturned the ban, it would not make a huge difference in people's habits.
"The damages from the smoking ban have been done," Bradley said. "People who used to go out for a drink and a smoke after work have changed their habits. It will take a long time to get those habits back."
Mandy Buckwalter, Hutchinson junior, said she had gotten used to the ban and that she enjoyed smoking outside.
"I think it's a respectful law," Buckwalter said.
Bradley said that even before the city instituted the three-year-old ban, 85 percent of bars and restaurants in Kansas were already smoke-free, meaning that an overarching law was unnecessary.
"Businesses that felt they could do better as smoke-free establishments had already done so," Bradley said.
He pointed to what he said was a substantial decrease in revenue from drink taxes as an effect of banning smoking in bars. He said it was the first year in decades that revenue had decreased.
The Kansas Department of Revenue, however, showed a small increase in tax revenue, as opposed to an actual decrease.
Revenue from the liquor excise tax revenue, a 10 percent retail tax on liquor sales at private clubs and drinking establishments open to the public, increased 4.5 percent in 2004. In 2005, the first full year with the ban in effect, the tax revenue rose 4 percent.
Revenue rose again in 2006, up 7.5 percent from 2005.
A pre-ban research effort by a 2004 Lawrence task force on smoking in public places and in places of employment said that the lack of change in overall revenue was common after cities put smoking bans in place.
The task force's March 31, 2004 report said that half of all establishments, usually bars, could show a negative impact on revenue, while the other half, comprised mostly of restaurants, would show an increase in business after a ban, balancing out the bars' losses.
Bradley said that even though he is a non-smoker and does not care for smokers in public, he thought the law was too vague and granted too many exemptions.
The ban is supposed to prohibit smoking in all indoor workplaces, but Bradley said some places were exempt from the rule. Smoke shops, hotel rooms, and private residences that may have employed a nanny or maid all fall under the exemption.
Dennis Steffes, owner of Last Call and Coyote's, argued that the city ordinance which prohibits smoking in indoor workplaces preempted the state law allowing owners to determine whether to allow smoking on private property. He also said the law was unconstitutionally vague, meaning that the average person couldn't discern a clear meaning.
Billy Rork, Steffes' lawyer, said the issue was not that Steffes, a non-smoker, believed smoking should be allowed, but that he did not think the city should be able to make it illegal.
"I think businesses should dictate what goes on inside," Rork said. "This is just government interfering."
Sandy Jacquot is the director of law at the League of Kansas Municipalities, which helped the city of Lawrence defend its position to the Supreme Court.
She said cities have the ability to enact ordinances that do not conflict with state law, and that the Kansas Supreme Court traditionally says that ordinances more restrictive than state laws do not conflict with the state law.
Richard Levy, J.D. Smith distinguished professor of constitutional law, said that was called home rule, meaning that Lawrence has the right to make the ordinance as long as it does not conflict with the state law.
Levy said the court would have to interpret the language of the law and decide whether it implies that the businesses have the right to create indoor smoking areas, or whether having an outdoor smoking area is sufficient.
Even that decision may not bring an end to the issue, though.
"Another problem is that for some Lawrence bars, there are outdoor areas, but for others there aren't," Levy said. "If not all bars have the ability to designate a smoking section outdoors, is there a conflict?"
Steffes had been cited for violating the city ordinance, and when he appealed the guilty verdict, the court dismissed the case because the city was amending the code. He then took his case to district court, additionally asking for an injunction until the law was clarified, and finally he went to the Kansas Court of Appeals. The Supreme Court picked up the case because of the possible statewide impact.
Toni Wheeler, attorney for the city, said she expected the court to uphold the ordinance, because she thought the language of the law was clear enough to be easily understood.
If the court rules in the city's favor on the other issues, Wheeler said that Steffes' injunction request should be dismissed.
The court may give the city an opportunity to make changes to the ordinance if it finds the ban to be unconstitutional, and Wheeler said they would try to retain as much of the law as possible.