Smoking ban may go to court

Assembly to take up ordinance Oct. 1

Posted: Tuesday, September 18, 2001

A week after an overflow crowd debated the pros and cons of a city ordinance banning smoking in many more public places, the proposal faces a court challenge.

The ordinance under consideration by the Juneau Assembly would prohibit smoking in offices, restaurants, stores, bingo halls, many hotel rooms and other enclosed public places. According to city officials, it would not apply to bars, homes, private clubs and businesses with fewer than five employees that are not open to the public. Anchorage approved a similar ordinance last year.

Possible smoking ordinance changes

Exemption date: Assembly members suggest giving businesses more time to comply with changes.

Enforcement: Assembly members want information about the cost of enforcement and the possibility of adding warnings into the fine structure.

Business impacts: Assembly members are seeking more information about how many bar-restaurants would be affected and how an "enclosed space" is defined.

Other data: Assembly members also are requesting information about health care costs related to smoking, a public education effort and litter.

James Bouschor, a carpenter and member of the Fraternal Order of the Eagles who opposes the ordinance, has asked a U.S. District Court judge for a temporary injunction to block the ordinance until the court issues a ruling on the customary use of tobacco in bars, inns, taverns and lodges. He said the ordinance would apply to bars as now written. He is representing himself in court.

"Their ordinance doesn't exempt bars as a place of employment," Bouschor said. "They need to be honest with the public and indicate what their intent is."

City Attorney John Corso said the city is analyzing Bouschor's claim, but an injunction at this point is unlikely. Bars are exempt from the smoking ban provided they meet the definition of a bar and the requirements spelled out in the ordinance, he said.

Assembly members are scheduled to discuss the ordinance Oct. 1. They didn't make formal amendments at last week's meeting, but pointed to areas they think need more work. Assembly member Ken Koelsch requested information about how many combination bar-restaurants in town would be affected, what might go into a public education effort, the cost of enforcement and how to address litter problems such as cigarette butts.

"I'm not against this ordinance, but I don't want to jump at it too quickly," he said.

Assembly member Dale Anderson suggested the city set up a task force of business owners, Juneau Tobacco Prevention Network members and others in an effort to find middle ground.

"If there's a way to sit down and reason together, I think many heads make good decisions," he said.

Cathy Mu-oz suggested a warning for a first-time violation be worked into the fine structure, while Frankie Pillifant requested information about health-care costs associated with smoking.

Don Etheridge said last week that he expects the Assembly will approve the ordinance, with changes. He said he's looking at the proposal as a health issue.

"We're going to come out with an ordinance, but we're going to have to make some tweaks to it to make people happy. But we'll still have an ordinance that will do what we need it to do to make it work," he said.

As written, the ordinance would take effect 90 days after adoption. Assembly member Jim Powell suggested the effective date be pushed to 180 days with the city giving businesses a chance to apply for a further 90-day extension. He also suggested additional work to define what an "enclosed space" is.

"I support the ordinance," he said.

Mary Becker, a member of the Juneau Tobacco Prevention Network, said after the meeting that the coalition is optimistic the ordinance will win approval.

"If the Assembly listens to the will of the people, it most definitely will pass," she said. "We need an ordinance that is going to benefit and speak to the health issues. If our ordinance doesn't result in clean indoor air in Juneau, it won't be a useful ordinance."

Testimony at the meeting focused on health concerns and possible business effects. Owner Troy Cunningham told Assembly members that Squire's Rest in Auke Bay is known as a place people can smoke. His bar is next to Pappy Poe's Pork Place and he said he can't afford to separate the two businesses.

"It will hurt our business, I guarantee it," he said of the ordinance. "Everyone that goes there knows it is a smoking establishment."

Debra Gerrish, who has asthma, said she loves to play pool and dance, but can't in Juneau because of tobacco smoke. She asked the Assembly to stand up for people's right to their health.

"If I go into a business and smell smoke, I turn the other way because it's not worth tripping off my asthma," she said.

After Assembly members hold a work session on the ordinance at noon Oct. 1, they will meet in regular session at 7 p.m. A vote on the ordinance is expected.

Joanna Markell can be reached at joannam@juneauempire.com.



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