Oh, dear – tisk, tisk – not good at all.
Kansas City’s anti smoking ordinance governing bars, restaurants and other public places is highly likely to be struck down by Missouri’s court of appeals just in time for summer, says Jonathan Sternberg, an attorney representing a consortium of bars, restaurants and other businesses affected by the ban.
And for good reason…
“There’s a very old Missouri statute that says that a city can only pass ordinances that are in harmony with the state law on the same subject,” Sternberg says. “It’s been on the books since 1889 and it’s never been amended.”
Nor is it likely to be, Sternberg ventures. This is not one of those dusty, forgotten laws still on the books but no longer relevant in today’s society.
“Hardly,” Sternberg says. “Not in the slightest – the courts have applied it dozens and dozens of times over the years.”
Not long ago the law was used to overturn an ordinance governing Payday loan businesses in the St. Louis area, Sternberg says.
“It’s a basic principle of municipal law that pretty much every state has,” he says.
In a nutshell, Missouri’s indoor smoking law requires that bars, taverns, tobacco shops, bowling alleys, pool halls and restaurants with a capacity of under 50 people are exempt from smoking bans.
Unfortunately the authors of Kansas City’s ban were not clever or fortunate enough to have researched this prior to authoring the current ban.
The odds of the appeals court merely blowing Sternberg off: zilch.
“The Missouri court of appeals is taking us very seriously,” he says. “Is there a chance that either party could lose? Sure. But I feel that we will prevail – it’s a very clear case, and the court has already – with just two briefs from our side only before them – scheduled oral arguments for May 21st. So clearly they are taking us quite seriously. So now the case will be decided in the weeks after May 21st.”
Word is when KC city attorney Galen Beaufort learned of the Missouri law he warned the council in advance that the current ban might not be sustainable.
“Not true,” Beaufort counters. “Who told you that?”
Asked to provide further comment on KC’s ban versus the Missouri statute Beaufort replied: “Requests for comments need to be made through Mary Charles, the City’s Communications Officer.”