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Sunday, August 3, 2008

Smoking ban opponents in Iowa speak out

http://www.clintonh erald.com/ local/local_ story_215003822. html

Smoking ban opponents speak out

By Danica Baker
Herald Staff Writer

CLINTON — A Polk County District Court judge heard preliminary
arguments that the smoking ban in Iowa is unconstitutional during a
hearing Friday morning.

The smoking ban went into effect in Iowa on July 1. That evening, the
Clinton Organized Bar and Restaurant Association and the Iowa Bar
Owners Coalition filed an injunction petition, asking the court to
put a halt on the smoking ban until a ruling can be made on the law's
constitutionality. The two organizations also filed a lawsuit against
the smoking ban in an effort to get the statewide ban overturned.

The petition names the Iowa Department of Public Health, IDPH
Director Thomas Newton and the State of Iowa as defendants. Attorney
George Eichhorn, of Stratford, is representing the plaintiffs in the
case. Iowa Deputy Attorney General Jeff Thompson and Special
Assistant Attorney General Donald Stanley Jr. presented the state's
argument.

In the petition, COBRA and IBOC argue that the smoking ban denies bar
owners of their Fourth Amendment right against unreasonable search
and seizure
and the 14th Amendment right to due process.

District Judge Douglas Staskal noted at the beginning of the hearing
that in a brief off-record discussion with opposing counsel a pending
motion by the state citing jurisdictional issues and provisions
requiring the petition be timely filed still were under review.
Eichhorn commented the plaintiffs would file a response to the
state's challenges to the petition in the near future.

Staskal stated the hearing would proceed regarding the constitutional
challenges to the statute.

Brian Froehlich, owner of Fro's Pub and Grub in Wilton and president
and founder of IBOC, said in his testimony that his business is down
approximately 15 percent from June to July. He acknowledged that many
factors contribute to slowing sales, including rising gas prices, but
estimated that 60 to 90 percent of his customers smoke. He said the
reduction in sales would first result in laying off employees, then
cutting hours of operation and finally, closure.

COBRA President Jon Van Roekel testified that a survey of COBRA
member establishments he has been compiling has revealed that the ban
has diminished sales from 30 to 70 percent in the past month.

He added that of 40 governing memberships and 1,250 employee members,
12 employees have been laid off from the member establishments since
the ban took effect and hours have been cut for several others. He
said the ban has been cited as the direct factor in the closure of
the Silver Dollar in Blairsburg, Iowa, and noted that many COBRA
members who have been in business for decades are afraid they will be
forced to closed due to decreased revenues.

Amanda Albreicht, owner of Hoss' Saloon in Fairbank, Iowa, testified
that she was open from 9 a.m. to 2 a.m. Wednesday and profited just
$11 for the entire day of business.

"It's bad. I can't keep my doors open like this," she said before the
hearing.

During her testimony, she stated that after achieving her "American
dream" of owning her own business and being open for 10 successful
years, she is putting the bar up for sale. She said she has complied
with all provisions of the law, even going so far as to place flyers
advertising smoking cessation aids throughout the establishment, but
cited a reduction in sales of $11,000 for the month of July in 2007
to approximately $3,000 in July 2008.

In his argument before the court, Eichhorn called the state
law "bizarre," saying he has not seen anything like the structure of
the statute in his 28 years of experience as a lawyer. He stated the
format of the law is "difficult to follow" and defies standard
definitions of public and private properties, and employers and
employees, dating back hundreds of years. Eichhorn said the law does
more than ban smoking, but constitutes an extensive obligation on the
part of a business owner to serve as the enforcement arm of the state.

He also argued that the law is unconstitutional in that it allows for
unreasonable search and seizure, as set through the Iowa Constitution
and the Fourth Amendment to the U.S. Constitution. Eichhorn added
that the law set forth no regulatory provisions, commenting the
statute violates the 14th Amendment to the U.S. Constitution in that
people have a right to know how to enforce the law, who is the
authority, what charges they face and the process to protest proposed
violations. He argued the law allows for different businesses to
receive different treatment under the law, saying it is a violation
of the privileges and immunities clause.

Thompson said he respects the right of citizens to challenge the
validity of a statute, but said the "strangeness" of a law or that
people don't like the law is not enough to invoke action by a court.
He called an injunction an "extraordinary remedy," and stated that a
court injunction on the ban would upset the new status quo after the
ban already has been in effect for 32 days, affecting 8,200
businesses.

Thompson argued that the plaintiffs must prove beyond a reasonable
doubt they are likely to win their case, that the bar owners have no
other legal remedy and irreparable harm will be done to them if
enforcement of the ban is not halted by an injunction. He said the
statute provides for due process through the issuance of
notifications of violations. Thompson argued that businesses that are
situated similarly are treated similarly, but remarked bars and
casinos are "different animals," citing that economic evidence shows
that casinos would be impacted differently by the law. The judge had
to admonish the court room to withhold personal comments after
several of the bar owners in attendance reacted to Thompson's
acknowledgment that the state has a legitimate economic interest in
casino revenue.

In his redouble, Eichhorn reacted to Thompson's statement that the
plaintiffs waited until the day the ban was enacted to file the
injunction petition. Eichhorn noted that the Iowa Department of
Public Health
issued administrative rules for enforcing the ban just
four days before it in effect.

Staskal said he would rule on the injunction petition "as soon as
possible."

In a statement to the media in the Rotunda of the Polk County
Courthouse on the first floor, Van Roekel said the hearing was the
first step in restoring the rights of Iowa citizens lost when the ban
was passed and legislators stripped people of their freedom of
choice. He said he looks forward to the judge's ruling and believes
the judge will grant the injunction and a full hearing on the
constitutionality of the law. He added that those involved in
fighting the ban would continue to pursue legal options to halt and
overturn the ban and invited citizens to visit the new COBRA and IBOC
website, www.choosefreedomio wa.org.

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