Restaurateurs Sue : Beverly Hills Ban on Smoking Challenged

In an effort to short-circuit an ordinance that would make Beverly Hills the first city in California to ban smoking in restaurants and most other public places, a group of restaurateurs filed suit Monday, claiming that the city’s new law is unconstitutional.

Scheduled to go into effect April 3, the ordinance bans smoking in most Beverly Hills restaurants, at public meetings and in all retail stores, including supermarkets. Among the few locales exempt from the landmark law are bars and the city’s 16 hotel restaurants and private banquet meeting rooms.

“We feel the regulations are unfair, irrational, illegal and should be repealed,” said attorney Michael Kantor, who filed the Los Angeles Superior Court lawsuit on behalf of the 41-member Beverly Hills Restaurant Assn.

“We think the (Beverly Hills City Council) should repeal the ordinance and start all over again,” Kantor said. “It seems foolish to go ahead in the face of these terrible legal problems and the great bitterness that has developed.”

The city’s five-member City Council adopted the smoking ban unanimously last month despite strong objections from the restaurant owners and the Beverly Hills Chamber of Commerce, which claimed that the law was unneeded and could hurt business. The restaurateurs criticized council members for not consulting them in drafting the measure.

“We urged them to sit down and draft a more reasonable and responsible ordinance and they failed,” said Rudy Cole, acting director of the restaurant association. “A better way is to just set up specific smoking and non-smoking areas and keep them apart.

“We don’t feel good about (having to file) a lawsuit.”

But council members, acting at the behest of the American Lung Assn. and others who insisted that such a smoking ban was a matter of great urgency, decided to go ahead and make Beverly Hills restaurants smoke-free.

“Our position is it is a valid, constitutional and enforceable ordinance,” city spokesman Fred Cunningham said. “We’re looking forward to the courts validating it.”

The restaurateurs’ lawsuit alleges that the ordinance violates the U.S. and California constitutions by discriminating against restaurants not located in hotels. In passing the ordinance, the city exempted hotel restaurants on the grounds that too many foreign visitors would violate the law because of their confusion over the local custom.

“There is simply no rational, logical basis for that discrimination,” Kantor said. “Many of our clients have worked all their lives to build their restaurant business. . . . And everyone is confused as to why they have been singled out by the City Council.”

Under the ordinance, restaurant owners are required to post signs prohibiting smoking in dining areas. Violators and restaurant owners who ignore smoking in their establishments could be penalized with fines or jail terms.

“It sets up potential criminal liability without any specific and understandable standards,” Kantor charged. “It should be voided for vagueness.”

The lawsuit also alleges that the council violated the state’s open meeting law by discussing the provisions of the smoking ban in secret session and that council members violated the California Environmental Quality Act by refusing to submit the proposal to an environmental review board before voting.

A Superior Court judge is expected to hear the complaint April 1 or 2.