Judge Rejects Bid to Kill Ban on Smoking in Bars

A Superior Court judge Thursday rejected an effort to overturn California’s new law banning smoking in bars, concluding that the statute is legal even if it threatens the livelihood of some bar owners.

Judge Joe Gray ruled that the law doesn’t violate the constitutional right to equal protection, even though the measure may permit smoking in some small businesses, but not in small bars.

Gray noted that although “very few things are as important to humanity” as making a living, it is the Legislature’s responsibility to enact public policy. As long as that policy passes constitutional muster--as the smoking ban does--the courts must uphold the law, he said.

“We interpret the laws. We don’t make them,” Gray said.

William Thomson, attorney for a group of bar owners and other plaintiffs who had pressed for a preliminary injunction, said he had not decided on his next step. The plaintiffs can appeal or press for a full trial before Gray.

“The battle will continue legally, legislatively and practically,” Thomson said.

Legislation to revoke the ban for three years faces a hearing next week in an Assembly committee.

The ban stems from California’s landmark 1994 legislation that prohibits smoking in enclosed workplaces. The prohibition was extended to bars, casinos and nightclubs Jan. 1.

“If you want a smoke-free bar, take your money and go open one,” said John Trinkle, one of the plaintiffs, after the court session.

Trinkle owns a company in Tracy, near Stockton, that supplies vending machines to bars. He and other plaintiffs are paying for the suit, he said, but added that he had spoken to a tobacco firm that was “very interested” in getting involved “later.”

The suit focuses on an amendment to the law permitting smoking in businesses that exclude minors, have five or fewer employees who all agree to permit smoking and who work in a ventilated building.

He contends that the exemption may apply to small restaurants that serve alcohol, and thus place small bars at a disadvantage--a contention rejected by the state attorney general because other state laws require that restaurants admit children.

In his argument Thursday, Deputy Atty. Gen. Allen Sumner cited sections of the law that suggest the exemption does not cover restaurants or bars. He said that even if it did apply to bars with five or fewer employees, their owners could not legally permit customers to smoke. The workers “conceivably” could smoke, but only if they used a room away from customers, he said.

Attorney George Waters, representing the American Lung Assn. of California, American Cancer Society and American Heart Assn., argued that even if bars are losing business, the higher priority belongs to the health of bar and restaurant workers.