Bar Wins in Battle Over Smoking Ban

A judge this week ruled in favor of an Orange County tavern that is fighting California’s ban on smoking in bars, marking the latest of several defeats for local prosecutors attempting to enforce the 3-year-old law.

The ruling, in which the judge found the law unconstitutional, applies only to Lucky John’s in Fullerton. But it and other recent court decisions are setting the stage for a Supreme Court showdown over the law.

Orange County has emerged as a major front in the legal war against the bar smoking ban, with a group of maverick establishments openly defying authorities and allowing customers to light up.

The latest case marks the second time that an Orange County judge has found the law unconstitutional. Several other bars accused of violating the smoking ban have been acquitted.

Other judges have consistently upheld the constitutionality of the law. But attorneys and legal experts said the wide range of rulings makes it important for a higher court to clarify the issue.

Lucky John’s owners admit they allow smoking in their establishment. The bar was cited in January 2000 by Fullerton police.

Lucky John’s attorney made a novel argument: Because the bar had fewer than five employees, it should not be covered by the smoking ban. As evidence, attorney Ronald Davis cited a section in the state labor law that exempts similar-sized businesses such as offices and garages from the ban on smoking.

Orange County Superior Court Judge Daniel McNerney agreed with the argument Thursday, ruling that the law was fundamentally flawed because it prohibits smoking in bars while allowing it in other types of small businesses.

Prosecutors said they haven’t decided whether to appeal the decision but they don’t think the legal argument will hold up.

“I know that the defense is considering this a victory, but I’m not really sure of what magnitude it is,” Deputy Dist. Atty. Kristene Johnston said.

That didn’t stop the celebrating--and the smoking--at Lucky John’s on Friday.

“This is a major decision,” said owner John Johnson, who has flouted the law since its adoption and paid more than $30,000 in fines and legal fees. If the ruling holds up on appeal, “this could literally open up the state of California to smoking in small neighborhood bars with five or fewer employees.”

Several months earlier, another Orange County judge tossed out a smoking violation case against a bar in which attorneys used the same legal argument.

Overall, pro-smoking forces have notched more defeats than victories. In Los Angeles, for example, attorneys have unsuccessfully argued that the ban applied to employees but not to customers.

Karl Manheim, a constitutional law expert and Loyola Law School professor, said it is not unusual for trial court judges to disagree on the constitutionality of state laws. However, he said he doubted the law would be overturned on appeal.

“Oftentimes, the lower-court judges seem to think they’re more powerful and knowledgeable than the Legislature,” Manheim said. “The higher up you go in the appellate system, the more reserved the judges get.”

Smoking prevention officials said they doubt the rulings will motivate other bars to defy the law, noting that all but a fraction of establishments in Orange County are complying with the rules.

“Even if there was a change, I’d be surprised if any bars or restaurants actually changed what they’re doing,” said Herm Perlmutter, who supervises the tobacco use prevention program at the Orange County Health Care Agency. “We have 90% compliance in Orange County because it’s a law that benefits everyone.”

A study last year by the American Lung Assn., however, showed a compliance rate of about 60% among bars statewide.

The law took effect in 1998 as part of an effort to reduce the health hazards of secondhand smoke. Smokers who defy the law can be fined up to $500. Businesses face fines ranging from $100 to $7,000 per incident.