Judge Sides With Bar in Fight Against Smoking Ban

TIMES STAFF WRITER

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 along with other recent court decisions, it is setting the stage for a Supreme Court showdown over the law.

Orange County has emerged as an epicenter in the legal war against the bar smoking ban, with a group of maverick establishments openly defying authorities and proudly 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 won not-guilty verdicts.

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

Lucky John's owners freely admit they allow smoking. The bar was cited in January 2000 by the Fullerton Police Department. So the issue in the case was not whether smoking occurred, but whether it was legal.

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 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 said they don't think the 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," said Deputy Dist. Atty. Kristene Johnston.

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 another bar in which attorneys used the same legal argument.

Overall, pro-smoking forces have faced 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 that 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 push new bars to challenge the law.

"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 Agency.

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