Judge, Reversing Self, Bans Smoking in Bar

Patrons of a small Fullerton tavern have to stop lighting up, a judge ruled Friday, reversing his own earlier ruling giving Lucky John’s an exemption from the state’s no-smoking law.

Owner John Johnson said his “Smoking Permitted” signs will be replaced by notices advising customers not to smoke. Patrons who wish to smoke must sign a waiver that they know smoking in bars is illegal. Beyond that, Johnson said, he will not try to enforce the law, which he strongly opposes.

“I don’t think it’s my job to enforce the law,” Johnson said. “If the cops figure they have nothing better to do than write smoking tickets while people are out getting raped and murdered, well, somebody’s got to take a look at priorities.”

The initial court ruling stemmed from a year-old case in which an employee of Lucky John’s on South Euclid Street was cited for smoking in violation of a three-year-old state law banning smoking in most California businesses and in all of its bars.

Lucky John’s filed a motion challenging the law as unconstitutional, and in June of this year Orange County Superior Court Judge Daniel McNerney agreed, ruling that the smoking ban violated guarantees of equal protection by exempting businesses with fewer than five employees except bars.

Prosecutors filed a motion asking McNerney to reconsider his ruling, resulting in Friday’s decision. In explaining his decision to reverse himself, he would only say that the state law meets all constitutional requirements for equal protection and is properly applied to bars with five or fewer employees.

He set a trial date of Dec. 10 on the original infraction, with a pretrial hearing set for Nov. 30.

Ron Davis, an attorney representing Lucky John’s, said his client will keep fighting. “The law says that if I run a [small] adult bookstore, I can smoke to my heart’s content and let every patron smoke as well,” he said. “If, however, I have the audacity to work in a bar, I can’t do any of that. We don’t think that’s fair.”

Supporters of the state smoking ban applauded the judge’s action.

“We see this as a step in the right direction,” said Kristi Munns, a spokeswoman for the American Lung Assn. of Orange County. “We understand it’s important to consider the preferences of both smokers and nonsmokers, but when one’s preference is a matter of life and death to another, support of public health is a priority.”

Jennifer Horspool, a spokeswoman for the American Cancer Society of Orange County, agreed. “I think it’s fabulous that [the judge] reversed his decision and voted for the health of all employees,” she said.

Davis said he will file a motion within 10 days asking the judge to reconsider his reversal. “It’s not just [a matter of] what we pass as laws,” the lawyer said, “but what we ought to be passing. The real issue here is the stupidity of the Legislature that wants to tell people how to live their lives.”

Tavern owner Johnson said the fight is far from over. “This is a David-and-Goliath type of war here,” he said. “It’s not easy to fight City Hall, let alone the state of California. I know I’m right. If I lose, I’m going to go down fighting.”