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THE UNIVERSITY DAILY KANSAN
NEWS
JUNE 29 - JULY 5, 2005
ORDINANCE
City puts off smoking ban change
By LIZ NARTOWICZ
lnartowicz@kansan.com
KANSAN STAFF WRITER
After hearing concerns from local bar owners, city commissioners decided to delay amending the city's smoking ban during their meeting on June 21.
The commission decided more input was needed from bar and restaurant owners and employees before enacting the ban's amendments.
The ban, which prohibits smoking within establishments, originally went into effect in July 2004. Since then, the community has seen much debate over the ordinance, including ongoing court cases and businesses' requests to build decks or patios.
The proposed amendments would make it easier for city prosecutors to find bar and restaurant owners in violation of the ordinance. As of now the ordinance requires the city to prove that the owner or manager was aware of the smoker and that he or she took no action to stop the smoker.
If approved, the amendments
"Restaurant and bar owners have enough to deal with. We shouldn't have to worry about policing smokers."
Connie Roach
Owner, Hereford House
would switch the responsibility of providing proof onto the owner or manager. It would be the responsibility of the owner or manager to prove that he or she was either unaware of the smoker or, if aware, took action.
Connie Roach, owner of Hereford House, 4931 W. 6th St., said she felt it was not her duty to enforce the smoking ordinance.
"Restaurant and bar owners have enough to deal with," Roach said. "We shouldn't have to worry about policing smokers."
Roach is a member of the Appeal to Reason and Tolerance Coalition, the organization that proposed revising the ordinance in March.
While city commissioners were considering rewording the ordinance to better define an enclosed area, ART asked for a law that clarified an establishment's responsibility. ART wanted the ordinance to specify what actions an owner or manager must take against a smoking patron.
ART recommended that if an owner, manager or employee took those actions, he could not be cited for a violation of the ordinance.
According to a letter from Toni Wheeler, a city staff attorney, the city staff believed these changes were unnecessary at the time they were proposed. Wheeler wrote that such an amendment would provide additional enforcement challenges as well. Wheeler went on to write, however, that with time, the staff had reconsidered its position.
City staff now recommends that instructions for owners and managers to follow be included within the ordinance. These instructions would require bar and restaurant staff to immediately ask the patron to stop smoking, ask the patron to leave the enclosed area if he fails to cooperate, and finally, take all lawful actions to remove the patron.
But bartenders do not always see the patron smoking, Aaron Blair, Leavenworth senior, said.
Blair, a bartender at Henry's. 11 E. Eighth St., said there was only so much a bartender could do, especially at bars with separate rooms. Henry's bar consists of four rooms and a deck.
"There's no way I could see someone in another room smoking when I'm behind the bar," Blair said.
The bar's capacity is 81 and usually staffs one bartender per night.
"That's a lot of people to be checking," Sue Mee, co-owner of Henry's, said.
Mee said Henry's was lucky because its customers were respectful and went out of their way to abide by the ordinance, but that the law was still confusing. Mee said the proposed amendment seemed odd to her and Henry's other co-owner, Dave Boulter.
"We were thinking that it's making us guilty before innocent." Mee said.
Another amendment the city staff recommends is to clarify the number of violations within a year. The staff proposed the violations be counted from the date they occurred rather than the date of conviction. This would decrease the chances of defendants evading higher fines.
Fines are determined by the number of offenses within one year. A first violation receives a fine not exceeding $100. A second violation within the same year receives a fine not exceeding $200 and so forth. By changing the counting system, it is more likely cited businesses will receive higher fines.
No schedule is set for revisiting these proposed amendments. Vice Mayor Mike Amyx said it was fine for interested parties to have dialogue on the amendments but that he felt the ordinance was fine the way it was.
"I don't see a need to complicate the ordinance with new language," Amyx said. "I think it's working well."
—Edited by John Scheirmqn