Skip to comments.Smoking ban 'unenforceable'
Posted on 12/22/2007 6:11:08 PM PST by elkfersupper
A lawyer for the owner of the Player's Club Bar and Grill in Independence has challenged in court the enforceability of the city's Clean Indoor Air Act ordinance and won.
John Carnes, an Independence attorney for Player's Club owner Jennifer Brashear, got Jackson County Circuit Court Judge Jeffrey Bushur to overturn two clean air citations given to Brashear. Municipal judges in Independence had found Brashear guilty of violating the city's health code by allowing patrons of the lounge to smoke on two separate occasions.
"There are some holes in that ordinance that basically makes it unenforceable," Carnes said. "It's an unworkable ordinance when it comes to enforcement."
City Manager Robert Heacock said the city attorney is reviewing the appeal and city staff will address perceived holes in the smoking ordinance in a timely fashion.
"The case is being reviewed by our legal department," Heacock said. "We are not sure what the next step will be."
Carnes said on April 13 a Player's Club customer claimed to have observed patrons smoking in the lounge. The person, Carnes said, contacted Heacock, who notified the Health Department.
The Health Department issues a citation, alleging violation of the city's clean air ordinance. After a hearing, the city's municipal court found Brashear in violation of the ordinance, Carnes said.
Carnes added he represented Brashear in the municipal case as well as a appeal hearing Monday before the associate court, where Bushur found Brashear not guilty based upon testimony and a review of the applicable provisions of the ordinance.
"The issue was trying to fit what you had to do to prove the person violated the ordinance," Carnes said. "That ordinance contains vague and overbroad language, making it legally impossible for the city to enforce the ordinance."
Brashear's conviction on the second citation, issued June 8, was also overturned by Bushur Monday.
In that case, Carnes said six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment. Three citations were issued, one to Brashear and two to customers.
One customer pleaded guilty in Municipal Court, the other was found not guilty in the same courtroom, while Brashear had to appeal her conviction in Municipal Court in Associate Court.
"The customer's argument was under the ordinance you have to be warned first to quit smoking before you are cited," Carnes said. "In Jennifer's case, the argument was 'what consists of a warning?' Does the sign at the front of the business that says 'no smoking allowed' constitute a warning? The way this ordinance is written, the question is, can it be enforced?"
Police spokesperson Tom Gentry said the department did not send a tactical unit to Players Club June 8. Gentry said two patrol officers were asked to assist the Health Department workers because of the intimidation factor at Player's Club that night and a nearby DWI enforcement unit's sergeant decided the unit would assist in the sting as well. The enforcement unit had just finished conducting a sobriety checkpoint, Gentry said.
"We do not send SWAT teams to enforce city ordinances," Gentry said.
Carnes said his next step is to pursue legal action in federal court if another client is cited by city officials after the associate court has determined the clean air ordinance is unenforceable.
"After the recent court test of the ordinance," Carnes said, "it is my belief that the present ordinance cannot be enforced and to do so would put the city at risk of committing federal civil rights violations."
"six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment. Three citations were issued, one to Brashear and two to customers."
Great use of our police resources. ;-)
Yes but it was “two SEPARATE occasions”, not simply “two occasions”. Enoughs enough, by golly. Thus, a tactical insertion was fully justified. Seriously though, ya hafta wonder if maybe there aren’t more important things to worry about these days. Just guessing.
In the meantime, rapes, drug deals and murder were happening elsewhere.
Thank God for anonymous tips. Sleep Well, America!
OMG, freeking nannies. I can see the scenario now: (cue dream music here)
“Smoking nanny sees flagrant violation of ordinance, and once he/she stops hyperventilating, furtively calls police. Meanwhile, police, while eating sugary pastries and doing little to nothing, mobilise a tactical unit because darnit, the law is the law! Those smokers are dangerous, we could all get cancer.”
how many smokers did they kill?.....swat team...for smoking cigarettes...nah, what militarization of those sworn to protect and serve.....gestapo aholes.
What kind of baby called the cops? This person is pathetic. (I just self edited what I wanted to call this "person")
I don’t smoke but I think smoking in an establishment should be decided by the owner. Patrons can then go to the places that cater to their preference and avoid the ones that don’t.
Is this what we have come to expect from LEO's?
I'm too old to change now, but I fear what our kids may be forced to endure in the future.
Put out the cigarette or we tase you.
I long for peace officers.
With that attitude, the nanny state warriors and their puppet politicians may target you next.
Best to watch what you post here at Free Republic. /s
The people engaged in those things can't or won't pay fines.
Thus, they are immune. It is the rest of us that have to pay.