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K.C. Case On Smoking Ban Revisited

It has to feel a little like deja vu for Kansas City attorney Jonathan Sternberg. Almost exactly three years ago, he was fighting a similar smoking cigarettes ban in Kansas City.

Sternberg, who is representing a tavern opposed to Springfield's ban, anticipates making the same argument in Greene County that he made in Kansas City in 2008.

Sternberg contends the smoking cigarettes ban approved by Springfield voters in April stands in conflict with state law.

That, he says, makes the city ban invalid.

"Our hope is to strike down this ordinance," he said.

But Sternberg was unsuccessful in the Kansas City case, when the argument was ultimately struck down by the Western District of Missouri's appeals court.

Springfield City Attorney Dan Wichmer was asked about the local case compared to the Kansas City one. He said: "To me it's identical."

He anticipates a similar conclusion -- that the courts will find that the Springfield ordinance can exist. But Wichmer said the issue will likely again go to the appeals court before the case is resolved.

"It's going to go up on appeal. It's not going to stop here," he said.

Sternberg acknowledged the Kansas City loss, but said the appeals court decided incorrectly. He hopes a Greene County judge will come to a different conclusion.

"This judge does not have to follow a wrong decision," he said.

Wichmer and Sternberg appeared in Greene County Judge Jason Brown's courtroom Thursday. A hearing was scheduled to discuss a request for an injunction ahead of the legal arguments in the case, but the parties opted to put the hearing off to give the city time to respond.

The two attorneys will again meet at 3 p.m. Wednesday.

Brown has asked the city to submit its response to Sternberg's suit by Wednesday, if not sooner. That response is expected to react to a thick stack of suggestions Sternberg filed with the suit.

If the city can have those responses ready by then, the two sides will argue whether a preliminary injunction should be put in place to at least temporarily stop the city's smoking cigarettes ban.

If the city is not ready, Sternberg has asked that the judge grant the injunction. Wichmer said city council will have closed session after a Tuesday lunch meeting so he can brief them on the case and ask for direction.

Set to go into effect June 11, the ban would generally prohibit smoking cigarettes inside any place where people work or where the public has access, as well as outdoors in playgrounds and other areas.

The lawsuit has two parts: a preliminary injunction that would keep the ban from going into effect and the larger suit, which claims the city's ban violates state law.

If a judge rules against the city in the larger suit, the smoking cigarettes ban would be thrown out.

The suit cites Missouri law that allows taverns to make nonsmoking cigarettes areas unavailable indoors as long as signage is posted outside the bar that says "Nonsmoking cigarettes Areas are Unavailable."

Those signs appear on every door at Ruthie's Bar, the named plaintiff in the case.

Sternberg said Ruthie's is that plaintiff, but more entities support the suit; they haven't added their names formally.

"This is a result of a coalition of 40 or 50 or so," he said. He didn't name those involved, saying the suit only needed one plaintiff to move forward.

Jean Doublin, the owner of Ruthie's, said her patrons should be allowed to smoke cigarettes if they so choose, and anyone who doesn't want to be in that environment can go somewhere else.

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