Judge: Smoking ban "terrible ordinance"

07:03 PM CDT on Monday, October 3, 2005

By CLARA TUMA / KVUE News

A lawsuit that challenges Austin's month-old smoking ban picked up steam Monday.

AP

A federal judge scheduled a hearing for a lawsuit challenging Austin's new smoking ban.

More than a dozen bars, bar owners and employees filed the suit to challenge the new ban. They argue the law is too vague and punishes bar owners if customers smoke, even if the owner isn't there at the time.

Federal Judge Sam Sparks refused to grant a temporary restraining order Monday, but he scheduled a later hearing.

"It's a terrible ordinance. It's written badly. It's got some vagueness in it that justifies looking at it from a due process standpoint," he said.

The Canary Hut in North Austin joined the lawsuit, because the smoking ban has significantly changed its business practices.

"It's affecting everybody. It's been a very negative experience," said Heather Boulerice, manager. "This smoking ban has significantly hurt and affected many people, their income and their families."

Boulerice said business is down about 30 percent, but tips are down about 40 to 60 percent.

Bar owners refused to comment on the hearing, but those who support the ban predict the voter-approved ordinance will survive.

"You have a small group of individuals who are more concerned about themselves than about the overall health of everyone," said Rodney Ahart, with the American Cancer Society.

No one has been cited under the new ordinance, but bar owners say the harm has already been done, because smokers like Paul Gibble are walking away in droves.

"I don't have a problem with paying the prices for cigarettes nowadays, but then, don't tell me where I need to smoke, you know what I mean?" he said.

Just because Judge Sparks said it was a terrible ordinance does not necessarily mean he will throw it out.

He will hold a hearing October 11, and he could find the wording is vague but is not a violation of the Constitution.

Judge Sparks said he trusts the city "has the good sense to impose any criminal penalties under the ban before that hearing takes place."