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Legal Challenge To City’s Smoking Ban Denied

The Trophy Room, 5099 Arsenal.
The Trophy Room, 5099 Arsenal.

In late December news broke involving the city’s smoking ban, specifically the expiration of the 5-year exemption for some small bars:

Confronted with a lawsuit from Herb Krischke and his south-city bar the Trophy Room, a judge has halted enforcement of St. Louis’ smoking ban — which was set to go into law much more widely as of midnight on January 1.

The last-minute reprieve was first reported just minutes ago by the St. Louis Business Journal, which says that Judge David Dowd has issued a temporary restraining order, stopping the city from enforcing the ban on the Trophy Room until he can hear the case on January 11. (RFT)

The TRO was only applicable to the Trophy Room. My post on January 11th, Lottery Machine Does Not A Casino Make, argued why Dowd would likely rule against the bar. I never heard the results of the hearing, so I went to Missouri Courts online to see what I could find.  Turns out Judge Dowd ruled on the request for a preliminary injunction on January 15th!

What’s a preliminary injunction?

Definition
A temporary injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.

Overview
To get a preliminary injunction, a party must show that they will suffer irreparable harm unless the injunction is issued. Preliminary injunctions may only be issued after a hearing. When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party’s likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties may appeal judge’s decisions on whether to award a preliminary injunction.

The petitioner is Trophy Room owner Herbert Krischke, the respondent is the City of St. Louis, the docket entry was one big paragraph but I’ve broken it up.

Introduction of the claim:

ORDER THE COURT HAS BEFORE IT PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION. FOLLOWING CONSIDERATION OF THE PLEADINGS, ARGUMENT, AND EVIDENCE PRESENTED, THE COURT NOW RULES AS FOLLOWS. PETITIONERS FILED THEIR VERIFIED PETITION SEEKING INJUNCTIVE RELIEF AND A JUDGMENT DECLARING THAT THE TROPHY ROOM IS EXEMPT FROM CITY OF ST. LOUIS ORDINANCE 68481 AS A “CASINO GAMING AREA” AS DEFINED BY THE ORDINANCE. IN THE ALTERNATIVE, PETITIONERS SEEK A JUDGMENT DECLARING THAT ORDINANCE 68481 IS INVALID BECAUSE IT IS UNCONSTITUTIONAL UNDER ARTICLE III, S40(30) OF THE MISSOURI CONSTITUTION. PETITIONERS REQUEST THAT THE COURT ISSUE A PRELIMINARY INJUNCTION PREVENTING RESPONDENT FROM ENFORCING SECTIONS FOUR AND FIVE OF CITY OF ST. LOUIS ORDINANCE 68481 AGAINST PETITIONERS. RESPONDENT’S OBJECTION TO PETITIONERS’ EXHIBIT 2, A CERTIFIED COPY OF CHAPTER 11.31 OF THE REVISED CODE OF THE CITY OF ST. LOUIS, WAS TAKEN UNDER SUBMISSION AT THE HEARING. RESPONDENT’S HEARSAY OBJECTION HAS NO MERIT. RESPONDENT’S OBJECTION THAT THE DOCUMENT IS INACCURATE AND INCOMPLETE DOES NOT GO TO ITS ADMISSIBILITY BUT RATHER ITS WEIGHT. THE COURT HEREBY OVERRULES RESPONDENT’S OBJECTION.

What the court must weigh in its decision:

A COURT, IN WEIGHING A MOTION FOR A PRELIMINARY INJUNCTION, SHOULD WEIGH THE PETITIONERS’ PROBABILITY OF SUCCESS ON THE MERITS, THE THREAT OF IRREPARABLE HARM ABSENT THE INJUNCTION, THE BALANCE BETWEEN SUCH HARM AND THE INJURY INFLICTED BY THE INJUNCTION ON OTHER INTERESTED PARTIES, AND THE PUBLIC INTEREST. STATE EX REL. DIRECTOR OF REVENUE V. GABBERT, 925 S.W. 2d 838, 839 (MO. BAC 1996). TRIAL COURTS ARE ALLOWED BROAD DISCRETION AS TO PRELIMINARY INJUNCTIVE RELIEF. FURNITURE MFG. CORP. V. JOSEPH, 900 S.W. 2d 642, 647 (MO. APP. W.D. 1995).

And the decision:

THE COURT FINDS THAT PETITIONERS HAVE NOT SHOWN SUFFICIENT PROBABILITY OF SUCCESS ON THE MERITS TO JUSTIFY THE GRANT OF A PRELIMINARY INJUNCTION. THE COURT DOES NOT FIND IT IS PROBABLE THAT PETITIONERS’ RETAIL LICENSE TO SELL MISSOURI LOTTERY PRODUCTS RENDERS THE SUBJECT PROPERTY A “CASINO GAMING AREA” AS DEFINED BY ORDINANCE 68481. IN ADDITION, PETITIONER HAS NOT SHOWN PROBABLE SUCCESS ON ITS CONSTITUTIONAL CHALLENGE OF ORDINANCE 68481. SEE CITY OF ST. PETERS V. ROEDER, 466 S.W. 3d 538,547 (MO. BANC 2015); LABRAYERE V. BOHR FARMS, 458 S.W. 3d 319, 334 (MO. BANC 2015); GENERAL MOTORS CORP. V. DIRECTOR OF REVENUE, 981 S.W. 2d 561, 568 (MO. BANC 1998). FINALLY, THE COURT HAS EXAMINED ORDINANCE 68481 AND FINDS THAT PETITIONERS’ ARGUMENT THAT THE ORDINANCE IS VOID FOR VAGUENESS IS NOT LIKELY TO SUCCEED. IN ADDITION, THE OTHER FACTORS CONSIDERED BY THIS COURT DO NOT SUPPORT THE GRANT OF A PRELIMINARY INJUNCTION. PETITIONERS HAVE NOT SHOWN SUFFICIENT THREAT OF IRREPARABLE INJURY ABSENT INJUNCTIVE RELIEF. THE BALANCE BETWEEN THE HARM TO PETITIONERS AND INJURY TO OTHERS DOES NOT WEIGH IN FAVOR OF GRANTING A PRELIMINARY INJUCTION. FINALLY, THE PUBLIC INTEREST WOULD NOT BE FURTHERED BY GRANTING A PRELIMINARY INJUNCTION IN THIS MATTER. THEREFORE, IT IS ORDERED AND DECREED THAT PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION IS HEREBY DENIED. SO ORDERED: 32929-JUDGE DAVID L. DOWD

The actual case is still pending, this was just a motion for a preliminary injunction. I don’t see any record of Krischke filing an appeal — my understanding is the city can now enforce the smoke-free ordinance at the Trophy Room. Smoking ban exemption everywhere else ended January 2nd. Nick Pistor of the Post-Dispatch posted about this on January 15th — I didn’t see it until researching for this post:

The Trophy Room argued that it operates Missouri Lottery’s Keno game, which makes it a gaming area.  

“The court does not find it is probable that petitioners’ retail license to sell Missouri Lottery products renders the subject property a ‘casino gaming area,'” Dowd wrote. 

It remains unclear how vigorously the city will enforce the ordinance. Bars can be fined $500 a day for violating it, but so far no citations have been written.  (Post-Dispatch)

— Steve Patterson

Lottery Machine Does Not A Casino Make

Late last month a bar owner filed suit to stop enforcement of the smoking ban following the expiration of a previous exemption, which expired on January 2nd. Judge Dowd grated a temporary restraining order (TRO) until a hearing could be conducted — that hearing is scheduled for 10am today.

The exemptions are expiring for bars that make 25 percent or less of their income from food, are no larger than 2,000 square feet and do not allow anyone under 21 inside. But exemptions exist indefinitely for casino gaming areas, private clubs with no employees and tobacco retail stores. Bar owners who participate in Missouri Lottery’s keno program claim they can be considered a casino gaming area. The game requires the bars to be licensed as such. (Post-Dispatch)

So the argument is because they have a Club Keno game from the Missouri Lottery they should be exempt — just like a casino. Judge Dowd will, no doubt, look at St. Louis ordinance and Missouri law. Let’s take a look ourselves.

The Trophy Room, 5099 Arsenal. Click image to view location in Google Maps
The Trophy Room, 5099 Arsenal. Click image to view location in Google Maps

St. Louis’ Smoke Free Air Act, passed in 2009, can be found here. In the definitions we see:

3. “Casino gaming area” means the area of a state-licensed gambling facility where gaming is allowed for those 21 years of age or older, including any VIP lounge, accessible only through the game floor, whether or not gaming is allowed in the VIP lounge.

Casino gaming area, not lottery area.

Section 7 of the Smoke Free Act is where “smoking is not regulated”, in the list is:

6. Casino gaming areas as defined by this Ordinance.

The ordinance uses the word “casino”, not lottery. Missouri law for the lottery is under different sections than for casinos, the Gaming Commission is totally separate from the Lottery Commission.

As you may know, the number of casino licenses in Missouri is limited to 13, from December 2010:

The Missouri Gaming Commission gave the green light to Creve Coeur-based Isle of Capri Corp. to build the state’s 13th casino just north of downtown Cape. After hearing passionate pitches for months, the commission made its decision quickly, quietly and unanimously. (Post-Dispatch)

The City of St. Louis went from two to one licensed casino when the casino on The President Casino on the Admiral closed.

Judge Dowd will, presumably, consider the legislative intent behind the Smoke Free Act — to exempt the two, now one, casino.

— Steve Patterson

Small Bar Exemption From Smoking Law Ends Saturday (UPDATED)

Five years ago, on January 2 2011, the City of St. Louis went smoke-free — with the exception of casinos and existing small bars that met certain conditions. Since then, some small bars that qualified for the exemption opted to go smoke-free.

During the 2007 Spring elections I attended a 6th ward campaign event at Riley’s Pub, 3458 Arsenal — it was so full of smoke I could hardly breathe. Back then the space out front was just an expanse of concrete and a couple of railroad tie planters — see on Google Street View. Due to the small size, Riley’s Pub qualified for an exemption — indoor smoking could continue. Not long after the smoking ban went into effect, Riley’s began turning the space out front into a proper patio.

Patio construction underway in December 2011
Patio construction underway in December 2011

I’ve seen the new patio, but not photographed it. Even though it is finished, smoking is still allowed inside — until Saturday that is. A few days ago Riley’s Pub posted the following on their Facebook page:

If you don’t like to be around the smoke, you soon will be able to breathe easier at Riley’s. But if you are a smoker, consider stopping by New Year’s Eve or Day for a few last drags in the civilized indoors. 

Unlike Riley’s, two downtown exempt bars don’t mention the expiration of the exemption. I checked the website & Facebook page of Stanley’s Cigars — no mention.   Same for the website & Facebook page of Nara Cafe and Hookah Lounge.

Stanley's Cigars
Stanley’s Cigars
Nara Cafe & Hookah Lounge
Nara Cafe & Hookah Lounge

I think many places will be caught off guard — even though they’ve had five years to prepare. Will they fight the exemption expiration? Will they pay fines? Decide to close rather than change? We will soon find out.

Please have a safe New Year’s Eve, see you again 8am Sunday morning for the first poll of 2016.

UPDATE 12/31/15 @ 11:20am:

The situation changed after I wrote this post:

Trophy Room owner Herbert Krischke filed suit on Christmas Eve, asking a judge to block the city from enforcing the ordinance or declare it unconstitutional. In part, the suit argues that the law “grants a special or exclusive right, privilege or immunity” to casinos such as Lumière Place, which would keep its exemption. Bar owners say that sets a double standard.

Dowd issued the restraining order Wednesday because he wanted to schedule a full hearing on the matter, which has been set for 10 a.m. Jan. 11, according to Thom Gross, court spokesman for the 22nd Judicial Circuit. Krischke and other city bar owners believe they’ve found a loophole to the existing law. (Post-Dispatch)

I’d like the courts to invalidate the exemption for gambling areas.

— Steve Patterson

Readers: Metro Should Ban Smoking at MetroBus Transit Centers Like They Do At MetroLink Light Rail Platforms

Ever since our MetroLink light rail system opened in 1993 it has been treated very differently from the MetroBus system, with the latter being sort of the bastard step-child. Smoking isn’t allowed inside bus or train vehicles but currently smoking isn’t allowed on MetroLink platforms, but is allowed at MetroBus transit centers — those places where many bus lines converge.

Looking east toward Taylor from the CWE MetroLink platform
Looking east toward Taylor from the CWE MetroLink platform. The garage at the left contains a MetroBus center where smoking is allowed but the platform where the photo was taken smoking isn’t allowed.
Many people use the Civic Center MetroBus transit center daily, where smoking is allowed despite the close quarters. 
Many people use the Civic Center MetroBus transit center daily, where smoking is allowed despite the close quarters.

When MetroLink opened in 1993 smoking was allowed on platforms, despite lobbying by light rail advocates to make platforms smoke-free Bi-State (no Metro) President John K. Leary Jr., whose wife smoked, decided to permit smoking. After he left for SEPTA in 1997 the policy was changed.

What justification is there for treating these two differently with respect to smoking? Smokers and non-smokers use both systems, which is why many MetroBus Transit Centers are located adjacent to MetroLink stations.

Here are the results from the Sunday Poll:

Q: Metro allows smoking at MetroBus Transit Centers but not on MetroLink platforms. Metro should:

  1. Ban smoking at both 29 [70.73%]
  2. Unsure/No Opinion 5 [12.2%]
  3. Allow smoking at both 4 [9.76%]
  4. Keep policy as is — smoking allowed at one but not the other 3 [7.32%]

I reluctantly accept the challenge it would be to ban smoking at thousands of bus stops, but enforcing a no-smoking policy at MetroBus Transit Centers is no different than at MetroLink stations. It’s time Metro!!

— Steve Patterson

4th Anniversary of Local Smoking Bans

I can understand that the ‘Good News Friday’ topic for today might be a matter of viewpoint, but it’s my blog and I think it is good news. Four years ago clean air/smoking bans in St. Louis City & County became effective. This has allowed me to visit places that I’d previously considered off-limits, such as:

Smoke-free interior of O'Connell's Pub in July 2013
Smoke-free interior of O’Connell’s Pub in July 2013
Hodak's, May 2014
Smoke-free interior of Hodak’s, May 2014
Milo's on The Hill claimed an exemption for ja little over a month, but went smoke-free on February 7, 2011.
Milo’s Bocce Garden on The Hill initially claimed exemption, but went smoke-free just over a month later. Milo’s is owned by 10th Ward Alderman Joe Vollmer

The St. Louis exemption for small bars will expire in just one year, on Saturday January 2, 2016 establishments that had been granted exemptions to continue allowing smoking will no longer be exempt. Will they be ready or will they be surprised at how quickly five years has passed by? No doubt some will squander the next 12 months but hopefully others are completing patios and such.

Casinos in the city & county, unfortunately, remain exempt. Other Missouri counties in the region aren’t yet smoke-free. The entire state of Illinois is smoke-free, including casinos.

— Steve Patterson

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