Legal Challenge To City’s Smoking Ban Denied
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
I wonder when our courts can be accurately accused–and found guilty– of overprotective parenting? To ban smoking in Trophy Room is puzzling and disturbing from two perspectives. The first: it’s telling STL residents that they’re incapable of making their own good health decisions, much like they did during prohibition. And so the courts are essentially blocking smokers “for their own good”–almost as if to say, “someday you’ll thank me for this”! And they’re telling potential bar employees the same thing. And then, from the perspective of the proprietor, whose business is located just a few miles from similar taverns (who serve the same beer and hard liquor as Trophy Room, but in a smoking environment), bar owner Kirischke will probably see fewer returning customers, which may or may not seriously impact his bottom line–only time will tell. Unfortunately, Krischke’s financial health is at stake.
Has the US become so weak and uninformed and government-dependent that we can no longer make wise, conscious decisions about ourselves? If I’m a smoker, I should have the right to decide to enter or walk past a bar that allows smoking. If I’m not a smoker, or if I am a smoker and others’ smoking disturbs me, I should have the same choices as the smoker.
My take on all this government intervention is that US residents are no longer expected to be personally accountable for their personal decisions, suggesting that “society” has way too much vested interest in over-protecting each citizen’s well being. We protect what is ours! When I’m buying my kids’ bicycles, they’d better store them securely every night! When they buy their own, what right do I have to force them to lock them up at night? We povide government-subsidized health care, and now we’re considering offering free college education to anyone who can pass the doorknob test, and we’re also considering eliminating all student debt. Everyone gets a trophy, just for joining the competition! We’re becoming a society of brain-dead, walking dead.
Don’t blame the courts, blame the legislators. The elected lawmakers create the laws, the courts just interpret them. (And yes, there are activist courts, but they can only modify something that’s already in place, they don’t “start the ball rolling”.) The real issue, however, is that individuals and groups with a specific agenda or cause are much more motivated to “push” said issue than are the vast majority of people who are living their lives and just want to be left alone. Call it apathy, if you want, but I (and most others) don’t have either the time or the inclination to track every bill in the state legislature and every proposed ordinance at the local level, nor do we have the ability to anticipate every intended and unintended consequence out there . . ..
“The first: it’s telling STL residents that they’re incapable of making their own good health decisions, much like they did during prohibition. And so the courts are essentially blocking smokers “for their own good”–almost as if to say, “someday you’ll thank me for this”! ”
No it’s about protecting my right to make my own health decisions for my own person as a non-smoker and not be subject to the irresponsible smokers who think they should have the right to dirty up the air wherever they damn well please. The courts are blocking smokers for my own good and I thank them for this right now.
I had envisioned declaring taverns as either “smoking” or “non-smoking”. A non-smoker would probably have no interest in entering a smoking bar, unless smoking didn’t bother him. You might consider the same thing. It’s kinda like the whore houses in and around Indian Springs, Nevada. If you don’t want to partake, you don’t walk in. And if you don’t walk in to participate in their program, you really wouldn’t have reason to object to it, provided it’s legal….which it is!
The law is mostly about smoke-free work environments. Which is why private clubs that are staffed with volunteers can still permit smoking indoors.
I face hazards routinely in my job. When I inspect a welded or bolted connection 20 stories above the ground, before any dead load is applied to it (prior to placing either the deck or, in some cases, even the steel decking, depending on the seismic zone), I’m risking my life, even though I am tethered. Your butcher risks losing fingers every time he operates the saw! We make value decisions based on immediate needs. I obviously can’t get a job working as pediatrician, so I have to settle for what I do.The way society is going today, a secretary working in a school office faces a greater chance of of being shot and killed than a bar hop’s chances of getting cancer working in a smoking bar. If I choose to work in a “smoking” bar, I’m an adult and I know the potential consequences, if any.
We know that constriction sites are dangerous, we also know that bringing burgers & beers can be done with little to no danger. No reason why a server in one place faces risks while a server next door does not.
……unless he chooses to…..for one reason or another: 1) he’s a smoker; 2) he likes the smell of smoke; 3) he likes the tips he gets in a particular smoking establishment over those in another; 4) he hates his wife and wants ” to check out”; 5)he’s already installed cameras in the women’s (or men’s) bathrooms and doesn’t want the hassle of removing them. Who knows why? Should government limit his pursuit of happiness?
Or s/he needs to: pay the rent, pay off student loans, put food on the table — working to survive. Shouldn’t the government protect all workers from unhealthy conditions?
I just can’t bring myself to the mindset that I should check first with government before I take my next step. Never have, never will. Government needs to stay out of my life, provided I live a life that does no hard to others. Gov’t infringes on my rights when they attempt to regulate individual conduct that harms or benefits no one other than the person who engages in it. If I work in a smoking establishment, I have consciously CHOSEN to work there. I keep my eyes open and continue working there until the smoke begins to burn my eyes, which is when I (freely) move on.
When the economy was in the toilet, I spent 5 years working in a casino, yes, around smokers. I didn’t like it (it was the worst part of working there), but it was a given, a part of the “job description”, before I even accepted the position. And, yes, I was choosing to earn more money in less-than-ideal conditions, but it was MY CHOICE! Would it be nice if the government banned smoking in local casinos? ABSOLUTELY (and it would be the ONLY way things would ever change), but I don’t see a valid reason for the government doing so – there are plenty of other things the government *could* do to make my life easier, but I’m an adult, and I just want the government to prtect me from the risks that I can’t see; I’m perfectly capable of making my own choices about what I can see!
I’m conflicted. I don’t like smoking and being around smokers. I also don’t like the government telling people what they can and cannot do with their lives, as long as those actions don’t affect others. Unfortunately, most actons impact other people, to some degree or another (and smoking certanly does impact others). As a non-smoker, I like that I can go into a lot more places and not be directly assaulted with second-hand smoke. But I also have a problem with the hypocrisy of government both saying the product is “legal” and safe enough (and taxing it) and saying that it’s either dangerous or deadly and limiting where it can be consumed. Plus, as long as the government allows “exceptions” (for casinos), all hospitality businesses are not being treated equally!
On this issue, I’m not as libertarian as Mark – providing separate smoking and non-smoking parts makes more sense than making entire establishments one or the other – but I do believe that the rules should be applied equitably and logically. Either smoking is truly “bad” and should be regulated like every other dangerous drug (meth, heroin) or it’s not, and the city (or state) should leave it up to individual businesses to decide who they want to cater to. And if it’s “bad”, casinos should be smoke free, just like bars. But the dirty reality is that this is really about money (taxes & fines) – government wants it both ways, with taxes rolling in from tobacco sales and casino play, and fines, from businesses caught not complying with yet another new regulation!
I recall several bars in South St Louis are single storefronts. I was thinking of this type of bar when I suggested either/or facilities. Tony’s has more options, and the good thing about Tony’s is that the waiters are johnny-on-the-spot with cigarette lighters to make your “smoke” less bothersome, or at least they used to be.
As a smoker, I really don’t mind stepping outside for one — I actually prefer it. Honestly, I meet more people and have better discussions doing that than if I were sitting in the bar with music or tvs blaring. The brotherhood of smokers!
Entertaining your idea though, Mark, if bars could make the choice, would you get behind requiring those that do to install ceiling exhaust (or diffusion) systems to somewhat “clear the air”?
Sure, no objections to the ceiling exhaust.But to be effective, a system would require major exhaust, somewhat similar to kitchen over-hood exhaust, which would require extensive make-up air…..which wastes conditioned air and runs up the bar owner’s utility bills.
Would you say, then, that it’d be cost prohibitive? Maybe that’s the way to go then — if you want it, as a business owner, you have to reeaaallly want it…to the point your putting in $10K+ in new equipment (plus annual maintenance). I suspect a lot of businesses would just say, at that point, “Nah. They can go outside to smoke.” Problem solved!
Cost prohibitive? I can’t say. I guess it would depend on the average number of customers and the average profit per customer, vs the cost of the installed equipment and the additional energy costs resulting from the introduction of fresh air and conditioned air ( and providing for interior exhaust ), etc. If business is good, the price of the exhaust system would be justifiable. Otherwise, it would be smart to open up the patio for smokers.
While I agree with you about smoking. The complete corruption of allowing big money casino’s to keep smoking while little neighborhood bars are banned only illustrates once again how government primarily works for the insiders.
However I would say free college and universal health care are good things. It helps stabilize society over the long term, a wealthy nation cannot have people dying from neglect. America already has some of the worse health outcomes for the most money in the world. Not good management nor good capitalism, in fact capitalism has had decades to solve the problem of providing healthcare and has failed to do so. It is past time for America to look for other solutions.
As far as school, it is in the public interest to allow students to get an education. Even with free tuition there is still living expenses to contend with, no one is getting a free ride, it is for the well being of society. Look over the constitution, it speaks about the welfare of the people, it does not say to cling to the lust for money even if it harms citizens.
These are moral and ethical issues also.
I do believe in smaller government, but on the other hand government has a role in society as Flint Michigan has laid bare. Read Alexander Hamilton in The Federalist Papers no 36 on smaller government The essay presents ideas on paths of discussion towards a smaller government.
I think we appreciate what we earn. Period. College is not so difficult that a person can’t carry 15-18 hours, apply for student loans which demand maintenance of a certain GPA (a good thing!), and then land a part time job to finance his own college education, especially at a state university. I wonder what’s next: a free down payment on a home if you graduate from college? I question if government subsidized higher education is “for the well being of society,” as you wrote. While I think it would make a lot of people very happy, I think that, down the road, they’ll regard it as another entitlement among many, and the students will wile away their hours doing too much “fun college stuff” leaving academics as secondary–much like what’s going on with free public high school education today. High schoolers today are pupils, not students~! Give the typical high school grad a pop test in mathematics, grammar, history and science. Hell, they often show they don’t know the difference between “to, too and two”; “there, their and they’re”! (Your and you’re!!!!!) And don’t get me started on math. I work with SOME young carpenters and iron workers (products of our high school ed. system) who can’t do even basic long-division, which I learned in 4th grade! How can you find “center” if you can’t do long division–unless you’re a good guesser or have all day to figure it out with a tape?
I also look at the Flint, Michigan issue differently. I think the municipality has responsibility to replace the lead distribution lines up to the meter; the balance should be the responsibility of the homeowner. Did you know that there are lead pipe water lines in STL? The problem is not exclusive to Flint, Michigan. A young STL iroworker foreman asked me recently to inspect a house he was thinking of buying in the 5000 block of Nottingham. I met him there to look over the structure and, as an aside, pointed out that the water service in that house was lead pipe. He and his wife loved the house otherwise, bought it, but the replacement service cost him $1600.00–money they didn’t have. He decided to give up liquor and cigarettes. She brown-bagged her lunch 4 days a week. They found a way! Resourceful people usually do.
Public education is a good thing. Today college is equal to what high school was 50 years ago.
In addition something, many things, have to happen to begin to alleviate the gross income equality now present in the United States. Creating more opportunities for advancement is one way to address this issue.
We appreciate what we earn, yes, and one who works hard getting a degree and increasing their learning has earned their way.
Do we have to make everything as insurmountable as possible?
Money isn’t everything, there are higher values.
The issue of lead pipe in the individual house is entirely different than what I am talking about in Flint. It should be clear some standards and regulations are necessary.
Would you build a building that would fall down? Of course not, but still there are codes and regs to insure the safety of the building.
There are plenty of careers that don’t require college – going to truck driving school, enrolling in an apprenticeship program with a union, going to a trade school, enlisting in the military or getting into the gaming industry all offer good career paths. Too many high school students are brainwashed into believing that college is truly a requirement for success in life, but, for too many, getting a degree does little to enhance their future success, all it does is get them deeply into debt!
I cannot believe this is still a controversy in some places. 11 years after our smoking ban has been enacted, and the sky has not fallen. And Illinois Medicaid costs have decreased. Missouri Medicaid spends three times as much on hospitalizations as Illinois Medicaid, according to the Illinois Health & Hospital Association. Even cutting the cost of Medicaid in Missouri would more than pay for expansion of the program to fill the Medicaid gap. (http://www.ihatoday.org/uploadDocs/1/1115waivergov.pdf)
I immediately left a St. Charles County establishment last week when they asked “smoking or non-smoking.” If this makes me a snooty Illinoisan, I will wear that badge with honor.
I can’t believe you don’t see there are many sides to this issue. For one casino’s have a variance, if any business should have a variance it should be a business that is small and isolated and likely all employees and customers smoke, ie, a corner bar. A casino on the other hand employs many people with less certainty that a person who doesn’t smoke won’t be around those who do involuntarily. It would be more logical to exempt certain small businesses than casino’s.
But it is the power of the casino’s and the bought government that manages to say casino’s are ok and corner bars are not, corruption central in another words.
Beyond that I’m not convinced, since smoking is legal, that there shouldn’t some attempt to accommodate smokers. Humans are not automatons to be controlled by government. There is risk in all of life, everyday.
I’m a non smoker, and usually avoid places if there is smoking, but between the corruption in the first instance, and then questioning just how much government should be allowed in the second instance are both valid concerns, among others, despite your disbelief.