Patty Sue Inc. operates a bar in Springfield. It is a small neighborhood tavern where liquor by the drink is served and food sales are only incidental. Springfield voters approved a Clean Indoor Air initiative petition, that prohibits indoor smoking in bars, restaurants, public places, and in the work environment. For further background on the Springfield Clean Air voter initiative see my earlier Post dated April 7, 2011.
Patty Sue recently filed a lawsuit claiming that the Springfield Ordinance was preempted by state law because the Springfield Ordinance prohibited what was permitted under state law. Patti Sue claims that state law allows smoking in a bar provided it posts a sign that states “Nonsmoking Areas are Unavailable.” This case looks like a lot like a rerun of an earlier Kansas City case involving a similar challenge to its Clean Air Ordinance. This ordinance was upheld by the Western District on the grounds held that state law did not preempt the Kansas City ordinance. Another case that challenged the authority of Kansas City to use health code officials to enforce the KC ordinance failed on the grounds that the City had the authority to use persons who were not part of the police department to enforce the ordinance. Seems like the idea of that case was to force the City to use the police to enforce the ordinance, which would have pretty much ended enforcement efforts. Judge Brown, the trial judge in the Springfield case, determined that Patti Sue was not entitled to a preliminary injunction because there was a substantial probability that the Plaintiff would not be successful based upon the earlier Kansas City case. The parties have now both filed motions for summary judgment. We can expect the losing party to appeal to the Southern District of the Missouri Court of Appeals.
Patti Sue has some pretty big obstacles to overcome. First, as mentioned there is already existing precedent involving almost identical facts, plus the state law specifically provides that cities may enact ordinances more stringent than state law. The opponents to Clean Air Ordinances already have already taken two swings at the ball and missed. One more strike and they are out. Howard Wright@ 2011