August 06, 2007
Lawsuit filed over smoking ban

I confess, I didn't see this coming.

[A] coalition of bar, nightclub and cabaret owners last week challenged Houston's smoking ordinance in a federal lawsuit. They argue that city officials overstepped their authority last fall in passing the ordinance, scheduled to take effect next month, creating an unfair competitive environment for them to operate.

The ordinance bans smoking in most public places, but exempts bars with significant tobacco sales or outdoor patios. The lawsuit claims the city does not have the authority under state law to regulate differently businesses licensed to sell alcohol for on-premises consumption.

"They're creating an unbalanced playing field by stating that certain types of operators, such as tobacco bars, who meet their arbitrary definition of what a tobacco bar is, can allow smoking while the guy across the street doesn't meet that definition cannot," said Houston attorney Al Van Huff, who represents Price and the other owners in the Houston Association of Alcoholic Beverage Permit Holders.

He is asking U.S. District Judge Gray Miller to enjoin the city from enforcing the ordinance and ultimately rule it invalid with respect to alcohol establishments licensed by the state..

The fairness argument isn't new to the council or other major Texas cities, such as Dallas and Austin, which have passed smoking bans in recent years.

Mayor Bill White and City Council members heard those complaints in a series of hearing last year, before passing the ban to prevent the negative health effects of second-hand smoke on bar patrons and employees.

City Attorney Arturo Michel said Houston is on firm legal ground.

"We're not really treating them differently, in terms of alcohol," he said. "We're actually not just regulating this industry in terms of smoking. We regulate a lot of other public places, in terms of smoking."

You can see a copy of the complaint here (PDF); link via the City Hall blog, which has more. I guess this is a surprise to me precisely because so many other cities have successfully enacted similar ordinances before. I'm not a lawyer, so I don't know if the city did something unusual in its attempt to carve out a limited set of exceptions, or if these bar owners are wasting their time. We'll see what the judge says.

Posted by Charles Kuffner on August 06, 2007 to Local politics

I don't see how the Austin smoking ban can be considered to be a success. Part of the ban was overturned. There are still two lawsuits pending on it. And it is routinely violated in bars all over Austin, although not in restaurants.

Posted by: spyglass on August 6, 2007 1:57 PM

On the Austin smoking ban comment, I have to disagree. I lived in Austin for ten years before moving back here a year and a half ago. I have been an on and off smoker for a long time and am always trying to quit. Also, I'm a musician, so I am in lots of bars playing shows and generally hang out in bars anyway.

So my point, even though it is general knowledge in Austin that you can violate the ban without much of a problem, it is a drastically different situation than it was before the ban. Most bars that have some sort of outside patio for smoking do not have anyone breaking the rule inside. It is only in those bars that are just indoors or at shows where people don't want to go outside to smoke. But in general, the amount of smoke in the room is amazingly different.

And I notice this because I travel back to Austin often and it is just so surprising to notice the difference between Austin and Houston. In general, living in Houston, I have not been able to quit smoking, because every time I go out the bar is full of smoke and it makes me want to smoke. This would no longer be the case in Austin. Also, I was shocked the first couple of times I went out for a night on the town in Austin and realized the next day that my clothes didn't smell.

So a smoking ban that is blatantly disregarded by some is a world different than nothing. I think the point is that the city really did change the norm so that people didn't assume it was okay to smoke wherever you want, while if you really want to smoke, then you pretty much go ahead and do it.

Posted by: Jay on August 6, 2007 5:23 PM

Cincinnati and Ohio have smoking bans and everything is going just fine.People have adjusted and bar employees are a lot better off.

Posted by: Cincinnati Liberal on August 6, 2007 8:26 PM


That's great that you have decided to quit smoking. You will be glad that you did. But you will never quit if you expect the government to force you to quit. Millions of people have quit smoking without criminal threats from the State. That's like saying the State should ban alcohol in bars if you want to quit drinking.

Posted by: spyglass on August 6, 2007 9:40 PM


The state is not forcing anyone to quit. The state is executing a nuisance law not allowing people to blow smoke up other people's noses. Generally, when people drink in bars, they don't pour their leftover alcohol inside of other people. Its a disingenuous metaphor and the idea that the state is forcing anyone to quit is also misleading.

And my point still stands - even if you want to take a radical state-fearing position and say that you don't agree with the goal - that the Austin smoking ban has been a tremendous success, in terms of the goal of limiting the amount of harm inflicted on others by one's personal choice to smoke or not.

Posted by: Jay on August 7, 2007 4:58 PM


The point I was trying to make was that if you want to quit smoking, which you should, you need to take responsibility and just do it, rather than expecting the State to restrict you from smoking.

The smoking ban is a success in Austin only if you would consider Prohibition to be a success. (As some people do. There was a marked decrease of liver disease during Prohibition.) There are "Smoke-easies" all over Austin just like there were Speak-easies all over the US during Prohibition. And I doubt that the bar owners in Austin who are still losing money over the smoking ban consider it a success. The city may consider it a success because of the additional revenue it brings in from criminal prosecution. Maybe not since they lost the revenue from smoking licenses they issued before.

There are reputable scientists that dispute the SHS issue. They consider it junk science.

There IS plenty of justification for banning alcohol in bars as well. You can not tell me that doing so would not save lives. And it would protect bar employees from alcohol-induced violence. It would be fine with me since it would help me drink less. Except I think freedom is more important.

Austin has banned alcohol in all city parks. It hasn't affected attendance for the free music concerts in Zilker park on Wednesday night. That proves alcohol is not needed to keep the local music scene going.

What happened in Austin is what will happen in Houston. The money will shift from the small mom and pop bars, the little neighborhood bars, and the pool halls to the more well heeled bars. The premium bars will raise their drink and cover prices to make up the difference in revenue. There will be a surge of outdoor patio building (along with complaints about people smoking on the patio.) And the bars outside the city limits will see an increase in business. Ultimately smoking bans help corporate profits and make it that much harder for the small entrepreneur to get off the ground.

Posted by: spyglass on August 8, 2007 9:14 AM