After the smoke clears

Tuesday will mark one year since West Burlington bar owner Larry Duncan caught the eye of the state.

Duncan, who has owned Otis Campbell’s in West Burlington for more than 15 years, raised the ire of the state when he refused to follow the statewide smoking ban, a law he still considers unconstitutional.

It took another two weeks for him to publicly request what he wanted from the day the ban went into effect July 1, 2008: A citation and fine for violating the ban.

Because casinos were exempted, Duncan maintained it violated the state’s constitution, which requires uniform enforcement of laws.

Despite three notices of potential violation from the Iowa Department of Public Health, Duncan received neither a citation nor any punishment until Jan. 2, when an administrative law judge ordered his liquor license suspended.

Because of the gap between the violation and punishment, Burlington area bars lost any incentive to comply with the ban and many began allowing smoking indoors again. Their noncompliance occasionally resulted in a complaint and eventually the Iowa Alcoholic Beverages Division started randomly checking Des Moines County for compliance.

As of June 9, or almost a year after the Iowa Smokefree Air Act went into effect, all of the bars in the county were in compliance.

But a year later, the fight is far from over.

Legal battles

In less than two weeks, Duncan’s attorney Darwin Bunger will submit his arguments against the ban to the Des Moines County District Court.

“If I read the Iowa Constitution Article I, Section 6 as a lay person, it seems clear,” Bunger said of the unconstitutionality of the smoking ban. “This (ban) seems an egregious violation of this section.”

However, as a lawyer, he said it’s not as black and white.

“Of course, they’ve not said you can’t smoke, but they curtailed it immensely,” Bunger said. “It’d be clear if smoking were banned.”

Article 1, Section 6 of the Iowa Constitution reads, “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

Aside from the constitutionality of the statewide ban, Duncan is challenging its interference with interstate commerce and says it’s a violation of his civil rights.

Bunger said all the court documents should be due by mid-September, at which time a court date or dates will be determined.

“I would like it to be one, to at the very most, three months after the September deadline,” Bunger said. “I think that’s possible.”

He said after the case is determined in court, there’s no question it will be appealed by whoever is the losing party.

“I think we should win; I think we have a better case than people think,” Bunger said, adding there are no guarantees once it goes to court.

However, when Iowa’s smoking ban went into effect, more than half the states had enacted statewide bans, some of which already have been challenged in court. There also are four states that prohibit smoking only in restaurants.

Money troubles

Bunger also sees that the exemptions lawmakers wrote into the ban, specifically the state fair and casinos, as big money makers for the state.

“At my age, I shouldn’t be surprised by the influence of large sums of money … I still think the legal process wouldn’t be in this situation if money and greed hadn’t been at the forefront,” Bunger said.

Duncan, however, sees firsthand how the smoking ban is costing the state.

“They’re going to lose $70,000 from Otis Campbell’s and have 17 employees drawing unemployment,” he said.

Duncan started July 1, 2008, with 42 employees. He since has dropped to 25.

“I didn’t want to cut one person. I’m dang sure not wanting to cut any more, but it’s highly likely that could happen,” Duncan said. “I can guarantee when I was involved in any one of those terminations, there were tears involved. I don’t think anyone blamed me, because they pretty much knew what was happening. But I blame me.”

He estimated that if a survey were conducted in the county, most bar owners would report business being down between 35 and 50 percent.

In Burlington proper, the city clerk’s office said a search did not yield any liquor licensed establishments going out of business during the last year. It would not account for how much, if any, business is down, nor to what lost revenue can be attributed.

“Weekends are your volume in business,” Duncan said. “We’ve got some of those nights that have been less in volume than our regular Mondays, Tuesdays and Wednesdays.”

Compounding Duncan’s frustrations is that he sees he already had a solution to please non-smokers in the opening of next-door diner Aunt Bea’s that serves food from the same kitchen.

“Aunt Bea’s lost its advantage … and Otis Campbell’s lost its advantage of choice,” Duncan said. “We absolutely got trumped.”

Blaming the ban

Though some would argue the decline in business revenue is being caused by the general economy — or frustrations with Duncan’s actions in violating state law — Duncan blames solely the Iowa Smokefree Air Act.

“We weren’t down that much, if hardly at all,” Duncan said. “It was only from when we quit smoking that we lost $10-$15,000 a week in sales. It’s pretty serious. It’s real serious.”

Duncan got away with violating the ban without losing his liquor license for a single day until April 8. After alcoholic beverages division Administrator Lynn Walding revoked Duncan’s license, Duncan agreed to comply while challenging the ban.

That’s when, he said, business started to sink.

“The economy (troubles) started a year ago. We had that and the flood and whatever. That had an affect on us. We sustained that,” Duncan said. “It was only when they took off the liquor license on the wall that brought us to our knees.”

Fighting for freedoms

While Duncan’s legal efforts continue, he’s also mounting a grassroots battle against the ban with his non-profit Freedom Fighters for All Citizens of Iowa. He’s gained a number of supporters and spends much of his days on the phone or traveling across the state talking with like-minded people.

He had an outdoor concert event in May to raise money for the cause and his fight. Another is planned in August that may be moved due to one he’s set to host at the end of this month, featuring Wayne Fontana of “The Game of Love” fame.

“He’s coming from England to do a benefit for our cause, absolutely free,” Duncan said of the July 25 Sioux City event.

The money raised at the benefit will help Duncan’s cause. The group also is selling merchandise to raise money.

“The biggest problem has been there’s only so many hours in a day, so many hours I can be out of the office,” Duncan said.

source: http://www.thehawkeye.com

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