Brief filed for smoking ban challenge

With the Tuesday filing of the last brief for contesting the constitutionality of the Iowa Smokefree Air Act, West Burlington bar owner Larry Duncan will finally have his day in court.

The owner of Otis Campbell’s and Aunt Bea’s has been arguing since before the statewide smoking ban went into effect that it was unconstitutional. He’s also argued he has been denied his day in court since the ban’s July 1, 2008, enactment.

Still, the brief filed Tuesday by Duncan’s attorneys says the case never should have come to this.

The attorneys, Burlington’s Darwin Bunger and Stratford’s George Eichhorn, argue Duncan was still denied due process, as his constitutionality concerns first should have been addressed by a judicial magistrate and not the Iowa Alcoholic Beverages Division.

“Otis and Aunt Bea’s believe — and seek to establish — the ABD lacks the ‘statutory authority and jurisdiction’ to revoke its license for smoking violations in the present proceedings,” the attorneys argue.

The brief filed Tuesday was a response to the state’s arguments to Des Moines County District Court. A date has not yet been set for Judge John Linn to hear arguments.

Because the Iowa Smokefree Air Act says license revocation is “in addition” to other monetary penalties, the attorneys argue the ABD had no right to revoke Duncan’s license in April. He has since been granted a temporary stay, with the understanding that he adhere to the ban while the constitutionality of the law is decided in court.

Even without the “in addition” wording, the attorneys argue the alcoholic beverages division is not granted any authority to oversee the smoking ban, as the law gives jurisdiction to the Iowa Department of Public Health.

The state previously argued the alcoholic beverages division has the right to penalize bars for noncompliance since the Iowa Beverage Control Act requires that liquor licensees abide by all applicable laws. The two state agencies also have a joint agreement to work together on tobacco enforcement issues.

“If the Anti-Smoking Act was meant to be incorporated into another act, the Anti-Smoking Act would be clear on the interpretation,” Duncan’s attorneys wrote of the Iowa Smokefree Air Act.

Part of their contention is the statewide smoking ban violates interstate commerce law, which would make it an anti-smoking piece of legislation. They argue the cumulative effect of a cigarette tax, the smoking ban and other anti-tobacco legislation results in effectively killing interstate commerce of the legal product.

According to the nonpartisan Legislative Services Agency’s fiscal analysis, the smoking ban would decrease the sale of cigarettes by 4 percent, based on information from the Illinois Department of Revenue. Illinois instituted a statewide ban six months before Iowa’s went into effect.

“It doesn’t matter if it’s a direct interference of sales or the State pursues actual, but indirect, interference with the commerce or the exchange of products. What matters is whether the questioned statute hinders commerce,” Duncan’s attorneys wrote.

The attorneys, in responding to the state’s brief, also took issue with the notion that equal protection didn’t apply because the exempt businesses are unlike local bars. They agreed that while there is no fundamental right to smoke, there is one to operate a business, which the smoking ban hinders.

“The real issue is whether Otis and Aunt Bea’s are similar to other businesses in relation to the reduction of exposure to ‘environmental tobacco smoke,’ ” the attorneys argued in their response. “Gambling customers are not more immune to ‘environmental tobacco smoke’ and their employees are not less subject to harm.”

Along with gaming floors, the Iowa State fair and a certain percentage of hotel rooms, among other businesses, are exempt from the statewide ban.


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