Smoking ban battle hits courtroom

After 505 days, West Burlington bar owner Larry Duncan got a judge to hear his constitutional concerns with the Iowa Smokefree Air Act.

When the statewide smoking ban went into effect July 1, 2008, Duncan blatantly violated it with the hopes of going before a judicial magistrate within days. Instead, he received notices of potential violations until the state pursued him through the Iowa Alcoholic Beverages Division.

“It astounds me that here we are one year and five months later and he’s finally getting his day in court. Something is fundamentally wrong,” said one of Duncan’s attorneys, Stratford-based George Eichhorn.

Whether the state took an improper route to nab the admitted smoking ban violator is just one of several arguments Des Moines County District Court Judge Mary Ann Brown will consider before ruling whether the smoking ban violates the U.S. and Iowa constitutions.

Though the hearing lasted just two hours Tuesday morning, with the arguments largely made up of the written briefs the attorneys previously submitted to the judge, the owner of Otis Campbell’s Bar and Grill said he’d take what he could get.

“I’m grateful that it got this far now,” Duncan said after the trial. “I believe in the system.”

Brown asked few questions during the hearing but thanked the attorneys at the end of their arguments. She did not offer a time frame for making a decision but said it will be “as quickly as we can.”

After hearing Brown’s plan, Duncan’s other attorney, Burlington-based Darwin Bunger, said he anticipates a decision in 30 to 60 days.

During the hearing, Eichhorn and Bunger added to the arguments they’ve made previously, including that the law violates interstate commerce, equal protection, due process and civil rights clauses in either or both the state and federal constitutions.

“The procedure is flawed for several different reasons, but basically the alcoholic beverages division has pursued what I would consider a terror-type approach, much like the (Internal Revenue Service),” Eichhorn said. “They want to terrorize people so that they will comply, and they will pretty much do what they need to do to get there. This is not what we would consider to be due process under our constitutions.”

The alcoholic beverages division, through a joint agreement with the Department of Public Health — which the Legislature named as the enforcer of the smoking ban — handled the enforcement by threatening to revoke liquor licenses for violations. In Duncan’s case, ABD Administrator Lynn Walding revoked his license in April before granting a temporary stay while he fought the law in district court.

The state argued that through the joint agreement, the ABD has the authority to take those actions. The state’s attorneys said further that under the Beverage Control Act, the ABD has the authority to revoke liquor licenses if the business owners are not of “good moral character” or are in violation of any of the applicable laws.

The two sides also argued over what is considered a fundamental right. Eichhorn said the state argued that there is a fundamental right to smoke, whereas Duncan sees it as a fundamental right to operate a business and thus pursue happiness.

John Lundquist, an assistant attorney general, argued there is not a fundamental right to own and operate a business without interference. Asserting otherwise contradicts established law, he said.

The state further defended the exemptions to law, which Duncan’s attorneys see as a violation of the uniform operation of laws clause, by saying the businesses are different in scope and intent. It argued that casinos are different, for example, because of the economic impact to the state, which receives revenue from gaming for its infrastructure funds.

Lundquist said a study determined the smoking ban would have a 10 percent impact on state revenues, or about $31 million a year.

“To a large degree, the state relies on that revenue stream to meet its obligations,” he said, adding that the impact on state revenue from the ban in bars and restaurants would be zero.

Duncan’s attorneys asked that the judge weigh each of its eight arguments against the law individually to set precedent for future cases or in the likely event her decision is appealed to a higher court.

Lundquist said under a 1993 ruling, the courts are obligated to preserve statutes to the extent that they can, meaning that the judge can rule some arguments unconstitutional while still keeping the law on the books.

Hawk Eye City Editor Randy Miller contributed to this report.


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