Judge denies restraining order against smoking ordinance

By Molly Miron

Pioneer Editor

A group of bar owners filed a motion Wednesday in federal court in the Twin Cities seeking a temporary restraining order against Beltrami County’s smoking ban ordinance for indoor public places and work places.

On Thursday, U.S. District Judge Joan Ericksen responded, denying the temporary restraining order.

Adam Steele, who refers to himself in the suit as “a smoking, taxpaying resident of Beltrami County,” led the list of plaintiffs, who also include Dennis Solberg, doing business as The Other Place; the Corner Bar; Turtle Creek Saloon; James A. Ness, doing business as Hillcrest Supper Club; and the Tobacco Super Store.

The suit claims:

-- There is no evidence that “second-hand smoke ever killed anybody.”

-- The ordinance violates personal rights of privacy.

-- The ordinance is a taking of property without compensations.

-- The ordinance violates the rights of business owners to regulate lawful behavior in their premises.

-- County Board member Vicki Haugen, who had sold her house prior to moving to Arizona following the Aug. 17 vote, was not a resident of Beltrami County and, consequently not a legal voter on the County Board smoking ban.

The lawsuit asks for $8 billion in damages for deprivation of constitutional rights and $2 billion in punitive damages from Beltrami County.

Steele said he took the suit to U.S. District Court because that venue is the most appropriate place to file such an injunction.

“It’s a matter of constitutional rights and federal is the best forum for that,” he said.

Judge Ericksen ruled the plaintiffs did not demonstrate:

-- A likelihood of the success on the merits of the suit.

-- That they will suffer irreparable harm if they are not granted the restraining order.

-- That the public interest favors their cause.

She also questioned why, when the ordinance passed in August, the plaintiffs waited until three days before the ordinance goes into effect on Saturday to seek the restraining order.

“Moreover,” she noted in her ruling, “they fail to mention that the ordinance does not apply for bars and restaurants between the hours of 8 p.m. and 3 a.m. until Jan. 1, 2007. Given this exemption and the time that elapsed between the passing of the ordinance and the Plaintiffs’ motion, the Court concludes that Plaintiffs have failed to demonstrate how they will be immediately irreparably harmed absent the issuance of a temporary restraining order.”

However, the judge also said the plaintiffs can pursue their motion for a preliminary injunction hearing after the New Year’s Day holiday.

Steele said he intends to continue with the lawsuit. He noted that one of the plaintiffs is a smoke shop, where employees smoke, customers obviously smoke because they are buying tobacco, no one minds second-hand smoke, and bulk tobacco mixtures for pipe smoking must be sampled before purchase.

Beltrami County is a member of the Minnesota Counties Insurance Trust. That agency assigned attorney Scott Anderson of the law firm Ratwik, Raszak and Maloney to defend Beltrami County. The county must pay a $5,000 deductible fee on the insurance to defend against any kind of lawsuit, and consequently will pay higher future premiums.

“Frivolous claims cost the taxpayers of the county money,” said Beltrami County Attorney Tim Faver. “We don’t control the claims made against us. All we can do is respond to the claims that are made, just like any other business or person.”

He said the County Board went beyond legal requirements to take public input before the members voted on the ordinance, which passed 3-2. A single hearing is required, Faver said, but the County Board held two public hearings and three public readings of the ordinance before going to a vote.

He said the plaintiffs’ motion is based on the “fundamentally flawed notion that they have a constitutional right to smoke in a bar.”

“Regardless how one feels about the substance of the ordinance,” Faver said, “I was confident at the time the County Board passed it that it was a legal ordinance and that’s been confirmed by the federal district court.”