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Published: Friday, 10/22/2004

U.S. judge upholds process for smoke-ban exemptions

BY TAD VEZNER
BLADE STAFF WRITER

A federal court judge ruled yesterday that the city's process for handing out exemptions for "membership organizations" under Toledo's Clean Indoor Air Ordinance was constitutional, and that any organization that wished to bypass the city's smoking ban would have to fill out an application to do so.

Judge James Carr of the U.S. District Court in Toledo further ruled that the city's ordinance was clear and constitutional when it came to defining what a "private social function" was: That such events must, in the end, be closed to the public and under the control of a sponsor.

The ruling involved a lawsuit leveled against the city of Toledo brought forth by Taverns for Tots, a group of 35 Toledo area bars claiming to be a membership organization raising money for charity. Taverns for Tots contended its organization was thus exempt from the city's smoking ban.

Attorneys representing Taverns for Tots claimed that because the ordinance required the organization to fill out an application in order to be seen as a membership organization, it placed "an unreasonable restraint on the right to assemble."

Judge Carr ruled that the ordinance did not place restraints on the bar owners' rights to assemble, and further said in his ruling that "The real purpose of Taverns for Tots is to evade Toledo's anti-smoking ordinance under the guise of raising money for needy children. This is not the kind of intimate associational activity that either enjoys or deserves protection under the First Amendment."

"Basically, the court found that our application process meets constitutional muster," said Adam Loukx, Toledo's senior attorney.

Secondly, attorneys representing Taverns for Tots argued that the definition of a "private social function" was much too vague - unconstitutionally vague - under the ordinance.

Judge Carr stated that though the ordinance does not define what a "private social function" is, the purpose of the ordinance was "clear, unambiguous, and easily understood by persons of common intelligence:" That "private social functions" are those that are not held open to the general public and in control of a sponsor.

Thus far, only 10 organizations have been approved as "membership organizations" by the city, including two Alcoholics Anonymous associations, several bingo sponsors that can only allow smoking in their membership offices and not in their bingo parlors, and one Veterans of Foreign Wars post.

Barb Herring, the city law director, asked whether the city will cite the dozens of other membership organizations in Toledo where many bar owners complain competitive, unapproved smoking is still taking place, including yacht and country clubs, Veteran of Foreign Wars posts and American Legion posts that have yet to apply or be approved. She reiterated the city's position that all membership organizations would need to go through the process to be exempt.

"The law's complaint-based, but we'll be getting around to everybody sooner or later. You have to be methodical and take it one step at a time," Ms. Herring said. She said such organizations would be approved if it were found that they were indeed closed to the public.

Jim Avolt, owner of The Distillery, which has been regularly holding what Mr. Avolt says are "private social functions" over the past months, said he was confident the ruling does not affect him.

"The judge's ruling affected Taverns for Tots specifically, which I don't believe has had any functions in a long time," Mr. Avolt said.

At The Distillery, Mr. Avolt claims that supporters of Citizens for Common Sense, the group behind a proposed amendment on the Nov. 2 ballot that would weaken the city's smoking ban, choose to come in, sign their name, and hold private social functions on their own.

"These functions are closed to the public. If you don't support Citizens for Common Sense, or refuse to sign your name that you do, then you can't come in and participate in one of these functions," Mr. Avolt said.

"And when the patron leaves, the function stops. We don't have smoking in there all the time."

"This isn't the best answer out there," Mr. Avolt added, "but at least it lets me give my customers the environment that they want to have."

The city has stated that such functions are in reality open to the public. Ms. Herring said the city will continued to pursue such "violations."

Contact Tad Vezner at:

tvezner@theblade.com

or 419-724-6050



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