Four Fayetteville business owners filed suit Thursday seeking to stop enforcement of the city’s ban on tobacco smoke in most public places and asking for more than $100,000 in damages.
The suit was filed by attorney W. H. Taylor on behalf of: Tony Catroppa, owner of Platinum Cabaret, Wild On and Tony’s Bar and Grill; Mark Wright, owner of On the Mark; Rick Schweik, owner of Cool Water Cafe; and Jerry Stiles, owner of Art’s Place.
Taylor said he wants enforcement suspended until a court can review the ordinance, which he claims is unconstitutional and arbitrary. "I don’t want to have the criminal law process involved until the court has time to rule," Taylor said.
Taylor argues that the owners should be compensated for the money that has been spent to comply with the ordinance as it has been enforced, even though that interpretation is now being changed. Because the law has been interpreted differently by the two police chiefs in office since voters approved the measure in 2004, he said. The law allows smoking in establishments where food is "incidental" to the sale of alcohol, but incidental has not been clearly defined by the city or police department, and the suit argues there is a good chance that the next chief will have his own take on what "incidental" should mean.
Beyond the inconsistency of the ordinance thus far, Taylor argues that the police chief should not be the one to interpret the laws, but only enforce them.
Police Chief Frank Johnson proposed changing the definition of incidental food sales after the council’s ordinance review committee made it clear that it was unhappy with the previous chief’s interpretation. Former Chief Rick Hoyt had opted to use the 70/30 rule — allowing smoking in business where alcohol accounted for at least 70 percent of sales — which is used by other communities and had been offered as part of an unsuccessful bid for a statewide smoke ban.
Hoyt’s definition worked for about two years, before a restaurant decided it wanted to switch to bar status by changing its menu to comply with the 70/30 rule, a scenario not discussed in the city ordinance. When Johnson sought direction for allowing a business to change, he was informed that some aldermen had been unhappy with the definition used since the stricter ban went into effect.
The new definition would prohibit smoking in establishments that serve food that is "prepared, warmed or cooked."
City Attorney Kit Williams said that while he could not support suspending enforcement of the ordinance, he would ask the City Council to maintain the current definition of incidental, as it relates to food sales. He said Mayor Dan Coody has agreed to wait until the council has a chance to discuss the issue before implementing the new definition, which is set to become the standard Monday.
The council will have to suspend its rules of procedure to add the item to its agenda, but can make a decision at its regular meeting Tuesday, Williams said.
The council meeting is set to begin at 6 p.m. in Room 219 of the Fayetteville City Administration Building.
Taylor hopes the definition of incidental can be clarified and expects "common sense" to intervene. "Almost everybody can tell what incidental means — not of great consequence," Taylor said.
Business owners should not be limited to peanuts and pretzels, but should be allowed to serve more food while still being a bar, Taylor said. An example of a bar that gradually became a restaurant is Herman’s, which started out as bar that served food, but is now a restaurant that also serves alcohol, he said. "I know what a bar is when walk into one," he said. "I’ve been alive for 53 years."
Taylor said the latest interpretation of the ordinance only allows "customary bar food," which can differ based on the community. He said a U.S. Supreme Court ruling suggests that local business owners should determine what the standard is, though it is up to the city to address the law. "I think we’ve got to come back to a realistic, common-sense community approach," Taylor said. "(But) it’s the city of Fayetteville’s problem. It shouldn’t be bar owners’ problem. Maybe the city ought to try to sit down with these people and get a little input."
Williams said that while it is the council’s decision how to proceed from this point, it is important to note that the statewide ban will take effect in early June, which may have an effect here. In some respects, the city’s ordinance is more stringent than the state ban, he said, though there are some instances where the state’s ban is more strict.
The state law exempts bars and restaurants licensed by the state, as long as they do not allow anyone under 21 years of age on the premises.
Taylor said he is still reviewing the state law and is not sure whether he will attack that law as well.
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