Posted on 07/13/2002 3:32:33 AM PDT by JameRetief
2002-07-13
The Associated Press
AP Wire Service
A federal judge Friday sent a lawsuit challenging new smoking rules back to the state court where it was originally filed, handing a legal setback to Gov. Frank Keating and the state Department of Health.
Judge James H. Payne's ruling returns the lawsuit filed by two Sapulpa businesses to the Creek County District Court where they first sought to block the limits placed on smoking in public places.
Attorneys for Keating and the department had sought to move the lawsuit to U.S. District Court in Tulsa, claiming federal questions were involved.
But Payne ruled that the federal issues raised _ a constitutional due process complaint by the plaintiffs and the defense planned by the state _ did not warrant federal jurisdiction.
"The controversy will be resolved by a determination of whether defendants have exceeded their authority under Oklahoma statutes, and whether the rules at issue conflict with Oklahoma law," Payne wrote. "No substantial question of federal law must be answered to determine plaintiffs' claims."
Michael Coulson, one of the attorneys for Freddie's Barbecue and Steakhouse and VFW Post 1320, said Payne's decision puts the case "back in state court where it belongs."
"Our position has been clear and the judge made it clear that this is really a state matter," said Coulson, a Stillwater attorney.
The American Lung Association of Oklahoma and Cleveland County resident Jerry Lee Tyner filed a motion to intervene in the case. The association has for years lobbied for changes in the state's smoking laws.
Tyner has asthma, a respiratory disability that is protected by the Americans With Disabilities Act, which gives rights to the disabled.
Attorneys for Keating and the department did not immediately return phone calls seeking comment.
Oklahoma Health Commissioner Dr. Leslie Beitsch said Friday's federal court decision "changes nothing for our side.
"Having this in state court doesn't favor anybody. A state court is well-qualified to handle this. The health of Oklahoma is at stake, and the smoking rules now have the full force and effect of law," Beitsch said.
On June 26, Keating signed the department's rules requiring restaurants with no-smoking sections and seating capacities of 50 or more to enclose and ventilate areas where smoking is allowed.
The rules apply only to food and drinking establishments with no-smoking sections. Those that allow smoking throughout the business or ban smoking altogether are not affected.
Freddie's and the VFW post _ in consultation with the Oklahoma Restaurant Association _ sued the next day, asking the judge to temporarily block enforcement of the rules and to eventually declare them illegal.
The businesses claimed Keating and the department overstepped their authority in signing the rules, which they claim also violate other state laws governing public smoking.
Keating has said the department has a responsibility to regulate public health by issuing rules affecting smoking. The department's attorneys say the regulations are necessary to comply with the Americans with Disabilities Act.
The ADA has been so helpful.
Keating is a Republican and this is distressing to me. This is right out of the halls of big government Rino's.
There's a simple solution for those who don't like the way "no-smoking" sections are run in private businesses (restaurants, clubs, etc.). Don't frequent them. Too bad if they serve your favorite steak or have your cutest fantasy-farm waitress. They are PRIVATE businesses and you have no right to tell them the type of customer atmosphere they should set up.
If you think that an enclosed "no smoking section" is such a great idea, then start a restaurant. If you're right, you'll get so rich with everyone attending your restaurant that the others will change to your style just to get some of the action. If you're wrong, then your idea and your business will bite the dust.
Finally! They are learning!
I've seen some pretty good dust storms out there in OK! Is Keating going to ban it too? heh!
Let them ban smoking completely. I think it's time for another Civil War in the US! The anti's won't leave us alone, even with the big war we are in, so we can't rest a minute fighting these hogs feeding at the honey pot of the Tobacco Settlement Money!
I know of a couple of restaurants here (Tulsa) that are actually happy with the law. They think they will make more money with only nonsmoking customers. My contention is, if that is so, why didn't you (the restaurant) voluntarily choose to be nonsmoking instead? We already have a few restaurants in town that were entirely nonsmoking before this law was even considered.
Bingo
Got that right! This of course is not about smoking; it's about empowering the state so's it can trample our rights by turning a PC idea into legislation. Makes me wanna puke!
States Brace for Cigarette Backlash
FGS
I see now; I hadn't noticed that. A move from the Clinton playbook: "Stroke of the pen, law of the land." I'm just surprised this wasn't "for the children"(or maybe it was???).
FGS
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