Steven Bartkoski

Sara Fonseca, 22-year-old Lawrence resident, and Steve Fonseca, 27-year-old Lawrence resident, enjoy a cigarette outside of Coyote’s Night Club last night. Dennis Steffes, owner of Coyote’s and Last Call, is contesting five smoking ban violation charges. “As a smoker, I support him, because it doesn’t make sense that the bar should be the ones fined and not the patron who is smoking,” Steve said.

The city’s smoking ban is being put to the legal test.

Dennis Steffes, the owner of Last Call, 729 New Hampshire St., and Coyote’s Night Club, 1003 E. 23rd St., is contesting five charges of violating the city’s smoking ban in a Lawrence Municipal Court trial that may spur a reappraisal of the ordinance.

The city and Steffes’ attorney are preparing arguments for trial, which is scheduled for April 15. Steffes’ attorney, Billy Rork, said he expected the judge to make a decision on the constitutionality of the ordinance on that date.

Dennis Steffes, who owns both bars, said the smoking ordinance was unconstitutional because it conflicted with state laws that allowed smoking. He said it was the city’s responsibility to enforce the ordinance, not the bar owners.

“How can we be held responsible for what the general public is doing,” Steffes said. “That is the job of the fire department and law enforcement.”

David Corliss, director of legal services for the city, said the ordinance was constitutional and that similar programs are in place in other cities and had been upheld in other courts.

The trial, which began on Jan. 27, was postponed until April in order for both sides to develop their arguments, Corliss said.

One issue raised in the trial was the responsibility for the ban’s enforcement.

The ordinance states that the city fire chief is responsible for enforcing the smoking ban. But the law also provides for the Lawrence-Douglas County Fire and Medical department, police department and health department enforce it.

The city has issued nine citations since the ordinance went into effect in July, Corliss said. Three of those citations were issued for Coyote’s and two were for Last Call.

Some bar owners sympathize with Steffes’ allegations that enforcement needs improvement.

The law’s provisions for enforcement are unfair and don’t work, said Steve Gaudreau, owner of Quinton’s Bar & Deli, 615 Massachusetts St.

The majority of the fine for violating the smoking ban should fall on the people who are smoking, Gaudreau said.

Smaller fines should fall on bar owners who did not stop people from smoking in their bars, he said.

“You can’t police the crowd 100 percent of the time,” Gaudreau said. “To fine a bar owner because one person is smoking out of 150 people is ridiculous. Just fining that one person seems more reasonable.”

Gaudreau said he had been told police didn’t have time to enforce the ban and firemen didn’t have the proper training to enforce it. This meant that his employees were responsible for ensuring that nobody smoked in his bar, Gaudreau said.

“I understand the concern that if firemen tell someone to stop smoking, and that person becomes belligerent or forceful, then they’re not trained to deal with that,” Gaudreau said. “But unfortunately, my staff isn’t trained for that either.”

Gaudreau said that his employees had not yet had problems with enforcement because most people knew not to smoke. Quinton’s has not received any citations.

But if bar owners are not fined enough for violations, they will not have an incentive to enforce the ban, Tony Kohake, Olathe senior, said.

And if bars don’t enforce the ban, it’s impractical to expect it will get enforced efficiently at all, Kohake said.

“The police can’t go from bar to bar and catch each person who is smoking,” Kohake said. “The only way for it to work is if each bar enforces it.”

Re-evaluations of the ordinance are more likely to appear on city commission agendas with the pending municipal court trial, he said.

The commission could re-visit how the ordinance applies to appropriately ventilated areas as soon as the end of February. Corliss said the city commission may revise the ordinance.