Appeal No. 104,761: Downtown Bar and Grill, LLC v. State of Kansas
TOPEKA—The Supreme Court today reversed a lower court decision temporarily blocking the state from enforcing a statute that exempts certain private liquor-serving clubs from a statewide ban on indoor smoking.
The decision reverses a Shawnee County District Court decision granting the Downtown Bar and Grill, a Class B club in Tonganoxie, a temporary injunction in a suit challenging the constitutionality of the statewide smoking ban as violations of the Equal Protection Clause of the Fourteenth Amendment and Section 1 of the Kansas Constitution Bill of Rights.
The lawsuit alleges the ban is unconstitutional because the Kansas Indoor Clean Air Act, which was passed in 2010, exempts Class B clubs that were already licensed on January 1, 2009, but not those obtaining a Class B license after that cut-off or grandfathering date.
The Downtown Bar and Grill was licensed as a drinking establishment but was not licensed as a Class B club until May 4, 2009, or approximately four months after the cut-off date. The state contends the cut-off date was set by the legislature to prevent mere drinking establishments from circumventing the smoking ban by changing their liquor license to Class B status during the pendency of the Act's passage by the legislature.
Writing for a unanimous Court, Chief Justice Lawton R. Nuss reversed and remanded the case to the district court "because Downtown Bar is unable to establish an element essential to issuance of a temporary injunction: a substantial likelihood of eventual success on the merits."
He said Downtown Bar presented the issue before the Supreme Court as simply whether it was denied equal protection of the law because the Act's January 1, 2009, cut-off date had no rational basis connected to a legislative purpose. Downtown Bar does not challenge the objective of the Act, which was for the State to promote its interest in the health and safety of its citizens by reducing exposure to second-hand smoke. "Nor does it challenge the fact of grandfathering," Chief Justice Nuss wrote. He said the district court ruled that the cut-off date was wholly arbitrary "because this particular date, other than by its existence, finds no rational basis for its selection."
The January 1, 2009, date was first set in a smoking ban bill that was introduced, but not adopted, in the 2009 legislative session. The bill was resurrected in the 2010 session and passed, thus, prompting the district court's decision that the date was not deliberately "selected" by the 2010 legislature.
Chief Justice Nuss said the Supreme Court disagreed that the 2009 cut-off date "stopped being rational merely because it was not independently—or deliberately—'selected' by the 2010 legislature. If the 2009 legislature conceivably chose the January 1, 2009, date as a cut-off—which would eliminate any incentive [for a mere 'drinking establishment'] to rush to Class B club status during the pendency of the 2009 legislation—then it is exceedingly difficult, if not impossible, to conclude that the 2010 legislature could not conceivably have retained that same cut-off date for the same reason during its own session."
Because Downtown Bar failed to meet its obligation to prove there was not any conceivable rational basis for the 2009 date, the case was reversed and remanded for further proceedings.