Stubbed Out

Despite hefty losses, Minneapolis bar owners can't get anyone to reconsider the smoking ban

Council member Dean Zimmermann says he's sympathetic to what he views as "significant hardships." "Let's say that I have not closed off my ears to the things they are saying," Zimmermann says, adding that he's looked at a way to amend the ordinance, and has even talked with Ostrow about a "moratorium" on the ban while some establishments get their footing again. "When we talk about public health, economic health has to be part of it."

Still, Zimmermann says, he hasn't brought the matter up with his colleagues because "politics and the election are in the bigger picture of things." Specifically, Rybak has indicated that he would likely veto any council vote that repeals the ban--and there are currently not enough votes on the council to override a veto. (Additionally, there is the Hennepin County ban to contend with.)

One thing Zimmermann now says he regrets is the role that St. Paul officials, especially council member Dave Thune, played in the ban. Thune had convinced his Minneapolis counterparts that he had enough votes on the council to implement a comparable full ban in St. Paul. But Thune didn't have enough votes to override Randy Kelly's mayoral veto, and the Ramsey County Board eventually enacted exemptions from the ban for all establishments where liquor sales make up 50 percent or more of the gross receipts.

If the Minneapolis ordinance's total ban has hurt local bars, it has been a distinct boon to their counterparts in St. Paul. Dan O'Gara, owner of O'Gara's on Snelling Avenue, says his receipts were up 14 percent in April compared with the previous year. "The very first day, we were seeing faces we hadn't seen before," he recalls. "I don't know if it's all the smoking ban, but it's certainly had an impact. It's not just people from Minneapolis coming here, but people from St. Paul not going to Minneapolis." But despite his good fortune, O'Gara feels sympathy for his brethren in Minneapolis: "You don't want to see an increase in sales simply because something has been legislated."

It's a sentiment echoed by Bryan Turtle, owner of Turtle's Bar and Grill in Shakopee. Turtle's, a Scott County bar just over the line from Hennepin, saw a 21 percent hike in business in April. "All sorts of places just outside the county line are up," Turtle says. "I hate to wonder where that money is coming from."

 

Back in March,Minneapolis business owners' initial request for a restraining order was shot down for two reasons. First, District Judge John Q. McShane denied the plaintiffs' claim that the 1976 Minnesota Clean Indoor Air Act does not allow local authorities to place conditions on where people can smoke and where they can't. Second, he set aside their claim that the ban would do "irreparable harm" to Minneapolis bars as "speculative."

This time around, Randall Tigue, the attorney representing Gabby's, Escape Ultra Lounge, Jax Café, and the others, claimed that the Minneapolis ban exempted "locations where smoking is expressly authorized by state law or federal rule." Tigue went on to argue that the state's air act allows for bars and restaurants to designate smoking and nonsmoking sections, and that some bars are, according to state law, the only public places allowed to be designated smoking areas in their entirety. The Minneapolis ordinance, according to Tigue, allowed for smoking in Minneapolis where it was already allowed according to the state law. Second, Tigue laid out a case for "irreparable harm" once again, this time based on real sales figures since the ban commenced.

Judge Porter disagreed on the first argument, citing a state attorney general's ruling from 2000 that held the Clean Indoor Air Act "expressly reserved the right of local governments to make 'more stringent smoking limitations.'"

On the financial front, Porter was more responsive. "Plaintiffs have made a strong showing that they stand to suffer serious economic injury if the ordinance remains in effect," his ruling says. "It is quite possible that some, if not all, of the Plaintiffs will eventually go out of business as an incidental result of the smoking ban." Even so, he concluded that "Plaintiffs are not entitled to a Court's intervention simply because they have suffered and continue to suffer such harm."

Tigue says he's buoyed by the judge's official recognition of "irreparable harm," and plans to take the case to the Minnesota court of appeals sometime this week. He adds that he hopes to win a temporary stay on the ban while the court reviews the findings.

Ormond and his MHA cohorts are considering further options, such as establishing a PAC to lobby Minneapolis City Council members and lawmakers at the Capitol. "Even a temporary injunction would be great, and give the City Council a chance to wipe the egg off their faces and rewrite the ordinance," he says, before pausing. "But it's all political now."

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