In Austin a Federal Judge has struck down part of a smoking ban, citing it as unconstitutional.
A federal judge on Wednesday struck down part of Austin's smoking ban and found that some of its enforcement provisions were "unconstitutionally vague."The decision by U.S. District Judge Sam Sparks did not overturn the smoking ban, enacted by voters in May 2005. But Sparks did clarify what steps a business owner must take to be in compliance with the ordinance. Sparks was presiding over a lawsuit filed last year by a group of bar owners.
At Click's Billiards on East Oltorf Street, the bar cannot provide ashtrays and must still post no-smoking signs. But if Blake Tynes lights up anyway, a federal judge's new ruling says that it's Tynes – not the bar owner – who can be cited.
Sparks said the businesses must post "no smoking" signs and remove ashtrays and other smoking accoutrements. However, the owner can no longer be held liable for not taking additional steps if patrons continue to smoke, Sparks ruled.
"Thank goodness there was a judge that finally had some sense," said Rebecca Davis, a bartender at the Elephant Room, a Congress Avenue cellar-turned-jazz club, where a faint odor of smoke permeated the air and smokers were already celebrating Wednesday night. "This is going to help my happy hour business so much."
Several customers said they've smoked cautiously at the bar since the ban went into place, holding their cigarettes out of sight when somebody new walked in. But on Wednesday, Davis told everyone about the ruling as they approached the bar.
It's about time the judges got it right. Though a law passed by voters should be given some deference, but only if it is constitutional. It appears this one is not.
