Bars sue to stop ban on smoking

The suit claims the new law is unconstitutional

The Hawaii Bar Owners Association is suing the state Department of Health over Hawaii's new smoking law, alleging that the measure is unconstitutional.

The lawsuit, filed yesterday in state Circuit Court, seeks an order stopping enforcement of the law, which bans smoking in most public places including bars and nightclubs. It also bans smoking within 20 feet of the entrance or window of an establishment.

"I'm losing my business, that's why I have to do what I have to do to make my business go back up again," said Lance Gomes, owner of the Pigskin Sports Bar on Kapiolani Boulevard. He supports the lawsuit.

The suit alleges that since the enactment of the new law, bar owners have seen a dramatic loss in business, which amounts to a taking of private property rights without just compensation.

It also says the law is unconstitutionally vague because it is not clear how it will be enforced. The lawsuit says it appears that a bar can still be fined if someone smokes in the 20-foot no-smoking zone outside the bar, even if the area is not part of the bar's property. It also questions why there are exceptions to the law for hotels, nursing homes and other facilities.

Deborah Zysman, the director of a Coalition for a Tobacco-free Hawaii, said the law enjoys overwhelming support from the public.

Hawaii is the 14th state to pass such a smoking ban, and no ban has been successfully challenged in any of the states, Zysman said.

In rulings last week, a Nevada judge upheld enforcement of that state's smoking ban, but struck down a portion of the law that called for prison time for violators. It's not clear yet whether the ruling will be appealed.

Zysman said most Hawaii bars are following the new law without negative effects.

"It seems to me business is booming," Zysman said. "We've heard nothing but thanks."

However, some bars are starting to ignore the new smoking ban.

Gomes said he lost about half of his business when the law took effect. So now his establishment is one of a handful of bars that allows smoking in spite of the ban.

"The people are coming in and they're spending money in the club since I'm backing their rights up as smokers," Gomes said.

For now, the state is trying to educate businesses rather than cite them, said Janice Okubo, a spokeswoman for the Department of Health.

Warning letters went out last week to businesses about which the state has received complaints.

However, the Department of Health still must get approval for administrative rules to enforce the new law, which could take several months.

The new rules are being reviewed by the attorney general, and the state has to hold a public hearing on them before they can be adopted, Okubo said.

The Department of Health also is seeking money from the Legislature to hire people or contract with county police departments to enforce the new law.

Enforcement will come, Okubo said. But the biggest factor to the success of the law will not be enforcement, but rather "social marketing" to get people to change their behavior, she said.