Fix but don't scuttle smoking ban in bars

THE ISSUE The Hawaii Bar Owners Association has filed a lawsuit challenging the constitutionality of the ban on smoking in bars.

BAR owners are unlikely to win a court battle challenging Hawaii's new law that bans smoking on their property. However, a portion of the law that seems to hold them responsible for smoking outside their bars -- not on their property -- should be discarded.

The Hawaii Bar Owners Association filed a lawsuit this week challenging the law as unconstitutional. The suit claims the law infringes on their constitutional protection against the taking of property without just compensation. The smoking ban is simply an extension of other health and environmental laws and workplace safety rules that are routinely enforced.

However, Hawaii's smoking ban appears to hold bar owners responsible for smoking that occurs within 20 feet of entrances, exits, windows that open and ventilation intakes, regardless of whether those areas are on the bar's property. It requires owners to prove to the state Department of Health that smoke in those areas "will not infiltrate" into the bar. Bar owners should not be expected to police property outside their own.

All 50 states have laws or regulations that restrict smoking in certain places. Hawaii is among eight states that prohibit smoking in private workplaces, restaurants and bars. Five other states ban smoking in all restaurants and bars. None has been successfully challenged in court.

Nevada bans smoking in restaurants and in bars that serve food, and a state judge upheld the law last month. Nevada voters narrowly approved the law in the November election and it took effect in December.

The U.S. surgeon general reported last June that inhaling someone else's smoke harms nonsmokers, and separate smoking sections don't help. Bar owners maintain that smoking bans cause them to lose business, and several in Hawaii are defying the law. In time, bars should regain business as their customers understand that such bans have become a national norm.