The first prosecution of a bar owner for violating Austin's smoking ban is now underway. The bar owners say that they want the city to butt out of their business.

Austin's smoking ban doesn't keep Mickey Leathers from lighting up in his North Austin bar. "How can you tell me how to run my business? And I'm talking about all the bar owners. How can you tell us how to run our business?" Leathers said. Leathers and other bar owners are defying the three and a half month old ban because they say that it's killing their business, but their defiance is drawing the wrath of city lawyers. "There are a couple of stubborn bars who want to challenge it, and that's what's occuring here," Lynn Carter, assistant city attorney, said. Nick Alexander runs both Click's Billiards in Austin. He's the first bar operator facing prosecution in municipal court for violating the ban, with five counts of providing ash trays in his bars. He's pleading not guilty. "I'm just trying to enforce my rights," Alexander said. Alexander argues he spent nearly $100,000 on beefing up ventillation in his bars to qualify for a restricted smoking permit before the ban. He says that permit should be grandfathered under state law. "That permit is still valid because we followed all the rules that were in effect at the time we applied for our permit," Alexander said. However, prosecutors say that the permit expired when the ban took effect Sept. 1, and he knows it. "I think they got the permit just for the purpose of having this opportunity to challenge the ordinance," Carter said. Leathers and one other bar owner are also challenging misdemeanor charges against them for resisting the ban. "This is my livelihood, this is how I make a living. What else am I going to do?" Leathers said. There was no ruling in the case against Click's Wednesday. Judge John Vasquez set closing arguments for next Wednesday and says that he may rule at that time.

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