Restaurants sue to block new smoking rules
SAPULPA - Oklahoma restaurants sued to block new smoking rules Thursday, claiming the governor and the Health Department lack the authority to limit smoking in restaurants and other businesses.
The lawsuit filed in consultation with the Oklahoma Restaurant Association also says the rules violate state law governing public smoking and names Gov. Frank Keating and the department as defendants.
It asks the Creek County District Court to immediately block enforcement of the rules and to eventually declare them illegal. A hearing on the requested restraining order has been set for Monday, the day the rules would take effect.
"These rules are going to create chaos for hundreds of businesses," said Stillwater attorney Michael Morgan, who's representing Sapulpa plaintiffs Freddie's Barbecue and Steakhouse and the Veterans of Foreign Wars Post 1320.
On Wednesday, Keating signed the department's rules requiring restaurants with no-smoking sections and seating capacities of 50 or more to enclose and ventilate areas where smoking is allowed.
The rules apply only to food and drinking establishments with no-smoking sections. Those that allow smoking throughout the entire business or ban smoking altogether are not affected.
The department had proposed including smaller restaurants, but Keating struck that provision down. The lawsuit also claims this partial rejection violates state law requiring the governor to consider rules in whole.
"The governor sticks by his comments (Wednesday) when he said any lawsuit would be `mean-sprited,'" and would represent merely the objections of a special interest, spokesman Dan Mahoney said.
"The Board of Health has every right to regulate issues relating to public health, and that's what public smoking is," Mahoney said. "It's a health issue."
The restaurant association has said the rules will be a financial hardship for its members and other affected businesses.
The rules force restaurants to choose between banning smoking, allowing smoking throughout the business or building smoking rooms with ventilation systems, the lawsuit claims.
Each option will hurt the restaurant, either by forcing them to make costly renovations or by ostracizing customers based on their smoking preference, the lawsuit says.
The plaintiffs also claim the rules violate state law allowing restaurants to designate their own smoking and nonsmoking areas.
Freddie's owner Ed Slyman said he's facing "a tough choice" in complying with the rules because his customers are split between smokers and nonsmokers.
"We don't even have time to study" the rules, Slyman said. "It's a fast-drawn plan. It doesn't make any sense."
Glenda Rivett, who owns Rivett's Route 66 Cafe in Sapulpa and was at the courthouse when the lawsuit was filed, said about 90 percent of her customers smoke.
"It's a violation of our rights as American citizens," said Rivett, in a royal blue Route 66 Cafe polo shirt. "We have a right to have our own businesses and to run them accordingly."
Morgan said Keating and the department also overstepped their authority by enacting the rules after lawmakers adjourned for the year.
"They knew full well the Legislature could do nothing to stop them," Morgan said.
Lawmakers this spring banned smoking inside and within 25 feet of the Capitol but gutted provisions from the bill that would have banned smoking in all public places.