By L.A. Williams, Correspondent
Christian Action League
GREENSBORO —North Carolina’s 19-month-old ban on smoking in restaurants and bars has withstood its first major legal challenge with Tuesday’s North Carolina Court of Appeals ruling in a case involving Gate City Billiards, a Guilford County business that had defied the law and challenged the ensuing Health Department fines.
“This is a victory, not only for the Alliance for Health and the Christian Action League, which lobbied hard for the smoking ban, but for all North Carolinians who have been enjoying cleaner air in restaurants since January 2010,” said the Rev. Mark Creech, executive director of the Christian Action League. “This should serve to strengthen the ban and further validate health departments’ efforts to continue enforcement.”
According to the Alliance, the unanimous ruling by the three-member panel is significant in that it was the first legal challenge to the smoke-free law to reach the Court of Appeals and the law was found constitutional. A group of bars in Pitt County has mounted a similar suit that may soon reach the appellate level.
“Health advocates are hopeful that the Guilford County ruling … could also guide the court’s consideration of the Pitt County legal challenge and finally put the issue of the law’s constitutionality to rest,” read a press release from the Alliance, a coalition of organizations advocating for polices that promote wellness and reduce the impact of obesity and tobacco in the Tar Heel state.
According to media reports, Gate City Billiards owner Don Liebes has not decided whether to appeal the ruling to the Supreme Court. His attorneys had argued in February that the state couldn’t, under the equal protection clause, allow smoking in private, non-for-profit clubs while prohibiting it in “for-pofit” bars. But the Appeals Court upheld a High Point district court’s ruling that legislators had drawn a reasonable distinction between not-for-profit clubs and clubs that are really just bars that, like Gate City, change their names to try to circumvent the ban.
In fact, the law clearly defines private club as “a country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member’s guest, and is either incorporated as a nonprofit corporation in accordance with Chapter 55A of the General Statutes or is exempt from federal income tax under the Internal Revenue Code as defined in G.S. 105-130.2(1).” Examples of organizations that typically qualify for the exemption are Moose Lodges, VFW clubs or other veteran or fraternal organizations.
Endorsed by nearly 75 percent of North Carolinians according to the 2008 Behavioral Risk Factor Surveillance Survey, the smoking ban has been a success, health and business leaders say, protecting restaurant patrons and employees from the more than 7,000 chemicals, including at least 69 carcinogens, present in secondhand smoke. The North Carolina Department of Health and Human Services credited the ban with an 89 percent improvement in air quality in bars and restaurants.
“We are glad to see this legislation, one of some 26 similar smoke-free laws across the country, withstand the test and we will follow the Pitt County suit as well hoping for a similar outcome,” the Rev. Creech said.
Even if Gate City appeals its case, the N.C. Supreme Court is not obligated to hear it since the Appeals Court ruling was unanimous.