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The Honolulu Advertiser
Posted on: Wednesday, January 31, 2007

Anti-smoking law challenged

By Ken Kobayashi and Rod Ohira
Advertiser Staff Writers

The new state law banning smoking in bars, restaurants and other places to protect people from secondhand smoke is being challenged by a group of bar owners.

The Hawaii Bar Owners Association filed a Circuit Court lawsuit Tuesday contending that the law that went into effect Nov. 16 violates the state constitution by taking away business from the association's members without providing them "just compensation."

In addition, the suit said the law is too vague in violation of the constitution.

The suit is against the state and the Department of Health. It asks for a court order prohibiting the state from enforcing the law and a declaration that the statute is unconstitutional.

State Health Director Dr. Chiyome Fukino said the state is not the first to enact such a law, which protects "everyone from the health risks of tobacco smoke."

"There have been challenges to this law in the past in other states, and none of them has been upheld," she said.

Fukino declined to comment further until she thoroughly review the lawsuit, health department spokeswoman Janice Okubo said.

Hawai'i's law, considered one of the toughest of its kind in the country, bans smoking in establishments where food and liquor are served, including bars and restaurants, and within 20 feet of their doorways or windows. The ban also covers workplaces and enclosed and semi-enclosed public areas.

Penalties include $100 for a first offense for a business; $200 for a second offense and $500 for each subsequent offense. Individuals will be fined $50.

The association is described on its Web site as a nonprofit organization comprised of owners of licensed liquor establishments in Hawai'i.

The lawsuit said association members relied heavily on customers who smoke. But after the law was adopted, the number of patrons "dropped off dramatically and (the members') resulting income has been drastically reduced," the suit said.

Bert Nishimura said in an interview Tuesday that he has cut back his visits to the Aku Bone Lounge & Grill in Kaka'ako from five times a week to twice a week because "basically, I can drink at home and smoke at the same time.

"Smoking and drinking just go hand in hand at a bar," said Nishimura, 49. "It's hard to go outside (to smoke), especially when it's raining."

Nathan Soong, 61, a maintenance worker at the lounge at 1201 Kona St., said he was cited recently for smoking inside after closing time, although he was the only person in the bar.

"Seriously, it's a great law but I believe it should be left up to the discretion of the owner whether or not smoking should be allowed in a bar," Soong said. "It's hard for a person to order and enjoy a beer and have to go outside to smoke. By the time he gets back, the beer is warm.

"Also women are afraid to leave their drinks for safety reasons. I think it has affected business, 20 to 25 percent."

Christy Miyashiro, manager of Exotic Nights on Halekauwila Street, said business is slower than usual but does not know how much the smoking ban has had to do with it. "It's too early to tell," she said.

Miyashiro said a lot of customers have complained about going outside to smoke. She added that most of the nightclub's employees and dancers smoke.

The lawsuit said the law is unconstitutional because it damages the private property of the association members without providing them with compensation.

The suit also said the law is invalid because "it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and has not provided explicit standards for the (Department of Health) to apply it to avoid arbitrary and/or discriminatory enforcement."

In addition, the suit said attempts to enforce the law against individuals who smoke in bars have not resulted in any arrests. The reason, the suit said, is that police require that a person be in the act of smoking before they issue a citation.

"Thus, enforcement attempts have been disruptive to plaintiff's members and have severely hampered business," the suit said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com and Rod Ohira at rohira@honoluluadvertiser.com.