Lawsuit filed to stop Houston smoking ban

HOUSTON — A coalition of bar, nightclub and cabaret owners has filed a federal lawsuit challenging a city ban on smoking in most bars that's scheduled to take effect next month.

Members of the Houston Association of Alcoholic Beverage Permit Holders claim the ordinance will create an unfair competitive environment for them to operate.

The law extends the city's smoking ban to most public places, but continues to allow smoking in outdoor patios and in bars that promote cigar smoking and derive significant revenue from tobacco sales.

The City Council approved the ban in October to protect bar patrons and employees from the health effects of second-hand smoke.

The lawsuit claims the city does not have the authority under state law to create different regulations among businesses licensed to sell alcohol for on-premises consumption.

"They're creating an unbalanced playing field by stating that certain types of operators, such as tobacco bars, who meet their arbitrary definition of what a tobacco bar is, can allow smoking while the guy across the street (who) doesn't meet that definition cannot," said Al Van Huff, a lawyer representing the group.

The lawsuit asks the court to stop enforcement of the ordinance and rule it invalid for alcohol establishments licensed by the state.

City Attorney Arturo Michel said Houston's ordinance is legal. Various bars are not being treated differently in terms of alcohol, he said.

"We're actually not just regulating this industry in terms of smoking," he said. "We regulate a lot of other public places, in terms of smoking."

Van Huff also argued that the ordinance is unconstitutionally vague. The ordinance allows smoking in "private functions." Some owners have wondered whether they could designate all or part of their establishments as private clubs.

Michel said the ordinance is modeled on rules from other cities and is not vague.

"We took care to look at that," he said. "We tried our best to make sure our terms were well defined for constitutional purposes."

Gregg Alston, the owner of two Houston bars, said the ordinance will make it harder for him to compete with nearby cigar bars. Alston's bars doesn't have a patio.

"It puts us at a disadvantage with cigar bars, or bars that sell tobacco, which are still allowed to have smoking because of the type of business that they are," he said.