PIERRE, SD and HARTFORD, CT -- The smoking battle is moving into high gear in South Dakota and Connecticut. The two states have joined, or may soon join, several other states that are debating -- or litigating -- whether there is a right to smoke in private clubs and restricted-entry establishments.
Currently, 29 states have banned smoking in all public venues including bars and restaurants. But some states have also carved out exemptions for such private venues as cigar bars, veterans' clubs and video poker lounges, among other commercial establishments that are not open to the general public.
In South Dakota, a video poker establishment owner has sued the state. He charges that state's smoking ban is unconstitutional because it does not apply to everyone equally.
Rick Law of Sioux Falls filed the lawsuit on Feb. 18, challenging the 2009 expansion of South Dakota's previous smoking ban to cover bars, casinos and restaurants that serve alcohol.
According to Law, the expansion was unconstitutional because the state constitution protects use of private property for lawful business while prohibiting private and special laws.
Allowing just 1% of private establishments -- specifically cigar bars or smokeshop owners -- to have smoking on the premises creates a special law or special class of business owners, said the plaintiff's attorneys.
Smoking proponents say South Dakota stands to lose $20 million in annual tax revenues due to the smoking ban. They point to the fact that video lottery cashboxes have lost 16% of their earnings since the statewide smoking ban was expanded to bars and casinos.
Grievances that closely resemble Law's complaint are already underway in Ohio and North Carolina. The Ohio case is due for a Supreme Court hearing later this year.
In Connecticut, where smoking is already illegal in bars and restaurants, some state lawmakers want to follow South Dakota's lead and end the current exemption for private clubs.
Connecticut banned smoking in most workplaces, including all restaurants and bars, in 2003. But the ban excluded private clubs and certain cigar bars. Some operators said machine earnings on routes declined as much as 50% after the ban was implemented, and have not yet recovered fully.
However, machine collections began to rise in existing private clubs, such as The American Legion, VFW and Elks. As smokers increasingly patronized such venues, they improved from mediocre locations to some of the strongest-earning route locations, operators said.
On Feb. 9, the Connecticut General Assembly's Public Health Committee heard testimony on a bill that would extend the statewide smoking ban to private establishments.
The Connecticut Supreme Court upheld the ban in 2007 after a coalition of bar and restaurant owners challenged the exemption for casinos and private clubs as unconstitutional.