Kokomo Mayor Matt McKillip said in a letter Wednesday that the city’s smoking ban is creating a competitive disadvantage for local businesses, and called on the Kokomo Common Council to remove exemptions for bars and private clubs.
McKillip, who expressed reservations about the ordinance when he signed it into law, said in the letter he also thinks at least one portion of the ordinance is unenforceable.
Council members have been questioning the city’s willingness to enforce the ban ever since McKillip obtained an opinion in late September from an Indianapolis law firm, suggesting the ordinance contains a loophole.
John Keeler, with the Baker & Daniels law firm, said the ordinance doesn’t clearly define the word “within,” leaving questions as to whether a business might be able physically separate smoking and non-smoking sections.
Two local businesses, the Cedar Crest Lanes and Lowry Lanes bowling centers, have installed double doors and foyers between their bar areas and the bowling lanes. The ordinance states smoking isn’t allowed in an otherwise smoke-free building, unless there is no way smoke can travel into the non-smoking areas.
City attorney Jon L. Mayes confirmed Wednesday McKillip was referring to the issue of the term “within” in his letter to the editor, when he wrote “there is a serious legal issue that makes one aspect of the ordinance, as written, unenforceable.”
Mayes said that might not be the only issue with the way the ordinance is written, based on inquiries made from non-profit groups to the mayor’s office.
He did not elaborate.
Mayes said the administration will continue to enforce the ordinance by issuing warnings to local businesses. The ordinance allows the city to fine businesses found repeatedly in non-compliance, but administration officials said they’ve only received two complaints since the law took effect.
After reading the mayor’s letter, city council attorney Corbin King — the author of the ordinance — said the wording is copied from ordinances already in effect in numerous cities.
The letter, King said, “looked like the mayor’s opinion,” and noted that Alan Wilson, a local attorney hired by the city to do contract legal work, had opined that the ordinance was well-written.
Councilman Ralph Baer, R-6th, said the only difference he could see between the way the ordinance’s wording works here, as opposed to elsewhere, is that the mayor hired an “out of town lawyer to raise technicalities.”
“If our council attorney tells us it’s a good ordinance, a strong ordinance, then far be it from me to go against him,” Baer said.
Nonetheless, Baer said he supported the idea of an “across the board” smoking ban, and voted against the amendment exempting bars and clubs. He said he would poll the council members to see if they wanted to go in that direction
Allan Ollis, general manager of Hacienda Restaurant, said he would like to see the city exempt his business from the smoking ban, or put all businesses on the same, smoke-free playing field. The restaurant’s lunch and late-night business has been hurt by the ban, he said.
King, however, said it’s simply too soon to tell how the ordinance will affect business, saying most businesses in cities with smoking bans have seen lost business return after one or two months.
In his letter, McKillip — who couldn’t be reached for comment Wednesday — said the ordinance was simply unfair.
“While I am a non-smoker and support efforts to limit exposure to second-hand smoke, the real issue is that the no-smoking ordinance, as written, creates an un-level playing field for too many local businesses. As a result, some businesses are now suffering because of this imbalance,” he said.
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