Attorneys for a group of French Quarter bars and restaurants suing to have New Orleans’ smoking ban repealed told a Civil District Court judge Tuesday that the law was “improperly promulgated” and should be overturned and reconsidered by the City Council.
The establishments argue that the council did not receive a required fiscal note in time to properly consider the financial impact of the ban on smoking in bars and casinos, which went into place in April.
A last-ditch attempt to delay the ban before it went into effect was denied by a different judge.
Judge Robin Giarrusso took Tuesday’s arguments under advisement and did not make a decision after a hearing that lasted about an hour.
Perhaps the most interesting news to come out of the hearing was that Harrah’s, the largest of the businesses listed on the suit and a vocal critic of the ban, has asked to be dropped from the case.
Harrah’s attorney Jade Brown Russell said the decision to withdraw was made early last month because the gaming company would prefer to concentrate its efforts on adhering to the new law. She said Harrah’s still believes the suit against the city has merit.
“We just need to move on,” Russell said. “We need to just focus on how to implement the smoke-free requirement for our employees and our customers.”
The remaining plaintiffs, including prominent French Quarter bars such as Pat O’Brien’s, Lafitte’s Blacksmith Shop and the Tropical Isle and restaurants such as Broussard’s, Kingfish and Cafe Maspero, are challenging the ban because they say council members should have had more time to consider the fiscal note on the financial impact of the ban.
The note was presented to council members and their staff on the same day the council voted on the measure.
The seven-page document explained how much revenue the city derives from bars, casinos, establishments with video poker and the Fair Grounds Race Course & Slots, and then estimated how each might be affected by the ban. It also factored in the money the city might have to spend to enforce the smoking ban and how much it might expect to take in from fines on violators.
“If we are here excusing what happened by saying the mayor’s office only has to hand the fiscal note over before the button is pressed ... that makes that fiscal note requirement so superficial and so meaningless,” attorney Thomas Cortazzo said. “We should not vindicate the city to wink at that requirement.”
Assistant City Attorney Christy Harowski maintained that the council members were given the note in adequate time to review it and that, by law, they can be given such information up until the time they vote.
Giarrusso seemed to agree with the city. She said the council members had an opportunity to table the ordinance if they felt they didn’t have enough information to vote. Instead, they all voted in favor of it.
“Aren’t you just trying to delay the inevitable?” Giarrusso asked.
The lawsuit, which names Mayor Mitch Landrieu and the members of the City Council as defendants, also calls the ordinance “vague” and says it would damage business at the affected businesses by “requiring plaintiffs to confront, stop serving and run off their customers.”
The city plans to rely primarily on businesses to enforce the ban.
Cortazzo said the measure is confusing because it does not clearly say who is responsible for enforcing the ban. Would a small bar, for instance, need to have a manager on duty every day to tell patrons to extinguish their cigarettes, or could an employee do that job, Cortazzo asked.
Harowski said the entire ordinance should not be stricken to clarify such issues. Though she said a person of “ordinary intelligence” should not have a problem interpreting the law, she said the proper place to address enforcement issues is in a set of rules and regulations the council will consider later this year.
The sides also could not agree on how much damage the ordinance would do to city coffers. Cortazzo said the city stands to lose $3.6 million a year, revenue he said it can’t afford to miss out on as it grapples with a strained budget. The lost revenue would be the result of a dip in taxes paid to the city by bars and clubs that would see their profits drop as a result of the ban.
Harowski, however, put the number at $500,000 this year and a maximum of $1.8 million in 2016. She said that while the potential financial damage to businesses is important, it should not nullify the entire ordinance.
The “Smoke-Free Air Act” makes it illegal to smoke in the city’s bars and casinos, with the exception of existing cigar and hookah bars.
Although restaurants were already covered by a state ban on smoking, several restaurants joined the suit to support their fellow French Quarter businesses.