The city of Arlington agreed with opponents on a 60-day injunction that blocks enforcement of the city’s new smoking ban on bars, pool halls, bowling centers and adult businesses. Max Faulkner Star-Telegram archives
The city of Arlington agreed with opponents on a 60-day injunction that blocks enforcement of the city’s new smoking ban on bars, pool halls, bowling centers and adult businesses. Max Faulkner Star-Telegram archives

Arlington

Injunction provides 60-day hold on new Arlington smoking ordinance

By Robert Cadwallader

rcadwallader@star-telegram.com

May 30, 2017 04:10 PM

ARLINGTON

The city of Arlington has agreed to a temporary injunction that would halt enforcement of its new smoking regulations for 60 days — matching the grace period that city officials had already promised.

The action came after a group of about 10 Arlington nightclubs calling itself the Dream City Coalition filed a lawsuit Friday challenging the constitutionality and fairness of an amended smoking ordinance approved by the City Council on May 9 that extended the city’s smoking ban to bars, pool halls, bowling centers and sexually oriented businesses.

The ordinance took effect on May 27, 10 days after it was published in a newspaper. But the city said it wouldn’t enforce the regulations for 60 days to allow businesses time to post no-smoking signs, build outdoor patios or make other adjustments.

However, that grace period wasn’t part of the adopted ordinance, so it wasn’t legally binding, said the plaintiffs’ attorney Warren Norred.

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“If you wanted to make that law, you could have done that when you passed it, but you didn’t do that,” Norred said.

Assistant City Attorney David Barber said the city noted the grace period in a staff report and a May 10 press release.

“Essentially, we agreed to do what we already said we were going to do,” Barber said.

The temporary injunction extends through July 26.

We have progressed as a society and learned that secondhand smoke is detrimental to health. ... I think all people deserve a healthy environment in which to work.

Arlington City Council member Sheri Capehart

The lawsuit, filed in 67th District Court in Fort Worth, seeks to permanently block enforcement of the ordinance, claiming it violates the Texas Constitution by retroactively imposing changes on businesses and that it fails to provide equal protection by affecting some business while exempting others.

Barber limited his comments on the lawsuit, saying the city is still reviewing it and will file an answer soon. But regarding the claim of retroactive law, he said, “Anytime a law is enacted by the Legislature or city or any governmental body, what happened before is going to be changed in some form or fashion.”

Norred disagreed. “Typically, what happens is the council grandfathers” existing business when new regulations are adopted.

Norred said he plans to file next month for an extension of the temporary injunction and said the case “may end up going all the way to the Texas Supreme Court.”

The lawsuit names as defendants the city and the seven council members who voted for the ordinance — Mayor Jeff Williams, Kathryn Wilemon, Lana Wolff, Robert Shepard, Victoria Farrar-Myers, Michael Glaspie and Sheri Capehart. Voting against it was Charlie Parker and Robert Rivera.

Before adopting the amendments, the council exempted bingo parlors, saying they are regulated separately by the state as gaming establishments. Also, council members learned that exempting bingo parlors would not jeopardize the city’s eligibility for a “100 Percent Smoke-Free City” designation by the anti-smoking advocate Smoke-Free Texas, based on criteria established by the World Health Organization. Officials said Arlington would be the 70th city in Texas to be so designated.

The council has been chided by opponents, who said they would suffer under the regulations just so the city could earn a “gold star” — a comment that annoys Capehart.

“This has always been about health and safety in my mind,” said Capehart, who recalled the prevalence of workplace smoking in the 1970s. “It wasn’t easy to find a job that was close to home, that paid well, had good benefits and didn’t allow smoking. We have progressed as a society and learned that secondhand smoke is detrimental to health. ... I think all people deserve a healthy environment in which to work.”

The city’s smoking ordinance was adopted in 1985 and amended to restrict smoking in restaurants in 1991.

Robert Cadwallader: 817-390-7186, @Kaddmann_ST