Judge Rejects Challenge to Beverly Hills Smoking Ban

Calling it purely an issue of public health, a Los Angeles Superior Court judge on Thursday tossed aside a challenge to an ordinance that bans smoking in most restaurants and other public places in Beverly Hills, clearing the way for the most stringent anti-smoking regulation in the state to take effect today.

Citing a 1986 U.S. Surgeon General’s report that showed nonsmokers can suffer health problems from a smoke-filled environment, Judge Ricardo A. Torres ruled that the benefits from the city’s landmark ordinance “outweigh any burden” the law might place on Beverly Hills restaurateurs.

Moreover, Torres said he saw no reason to believe that the restaurant owners would suffer “irreparable harm” because of the ordinance.

Attorneys for the 41-member Beverly Hills Restaurant Assn., who had argued that the new law is unconstitutional and discriminatory because it exempts hotel eateries, said they will appeal the ruling.

‘Want It to Be Reasonable’

“We think the court errs on almost all grounds,” attorney Michael Kantor said at the conclusion of the hourlong hearing. “My clients are most interested in public health. They just want it to be reasonable, fair and rational.”

Kantor said he plans to ask the 2nd District Court of Appeal to temporarily block implementation of the ordinance pending the outcome of the appeal.

Unanimously approved by the Beverly Hills City Council in early March, the landmark law bans smoking in most restaurants in the city, at public meetings and in all retail stores, including supermarkets. But the city’s 18 hotel restaurants, its bars and its banquet rooms are exempted.

Aspen, Colo., is the only other city in the nation with such tough anti-smoking regulations.

In challenging the Beverly Hills ordinance, the restaurant owners focused on those exemptions, arguing that they amounted to favored treatment for the hotel eateries and other spots. They said the ordinance violates both the U.S. and California constitutions by discriminating against their free-standing restaurants and predicted that they would lose business.

Concern for Foreigners

But in passing the ordinance, the city exempted the hotel restaurants on the grounds that too many foreigners would unwittingly violate it because of confusion over the local custom.

“Many, many foreigners come to Beverly Hills from places where the evils and dangers of cigarette smoke are not well known,” Julia J. Rider, the attorney representing Beverly Hills, told Torres Thursday.

“We hope we can educate them, (and) we believe a step-by-step process is appropriate here,” she said.

Rider said the city may include the other locales in its smoking ban at some future date. “There are no fundamental rights being trammeled here,” she said.

Roger Diamond, an attorney for the American Nonsmokers’ Rights Foundation and the local branch of the American Lung Assn., which strongly supported the smoking ban, argued that public health considerations must take precedent over other issues.

“The public cries out for this type of regulation,” Diamond said.

Besides the constitutional challenge, the restaurateurs also claimed that the City Council, in passing the ordinance, violated the state’s open meeting law by discussing provisions of the smoking ban in secret session before meeting publicly and that council members violated the California Environmental Quality Act by refusing to submit the proposal to an environmental review board before voting.

When asked by Torres how a smoking ban could impact the environment, Kantor said, among other things, that smoking patrons who shift from free-standing restaurants to those in hotels could cause a realignment of traffic patterns.

Doesn’t Violate Freedoms

Quickly dismissing both that complaint and the secret meeting allegation, Torres concluded that the ordinance is “purely a public health regulation” and suggested that the city need only show there is a rational basis for its enactment.

“The ordinance prohibits the activity of smoking in certain locations,” Torres said. “It does not violate individual freedoms.”

Reacting harshly to his ruling, several restaurateurs predicted that there would be an exodus of smoking patrons to nearby cities.

“These people are now going to go to Los Angeles, which is in some cases a block away, 10 feet away,” said Rudy Cole, executive director of the restaurant association.

The owner of Romeo and Juliet’s, Vito Sasso, said he was preparing to return to his restaurant to get “ready for a lot of cancellations.”

“This is going to cause a lot of customers not to show up,” he said.

Under the ordinance, restaurant owners are required to post signs prohibiting smoking in dining areas. Violators, including both smokers and restaurant owners who ignore smoking in their establishments, could face fines of up to $500.