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Kansas Clean Indoor Air Act challenged on equal protection grounds; was scheduled to go into effect July 1

The Kansas Clean Indoor Air Act (H.B. 2221), scheduled to go into effect on July 1, 2010, bans smoking in most public places, including bars and restaurants and any place of employment, but provides several exceptions. A coalition of drinking establishments and bingo operations are challenging the law as unconstitutional, claiming the law treats similar businesses differently. Several Wichita-area businesses intervened, seeking injunctive relief against enforcement of H.B. 2221, L. 2010, in relation to prohibiting smoking in privately owned places open to the public, specifically but not exclusively to places devoted to drinking, dining and recreation, and gaming (namely, bingo). The businesses seek a declaratory judgment that H.B. 2221 is null and void and unenforceable because it unconstitutionally allows certain types of gaming establishments and drinking establishments to allow smoking but bans smoking in other similar establishments, without a rational basis. They also also argues that the law restricts customers’ right to associate with whom they choose and denies the businesses equal protection of the law, guaranteed by the US Constitution’s 14th Amendment.

The suit, Downtown Bar and Grill, LLC v State of Kansas, was filed in the District Court of Shawnee County, Kansas (Docket No 10C822). The Act bans smoking in public places; taxicabs and limousines; common areas in public and private buildings, condominiums and other multiple-residential facilities; access points of all building and facilities unless exempted by the bill; and any place of employment. Exemptions including allowing smoking in the gaming floor of a lottery gaming facility or racetrack gaming facility. Critics of the bill have pointed out smoking will be allowed in gambling areas of state-owned casinos, including up to four new casinos to be built and operated by private developers for the Kansas Lottery, while prohibiting smoking in other types of gaming venues.