Fort Wayne lawsuit against smoking ban to be dropped

By Derrick Gingery, Greater Fort Wayne Business Weekly

derrick@fwbusiness.com

A group of Fort Wayne business owners will end its fight with the city over the new smoking ban.

Loren Fifer, president of the company that runs Peanuts Food & Spirits and a plaintiff in the suit, today said the suit would be dropped, mainly because of financial concerns.

"(Legal fees) could pile up very quickly in federal court," he said. "And if we lost, we could have to pay the city's attorney fees."

Fifer said the group could try another tactic to stop the ban, but would not comment further on how it would do so.

The suit was filed in late May, shortly before the ordinance took effect June 1. The ban, approved by the City Council in January, prohibits smoking in nearly all public buildings, including bars, restaurants and private clubs. Tobacco stores and hotel rooms that are designated for smoking are exempt. It is also possible for a nursing-home resident to get permission to smoke.

The plaintiffs stated the ordinance's wording was vague, causing readers of the ordinance to guess at the meaning of many of its sections. They also said the ordinance violated the Bill of Rights.

The business owners first filed the suit in Allen County Superior Court, but it was later moved to the federal court in Fort Wayne.

Subsequently, the City Council made several amendments to the ordinance to clarify language. A restriction prohibiting smoking within 20 feet of all entrances to a building was relaxed slightly to allow restaurants to use more of their outdoor patios as a smoking section. The fines for violations also were changed.

Fort Wayne City Attorney Tim Manges said he expected a dismissal because both sides had worked together on the amendments.

"Often you need to go to court to focus the language a little bit," he said. "I think it was a useful thing."

The city had not determined whether it would have fought the suit through the entire court process, Manges said. He said a compromise was expected before a long court battle.

Attorney Dennis Rorick, who is representing the business owners, did not return a call today seeking comment.

Fifer said the city ordinance already is affecting his business. He said revenue is down 40 percent since the ban went into effect, and he is losing employees.

"We're trying to figure out what to do at this point," he said. "There is no profit when you drop 40 percent."

Allen County also approved a smoking ban, but exempted private clubs, establishments that only allow patrons who are 21 or older and some other businesses. It went into effect June 1.