North Carolina - smoking ban being challenged by some small businesses..

January 2, 2011 - One year after restaurants began obeying North Carolina's smoking ban, several small businesses in the state are pushing ahead with a legal challenge to limit the scope of the law.

On January 2, 2010 the State of North Carolina's ban on public smoking went into effect. The law according to the bill made smoking prohibited in all enclosed areas of restaurants and bars. (North Carolina (NC) - beginning in January 2010 fire safe cigarettes (FSC), smoking ban in public places..)

Are there any restaurants, bars or private clubs that do not have to follow the law?
Yes. The following types of restaurants, bars or private clubs are not required to comply with the new smoke-free law:
Non-profit private clubs and country clubs: In order to qualify for this exception, the club must satisfy all of the following criteria:
Membership: The club must maintain selective members.
Operations: The club must be operated by the members.
Restricted service: The club must not provide food or lodging for pay to anyone who is not a member or a member’s guest.
Nonprofit status: The club must either be:
incorporated as a nonprofit corporation under state law (found in G.S. Chapter 55A); or
exempt from paying federal income tax under federal Internal Revenue Code. (North Carolina Smoke-Free Law: Guide for Private Club Owners)

A judge in Greenville recently rejected health department violations filed against four establishments there and allowed the businesses to host smokers once again. Another lawsuit in Guilford County is moving to the Court of Appeals. George Beaman, who runs three of the Greenville bars affected by the ruling, estimated business was down nearly 40 percent during the months smoking was banned. "Now the business has picked back up," he said.

In Greenville, Judge G. Galen Braddy saw little difference between the nonprofit clubs that can allow smoking and the bars in his area banned under the law. He called the enforcement arbitrary and unconstitutional. "Treating them differently does not further the purpose of reducing secondhand smoke exposure to the public," he said.

State officials report that the vast majority of restaurants and bars in the state appear to be obeying the ban. While there were complaints against 318 businesses in January after the law went into effect, there were complaints against only 25 businesses in November. A restaurant association continues to support the ban.

But Don Liebes, who owns Gate City Billiards Club in Greensboro, said he has continued to allow smoking on some occasions and prohibit it on others. He doesn't want to follow the ban outright because he expects he would lose about 30 percent of his revenues. He would not elaborate on when he allows smoking.

Liebes and other businesses are challenging a portion of the law that allows smoking in private, nonprofit clubs — such as a fraternal organization. Gate City Billiards Club does not qualify for that exemption, and an attorney for Liebes said that violates the constitutional right of equal protection.

Liebes, meanwhile, lost his initial argument in Greensboro but has appealed.

Reference: For NC's smoking ban, legal challenges move ahead by MIKE BAKER, by The Associated Press, Bloomberg.com, 12/29/2010.

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