GALVESTON — Citing a state law designed to shield businesses from government regulation, a group of bar and restaurant owners is challenging a sweeping city ban on tobacco smoking set to become law Jan. 1.
In a letter to the city’s attorney, the Galveston Bar and Tavern Owners Association asked the city to conduct an assessment of how the ordinance would affect its member businesses.
Such an accounting, called a “Takings Impact Assessment,” is required under the state’s Private Real Property Rights Protection Act, the association argues.
The association wants to negotiate with the city to amend the ordinance, which will prohibit lighting up in bars, restaurants, private clubs and even tobacco shops.
Failing that, the association plans to take its complaint to the Texas attorney general, according to the letter.
The ban constitutes a regulatory taking because it would drive away customers, the association argues.
But the group has a tough fight ahead trying to prove the ban denies its members economic use of their property, constitutional law experts and observers of legal battles sparked by smoking bans said.
Along with the letter, the group this week gave City Attorney Susie Green a list of signatures from owners of 28 properties.
The group continues to gather signatures, Steve Everts, an owner of the 815 21st St. building that houses Marie’s Albatross, said.
Everts also supplies jukeboxes, pool tables and countertop games to island venues.
Under the state law, a taking is a governmental action that causes a reduction of “at least 25 percent in the market value of the affected private real property.”
Such takings are difficult to prove because government has the authority to regulate use of private property, especially to protect public health, according to guidelines about the protection act published by the Texas attorney general.
City council members who voted for the smoking ban did so with public health in mind.
“Governmental actions taken specifically for the purpose of protecting public health and safety may be given broader latitude by courts before they are found to be ‘takings,’’’ according to the attorney general’s office.
If the group filed a lawsuit using the takings argument, it likely would lose, said Richard A. Epstein, a law professor at the University of Chicago and author of “Takings: Private Property and the Power of Eminent Domain.”
“There is no strong line of authority that backs it,” Epstein said.
Business groups in other states have used the takings laws to no avail.
Owners of Toledo, Ohio, bars challenged the constitutionality of a smoking ordinance with a regulatory takings argument, according to the Tobacco Control Legal Consortium.
The court acknowledged evidence some of the businesses lost revenue but said that alone was insufficient to rule the government’s action a taking.
The consortium concluded the vast majority of laws banning smoking in public have been upheld.
The takings argument is becoming less common, Maggie Mahoney, deputy director of the consortium, said.
“It has been used, but groups haven’t gotten far with it,” Mahoney said.
Groups for smoking bans argue few businesses can attribute a drop in business to the bans, while others have even seen an increase in business after a ban.
The island’s smoking ban is one of the strictest around, observers said.
Adopted in July, it forbids smoking even on decks and patios at restaurants and bars. Smokers must stand 15 feet away from doors.
City officials could avoid a legal fight if they either rescinded the ban or amend it to allow smoking on restaurant patios and decks and inside bars and taverns, Everts said.
Council members Danny Weber, who voted against the ban, and Tarris Woods agreed Thursday to put the ordinance on the agenda for the next meeting on Oct. 22.
“There’s too much interference in private business,” Weber said.
