27 Oshkosh, WI Restaurants Seek to Repeal New Smoking Ban

By Alex Hummel

Halt or throw out Oshkosh’s restaurant smoking ban or pay restaurants the “monetary damages” they say they’ve incurred since cigarettes, cigars and pipes became outlaw in city eateries. That’s the ultimatum from a group of 27 city restaurants in a claim against the city of Oshkosh seeking to snuff out a less than two-month-old restaurant smoking ban.

But the claim also offers an “alternative”: The city could pay the restaurants for unspecified damages they cite as a direct result of the ban prohibiting smoking in any restaurant with more than 30 percent of annual revenue coming from food sales.

Their Appleton attorney, Charles Koehler, argues the city’s April 6 smoking ban referendum was “misleading” to voters who narrowly approved it. The ban ordinance is also unconstitutional, casting “restaurant business owners as a separate class of citizens receiving unequal treatment,” Koehler states.

Oshkosh voters approved Breathe Free Oshkosh’s restaurant smoking ban referendum on April 6 with more than 6,300 votes. A close second was a rival referendum prohibiting any such ban in the city until state or federal government enacted one. Citizens for Freedom of Choice’s second question garnered 6,100 votes.

In their new claim, the restaurants call for the city to adopt a moratorium prohibiting enforcement of the restaurant smoking ban until a Winnebago County judge considers the “legality of the ordinance.”

Several of the restaurants signed onto the new claim, like Ratch and Deb’s, despite having been granted the smoking ban’s tavern exemption, which allows establishments with more than 70 percent of annual income from alcohol to have smoking inside.

The claim cites a range of points challenging the Breathe Free referendum’s and ban’s validity including:

E Technical concerns such as the referendum question’s conciseness “to the point of being misleading.” Koehler argues the referendum inaccurately suggested restaurants experiencing financial harm, as defined by the ordinance. However, restaurants can only receive a one-year exemption, not a perpetual one.

E Constitutional concerns. Koehler states the smoking ban ordinance is “too vague and ambiguous for purposes of legitimate understanding as to its application, scope and enforcement” and “infringes on constitutional provisions insuring freedom of association, assembly and speech and the right to travel and enter into contracts.”

Margy Davey, Breathe Free’s coordinator, said the smoking ban referendum was “totally above board and legal.” Davey said she had not yet reviewed the claim Tuesday afternoon.

“I guess I’m disappointed they (restaurant owners) didn’t have more of a positive attitude and give it a shot,” Davey said.