Galveston bar owners strike back at smoking ban by suing city

John Suayan, Galveston Bureau Mar. 2, 2010, 10:21am

GALVESTON - A group of local business owners have sued the city of Galveston over a smoking ban they claim would negatively affect their property values, recent court documents say.

In a suit filed Feb. 19 in Galveston County District Court, the group of bar, nightclub, and restaurant owners allege the city ignored state law when the city declined to conduct a formal study into the island smoking ordinance.

"The city refused to conduct the takings analysis and took the position that the language did not apply to its actions," the original petition says.

Galveston Mayor Lyda Ann Thomas and the members of the city council were individually, and in their official capacities, named defendants in the case.

The ordinance, which went into effect on Jan. 1, forbids lighting up in bars, restaurants and private clubs. Additionally, patrons are not allowed to smoke outside within 15 feet of the business's entrance.

The plaintiffs explain that in the closing months of last year they twice requested that the city reconsider the ordinance and make modifications to it, citing Texas law.

"The plaintiffs submitted that the ordinance had a profound effect on private real property owners of bars and taverns and it restricted an owner's right to the property that would otherwise exist in the absence of the passage of the ordinance," the suit says.

"In addition, the plaintiffs brought to the defendants' attention that Texas law requires a takings analysis be performed by the city before the passage of any such ordinance."

The ordinance was enforced without any regard to the plaintiffs' rights and state law as the Galveston police chief has made clear that the city intends to enforce the ordinance, it adds.

Consequently, the complaint requests that Galveston County 405th District Court Judge Wayne Mallia temporarily enjoin - pending final trial - the enforcement of the ban until the city undertakes a takings impact assessment of each owner's land and the land of those similarly situated.

"The city cannot willfully violate the provisions of Texas law in the passage of the ordinance and then enforce the provisions of the ordinance," the suit says.

Galveston attorney Anthony P. Griffin is representing the plaintiffs.

Case No. 10cv0510

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