Warren bar owner loses bid to overturn smoking ban

Mount Clemens – A judge today denied a Warren bar owner’s request to declare the state’s smoking ban unconstitutional but did toss out a fine the man incurred, agreeing some elements of the law are confusing.

Cottrell argues the law unfairly restricts his establishment, while gaming floors at Detroit casinos are exempt.

In a courtroom packed with nearly 100 bar owners and patrons from Michigan, Ohio and Ontario, Macomb County Circuit Judge Edward Servitto said it’s difficult to monitor how the law is enforced at Detroit’s three casinos. But he added that 18 percent of the state’s tax on gross gambling revenues from the gaming establishments benefits crime prevention and economic development in the city as well as state education.

“Clearly, the legislature has a legitimate purpose to promote gaming in the City of Detroit,” he said.

Smoking ban

Smoking ban

Servitto also noted the law requires all food service establishments to be smoke free. Cottrell’s restaurant and bar is a food service establishment subject to the smoking ban, he said.

“You are not going to be smoking and drinking,” the judge instructed Cottrell’s attorney, Theodore S. Andris.

Servitto then added the Macomb County Health Department will “not be awarded any costs” in this case.

The Macomb County Health Department cited Cottrell twice last year for allowing patrons to smoke inside his bar. Cottrell paid the first$100 fine but failed to pay for his second offense. County attorneys filed a complaint in November in Macomb County Circuit Court to have Cottrell pay the $500 fine and comply with the law.

The law took effect May 1 and bans smoking in all enclosed indoor bars and restaurants, and on outdoor patios of establishments serving food and drinks. Gambling floors at casinos are exempt.

Andris said he believes Servitto noted some weaknesses in the act.

“In my opinion, this is an invitation to go the Legislature to tailor it a little more,” he said. “What’s going on down in casinos, the judge pointed out, is not clear at all.”

Andris said he will consider appealing today’s ruling.

Roseville resident Russ Bunte said today’s outcome is a small victory for Macomb County bar owners and their customers.

“We did have a little bit of a victory,” said Bunte, 50, a Macomb County bar patron angered over the law.

“We made some noise and he didn’t get fined. That’s progress.”

Steve Mace, executive director of the group Protect Private Property Rights in Michigan, said Servitto “passed the ball back to legislators.”

“Our concern now is that lawmakers start answering their phones to those calling and emailing,” he said. “This law is contradictory. They made sure casinos are protected, but there’s no financial protection for small businesses offering the same services.”

Cottrell, a retired Detroit police officer, bought the bar in December 2009. He claims his business was nearly cut in half after the law took effect.

The case is the first smoking ban-related challenge in Macomb County.

In December, an Upper Peninsula judge dismissed a similar lawsuit by an American Legion post.

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