Eatery Sues, Claims Smoking Ban Unconstitutional

By Denise Zoldan

An East Naples restaurant has filed what may become a landmark tobacco case in Florida — a suit that contends the state's Clean Indoor Air Act violates the U.S. Constitution. The Castaways Backwater Café Inc. filed the suit in U.S. District Court in Fort Myers this week against the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco. The suit alleges that the unequal application of Florida's Clean Indoor Air Act makes it unconstitutional.

The law allows patrons of bars and outdoor dining areas to smoke, but denies the same right to patrons of restaurants. It does so because bars pay thousands of dollars more for state liquor licenses than restaurants pay for their licenses, the suit alleges.

Castaways attorney Ludwig Abruzzo states in court documents that the law is "illegal and invalid in that it contains exceptions to its provision which are based solely on economic consideration, that is it allows smoking in taverns, bars, and other locations wherein less than 10 percent food is served. The exceptions are enacted to grant special economic privilege to those holding liquor licenses which are the most costly. There is no other rational reason for these distinctions."

By the time the smoke clears in this case, the unintended consequence could be the end of all indoor smoking in Florida, said Abruzzo, a Naples attorney.

"That's probably what's going to result here. But that's not what my client wants," Abruzzo said.

His client simply wants people to be able to decide whether they want to dine at a restaurant that permits smoking.

State officials said they were unable to comment on the case Wednesday because they hadn't yet been served a copy of the lawsuit.

Kristin Ploska, spokeswoman for the Florida Department of Business and Professional Regulation, said: "When we are (served a copy of the suit), our attorneys will respond appropriately."

Ploska was uncertain whether this was the first time Florida's Clean Air Act had been challenged as unconstitutional. Abruzzo said he could find no other similar case in Florida.

The Castaways seafood and Italian restaurant at 2025 Davis Blvd. has never enforced the indoor smoking ban.

The law went into effect in July 2003 after voters, backed by the Heart Association, American Lung Association and other health organizations, passed an amendment to Florida's Constitution. Voters and health-conscious organizations were frustrated with legislators who were unwilling to strengthen what at the time was a voluntary indoor smoking ban.

The East Naples restaurant has been wrangling with state officials over enforcement of the ban ever since. The restaurant has been cited at least three times for violations, but hasn't paid fines because the matter has been in negotiations and administrative hearings, Abruzzo said.

Alfred Rusillo, owner of the restaurant, said he didn't want to comment on the suit.

Abruzzo alleges that another rationale behind the indoor smoking ban is to protect workers and patrons from second-hand smoke.

However, "the health of all workers and patrons are not protected as the statute intended, since patrons and workers are subjected to second-hand smoke equally at bars that serve only 10 percent food as at restaurants or outdoor dining areas."

Abruzzo said a petition drive in Naples to get legislators to address the issue resulted in more than 5,000 signatures but little else.

"But nobody would act on it," he said.

So out of frustration, he filed the civil suit in federal court.

"We tried to get the Legislature to do something about it," he said.