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Status of smoking in bingo parlors at the heart of suit

Tuesday, April 22, 2003 by

Two Texas veterans’ organizations have sued the City of Austin and the City of Dallas, claiming that anti-smoking ordinances enacted by both cities interfere with their constitutional rights and make it difficult to raise funds for the organizations. The veterans also sued Texas Attorney General Gregg Abbott, who is a legally necessary party to the suit.

The suit, which was filed last week in state district court in Travis County, by American Veterans, Department of Texas and the Veterans of Foreign Wars, requests that the court issue an injunction against the two cities to prevent them from enforcing their anti-smoking ordinances and declare the ordinances to be invalid because they conflict with state law. The Texas Penal Code makes it illegal to smoke in a number of public places, including move theaters, museums, hospitals, schools and buses. Both cities have considerably stricter ordinances than the penal code provisions. On April 10, the City Council held a public hearing on an ordinance, proposed by Mayor Gus Garcia, that would ban smoking in restaurants, bars and hospitals, as well as bingo parlors—which veterans’ groups run to help fund their organizations. The Council has scheduled an initial vote on the ordinance on May 8—five days after the Council election.

Jennifer Riggs, attorney for the plaintiffs, said, “This is not about whether smoking is good or bad . . . what this is about is how far can government go to tell people what they can do on their own property with regard to people who are there voluntarily. It’s also about the balance between cities and the state. We have a state law that says where it’s okay to smoke and where it’s not . . . and the cities are trying to change that.” Riggs, a partner at Hill Gilstrap Riggs Adams & Graham, said the veterans are not just opposed to the new ordinance, but also to the one currently in place.

The lawsuit states that the Dallas ordinance provides for an exception for bars and billiard halls, but not for bingo parlors. Austin’s proposed ordinance does not propose any exceptions, although Adam Smith, an aide to Mayor Garcia, said he thought his boss might go along with an exception if another member of the Council proposed it.

Riggs said the veterans’ groups have sued Austin “because the City of Austin has defined as a public place and expanded those places where you cannot smoke into private places. Right now, they do allow smoking and non-smoking sections in the bingo halls, in particular, where the VFW’s have most of their bingo events . . . The existing ordinance, we think, is just as defective as a ban would be. And, of course, we are very concerned about a ban . . . We sure would like to talk to the city before they put it into effect. But we really couldn’t wait for that to get a declaration about what state law says and how far cities can go.”

Smith said, “I think similar lawsuits have been filed in other states and none of them have been upheld. While the city cannot regulate possession of tobacco, it is within the city’s power to regulate where that product is used . . . We expected this lawsuit to come, but we didn’t expect it this early, particularly since nothing has been passed.”

Dahmus says city must prevent bottlenecks in new development

Transportation issues need to play a higher profile role in the site planning and traffic impact analysis process, members of the Urban Transportation Commission decided at last night’s meeting.

Commissioner Michael Dahmus spearheaded the effort, calling on the city to do more to address anticipated traffic bottlenecks in new development. Dahmus used his own office-apartment complex on Riata Trace as one example of poor traffic planning. Even planning for a concentration of 10,000 workers, the developer had failed to put building exits along either the arterial roadway or the frontage road of US 183. The development is also on the wrong side of the freeway to take advantage of a popular Park-and-Ride facility that is only a half-mile away.

The developer treated traffic to and from Dahmus’ office complex as if it were a mom-and-pop business of 50 employees, he said. Instead, it serves one of the highest concentrations of employees in the city, outside downtown. Traffic at the exits is often stacked 15 or 20 vehicles deep at the close of work.

“I understand we don’t have any impact with that facility, but it’s something that might have made sense at the time, either in the zoning or the site plan process,” Dahmus told his colleagues. “Large office site plans are poor executed when it comes to transit, bike and pedestrians. This is an attempt to pull this thing forward again, that we make some recommendations to staff on the kinds of things that we would like for them to review.”

The city is limited on the aspects of transportation reviewed during the site plan process, Planner George Zapalac of the Watershed Protection and Development Review Department told the commission. The review is confined to the transportation criteria under the Land Development Code: access for the disabled, placement of sidewalks, parking and loading zones and bike and parking spaces.

The City Council has slightly more latitude under the zoning process. Zapalac observed that, in the last few years, city staff has received direction to pull back a bit from making comments on internal streets to the site. Each site plan requires a traffic impact analysis for a development that will generate more than an estimated 2,000 trips a day. On the residential side, that represents a complex of more than 310 units.

Zapalac suggested the site plan might be a bit too late to consider accommodating changes for traffic patterns. At this point in the process, most developers would have already spent tens of thousands on engineering and design fees, and would be unwilling, or unable, to tear up their plans.

Dahmus suggested using the Ordinance Subcommittee to consider recommendations to the city. Those recommendations would likely be considered during the traffic impact analysis process, Dahmus said. He said he would like to review the city’s ingress-egress policy, as well as the placement of development along frontage and arterial roads.

Council meetings . . . The City Council Audit and Finance Committee will talk about how the City Auditor’s Office has been doing for the past six months, among other things, beginning at 10am today at City Hall . . . The City Council Health Care Subcommittee is scheduled to meet at 3:30pm . . . Busy day for candidates . . . Mayoral candidates have been invited to discuss how they will ensure that South Austin remains “Too Cool to Bulldoze,” at the South Austin Culture Club’s luncheon today. The forum begins at noon at Architerra at Penn Field, 3601 S. Congress, Building C . . . There will also be a forum focusing on concerns of businesses in the Warehouse District at 2pm today at Cedar Street Courtyard, 208 W. 4th St. Following that, mayoral candidate Marc Katz will hold a press conference at his deli at 6th and Rio Grande. Katz has said that he will announce a plan to require all elected city officials to cut their salaries “for the duration of the budget crisis.” That probably won’t win him many votes among the Council members he hopes to join . . . Another chance . . . The Gay Lesbian Chamber of Commerce is holding a forum tonight at 7pm at Dave and Buster’s, 9333 Research . . . Clearing the air . . . The House Committee on Environmental Regulation will meet at 2pm today. One item of particular interest in Central Texas is HB 2963, authored by Rep. Mike Krusee (R-Round Rock) with the support of Reps. Dawnna Dukes, Elliott Naishtat, and Eddie Rodriguez (D-Austin). The bill would allow for establishing motor vehicle emissions testing programs in counties participating in early action compacts, such as those in the Austin metropolitan area . . . Airport news . . . Austin-Bergstrom International Airport reports that passenger traffic for March was down about 2.4 percent compared to March 2002, but overall passenger traffic is about one percent higher than at this time last year. Air cargo traffic, an important indicator of economic activity, fell 7 percent last month and is 3 percent lower than last year. But international cargo has risen 39 percent for the first quarter compared to 2002, totaling 5.4 million pounds so far. . . . Early voting continues . . . As of the close of business yesterday, 5,761 voters had cast their ballots at Early Voting locations. The number represents a little more than one percent of the city’s registered voters, according to the Travis County Clerk’s Office. Early Voting for the May 3 election continues through April 29.

© 2003 In Fact News, Inc. All rights reserved.

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