Winfield’s Veterans of Foreign Wars Club on E. 10th is meant for members only. Visitors to the club encounter a locked door and are asked to ring a bell and identify themselves before entering.
These are among the reasons why club officials have filed a suit in Cowley County District Court asking to be exempted from the city’s ban on public smoking. The suit was filed Jan. 2 ? the day the ban went into affect ? but was not served to the city’s clerks office until last month because the plaintiff had not paid a $5 service fee.
VFW officials are asking for a temporary injunction and temporary restraining order to keep the ban from being enforced while the issue goes through the court system. No date has been set for a hearing on the case.
Since receiving notification of the suit, city officials have turned the issue over to attorneys for the city’s insurance company. In a response filed with the court Feb. 25, the city contends the ordinance was legally enacted and published in the newspaper prior to enactment.
The Kansas Supreme Court has upheld a similar ban in Lawrence, according to the city’s response. City Attorney Bill Muret also has said the suit is similar to one filed in Newton that was dismissed by a judge.
NewsCow first reported the filing of the suit last week and since then has reviewed the various filings. This is a summary of key claims made in the VFW’s suit:
– Spencer Yarbrough VFW Post 3544 operates a private club and canteen that caters to members only. Membership is earned by foreign military service and cannot be purchased for a fee. The club is in a secured area and not open to the public.
– The VFW doesn’t serve food and is therefore not a food service establishment. The city’s ban includes all food-service establishments.
All employees of the club are members of the Auxiliary to the Veterans of Foreign Wars. The manager and both employees have no objection to smokers.
– The VFW does not have a cereal malt beverage license issued by the city but instead is licensed by the Kansas Department of Revenue, Division of Alcohol Beverage Control. The city’s ban also include licensed establishments.
– The ordinance is discriminatory because it is not enforced at Strother Field Airport ? an industrial park operated, in part, by the city of Winfield.
"Private places" are exempt under the city guidelines and the VFW is a private place.
– The ordinance intrudes upon and violates the Fourth and 14th Amendments of the constitution which protect the rights of citizens to be secure; and it deprives persons of life, liberty or property.
The suit was filed on behalf of the VFW and its commander, Edward Brake, by Orlin Wagner, an attorney for the Wichita-based firm Young, Bogle, McCausland, Wells and Blanchard.
