Judge temporarily blocks state's rules limiting smoking in restaurants

Tuesday, July 16th 2002, 12:00 am

By: News On 6

TULSA, Okla. (AP) _ A Creek County judge Tuesday temporarily blocked new state regulations limiting public smoking, ruling that their enforcement will harm restaurants and other businesses through a loss of customers.

The restraining order by District Judge Donald D. Thompson prevents Gov. Frank Keating and the Oklahoma Department of Health from enforcing their regulations until a hearing Monday in Creek County.

``This is a big victory for Oklahoma businesses,'' said Michael Morgan, a Stillwater attorney representing plaintiffs Freddie's Barbecue and Steakhouse and the Veterans of Foreign Wars Post 1320.

The Sapulpa businesses have sued Keating and the department, alleging they overstepped their authority in enacting the regulations and asking a judge to declare them illegal.

Gary Gardenhire, general counsel for the department who's also representing Keating, said he was unaware of Thompson's ruling.

On June 26, Keating signed the department's rules requiring restaurants with no-smoking sections and seating capacities of 50 or more to enclose and ventilate areas where smoking is allowed.

The rules apply only to food and drinking establishments with no-smoking sections. Those that allow smoking throughout the business or ban smoking altogether are not affected.

Freddie's and the VFW sued a day later and asked for a temporary restraining order blocking enforcement. They also claimed the rules contradict other state laws regulating public smoking.

The next day, the state moved the case to federal court, arguing that the case raises federal questions. But a federal judge sent the lawsuit back to Creek County last week.

Thompson's order Tuesday is ``what we originally requested, but before the court could act on it, the state removed this case to federal court,'' Morgan said. ``I guess the judge felt there was reason to sign our request now.''

Thompson wrote that enforcement of the rules would cause Freddie's irreparable harm ``through a loss of business which would be so speculative that it would be difficult if not impossible to arrive at the correct amount of damages.''

The Oklahoma Restaurant Association, which advised Freddie's and the VFW Post in their lawsuit, claims complying with the rules will be a financial hardship for affected businesses.

Keating has said the smoking rules fulfill the department's duty to regulate public health. The department's attorneys say the regulations are necessary to comply with the Americans with Disabilities Act.