Wisconsin restaurant not exempt from smoking ban

A Wausau restaurant owner can’t get around the city’s smoking ban by creating a “sham” private club with a $1 membership, a Wisconsin appeals court ruled Tuesday.

The 3rd District Court of Appeals upheld the constitutionality of Wausau’s law that bans smoking in restaurants and said restaurant owner Zack Jusufi was properly cited in 2005 for failing to enforce it.

“There is a rational basis for the ordinance’s classification and differential treatment of restaurants and private clubs,” the three-judge panel said.

The city’s smoking ban doesn’t apply to private, nonprofit clubs closed to public, and Jusufi, owner of Red Apple (nasdaq: AAPL – news – people ) Social Club, contended the ban was unconstitutional because it treated restaurants and private clubs differently in violation of the equal protection clause.

The appeals court upheld Marathon County Circuit Judge Greg Huber’s decision that the private club exemption was reasonable because it limited the number of places that would qualify for it, “thereby protecting a great percentage of the dining public.”

With Tuesday’s ruling, Jusufi, a 40-year-old father of three, has now lost his battle against the smoking ban in three courts, but he vowed to take the case to the state Supreme Court.

“Just because I am a small business owner, they feel I should just jump to their command, but I am pretty stubborn when it comes to giving away my rights,” he said. “We are being discriminated against because they are allowing smoking in establishment A but not in establishment B. I am not going to give up.”

According to court records, Wausau passed its smoking ban in July 2005. About a month later, police went to Jusufi’s restaurant and discovered people smoking. He was cited for failing to enforce the smoking ban.

Jusufi said his restaurant was a private club, open to people who paid a one-time $1 membership.

The city contended Jusufi’s club didn’t fit the exemption because it was a for-profit business.

The appeals court agreed. Jusufi’s club may have a board of directors and give to charitable causes but it was effectively open to the public, the panel said.

“In other words, as related to the smoking ban, Jusufi’s private club is essentially a sham,” the judges said. “His restaurant’s customers are those the smoking ban is designed to protect.”

Jusufi’s restaurant can seat 50 people, and his club has about 4,000 members, some from as far away as Florida, Jusufi said. It opened five years ago.

“Most of our business is smokers. We got some nonsmokers. I am a nonsmoker myself and so is my wife. I teach my kids not to smoke,” he said. “But to me it is government trying to interfere with a person’s business. To me it is a freedom, the government taking away our freedoms.”

Interim City Attorney Anne Jacobson did not immediately return a telephone message Tuesday.

Jusufi said his accountant advised him to file the paperwork to make the business nonprofit, run it that way and end the hassle.

“That would be basically saying the city was right and I feel that they were wrong,” the businessman said.

If smoking is bad and needs to be stopped, the city should not just single out for-profit restaurants, he said.

The law is a sham, Jusufi said. “It is not like you are not going to get cancer if it’s a not-for-profit establishment where you are breathing the secondhand smoke,” he said.

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