Smoking ban challenge rejected

The state Court of Appeals has rejected a former Macomb County bar owner's bid to have Michigan's smoking ban declared unconstitutional. In an opinion Thursday, the court ruled that because Boyd Cottrell's Warren bar went out of business, and he has no plans to open another, his attempt to halt the Macomb County Health Department from enforcing the ban on cigarette smoking in public places is moot.

The health department, in oral arguments before the appeals court, pointed out that it could no longer seek to sanction Cottrell for violating the smoking ban because his bar is closed. "Defendant is now out of business — accordingly, enjoining the ban's enforcement would not provide him any relief," the appeals court wrote. "Moreover, because the defendant has no plans to reopen, the continued enforcement of the smoking ban will not continue to affect him in a collateral way." But Cottrell's attorney, Theodore S. Andris, said Friday the battle isn't over. "I'm not done with this litigation," he said.

"This should be condemned as unconstitutional. Why is secondhand smoke in a casino OK, but not in a mom-and-pop bar? It defies logic." Andris could challenge the ruling in the state Supreme Court, but said he hasn't decided if he'll go that route. Cottrell, who owned Sporty O'Toole's, challenged the smoking ban last year in Macomb County Circuit Court. The law, which took effect May 1, 2010, bans smoking in all enclosed indoor bars and restaurants and on outdoor patios of establishments serving food and drinks.

Gambling floors at casinos are exempt. Andris has argued that the law unfairly restricted Cottrell's Mound Road bar, which offered food, drinks and state lottery games. The Michigan Department of Community Health previously said Cottrell's bar was a licensed food service establishment that has lottery machines and Detroit's casinos are licensed for gaming under the Michigan Gaming Control and Revenue Act. Cottrell was cited twice in 2010 for allowing patrons to smoke inside his bar.