The Superior Court lawsuit was filed in August by three Mesa residents who are members of the National Smokers Alliance, which is funded in part by the tobacco industry.
The city denies the lawsuit's allegations that the law is so vague and overbroad it prohibits incense burning and smoking onstage and tramples on various constitutional rights and should be declared illegal.
The Mesa antismoking ordinance, recognized as one of the toughest in the nation, was passed by voters in March and took effect in July. Although about 350,000 people live in Mesa, only 20,729 voted for the measure; 16,380 voted against it.
Proponents of the law, including 68-year-old retired oncologist Clifford Harris, who headed the antismoking effort, say the law is a "clean-air law" aimed at protecting residents from the dangers of even slight exposure to secondhand smoke.
"Tobacco smoke," says Harris, "is like radiation; there is no minimum safe level. . . . The right to clean air far exceeds the right to smoke."
Prohibiting incense burning in Catholic churches, he says, is "nonsense" and was never intended.
But opponents like Kat Gallant--a failed mayoral candidate and owner of a salon called "Fantasies" (where men get haircuts from lingerie-clad women)--claim the law is draconian and will harm businesses.
Since the law was passed, Mesans have reacted in a number of ways. An effort to recall antismoking members of the city council has been launched; four lawsuits have been filed against the city; an anti-antismoking ordinance is being promoted by Gallant; some merchants are up in arms, citing a survey released last week showing that sales in restaurants, pool halls, hotel bars and bowling alleys have plummeted since the ordinance took effect. The American Civil Liberties Union has expressed reservations about the ordinance's "overbroad" language.
Even the Fraternal Order of Moose has a gripe. A spokesman says attendance at bingo games has dropped because players can no longer smoke in the lodge; he projects a $35,000 shortfall in the club's annual $50,000 charity budget.
No one disputes that the new law is strict. For instance, the law says all private and public places of employment must be smoke-free--unless employers provide an inside smoking area that nonsmokers need never enter and which has a separate heating and cooling system. Normal employee lounges must be smoke-free. So must hotel conference rooms, all eateries, auditoriums, rest rooms. All queues, such as movie waiting lines, must be smoke-free. Smoking is also prohibited in park ramadas, outdoor bus stops, near entrances of buildings, in waiting areas at car washes and in restaurant dining patios.
Smoking is allowed in private homes, public housing, hotel rooms designated for smokers, some bars and private clubs. The private-club waiver has prompted some pool halls to begin calling themselves private clubs, which require patrons to purchase memberships.
Smokers and businesses who violate the law must pay up to $200 in fines. And the National Smokers Alliance members contend in their lawsuit that the way the law reads, hotel managers and others are required to "rat" on establishments that do not provide smoke-free environments or face a fine of up to $2,500 or up to six months in jail.
There's more than a bit of irony in the notion that Mesa, one of the most libertarian cities in the state, would pass a law so politically correct that it seems better suited to a city like Berkeley, California, which seems to regulate practically everything.
Of course, the seven city council members can modify the ordinance to make it more business-friendly, but they seem to be waiting out the hysteria. Jim Stapley, a councilman targeted for recall, says the council should wait to see how many voters Kat Gallant can get to sign her anti-antismoking petition, how many really favor repealing the law before the council does much "tweaking."
Stapley, a retired hardware merchant, says the effort to recall him is unfair because, after all, he is only supporting an initiative the residents voted for in the first place. (The other councilman targeted for recall is Farrell Jensen, who did not return phone calls. Jensen, a former director of the United Food Bank, is the center of another controversy--the city has ordered an audit of his expenses while director of the food bank amid questions about his use of the organization's credit cards.)
But even Stapley, who voted for the law, says he thinks the measure is "too restrictive." He doubts if he would vote for it again.
Stapley, a Mormon, says the antismoking law was not promoted by the city's Mormon leadership. The Mormon religion prohibits smoking. "The population of Mesa is now only 16 percent Mormon," says Stapley.
Harris, who is a Methodist, also says the Mormon Church refused to support the measure.
"I am an oncologist," he says. "I spent my life helping people with cancer; I did this from my heart."
Harris says most of the donors to the $41,000 initiative effort were non-Mormon doctors and hospitals. The American Cancer Society also contributed, he says.
Harris says the backlash against the law comes from a small number of businesses. Studies of cities with similar ordinances reveal that for the "first three months there are some negative effects, but after that it balances out," he says, and no businesses "have gone bankrupt" because of "clean-air laws."
Catholics and actors, in the meantime, don't seem to be too ruffled by the law. "There are times when the ordinance would get in the way," says Lyn Dutson, director of theatre for Mesa Community College. In some plays, she says, the characters must smoke. And she says "as a theatre person" she'd probably ignore the ordinance.
And several representatives of Catholic churches in Mesa say they'll keep burning incense.
"We use it all the time," says Deacon Donnan Lukaszewski of the All Saints Catholic Church in Mesa.
"And we don't intend to stop.