Pitt County Health Department is appealing a district judge's decision to reverse smoking fines against four local bars that allow smoking indoors.

A comprehensive smoking ban went into effect on January 2, 2010 that included banning smoking in restaurants and bars with the exception of private clubs operating as nonprofits.

The latest case is an appeal of a decision by Pitt County District Court Judge G. Galen Braddy. In November 2010, Braddy ruled in favor of four Pitt County bars, which had asked the court to review the health board’s decision to uphold the smoking fines levied by Dr. John Morrow, director of the health department. In his decision, Braddy wrote that it was unfair to allow smoking at nonprofit operations, including country clubs, while denying that right to for-profit private bars. He made clear that his decision to allow indoor smoking was limited to those four bars: Club 519, Live, 5th Street Distillery and Mac Billiards.

The Pitt County case is the second in North Carolina. In the first appeal, the Court of Appeals upheld a Guilford County court's decision. In that case, Gate City Billards owner in Greensboro challenged the equal protection clause that allowed private, non-profit clubs the right for smoking to still occur on premises. The court found exempting nonprofits acts to preserve "the right to associate in truly private clubs that are not open to the public" while protecting "the greatest number of restaurant [and bar employees]" from secondhand smoke. Briefs have been submitted to the court of appeals from the State of North Carolina as well as from associations including; the American Heart Association, the American Lung Association, and the American Cancer Society. Each brief submitted cites the Guilford County court's decision with the hope that the Court of Appeals will follow suit in this case.

With consideration of the prior case, the owners of the 4 for-profit clubs feel "banning smoking at for-profit restaurants and bars that are private clubs, but allowing smoking in country clubs, is unconstitutional because the legislation treats similarly situated businesses differently." The attorney who represents the four clubs, Jonathan Bridgers, explained that the case over the Greensboro club addressed a different part of the legislation than this case.

Bridgers said last week that the law wrongfully “carves out a specific distinction” for country clubs, whether they operate as nonprofits or not, due to the way the law is written. Meanwhile, the health board’s brief argues that the law’s exemption as written applies solely to nonprofit country clubs. Bridgers said the issue is whether it is wrong that country clubs that operate for profit can allow smoking while for-profit private clubs cannot do so. “This unlawfully discriminates against defendants’ business without any practical or rational justification … ,” he said. He also argued that his clients meet the definition of a private club under a separate statute pertaining to Alcoholic Beverage Control.

Only time will tell who wins this case, but it seems this case is uniquely different from the first where decision was upheld by the Court of Appeals. What are your thoughts?