The state Alcoholic Beverages Division held a hearing this morning before an administrative law judge on pulling the liquor license of a West Burlington bar for violating the new statewide smoking ban. West Burlington police chief Alex Oblein testified that Otis Campbell’s Bar and Grill owned by Larry Duncan repeatedly violated the smoking ban.
Oblein says the city decided not to pursue a citation against Duncan because of the cost involved. Oblein says if they cited Duncan the case would be appealed and end up in the district court and eventually could go all the way to the Supreme Court. Oblein says that could cost the city thousands of dollars, while if they won the case, the city would only get a $100 fine.
Oblein says Duncan told him that he preferred to see the issue played out in court, and that was also part of the city’s decision to let the state handle the issue. Oblein says the city council made it clear, "the state made the law, the state kind of the way they wrote it, made the problem, and the state should be the one to handles it."
Duncan and his lawyer did not deny he is openly disregarding the smoking ban, and instead argued that he should have been cited and given the opportunity to defend himself in court. Duncan says the state is using his liquor license as "the pawn" to get him to comply with the smoking ban.
"There’s no question about it, they take my liquor license, they put me out of business. I mean that’s plain and simple," Duncan says, "and they put me out of business and 42 good employees out of work." Duncan says it shouldn’t be a liquor license issue, it should be an issue of the smoking ban. Duncan says they need to be in court to prove that the law is unconstitutional to prove "the other reasons used to make the law don’t hold water.
The Attorney General representing the state did ask Duncan if he was involved in other legal action against the smoking ban and he said he has contributed and does support the group of bar owners that has filed the lawsuit. Duncan says the state and lawmakers are using the liquor license issue to delay court hearings on the issue until after the election.
Duncan says he still totally believes he is right and says he doesn’t like conflict, and doesn’t like people saying he is breaking the law. Duncan says lawmakers have delayed the issue so they can get re-elected to the legislature. Duncan says,"They’ve been denying me due process for 120 plus days." Duncan says if he had been cited for a liquor license violation like serving someone illegally under age, he would have been in court already.
Both sides agreed to give the judge their final statements in writing. That and other procedures will delay the judge’s ruling on the issue until sometime in December. The judge will issue an opinion on the punishment she feels is needed in the case to the Administrator of the Alcoholic Beverages Division. The Administrator will then take action and Duncan will then have the opportunity to appeal.
There are four more hearings pending, but the Alcoholic Beverages Division Administrator says he is considering a settlement with the Whistle Stop Bar in Manning. The settlement would require the bar to lose its liquor license for seven days and pay a $1,000 fine.