Jump to full article: Associated Press (AP), 2002-06-28
Author: Clayton Bellamy / Associated Press Writer
Intro: The state of Oklahoma on Friday exercised its right to move a lawsuit challenging new smoking rules in restaurants from state court into federal court, the state's attorney said.
Gary Gardenhire, general counsel for the Health Department, said he filed papers to change the venue from Creek County District Court to U.S. District Court in Tulsa because the lawsuit deals with federal questions.
The motion means a hearing on a restraining order scheduled in Creek County on Monday, the day the rules take effect, is likely canceled, Gardenhire and the plaintiffs' attorney said.
"We'll probably show up anyway, but I doubt (the judge) will take any action," said Michael Morgan, who's representing Sapulpa plaintiffs Freddie's Barbecue and Steakhouse and the Veterans of Foreign Wars Post 1320. . .
Gardenhire said the case deals with two federal questions.
One raised by the plaintiffs accuses the government of taking restaurateurs property without due process, he said. The state's defense will also involve the Americans with Disabilities Act, a federal law giving rights to the disabled, Gardenhire said.
"That sounds like an imaginative approach," Morgan said. "We'll have to look at it, but it's hard to imagine there's a federal issue in this."
The lawsuit claims that Keating and the department lacked the authority to enact the rules and that they violate state law governing smoking in public places.
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