HomeMy WebLinkAboutA033 - Legal Opinion dated August 9, 2001 - City Attorney's Office
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August 9, 2001 f�1iu L7 LL
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The Honorable Ted Tedesco,Mayor, " `i AUG — 9 :31 ! ;:
and Members of the City Council _
of the City of Ames, Iowa CITY C3 K
CITY FOF AMES,IOWA
Re: Smoking Ordinance -Private Club/Public Place
Dear Mayor Tedesco and Council Members:
Some questions have come to me from the news media,the City Council,and the Police Department
about the issue of"private club" and the smoking ordinance.
The ordinance regulating smoking applies to establishments that are a"public place" as that term is
defined by the state law on smoking, at Section 142B.1(3)Code of Iowa, as an". . . area used by the
general public . . .". The Iowa Attorney General, in an opinion dated June 28, 1991, concluded that
definition did not include a: ". . . a private club frequented only by members and their invited guests,
such as a country club". On that basis,the Ames ordinance does not apply to the Elks,the American
Legion, or any other establishments operated by membership organizations where access is limited
to members and guests only. Insofar as the smoking regulations are concerned,whether or not a place
is called a private club is not what matters. What matters is whether the place is open to and used by
the general public. A"private club" can be a"public place".
In an opinion of the Iowa Attorney General dated March 13, 1952,pertaining to Iowa liquor laws, it
was stated that: "Whether in a particular instance a `club' is a `public place' is a fact question".
Whether a place is or is not a"private club", as that term is defined under the Iowa liquor law or the
city zoning ordinance, is not determinative of whether the smoking law applies. The smoking law
applies to a"public place". A private club can be a public place depending on use. If the Elks or the
American Legion or other such"club"would in fact solicit or encourage use of its establishment by
the general public, such place could become, as a matter of fact, a public place.
As stated by the Iowa Attorney General in the 1952 opinion:
". . . the quarters of bona fide associations of select discriminate membership owned
and operated by and for the benefit of the members,under the exclusive control of the
membership are deemed private places in the eyes of the law,whereas,establishments
which have merely assumed the club form but are lacking in the substantive attributes
of a true club and are in fact business ventures, and are within contemplation of law
`public places"'.
Therefore, if a place that has been operated as a business enterprise declares itself to be a "private
club"but membership in the club can be obtained by any and all persons of lawful age who come to
the door seeking admission, then in my opinion the "club" is a "public place" for purposes of the
smoking ordinance. This is supported by the Iowa Supreme Court's decision in State v. Perry, 69
N.W.2d 412, 416 (Iowa 1955), in which the Court declared:
"It is an affront to a court's intelligence to contend that this so-called Hawkeye Club
was not a public place. To admit perfect strangers to a club room upon payment of
a one dollar fee and no other requirement, qualification or identification, clearly falls
short of proof, even inferentially, that such a place was private. The designation of
`club' means little or nothing without substance."
On that basis, an establishment that purports to not be a public place solely on the basis of
memberships in a club that are procured at the door, should be regarded as a public place.
Yours truly,
John R. Klaus
City Attorney
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