(CN) – A restaurant cannot avoid a city smoking ban by charging a small fee and declaring itself a private club, the Wisconsin Court of Appeals ruled.
The City of Wausau sued Jack Jusufi, owner of the Red Apple Social Club, for failing to comply with its smoking ban.
To qualify as a private club exempt from the Wausau smoking ban, a club must not be operated for profit, and must not be open to nonmembers.
Jusufi charged customers a one-time membership fee of $1. Police cited him twice for failing to enforce the smoking ban.
Jusufi argued that the ordinance does not have a rational basis for its different treatment of for-profit and nonprofit clubs.
Judge Brunner affirmed the circuit court ruling that it does have a rational basis: to protect citizens in public places.
“While the club’s charitable activities are commendable,” Brunner wrote, “the Club is still a restaurant that is open to the public. As related to the smoking ban, Jusufi’s ‘private club’ is essentially a sham.”