Opportunity or act of desperation?

Two landlords and a smoker plan to sue again in federal trial court

After a referendum, in which a good third of those eligible to vote took part, brought Bavarians a ban on smoking in restaurants without exception last week, Ludwig Wolf, the landlord of the Munich music pub Bistro No., filed a lawsuit against the Bavarian government.2, Birgit Netzle-Piechotka, the landlady of the Asam Schlossl, and a smoker filed a lawsuit with the federal court. In 2008, the judges in Karlsruhe not only ruled that parts of the non-smoker protection laws in Berlin and Baden-Wurttemberg at the time were not compatible with the freedom of occupation protected by Article 12 (1) of the Basic Law, but also that non-smoker protection laws without exceptions were unlawful.

In its decision in this case, the First Senate amed that a general ban on smoking was not contrary to the principle of prevention because of the paramount importance of health protection. If, however, the legislature relativizes this protection goal – as has happened in Baden-Wurttemberg and Berlin – then even the Verhaltnismabigkeitsprufung leads to a different result. And in this, the legislators in Baden-Wurttemberg and Berlin had not sufficiently taken into account the special impact on landlords of one-room pubs. Whether Karlsruhe will significantly change this point of view is questionable. At least the decision at that time was not pragmatized by an eccentric like Paul Kirchhof, whose principle of half-division was later largely revised by a differently composed Federal Constitutional Court.

On the fact that from 1. The decision on the alcohol sales ban in Baden-Wurttemberg, published last week, also indicates that the regulation in force in Bavaria on August 8 could be found to be in conformity with the Basic Law: There, the state government banned gas stations and kiosks from selling alcoholic beverages between 10 p.m. in the evening and 5 a.m. in the morning. This was contested by a consumer who felt that his general freedom of action had been unreasonably restricted. However, the Federal Interception Court rejected his claim (Az. 1 BvR 915/10).

It took into account that the restriction is not only to prevent crime and disorder, but also to protect health. "Here", according to the Second Chamber of the First Senate in its press release, "it is a question of important public interests, which are suitable to justify an interference with the general freedom of action". Studies also played a role in the decision, which, according to the judges, proved that a "Availability at all times" favors excessive consumption of alcohol. The plaintiff’s side has brought up as a milder means "Hot spots" The court considered limited sales bans by police authorities to be less effective. One of the reasons why the complainant is not unreasonably prejudiced is that he is free to buy his alcohol supplies on the day or to use one of the numerous restaurants and bars in the area "privileged outlets" to visit.

Even the advocates of strict smoking bans have so far been unimpressed by the lawsuit and are instead planning new initiatives: A cross-party group of members of the Bundestag, for example, is considering a nationwide strict smoking ban through a change in the workplace ordinance. And in North Rhine-Westphalia, Hamburg and Austria they want to have their own referendums. But it is not only across Bavarian borders that a local expansion of the smoking ban could be in the offing: The noise effects of smokers going outside the door during the time when Bavaria briefly had a strict no-smoking policy suggests that the next step would be to ban smoking on burgers and in public places. This could also become necessary because, in contrast to the old CSU law, the new regulation does not allow the establishment of smoking clubs, which eased the larm situation in 2008 and 2009.

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