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in Smoking Case
SAN CLEMENTE-Two bartenders for Mulligans Sports Bunker were found
to be innocent of allowing smoking in a business because the bar
is owner-operated, Commissioner Lyle Robertson ruled. The bartenders
faced fines of about $1400, but were found not guilty based on
the owner-operator exemption, said Stephen Rios, the San Juan
Capistrano attorney who represented Mulligans. However, this
might be just the first of many court cases Mulligans may face,
as the District Attorney's office is a sore loser.
Orange County Sheriff's officials and the District Attorney's
office contend that the prosecution's side of the case was not
equally represented in court. Because the violation is an infraction,
a deputy district attorney was not present to prosecute the case.
As is normal in court proceedings involving infractions, only
the deputy who gave the citation was subpoenaed to testify.
Rios called several witnesses on the defendants' behalf, including
a civil corporate attorney and a tax preparer who testified that
the business was, in fact, owner-operated. "It has been
determined that they are in compliance with the law," Rios
said. "The police should leave my client alone." However,
the District Attorney's office has advised the Sheriff's Department
that in its opinion, the commissioner's ruling was in error and
Mulligans does not have a legitimate exemption, said Sheriff's
Lt. Fred Lisanti, chief of San Clemente Police Services. (It's
proof that we live in a police state when the police and the DA
just decide that a judge's ruling is "in error." The
legal profession is all that keeps the police from doing whatever
they want all the time; by refusing to accept the judge's ruling,
the police are "practicing law," which is illegal.
DP Online) The next time a smoking infraction goes to court, a deputy district attorney will be there to prosecute it. Sheriff's deputies began citing bartenders and patrons at Mulligans earlier this year on charges of violating the smoking ban in bars that went into effect January 1st. SOURCE: Reprinted from the 1 October, 1998, issue of the Dana Point News. Reprinted in the public interest.(DANA POINT ON-LINE EDITOR: The next time you need a cop because of a real crime -- you know, violence, burglary, murder, rape -- you may be pulling police away from such a vital public interest as ticketing patrons at a bar for smoking… There is no doubt that smoking is bad for you, but then so is drinking alcohol. The whole idea of individual freedom, which America is based on, is violated by such ill-conceived laws as the ban on smoking, which must be enforced by highly qualified, uniformed law enforcement professionals. At some point individuals have to take responsibility for themselves.) |
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