Bar owner's hearing delayed

By Keri Brenner | The Olympian • Published May 13, 2008

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OLYMPIA – A judge on Tuesday put off a contempt-of-court hearing for tavern owner Frank Schnarrs until June 9 to give Thurston County more time to gather evidence that he has violated the state's 21/2-year-old indoor-smoking ban.

Schnarrs, the owner of Frankie's Sports Bar & Grill on Pacific Avenue Southeast in Olympia, started a members-only club in his second-floor smoking room last week to try to show that he is in compliance with a provision in the state law that exempts a "private workplace within a public place."

But Superior Court Judge Richard Hicks, the sixth judge since April 2006 to be assigned in the case, said Tuesday that the county will have to be allowed into the private club to decide whether it meets the exemption requirements. Hicks said Schnarrs turned away a county health inspector who was attempting to enter the tavern's second-floor club, Friends of Frankie's, on Friday night.

Hicks said he needed the county to present more recent proof of violations; the county's current presentation included evidence from October.

Hicks said that if the county were to request a search warrant, he would find "probable cause" to grant it.

"From the television and newspaper it appears such violation ... is, indeed the case," Hicks wrote in a six-page order Tuesday continuing the hearing until June 9. "But the court cannot rule based on media coverage but must have evidence admitted in court."

Thurston County Prosecuting Attorney Ed Holm said he and Jane Futterman, deputy prosecuting attorney in the case, would meet today to decide whether to ask for the search warrant, as well as what other strategies to pursue.

Initiative 901, the Washington Clean Indoor Air Act, was passed by voters in November 2005. The state law, designed to protect the health of employees by preventing them from inhaling second-hand smoke, says establishments where people are employed and potentially exposed to smoke on a daily basis are covered under the smoking ban.

But Schnarrs' attorney, Shawn Newman of Olympia, called the state law a "failed statute" that is vague and confusing. He also asserts that the county made procedural errors by prosecuting the case as a civil contempt matter instead of criminal contempt.

"This is the third time the county has tried to hold my client in contempt," Newman told Hicks, adding that the judge should dismiss the case and allow the county to start over. "They need to fish or cut bait."

Previous Superior Court judges involved in the longstanding case were Judge William "Tom" McPhee, who issued the initial temporary and permanent injunctions in 2006; Judge Anne Hirsch, who denied the civil contempt charge on procedural issues in 2007; Judge Chris Wickham, who recused; Judge Gary Tabor, whom Newman asked to be replaced in March; and Judge Christine Pomeroy, who recused.

Keri Brenner covers Thurston County for The Olympian. She can be reached at 360-754-5435 or kbrenner@theolympian.com.