A Wisconsin appeals court says a Wausau restaurant owner can't get around the city's smoking ban by creating a sham private club with a $1 membership.

The 3rd District Court of Appeals upheld the constitutionality of Wausau's ordinance that bans smoking in restaurants and says restaurant owner Zack Jusufi was properly cited in 2005 for failing to enforce it.

The regulation says the ban doesn't apply to private, nonprofit clubs closed to public.

But the appeals court says Jusufi's Red Apple Social Club is essentially open to the public and not exempt from the law passed to protect the public from secondhand smoke.

Jusufi contended the city's smoking ban was unconstitutional because it treated restaurants and private clubs differently.