Law. Health. Justice.

Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009Cheryl Sbarra

A Law Synopsis by the Tobacco Control Legal Consortium May 2009

Suggested citation:Cheryl Sbarra, Tobacco Control Legal Consortium, Legal Authority to Regulate Tobacco and Common Threats and Challenges: 2009 (2009).

Tobacco Control Legal Consortium875 Summit AvenueSaint Paul, Minnesota 55105 USAtobaccolaw@wmitchell.eduwww.tobaccolawcenter.org651.290.7506

Copyright © 2009 Tobacco Control Legal Consortium

This publication was made possible by the financial support of the American Cancer Society and the Robert Wood Johnson Foundation.

This synopsis is provided for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney. Laws cited are current as of March 2009. The Tobacco Control Legal Consortium provides legal information and education about tobacco and health, but does not provide legal representation. Readers with questions about the application of the law to specific facts are encouraged to consult legal counsel familiar with the laws of their jurisdictions.

1

IntroductionThe 2006 Report of the Surgeon General outlined the negative health consequences of involuntary exposure to secondhand smoke, including cancer and cardiovascular diseases in adults and respiratory diseases in both children and adults.”1 A wealth of scientific evidence supported the following conclusions in the report:

1. Secondhand smoke exposure causes premature death in nonsmoking adults and children.

2. Children exposed to secondhand smoke are at an increased risk of acute respiratory infections, ear problems and asthma exacerbation.

3. Secondhand smoke exposure has immediate adverse cardiovascular effects and causes coronary heart disease and lung cancer.

4. There is no safe level of exposure to secondhand smoke.5. Millions of Americans are still exposed to secondhand

smoke in homes and workplaces, despite much progress in eliminating it.

6. Eliminating smoking in enclosed spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, ventilating buildings and clearing the air cannot eliminate exposure.2

Smoke-free policies continue to be the most effective and economic strategy for protecting nonsmokers from exposure to secondhand smoke.3 As of April 2009, 16,519 municipalities across the United States have passed a state or local law with a 100 percent smoke-free provision covering workplaces, and/or restaurants, and/or bars, and protecting 70.2 percent of the United States population.4

This law synopsis is an update of the Tobacco Control Legal Consortium’s 2004 synopsis, Legal Authority to Regulate Smoking and Common Legal Threats and Challenges, and includes legal challenges to smoke-free ordinances that have arisen since the 2004 synopsis was published. Section I of this synopsis outlines state and local governmental authority for regulating smoking, and also addresses the legal doctrine of preemption, which raises concerns in some, but not all states. Section II outlines several constitutional legal challenges to smoke-free ordinances that are often threatened, but which lack merit. Section III examines the legal authority of local regulatory bodies to pass smoke-free ordinances. Section IV uses the example of private clubs to illustrate the need for care when drafting smoke-free ordinances.

Legal Authority to Regulate Smoking and Common Threats and Challenges: 2009Cheryl Sbarra

Key Points

The 2006 Surgeon General’s Report outlined the negative health consequences of involuntary exposure to secondhand smoke, including cancer and cardiovascular diseases in adults and respiratory diseases in both children and adults.

Smoke-free laws continue to be the most effective and economic strategy for protecting nonsmokers from exposure to secondhand smoke.

State and local governments have the legal authority to pass smoke-free laws.

Recent preemption challenges to state and local smoke-free laws have failed.

Smoke-free laws can withstand constitutional challenges brought on the basis of equal protection, vagueness, privacy, takings, freedom of association and freedom of speech arguments.

•

•

•

•

•

2

Section I – Legal Authority to Pass Smoke-Free Laws and the Doctrine of Preemption

Legal Authority to Pass Smoke-free Laws

It is a long recognized principle of American jurisprudence that a municipality has broad latitude to adopt local ordinances and regulations that protect and promote the health, safety, morals and general welfare of its residents pursuant to its police power.5

Public health protection is “uniformly recognized as a most important municipal function” and is “not only a right but a manifest duty of a city.”6

Since “[t]he focus of public health is to protect the health of every member of the community,”7 health regulations have a strong presumption of validity. A plaintiff challenging such a regulation has the burden of proving it “cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it.”8 This can be a heavy burden to meet. “Insofar as public health is concerned, private property may become of public interest and the constitutional limitations upon the exercise of that power of regulation come down to a question of ‘reasonability.’”9

Laws that protect members of the community from exposure to secondhand smoke are public health and safety laws well within the policy-making powers of state and local government.10 Despite falling within the ambit of public health protection, smoke-free ordinances have been and continue to be challenged in courts throughout the nation. The overwhelming majority of plaintiffs are unsuccessful. On the rare occasion that plaintiffs succeed and a smoke-free ordinance is struck down, the reason is usually preemption.

Doctrine of Preemption

The preemption doctrine is derived from the Supremacy Clause of the United States Constitution. It states, “[T]he laws of the United States . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby.”11 Essentially, this means a hierarchy of laws exists where, in certain circumstances, federal law trumps (preempts) state law and state law trumps (preempts) local law. The

United States Supreme Court has stated “the historic police powers of the states are not to be superseded by a federal act unless that was the clear and manifest purpose of Congress.”12 In the near absence of federal regulation of secondhand smoke, smoke-free ordinances are mostly established at the state and local levels of government.

Unless the law in question contains express preemption or express anti-preemption language, there are no precise guidelines in determining whether a law is preemptive. Each case must be decided on its own merits.13 The United States Supreme Court enumerated the factors to consider as follows:14

1. Is the scheme of the regulation so pervasive as to infer that Congress left no room for states to supplement it? In other words, did Congress effectively preempt the entire field?

2. Is the federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject?

3. Does the state law produce a result that conflicts with the objective of the federal law?

Generally speaking, these same factors apply to state laws as they affect local governments’ ability to pass local laws, including smoke-free laws.

Several court decisions have been instructive in upholding smoke-free laws in the face of preemption challenges. In upholding a town ordinance prohibiting smoking in town-licensed facilities or requiring the facilities to construct enclosed, adult-only areas for smoking, the Rhode Island Supreme Court found there was no conflict between the ordinance and state law, nor an indication expressed or implied that the State Legislature intended to occupy the field.15 While the Rhode Island Legislature enacted a statewide law regulating smoking in public places, it allows municipalities to adopt more stringent restrictions on smoking. “No restaurant or bar in East Greenwich [or other Rhode Island municipality] will violate rules and regulations promulgated by the Department of Health if it is bound to comply with stricter regulations,” according to the Rhode Island Supreme Court.

�

The Supreme Judicial Court in Massachusetts reached a similar conclusion when it held the state law regulating smoking in public places is not in conflict with a municipal board of health’s smoke-free regulation for restaurants and bars.16 Instead, the court stated, the board of health’s regulation “furthers, rather than frustrates” the intent of Massachusetts statewide law on smoking in public places. The state law contained express anti-preemption language, which clearly provided that cities and towns could restrict smoking further than the statewide standard.17

Likewise, the Arizona Court of Appeals upheld the City of Tucson’s smoke-free ordinance in restaurants, finding it furthers, not frustrates, the state law on smoking.18 “Both a city and a state may legislate on the same subject when it is of local concern,” according to the Arizona court. The court reiterated the general principle that a local law will not be found invalid if it can reasonably be interpreted in a manner that avoids conflict with a state statute.

Also, preemption challenges to smoke-free ordinances in the South Carolinian cities of Greenville and Sullivan’s Island were both defeated when the South Carolina Supreme Court upheld the right of local authorities to enact indoor smoke-free laws.19

Both challenges were based on an interpretation of preemption language in the state’s youth access law – a reading that the South Carolina Supreme Court found flawed.20

Recent cases have examined other preemption issues surrounding smoke-free laws. For example, a federal court in New York upheld New York State’s Clean Indoor Air Act, finding that the state statute was not preempted by the federal government’s Occupational Safety and Health Act of 1970 (OSH Act).21 The OSH Act was “created to promulgate and enforce national consensus standards regarding permissible safe exposure levels for employees in the workplace.”22 The plaintiffs – owners and operators of bars and food service establishments – alleged that because the OSH Act created standards regarding safe levels for employee exposure to “toxic and hazardous substances,” it thereby preempted the State of New York from regulating tobacco smoke. They also alleged that every component of secondhand smoke is included in the OSH Act. Disagreeing with the plaintiffs, the court referred to several formal statements by the Occupational Safety and Health

Administration (OSHA) indicating that it had no intent to regulate secondhand smoke through the OSH Act. “For instance,” the court stated, “in a March 30, 1990 letter, Gerard F. Scannell, Assistant Secretary, writes that ‘[c]urrently, OSHA has no regulation which specifically addresses tobacco smoke as a whole because it is such a complex mixture.’”23

The court continued, “Thus, formal OSHA policy indicates not only the compatibility of state and local smoking legislation and the OSH Act and regulations, but also the acknowledgment and approval of OSHA with such state and local action.”24 Furthermore, the court noted the OSH Act’s specific statement that “[n]othing in this Act shall prevent any State agency or court from asserting jurisdiction under State Law over any occupational safety or health issue with respect to which no standard is in effect under [29 U.S.C. §655].”25

In another case – this one involving the possible preemptive effect of a state smoke-free law on a county ordinance prohibiting smoking in public buildings – the Supreme Court of Kentucky upheld the county ordinance. The court stated, “The simple fact that the state has made certain regulations does not prohibit local government from establishing additional requirements so long as there is no conflict between them.”26 A conflict appears only where the purpose of a state law cannot be achieved in the face of a local regulation. When a local regulation augments a state law, the purpose of the state law is achieved and the local law can be viewed as complimentary. Using a similar rationale, the Massachusetts Supreme Judicial Court upheld a municipal board of health regulation that prohibited smoking in private clubs even though the state’s smoke-free law did not include such a prohibition. The court stated, “The

�

purpose of the [state] statute and the town regulation are complimentary; the latter merely extends the reach of the former to membership associations.”27 That case is particularly interesting because the plaintiffs alleged preemption even though the state’s smoke-free workplace law contains specific anti-preemption language.28 The court concluded that “The intention of the Legislature could not be more clear: the language of the statute itself defeats any claim of preemption.”29

Court decisions striking down smoke-free ordinances are also instructive on the issue of preemption. In 2000, a New Jersey superior court struck down a regional ordinance prohibiting smoking in most indoor public places on the grounds that state law at the time preempted it.30 New Jersey had numerous state statutes that addressed smoking in public places. The court noted that the preamble of each such statute “repeatedly emphasizes that the purpose of the statutes is to balance the rights of smokers and nonsmokers and that it is not the public policy of this State to deny anyone the right to smoke.” The court also relied on explicit preemption language featured in the state law on smoking.31 The court concluded that “the State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation.”

The Supreme Court of New Hampshire struck down a municipal smoke-free ordinance on the ground that the New Hampshire Indoor Smoking Act preempted the ordinance.32 The court found that the state law was comprehensive and detailed. The court rejected arguments that language in the Act disavowed any intent to preempt local action, interpreting the alleged anti-preemption language to permit additional municipal regulation of smoking “only with respect to fire protection, safety and sanitation, not with respect to public health.”33 In 2003, the Iowa Supreme Court also struck down a local smoke-free ordinance in Ames on the ground that state law at the time preempted those ordinance provisions that prohibited designated smoking areas.34

These cases highlight the importance of anti-preemption language. Any proposed statewide smoke-free ordinance, whether strong or weak, should include specific anti-preemption language. This will enable local governments to enact local laws that are stronger than state law without fear of a legal challenge on the basis of preemption.

Section II – Constitutional Challenges

Constitutional challenges to public health laws must overcome an overwhelming presumption in favor of the validity of these laws. Challengers to a state law “bear the burden of proving it unconstitutional beyond a reasonable doubt.”35 The challenger must prove that “no set of circumstances exists under which the [law] would be valid.”36 This section will review some of the more common constitutional challenges to smoke-free laws.

Equal Protection Arguments

The Fifth and Fourteenth Amendments to the United States Constitution guarantee all persons equal protection of the law. Laws that discriminate against a protected class or impinge on a fundamental right are strictly scrutinized and rarely pass. If, however, a law does not affect a fundamental right or a protected class, it need only be rationally related to a legitimate state interest. Equal protection challenges to smoke-free ordinances fall into two categories: the equal protection of smokers and that of business owners. Both arguments are based on the ill-conceived premise that smoke-free ordinances somehow “discriminate” against smokers or business owners.

Smokers have challenged smoke-free ordinances on the basis that they are unfairly subordinated to nonsmokers. The argument is articulated in the New York case Fagan v. Axelrod.37 In this case, the plaintiff argued the New York Clean Indoor Air Act “curtails access by the subordinate class (smokers) to places of public accommodation by reasons of their personal habits,” “forces the subordinate class to work in a

5

smoke-free environment” and “discriminates against members of the subordinate class on the basis of a physiological impairment (nicotine addiction).” The court held that these claims were without merit for two reasons.

First, the classification of smokers does not infringe on a fundamental right. A right is fundamental “if it is deeply rooted in our nation’s history and tradition or so ingrained in concept of ordered liberty that neither justice nor liberty would exist if it were impaired.”38 For example, freedom of the press and the right to vote are fundamental rights under the U.S. Constitution. Smoking is not. In fact, no court has determined that smoking is a fundamental, constitutionally protected right. The court in Fagan v. Axelrod said it best: “there is no more a fundamental right to smoke cigarettes than there is to shoot-up or snort heroin or cocaine.”39

Second, smokers are not a “suspect” classification under the law. A law can treat one group of individuals or entities differently than others as long as there is a rational basis for the distinction and the group affected is not part of a suspect class. Classifications that are considered suspect are those types of classifications that “share a common element – an immutable characteristic determined solely by the accident of birth,”40 such as race, national origin, sexual orientation or gender. According to the Fagan court, if the classification is not suspect or does not involve a fundamental right, as is the case with smokers, a presumption of constitutionality attaches to the classification being analyzed, and the challenging party must prove that the classification is not related to a legitimate government purpose.41 Courts have consistently held that protecting people from exposure to secondhand smoke is a valid use of the state’s police power, thereby furthering a legitimate government purpose.42

In addition to equal protection challenges by smokers, restaurant and bar owners have also brought equal protection challenges, which have almost always failed. Some restaurant and bar owners have argued smoke-free ordinances unfairly discriminate against certain types of establishments when the regulations allow smoking in some establishments and not in others. In Justiana v. Niagara County Department of Health, the plaintiffs argued a New York county law that prohibited smoking in some but not all public

places was arbitrary and discriminatory, and thus in violation of the Equal Protection Clause.43 The plaintiffs also argued “if the goal of the regulations is to protect the public health, it is irrational to restrict smoking in some places but not others.” The U.S. district court disagreed with the plaintiffs and stated that “if a classification neither burdens a fundamental right nor targets a suspect class, then the classification will be upheld so long as it bears a rational relation to some legitimate end.” In Tucson v. Grezaffi, the Arizona Court of Appeals dismissed a similar challenge, stating “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”44 Communities may address the public health problem of secondhand smoke incrementally by prohibiting smoking in some but not all public places, regardless of the probability that the government will ever address the rest of the problem.

Constitutional challenges to a smoke-free ordinance on equal protection grounds were also raised in the 2006 Colorado case Coalition for Equal Rights v. Owens.45 The Coalition for Equal Rights (CEO) is a non-profit organization of more than 500 business owners of bars, taverns, restaurants, billiard parlors and others, many of whom allowed smoking before the implementation of a Colorado law prohibiting smoking in most indoor areas. The smoke-free law exempted cigar-tobacco bars, airport smoking concessions, and licensed casinos.46 CEO claimed that the law was “facially unconstitutional” by prohibiting smoking in some businesses and not in others. Specifically, CEO argued that the law was irrational because it permitted smoking in casinos but prohibited it in bingo halls.47

Nevertheless, because the Colorado law did not infringe upon a fundamental right or affect a protected class, the law could be overturned only if it was not “rationally related to a legitimate state interest.”48 The court stated, “Social and economic legislation is presumed to be rational and this presumption ‘can only be overcome by a clear showing of arbitrariness and irrationality.’”49 The challenger has the “burden to negat[e] every conceivable basis which might support it.”50 The state argued that casinos were exempted from the law because towns with licensed casinos were dependent on the revenues generated by them and they had only recently become legal.51 Upholding

6

the law, the court quoted from U.S.R.R. Retirement Board v. Fritz, which stated,

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”52

The court continued, “While it may be true that [bingo halls] will face hardships that casinos will be spared, this by itself does not render the Act unconstitutional. The government has a reasonable basis to exclude casinos; that is sufficient for the Act to pass equal protection muster.”53

CEO also argued that because the law was aimed at an “unpopular group” (i.e., smokers), it should be subject to more serious scrutiny than the rationality test.54 In rejecting this argument, the court stated, “laws impacting politically weak or unpopular groups who are not suspect classes” are not subject to more serious scrutiny than the rationality test.55 In addition, assuming that the court accepted the premise that smokers were a weak and unpopular group, the impacted group was not smokers as a whole, but rather the owners of establishments. To be successful, CEO would have had to prove that the state passed the law solely for the purpose of harming smokers, which was not the case.

Vagueness Arguments

According to the United States Supreme Court, “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.”56 “Vague laws may trap the innocent by not providing fair warning.”57 For an ordinance to be considered unconstitutionally vague, “the complainant must demonstrate that the law is impermissibly vague in all of its applications.”58 This is an extremely heavy burden because “[f]acial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort.”59 Facial vagueness challenges must be addressed on a case by case basis, examining the facts of the case at hand. The complainant’s conduct must be examined “before analyzing other hypothetical applications of

the law” because “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”60

In determining whether an ordinance is unconstitutionally vague in all of its applications, a court considers (1) whether the law “give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” and (2) whether the law provides explicit standards for those applying them to avoid arbitrary and discriminatory applications.61

However, these standards should not be mechanically applied.62

The degree of vagueness that the Constitution tolerates – as well as the relative importance of fair notice and fair enforcement – depends in part on the nature of the enactment. Thus, economic regulation [e.g., a smoke-free law] is subject to a less strict vagueness test because its subject matter is often more narrow and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.63

In Roark & Hardee LP v. City of Austin,64 bar owners in Austin, Texas sued the city claiming that an ordinance adopted by means of a ballot initiative that prohibited smoking in enclosed areas, including restaurants and bars, and required owners and operators to take “necessary steps” to prevent or stop people from smoking in enclosed areas, was unconstitutionally vague on its face “because it is so indefinite that it does not give fair notice as to what conduct is prohibited and lacks explicit standards for enforcement.”65

Penalties for violating the City of Austin’s ordinance were criminal in nature.66 However, the ordinance did not threaten any constitutionally protected rights. In addition, the evidence revealed that the owners and operators could clarify the meaning of the ordinance and, in fact had meetings with city officials and

7

other business owners relative to clarification of the ordinance.67 The Court considered the ordinance “quasi-criminal” in nature because it regulated business activity and businesses had the opportunity to clarify the ordinance’s meaning. “To be safe,” however, the court applied the “relatively strict test” required for penal statutes.68

A law with criminal penalties must define the offense with “sufficient definiteness that ordinary people can understand what conduct is prohibited. . . .‘Only a reasonable degree of certainty is required.’”69 In reversing the district court’s judgment declaring the “necessary steps” provision of the ordinance unconstitutionally vague, the Fifth Circuit Court of Appeals held that the ordinance did not have to identify the exact actions an owner would have to take to meet the requirement of taking “necessary steps.” The court found that the “necessary steps” language “is sufficiently clear to put Plaintiffs on notice of what the statute governs and at whom it is directed. . . . [I]t requires that said owner or operator ‘take necessary steps to prevent or stop another person from smoking in an enclosed area in a public place.’”70

The court then examined whether the bar owners had ample notice of what conduct was prohibited and whether there were adequate enforcement standards to prevent arbitrary enforcement. The court noted that the City of Austin had drafted two sets of detailed guidelines in an effort to further define “necessary steps.” These guidelines included “posting no smoking signs, removing ashtrays, asking the patron to stop smoking, asking the patron to leave the establishment if he continues to smoke, and following

standard business practices for enforcing house rules.”71 Additional guidelines were promulgated that included refusing to serve a patron who continued to smoke and making verbal requests to stop smoking and leave the premises.

The court noted that these specific plaintiffs/bar owners blatantly failed to implement any steps to stop smoking in their establishments. In two establishments, “[b]artenders themselves were seen smoking when inspectors entered the bar. . . . Additionally, . . . testimony revealed that [one bar owner] failed to instruct his employees to refuse service to his smoking customers” – a clear violation of the guidelines.72 Numerous examples of similar behavior led the court to find that “most of the time, the only ‘steps’ taken were in trying to find a loop-hole to avoid enforcing the ordinance.”73 The court concluded, “The ordinance and its concomitant guidelines provide adequate notice of the actions required, as well as an ascertainable standard of guilt for inspectors.” It therefore found that the law was not unconstitutionally vague and vacated the lower court’s permanent injunction that had enjoined enforcement.

In another case, the Supreme Court of Kentucky was asked to decide whether a local ordinance was unconstitutionally vague because it required smokers to maintain a “reasonable distance from the outside entrance of any building.”74 The court continued, “As long as an ordinance . . . can be reasonably understood by those affected by [it] and they can reasonably understand what the statute requires of them, it is not unconstitutionally vague. . . . The test for whether a

law is unconstitutionally vague involves a ‘man on the street’ approach,”75 with the challenged statute providing “‘fair warning’ to the public and ‘explicit standards’” for those who apply it. . . .”76 The court held that because the ordinance’s goal was to keep smoke from entering the building, “[s]urely individuals can reasonably understand that if their tobacco smoke is entering the building they are not at a reasonable or required distance.”77 It thus held that this portion of the ordinance was not unconstitutionally vague.

8

what they own and operate is a bar or a food service establishment. Moreover, if experience and common sense are insufficient . . . the owner can contact the local board of health [or another governmental entity] for a determination.”86

The law also provides that enforcement officers may grant waivers from specific provisions of the law if compliance would cause “undue financial hardship” or if “other factors exist which would render compliance unreasonable.”87 The plaintiffs claimed that because there are no specific criteria set forth for enforcement officers to use in making these decisions, this section of the law is unconstitutionally vague. The court disagreed, stating “The language used in establishing these criteria [“undue financial hardship” and “unreasonable”] are commonly used and understood phrases that withstand constitutional challenge.”88 In addition, the New York State Department of Health circulated memoranda providing non-binding guidelines for granting waivers. “Even if the waiver provision[s] were vague prior to the statements of the DOH [Department of Health],” the court said, “administrative guidance has the potential to save an otherwise vague statute.”89

In Taverns for Tots v. City of Toledo, the City of Toledo, Ohio enacted an ordinance prohibiting smoking in public places and exempted membership associations (private clubs) and private social functions.90 The plaintiff alleged that the ordinance was unconstitutionally vague because it failed to define “private social function.” The United States District Court for the Northern District of Ohio held that the failure to define “private social function” did not render the law unconstitutionally vague. “In view of the language of the ordinance and its legislative purpose,” the court found the law “to be clear, unambiguous, and easily understood by persons of common intelligence.”91

Privacy Arguments

The United States Supreme Court has held that “one aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment is a right of personal privacy, or a guarantee of certain areas or zones of privacy.”92 State constitutions and laws also establish certain privacy rights. This constitutionally protected right to privacy and, generally, a right to privacy offered by a state, extends only to fundamental personal interests, such as marriage, procreation,

The court, however, did find unconstitutionally vague the section of the ordinance that required all non-exempt businesses to remove “all ashtrays and other smoking paraphernalia” from any area where smoking is prohibited. The court pointed out that “‘smoking paraphernalia’ could reasonably be interpreted to include any or all of the following: cigarettes, cigars, pipes, rolling tobacco, pipe tobacco, rolling papers and cigarette tubes, . . . pipe cleaners, . . . matches, lighters, . . . and smoking jackets.”78 Because the term “smoking paraphernalia” was not defined, the ordinance as it was written required department stores to remove all items defined as “smoking paraphernalia” from their premises. It would have also required restaurants selling cigarettes and matches from behind the bar to remove them from their premises. The court held that this section “flunks the so-called ‘man on the street’” test because it provides “insufficient guidance.”79 The court noted, however, that the law could be amended easily by defining “smoking paraphernalia” and by requiring the removal of such paraphernalia that is “intended for use on the premises.”80

In Empire State Restaurant and Tavern Association, Inc. v. New York State Department of Law, the New York Clean Indoor Air Law was challenged on vagueness grounds.81 The law prohibits smoking in bars and food service establishments and allows smoking in outdoor seating areas of food service establishments, but not outdoor seating areas of bars. “Bar” is defined in the law as “any area, including outdoor seating areas, devoted to the sale and service of alcoholic beverages for on-premises consumption and where the service of food is only incidental to the consumption of such beverages.”82 The plaintiffs contended that the distinction between bars and food service establishments is vague because of the phrase “incidental to” in the definition of “bar.”83

The United States District Court for the Northern District of New York, citing McGowan v. Maryland,84 noted the United States Supreme Court’s ruling that the term “incidental to” with reference to business practice was constitutional. The court stated, “The Court [in McGowan] determined that the ‘incidental to’ language did not require Maryland business owners ‘to guess at the statue’s meaning to determine what conduct it makes criminal.”85 The court continued, “The owners of bars and taverns in New York State are sufficiently capable of employing their experience and common sense to determine whether

9

contraception, family relationships and education and rearing children.93

Smoke-free laws do not violate any constitutionally protected right to privacy. As discussed above, there is no fundamental right to smoke. Moreover, smoke-free laws do not prohibit smokers from smoking, only from smoking in areas that will expose others to secondhand smoke.

The right to privacy was the subject of a suit in which three private clubs/membership associations in Athol, Massachusetts sued the town’s Board of Health claiming that the local regulation prohibiting smoking in private clubs was an “unreasonable, substantial and serious interference” with the right of privacy of the associations and their members in violation of the Massachusetts Constitution.94 The plaintiffs argued that “[b]ecause their premises are ‘locked and not open to the public’ . . . the regulation of activities that occur inside the buildings constitutes an invasion of privacy.”95 In dismissing this argument, the Massachusetts Supreme Judicial Court held that the constitutionally protected right to privacy “does not sound in trespass; it protects the invasion of some personal aspect of an individual, not a location.”96

First Amendment Arguments

Individuals have a First Amendment right to associate, which the United States has recognized in two different senses.97 First, “the Court has held that the Constitution protects against unjustified government interference with an individual’s choice to enter into and maintain certain intimate or private relationships.”98 The types of relationships afforded this protection include “marriage, . . . the begetting and bearing of children, . . . child rearing and education, . . . and cohabitation with relatives.”99 The First Amendment protects “those relationships, including family relationships, that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one’s life.’”100 Second, there is a right to “associate for the purpose of engaging in those activities protected by the First Amendment – speech, assembly . . . and the exercise of religion.”101

In 2002, New York City expanded its Smoke-Free Air Act by banning smoking in virtually all indoor areas

where people socialize.102 New York State followed suit in 2003 by similarly expanding the state Clean Indoor Air Act.103 A group, Citizens Lobbying Against Smoker Harassment (CLASH), sued the city and state on the grounds that the laws violated CLASH’s freedom of association and assembly. CLASH did not claim that the gathering of smokers in bars for social or business purposes constituted a constitutionally protected “intimate association,” but rather that the laws interfered “with smokers’ ability to assemble and associate with other persons while exercising their First Amendment rights.”104 CLASH argued that the laws “interfere with . . . [CLASH members’] rights . . . to associate with other smokers in pursuit of [a] wide variety of political, social, economic, educational, religious, and cultural ends” because for smokers, “smoking is so inherent in the act of socializing and conversing . . . that to bar . . . smoking in all privately owned places . . . open to the public deprives smokers of a necessary venue for conducting their private social lives.”105 CLASH admitted that the smoking bans did not “technically” interfere with their members’ rights to assemble and associate, but claimed that their rights “were so substantially burdened, so utterly abridged and so encumbered with humiliation as to virtually be voided.”106

This argument suggests that smokers cannot fully engage in meaningful conversation and other social activities in bars without being allowed to smoke and that only by being allowed to smoke in bars can they fully exercise their constitutional right to associate.107 The United States District Court, Southern District of New York, disagreed. The court stated, “Without summarily dismissing all possibility that smoking may contain some scintilla of associational value for some people, there is nothing to say that smoking is a prerequisite to the full exercise of association and speech under the First Amendment.”108 The court found that smoking is merely one of any number of “collateral social interactions” or “ornamentations,” similar to eating, drinking and dancing that may occur while one is socializing.109 “While [s]moking [b]ans restrict where a person may smoke,” the court continued, “it is a far cry to allege that such restrictions unduly interfere with smokers’ rights to associate freely with whomever they choose in the pursuit of any protected First Amendment activity.”110

CLASH also argued that the smoking bans violated its members’ constitutionally protected First

10

Amendment right to freedom of speech. The court noted that although conduct is not usually considered “speech,” certain types of conduct can be “sufficiently expressive to merit First Amendment protection.”111

Expressive conduct that merits First Amendment protection includes “marching in a parade . . . burning the United States flag . . . marching in uniforms bearing the swastika . . . and saluting or refusing to salute the flag.”112

The court considered whether smoking in a bar constituted expressive speech requiring constitutional protection. Noting that it “must first inquire ‘whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it,’”113 the court was “not persuaded by the general proposition that a smoker’s prevailing motivation for smoking a cigarette, whether it is done in a bar, restaurant, or on a city street, is to convey a message with some profound expressive content to those around him.”114

Assuming, for purposes of argument, that smoking in a bar carried with it “some shred of expressive conduct,” the court concluded that the smoking bans would still pass constitutional muster because they are “content-neutral, reasonable time, place, and manner restrictions that are substantially related to the important governmental interest of protecting individuals from the harmful effects of [secondhand smoke].”115 The court thus granted the defendants’ motion for summary judgment.

Substantive Due Process Arguments

Substantive due process challenges to smoke-free ordinances have been unsuccessful. The Due Process Clause of the U.S. Constitution provides that the government may not deprive one of a constitutionally protected liberty interest or property interest without due process of law. Substantive due process protects against governmental interference with liberty interests, also referred to as fundamental rights. These fundamental rights, in addition to those contained in the Bill of Rights, have been held to include the right to marry, to procreate, to educate and raise children, to marital privacy, to travel and to vote. Smoking is not a fundamental right.

Courts are extremely reluctant to expand substantive due process protection to other “asserted rights

or liberty interests.”116 Due process protection is afforded to those rights and liberties “deeply rooted in this Nation’s history and tradition,” so much so that “neither liberty or justice would exist if they were sacrificed.”117 “The Fourteenth Amendment forbids the government to infringe . . . fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”118

Since the act of smoking is not a constitutionally protected fundamental right or liberty interest, any law prohibiting the activity need only be rationally related to a legitimate government interest. In Beatie v. City of New York, the plaintiff alleged a law that restricted smoking of cigars violated his substantive due process rights.119 He claimed there was insufficient scientific evidence that secondhand cigar smoke was harmful to nonsmokers and, therefore, the law had no rational relationship to a legitimate government interest.

The United States Court of Appeals for the Second Circuit held that in the area of “social welfare, . . . being the category under which this case falls, as distinct from those freedoms guaranteed citizens by the Bill of Rights . . . it is up to those who attack the

11

law to demonstrate that there is no rational connection between the challenged ordinance and the promotion of public health, safety or welfare.”120 Even if there were evidence of a dispute as to the harmful effects of cigar smoke, this dispute cannot rebut the presumption that the ordinance is rational. “Moreover, to succeed on a substantive due process challenge, a plaintiff must do more than show that the legislature’s stated assumptions are irrational – he must discredit any conceivable basis which could be advanced to support the challenged provision, regardless of whether that basis has a foundation in the record,” according to the court.121

Procedural Due Process Arguments

As stated above, the Due Process Clause of the U.S. Constitution provides that the government may not deprive one of a constitutionally protected liberty or property interest without due process of law. Procedural due process safeguards are intended to protect individuals not from the deprivation itself, but from inadequate procedural safeguards prior to the deprivation. Procedural due process is meant to ensure that the government utilizes a fair and open process in enacting and enforcing laws.

Procedural due process is a flexible concept varying with the particular situation, with the ultimate goal of ensuring a law is implemented fairly. “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for a hearing appropriate to the nature of the case.”122 To constitute a procedural due process claim, one must establish that he or she has been deprived of a liberty or property interest.123 Also, state and local laws and procedures usually mandate certain notice and hearing requirements for the passage of any state or local law. Communities interested in prohibiting smoking should take care to provide notice and allow for public comment, in accordance with their state and local requirements.

The Supreme Court of Appeals of West Virginia held that an administrative regulation prohibiting smoking in the prison system violated procedural due process by not affording sufficient procedural safeguards as required by the State Administrative Procedures Act.124 Similarly, in 2003, a smoke-free regulation in Abington, Massachusetts was challenged on the grounds that the public was not notified about hearings on the regulation. Although there is no Massachusetts

statutory requirement that a public hearing be held prior to passage of a smoke-free regulation, almost all boards of health in Massachusetts provide notice and a public hearing. In an effort to avoid this challenge, the board simply rescinded the regulation it passed, held another public hearing after properly posting notice of same, and passed the regulation once again.125

Takings Arguments

The Takings Clause of the U.S. Constitution provides that no private property may be taken for public use without just compensation.126 Owners of restaurants and bars in Toledo, Ohio challenged the constitutionality of a city ordinance that restricted smoking in public places on the basis that the ordinance amounted to a regulatory taking without just compensation.127 Their claim was based upon an allegation that, as a result of the smoking prohibition, their businesses had no economically viable use.

The plaintiffs did not allege a physical taking, but rather a partial regulatory taking. Regulatory takings fall into two categories. First, if the taking “allows the property owner ‘no productive or economically beneficial use of land’ (sometimes called a categorical, or complete taking),” the owner is entitled to compensation.128 Second, a partial regulatory taking may occur if a regulation prevents a property owner from some economic use of his property, depending on the state interest at stake and the level of governmental intrusion.129

Whether a partial regulatory taking occurs is determined on a case-by-case basis. Factors a court considers include:

1. The character of governmental action;2. The economic impact of the action on the

property owner; and3. The extent to which the action interferes

with the claimant’s “distinct investment-backed expectations.”130

In the Toledo case, a federal district court examined these factors and held that the smoking prohibition did not represent a partial regulatory taking. First, in examining the character of the municipal government’s action, the court stated that “[t]his is not, like nearly all takings cases, . . . a land-use regulation; it is, rather, a response to a serious public health problem.”131 While the court acknowledged

12

evidence that some of the businesses experienced loss of revenue,132 that fact alone was insufficient to render the government’s action a taking, especially when the court considered the distinct investment-backed expectations of businesses dependent on smoking.133

Smoking has been a public health issue for nearly fifty years, in light of growing concerns expressed by public health experts and scientists, “not just to smokers themselves from smoking, but also to non-smokers exposed to second-hand smoke.”134

The court noted that the trend across the country was to lessen the public’s exposure to second-hand smoke. “Businesses dependent in whole or part on patronage by smokers, and those who invest in such businesses and seek to make their livelihoods from them, have long been on notice that the value of their investments, and implicitly, the ability to profit from such businesses, may be affected adversely by continuing governmental efforts to reduce exposure to second-hand smoke.”135

The restaurant and bar business is regulated from door to dumpster. “Those who do business in [a] regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end.”136

Section III - Challenges to Legal Authority of Regulatory Agencies

Numerous legal challenges have alleged that local regulatory bodies have no authority to regulate smoking. Many communities pass smoking regulations through such local regulatory bodies. For example, the vast majority of local smoking regulations in Massachusetts are passed through municipal boards of health. Unlike municipal and county governments, which are political subdivisions of a state, local regulatory bodies derive their authority from state statute. They function in part as quasi-state agents, although their membership, operation, and rulemaking occur at the local level.

The primary argument used by smoke-free regulation opponents is that state law grants the

local regulatory agencies “rule making” authority, but withholds “substantive authority” to enact regulations not explicitly contemplated within the statutory grant. Not surprisingly, the breadth of authority for each local regulatory agency varies from state to state. If a state legislature only authorizes “rule making” authority to its local regulatory agencies, tobacco control efforts can still move forward in that state through local legislative bodies, such as by city ordinance or town bylaw.

In determining whether a regulatory agency has the authority to enact substantive laws, courts examine the statutory language that grants the authority, the legislative history surrounding the enactment of the statute, and the overall statutory scheme. The Ohio Supreme Court conducted this type of analysis and found that Ohio boards of health do not have the substantive legal authority to prohibit smoking in all public places.137 According to the court, Ohio law does not grant boards of health “unfettered authority to promulgate any health regulation deemed necessary,” and the “petitioners engaged in policy-making requiring a balancing of social, political, economic, and privacy concerns” that are legislative in nature. In striking down the New York Public Health Commission smoke-free regulation on similar grounds, the New York Court of Appeals held that “a number of coalescing circumstances that are present in this case persuade us that the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed.”138

In Massachusetts, the Supreme Judicial Court upheld the authority of municipal boards of health to pass smoke-free regulations.139 Boards of health in Massachusetts act under several statutory delegations of authority, but primarily rely on one particularly broad delegation for passing smoke-free regulations. This broad delegation of authority states “boards of health may make reasonable health regulations.”140 The court found this language indicated that the Massachusetts Legislature made the policy decision that public health matters affecting local cities and towns could be the subject of reasonable regulations developed at the local level. Additionally, according to the court, the Massachusetts Legislature has provided guidance for implementing such authority by requiring that

1�

municipal regulation of local health matters must address the “health” of the community and be “reasonable.”141

Section IV - Challenges to Regulating Smoking in Private Clubs

Local smoke-free ordinances sometimes exempt “distinctly private clubs” that sell food and alcohol. The theory behind the exemption is that the goal of the ordinance is to protect the general public from exposure to secondhand smoke and a private club is not open to the general public.142 Private clubs that are exempted are usually nonprofit, private entities owned by their membership.143 Because these clubs are nonprofit, not open to the public, and distinctly private, they enjoy certain tax benefits, and are not subject to state action for discriminatory acts.144

Whether a club is distinctly private is a question of fact. A Court of Appeals for New York set forth five factors to consider:145

1. Is membership determined by subjective, not objective factors?

2. Is use of the club’s facilities limited to members and guests?

3. Is the club controlled by its membership?

4. Is it nonprofit and operated solely for the benefit of its members?

5. Is its publicity directed exclusively and only to members for their information and guidance?

Other states also consider the size of the membership of the club, the degree to which non-members use the club’s facilities, and the frequency with which the premises are rented to non-members.146

Often, when a city or town is considering the adoption of a smoke-free ordinance, restaurant and bar owners complain that if these clubs are exempted from the ordinance, restaurant and bar patrons will simply frequent these clubs in order to smoke. If a club is truly distinctly private, this flight should not occur. However, many of these purportedly distinctly private clubs do not operate as distinctly

private, but rather operate as public bars. They freely advertise card game nights and bingo nights that are “open to the public.” Anyone can walk in the door and order a drink. Therefore, the notion that patrons will simply walk across the street to these clubs to smoke if smoking is prohibited in restaurants and bars can prove to be true.

As a result, communities often have applied local smoke-free ordinances to private clubs on the grounds that these private clubs are workplaces and protecting the health of workers is a legitimate public health goal, well within the police powers of local government. That an establishment is private does not somehow remove it from municipal regulation. These clubs hold club liquor licenses granted by municipal licensing authorities. They hold occupancy permits granted by municipal building departments and food service permits granted by municipal boards of health. Thus, these clubs already are subject to municipal regulation.

As mentioned earlier, under the First Amendment right to associate, individuals have the right to be free from undue intrusions into certain intimate human relationships. In determining whether a particular relationship is sufficiently intimate to require constitutional protection, the Court considers “factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship.”147 The relationship among members of the types of private clubs described above is not usually the kind of intimate relationship afforded constitutional protection. Many of these clubs are not bona fide private clubs but really public bars “masquerading as . . . private club[s]”148 and, thus have no constitutionally protected right of intimate association.149 In Taverns for Tots, for example, a group of Ohio bar and restaurant owners set up a non-profit corporation, where members could purchase one-dollar “memberships” entitling them to smoke at the “club’s” “private social functions.”150 A federal district court granted the city of Toledo a preliminary injunction ordering the “club” to stop allowing smoking at its “events.” The court rejected the corporation’s claim that it was a charity, stating that “the organization exists not primarily to raise funds for needy children, but to evade the strictures and consequences of the anti-smoking ordinance.”151

1�

The second type of freedom of association to which the Court has afforded constitutional protection – freedom of expressive association – is even less applicable to these private club cases.152 Prohibiting smoking in private clubs does not affect “in a significant way the group’s ability to advocate public or private viewpoints.”153 Moreover, the prohibition does not prevent people from associating; it simply prevents associates from smoking.

Conclusion

The vast majority of laws that protect the public from exposure to secondhand smoke have been upheld. These smoke-free laws are well within the

police powers of state and local government and represent the government’s legitimate interest and primary obligation to protect the health and safety of its citizens.

About the Author

Cheryl Sbarra is Senior Staff Attorney and Director of the Tobacco Control and Chronic Disease Prevention Program for the Massachusetts Association of Health Boards. The views expressed here are those of the author and are not meant to represent the views of the Massachusetts Association of Health Boards.

15

Endnotes1 U.S. Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke:

A Report of the Surgeon General – Executive Summary, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 at iii.

2 Id. at 9.� Id. at i.� Americans for Nonsmokers’ Rights, Overview List – How Many Smokefree Laws?, http://www.no-smoke.org/pdf/

mediaordlist.pdf. As smoke-free workplace laws have proliferated across the U.S., some jurisdictions have passed laws to prohibit smoking in venues such as casinos, where secondhand smoke exposure is often more severe than exposure employees experience in other workplaces. See Micah Berman & Caris Post, Tobacco Control Legal Consortium, Secondhand Smoke and Casinos (2007), available at http://tclconline.org/documents/casino.pdf. Other jurisdictions are beginning to expand the scope of smoke-free regulation and enforce smoke-free policies in areas previously regarded as off limits, such as outdoor dining areas of restaurants and bars, public parks, beaches and golf courses; multi-unit residential housing; and motor vehicles. See Tobacco Control Legal Consortium, Going Too Far? Exploring the Limits of Smoking Regulation, �� William mitchell laW RevieW � (2008), available at http://tclconline.org/symposium-proceedings.html.

5 Lexington Fayette County Food and Beverage Ass’n v. Lexington-Fayette Urban County Gov’t et al., 1�1 S.W.�d 7�5, 7�9 (Ky. 200�).

6 Id. at 750 (citation omitted). 7 American Lithuanian Naturalization Club, et al. v. Bd. of Health of Athol, et al., 8�� N.E.2d 2�1, 2�8 (Mass. 2006).8 Id., quoting Druzik v. Bd. of Health of Haverhill, 85 N.E.2d 2�2, 2�7 (Mass. 19�9).9 Lexington Fayette County, 1�1 S.W.�d at 752, quoting Adams, Inc. v. Louisville and Jefferson County Bd. of Health,

��9 S.W.2d 586, 590 (Ky. 1969).10 Id. at 7�9.11 U.S. const. art. VI, cl. 2.12 Rice v. Santa Fe Elevator Corp., ��1 U.S. 218 (19�7).1� City of Burbank v. Lockheed Air Terminal, Inc., �11 U.S. 62� (197�). 1� Rice, ��1 U.S. at 2�1.15 Amico’s, Inc. v. Mattos, 2001 WL 1685597 (R.I. Super. 2001). 16 Tri-Nel Mgmt. v. Bd. of Health of Barnstable, 7�1 N.E.2d �7 (Mass. 2001).17 The anti-preemption language stated “nothing in this act shall be construed to permit smoking in any area in which

smoking is or may hereafter be prohibited by law including, without limiting the generality of the foregoing, any other provision of law or ordinance or any fire, health, or safety regulation.” mass. Gen. laWs ch. 270, § 22 (1987), superseded by mass. Gen. laWs ch. 270, § 2� (2008).

18 City of Tucson v. Grezaffi, 2� P.�d 675, 680 (Ariz. Ct. App. 2001). 19 See Foothills Brewing Concern v. City of Greenville, 660 S.E.2d 26� (S.C. 2008) and Beachfront Entertainment, Inc.

v. Sullivan’s Island, 666 S.E.2d 912 (S.C. 2008).20 The South Carolina Supreme Court ruled that “Merely because section 16-17-50� was added to the Code in the same

piece of legislation which amended the Clean Indoor Air Act does not require that this section’s language about local laws be interpreted as part of the Clean Indoor Air Act. . . . In other words, it is patent that the language regarding ‘ordinances’ found in section 16-17-50� is intended to relate specifically to the distribution of ‘tobacco products’ to minors, and not to the regulation of indoor smoking.” Foothills Brewing Concern, 660 S.E.2d at 268.

21 Empire State Restaurant and Tavern Ass’n, Inc. et al. v. New York State et al., �60 F. Supp.2d �5� (N.D.N.Y. 2005).22 Id. at �58.2� Id. at �59.2� Id. at �59-60. 25 Id. at �58, quoting 29 U.S.C. § 667(a).26 Lexington Fayette County, 1�1 S.W.�d at 7�9. See also Foothills Brewing Concern, 660 S.E.2d. 26�.27 American Lithuanian Naturalization Club, 8�� N.E.2d at 2�1.28 Id. at 2�6 (“Nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited

16

by law including, without limitation: any other law or ordinance or by-law or any fire, health or safety regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth or any department, agency or political subdivision of the commonwealth.”).

29 Id. at 2�0.�0 LDM, Inc. v. Princeton Regional Health Comm’n, 76� A.2d 507 (N.J. Super. Ct. Law Div. 2000).�1 The language stated “The provisions of this act shall supersede any other statute, municipal ordinance, and rule

or regulation adopted pursuant to law[s] concerning smoking in restaurants….” n.J. stat. ann. § 26, chs. �D, �E, superseded by P.L. 2005, Ch. �8�, N.J.S. 26:�D-55.

�2 JTR Colebrook v. Town of Colebrook, 829 A.2d 1089 (N.H. 200�). �� The preemption language stated “Nothing in this subdivision shall be construed to permit smoking where smoking is

prohibited by any other provision of law or rule relative to fire protection, safety and sanitation.” n. h. Rev. stat. ann. § 155:77 (2002), superseded by n. h. Rev. stat. ann. § 155:77 (2007).

�� Cyclone Truck Stop v. City of Ames, 661 N.W.2d 150 (Iowa 200�). See also Entertainment Industry Coalition v. Tacoma-Pierce County Bd. of Health, 105 P.�d 985 (Wash. 2005) (holding that the state’s Clean Indoor Air Act preempted local regulation banning smoking in all indoor public places where state law expressly empowered proprietors to designate smoking areas in most public places).

�5 Musgrove v. Town of Federal Heights, 5�� P.2d 715, 717 (Colo. 1975).�6 Coalition for Equal Rights, Inc. v. Owens, �58 F. Supp.2d 1251, 1259 (D. Colo. 2006).�7 550 N.Y.S.2d 552 (Sup. Ct. 1990).�8 See Washington, 521 U.S. 702, 721 (1997).�9 Fagan, 550 N.Y.S. at 560. See also Buckeye Liquor Permit Holders Association, Inc. et al. v. Ohio Dep’t of Health

et al. No. A061061� (Common Pleas Court, Hamilton Ohio May 2007) (“neither the Constitution of the United States nor the Ohio Constitution creates a fundamental right to smoke in public.”) See generally Samantha K. Graff, Tobacco Control Legal Consortium, There is No Constitutional Right to Smoke: 2008 (2008), available at http://www.tclconline.org/documents/constitutional-right.pdf.

�0 Fagan, 550 N.Y.S.2d at 560.�1 The court in Fagan also noted that, contrary to their assertions, laws restricting or prohibiting smoking do not restrict

smokers’ access to public places, only their ability to smoke in those places.�2 Fagan, 550 N.Y.S.2d at 560.�� Justiana v. Niagara County Dep’t. of Health, �5 F. Supp.2d 2�6 (1999).�� City of Tucson, 2� P.�d at 682, quoting Rossie v. State, �95 N.W.2d 801, 807 (Ariz. Ct. App. 1986).�5 Coalition for Equal Rights, �58 F. Supp.2d at 1251.�6 See colo. Rev. stat. § 25-1�-205.�7 Coalition for Equal Rights, �58 F. Supp.2d at 1260.�8 Id. (citation omitted).�9 Id., quoting Hodel v. Indiana, �52 U.S. �1�, ��1-22 (1981).50 Id. at 1259, quoting F.C.C. v. Beach Communications, Inc., 508 U.S. �07, �15 (199�).51 Id. at 1260.52 Id., quoting U.S.R.R. Retirement Board v. Fritz, ��9 U.S. 166, 175 (1980).5� Id.5� Id. at 1261.55 Id.56 Grayned v. City of Rockland, �08 U.S. 10�, 108 (1972).57 Id. at 109.58 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., �55 U.S. �89, �97 (1982).59 Roark & Hardee LP v. City of Austin, 522 F.�d 5��, 5�8 (5th Cir. 2008), quoting Nat’l Endowment for the Arts v. Finley,

52� U.S. 569, 580 (1998).60 Id. at 5�6, quoting Village of Hoffman Estates, �55 U.S. at �97.61 Grayned, �08 U.S. at 109.62 Roark & Hardee LP, 522 F.�d at 552.6� Village of Hoffman Estates, �55 U.S. at �99.

17

6� Roark & Hardee LP, 522 F.�d at 5��.65 Id. at 5�9.66 Violation of the ordinance is a Class C misdemeanor punishable by a fine or by revocation or suspension of the license

or permit. austin, tex., code § 10-6-11 (A)-(B).67 Roark & Hardee LP, 522 F.�d at 552.68 Id.69 Id. at 55� (citations omitted).70 Id.71 Id.72 Id. at 55�.7� Id.7� Lexington Fayette County, 1�1 S.W.�d at 75�.75 Id.76 Id., quoting Hardin v. Commonwealth, Ky., 57� S.W.2d 657 (Ky. 1978).77 Id.78 Id. at 755.79 Id.80 Id. at 75�.81 Empire State, �60 F. Supp.2d at �5�.82 n.Y. Pub. health laW § 1�99-n (200�).8� Empire State, �60 F. Supp.2d at �61.8� McGowan v. Maryland, �66 U.S. �20 (1961).85 Empire State, �60 F. Supp.2d at �61.86 Id.87 n.Y. Pub. health laW § 1�99-u (200�).88 Empire State, �60 F. Supp.2d at �6�.89 Id. at �6�, quoting Village of Hoffman Estates, �55 U.S. at 50�.90 Taverns for Tots v. City of Toledo, ��1 F. Supp.2d 8�� (N.D. Ohio 200�).91 Taverns for Tots, ��1 F. Supp.2d at 856.92 Carey v. Population Services Int’l, ��1 U.S. 678, 68� (1977).9� Id. at 68�, 685.9� mass. Gen. laWs ch. 21�, § 1B (“A person shall have a right against unreasonable, substantial or serious interference

with his privacy.”)95 American Lithuanian Naturalization Club, 8�� N.E.2d at 2�2.96 Id.97 Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, �81 U.S. 5�7 (1987).98 Id. at 5��.99 Id. at 5�5.100 Id.101 Roberts v. United States Jaycees, �68 U.S. 609, 618 (198�).102 See 2002 N.Y.C. Local Law �7, Council Int. No. 256-A, codified at n.Y.c. admin. code §§ 17-501 et seq.10� See n.Y. Pub. health laW §§ 1�99-o(2) and 1�99-n(1).10� NYC C.L.A.S.H., Inc. v. City of New York et al., �15 F. Supp.2d �61, �72 (S.D.N.Y. 200�).105 Id. 106 Id.107 Id. at �7�.108 Id.109 Id. at �75.

18

110 Id. (citation omitted).111 Id. at �76.112 Id. (citations omitted).11� Id. at �77 (citations omitted).11� Id. at �78.115 Id. at �79-�80.116 Washington, 521 U.S. at 720.117 Id. at 721.118 Id.119 Beatie v. City of New York, 12� F.�d 707 (2d Cir. 1997).120 Id. at 711.121 Id. at 71�.122 Cleveland Bd. of Educ. v. Loudermill, �70 U.S. 5�2, 5�2 (1985). 12� R.J. Reynolds Tobacco Co. v. Bonta, 272 F. Supp.2d 1085 (200�).12� State v. Parsons, �8� S.E.2d 1 (W. Va. 1996).125 In a similar decision, a Maryland appeals court found a smoke-free regulation invalid because the Montgomery County

Council did not have sole authority to act as a board of health in passing the law. Montgomery County Council v. Anchor Inn, 822 A.2d �29 (Md. 200�).

126 u.s. const. amend. V.127 D.A.B.E., Inc. v. City of Toledo, 292 F. Supp.2d 968 (N.D. Ohio 200�), aff’d �9� F.�d 692 (6th Cir. 2005).128 Id. at 971.129 Id.1�0 Waste Mgmt., Inc. v. Metropolitan Gov’t of Nashville, 1�0 F.�d 7�1, 7�7 (6th Cir. 1997).1�1 D.A.B.E., Inc., 292 F. Supp.2d at 972.1�2 Many economic studies have examined restaurant sales tax revenues and found no loss of revenue as a result of

smoking prohibitions. See, for example, Michael Ericksen & Frank Chaloupka, The Economic Impact of Clean Indoor Air Laws, 57 ca: a canceR JouRnal foR clinicians 6, �67-78 (Nov. 2007) and Michelle Scollo and Anita Lal, VicHealth Centre for Tobacco Control, Summary of Studies Assessing the Economic Impact of Smoke-free Policies in the Hospitality Industry (Feb. 2008), available at http://www.vctc.org.aultc-res/Hospitalitysummary.pdf. See also the websites of Americans for Nonsmokers Rights (www.no-smoke.org) and the Campaign for Tobacco-free Kids (http://tobaccofreekids).

1�� In Arizona, for example, a federal district court dismissed a lawsuit that claimed Tempe’s anti-smoking ordinance is an illegal taking of property, stating “Plaintiff cannot show that an ordinance that merely bans smoking strips the establishment of all economically viable uses.” Clicks Tempe, Inc. v. City of Tempe, No. CV 02-2000-PHX-ROS (D. Ariz. 200�).

1�� D.A.B.E., Inc., 292 F. Supp.2d at 972.1�5 Id. In a Kentucky case, for example, the state supreme court ruled that state law did not preempt a local ordinance

that prohibits smoking in public places, including bars and restaurants, and that the ordinance did not infringe on the property rights of business owners. Lexington Fayette County, 1�1 S.W.�d. at 7�5.

1�6 Id., quoting FHA v. Darlington, Inc. �58 U.S. 8�, 91 (1958). 1�7 D.A.B.E., 77� N.E.2d. 5�6.1�8 Boreali v. Axelrod, 517 N.E.2d 1�50 (N.Y. 1987).1�9 Tri-Nel Mgmt., 7�1 N.E.2d at �6.1�0 mass. Gen. laWs ch. 111, § �1.1�1 Importantly, the Massachusetts Supreme Judicial Court also held that the broad delegation of authority used to pass

smoke-free regulations does not violate separation of legislative, executive, and judicial powers in Massachusetts. The Massachusetts Constitution and those of other states require that legislative delegations of authority must be accompanied by safeguards and standards for using such authority. This requirement is intended to limit legislatures from delegating their powers to other branches of the government. Courts in Massachusetts test whether a delegation is proper by considering three factors: “(1) Did the Legislature delegate the making of fundamental policy decisions, rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction for implementation…; (�) does the act provide safeguards such that abuses of discretion can be controlled?” Tri-Nel

19

Mgmt., 7�1 N.E.2d at ��. Courts in other states apply similar factors. See, for example, LDM, Inc., 76� A.2d at 507, where a New Jersey superior court held that a regional health commission ordinance was preempted by a statute exempting bars from smoking regulations.

1�2 If, however, the goal of the regulation is to protect all workers from exposure to secondhand smoke, then private clubs would be included because these clubs have workers that perform services for the club, such as bartenders and custodians.

1�� Loyal Order of Moose v. Bd. of Health of Yarmouth, 790 N.E.2d 20� (Mass. 200�).1�� Citizens Council on Human Relations v. Buffalo Yacht Club, ��8 F. Supp. �16 (1997). 1�5 New York State Club Ass’n. v. City of New York, 505 N.E.2d 915, 919 (N.Y. 1987).1�6 See, e.g., 20� code of mass. ReG. 10.02.1�7 Bd. of Directors of Rotary Int’l, �81 U.S. at 5�6. 1�8 Moose Lodge No. 107 v. Irvis, �07 U.S. 16�, 177 (1972).1�9 Assuming that a private club meets the strict criteria of a distinctly private club and its members have a constitutionally

protected right of intimate association, prohibiting smoking would still be permissible on the ground that it is a valid exercise of police powers and an extension of the right of municipalities to license and regulate the consumption of liquor in private clubs. See Moore v. City of Tulsa, 561 P.2d 961 (Okla. 1977).

150 Taverns for Tots, ��1 F. Supp.2d at 856.151 Id. 152 Bd. of Directors of Rotary Int’l, �81 U.S. at 5�9.15� Boy Scouts of America v. Dale, 5�0 U.S. 6�0 (2000).

About the Tobacco Control Legal Consortium

The Tobacco Control Legal Consortium is a network of legal programs supporting tobacco control policy change throughout the United States. Drawing on the expertise of its collaborating legal centers, the Consortium works to assist communities with urgent legal needs and to increase the legal resources available to the tobacco control movement. The Consortium’s coordinating office, located at William Mitchell College of Law in St. Paul, Minnesota, fields requests for legal technical assistance and coordinates the delivery of services by the collaborating legal resource centers. Our legal technical assistance includes help with legislative drafting; legal research, analysis and strategy; training and presentations; preparation of friend-of-the-court legal briefs; and litigation support.

875 Summit Avenue • St. Paul, Minnesota 55105www.tclconline.org • tobaccolaw@wmitchell.edu • 651.290.7506