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JUSTIANA v. NIAGARA COUNTY DEPT. OF HEALTH

April 2, 1999

JUDI JUSTIANA, INDIVIDUALLY AND AS PRESIDENT OF NIAGARA COUNTY CITIZENS FOR CHOICE, JUDI'S LOUNGE, INC., LAWRENCE
v.
SOOS, INDIVIDUALLY AND D/B/A OLIVER STREET CAFÉ, DOMINIC J. FLORIO, D/B/A DJF ENTERPRISES AND DONNA'S DINER, GARLOCK'S RESTAURANT, INC., STEVE DOMINSKI, D/B/A CLARK'S BURGERHOUSE, VENTURE'S FAMILY RESTAURANT AND BAR, INC., R.J.L. OF LOCKPORT, INC. AND SHEEHAN, INC., PLAINTIFFS, V. THE NIAGARA COUNTY DEPARTMENT OF HEALTH, DAVID E. WERTMAN, PUBLIC HEALTH DIRECTOR, NIAGARA COUNTY BOARD OF HEALTH, BARBARA A. BREWER, GERALD DEFLIPPO, LINDA FLESSEL, STEVEN LEWIS, FRANK MAROTTA, ROBERT J. RESZEL, MARCIA TRAVERSE, JEROME ULATOWKI, JEAN WACTAWSKI-WENDE, AND MITCHELL ZAVON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NIAGARA COUNTY BOARD OF HEALTH, DEFENDANTS.



The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

Introduction

On November 23, 1998, plaintiffs filed a complaint seeking a declaratory judgment invalidating regulations adopted by defendant Niagara County Board of Health restricting smoking in certain public places in Niagara County. Defendants filed an answer to the complaint on December 29, 1998.

On February 3, 1999, plaintiffs moved for both a preliminary injunction and summary judgment. On February 19, 1999, defendants made a cross-motion for summary judgment. After carefully considering the parties' arguments, the Court grants the plaintiffs' motion for summary judgment and denies the defendants' motion for summary judgment.

Background

Plaintiffs are individual and corporate owners of restaurants located in Niagara County, New York. Defendants are the Niagara County Board of Health ("the Board"), the individual members of the Board, the Niagara County Department of Health, and the Public Health Director. The Board is an administrative agency created under New York State Public Health Law § 300 to regulate affairs relating to the public health. The Department of Health and the Public Health Director are responsible for enforcing regulations passed by the Board.

Plaintiffs attack the validity of a set of regulations adopted by the Board on September 24, 1998, as amendments to the Niagara County Sanitary Code, which regulate smoking in various indoor facilities open to the public in Niagara County.*fn1 In order to address the plaintiffs' challenges to the regulations, the Court sets forth the following background to the adoption of the regulations.*fn2

The regulation of smoking in New York State dates back to approximately 1975, when the State Legislature adopted a law restricting smoking in a limited number of public areas such as libraries, museums, theaters and public transportation facilities. During the next ten years, the Legislature considered, but did not pass, a variety of more expansive restrictions on smoking in public places.

In late 1986, the Public Health Council ("PHC"), a state administrative agency, adopted its own comprehensive code which placed greater restrictions on smoking in public places and included a number of exemptions for certain types of businesses. However, the New York Court of Appeals, in the case of Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350, 523 N.Y.S.2d 464 (1987), found that the regulations adopted by the PHC were invalid and unenforceable because the PHC exceeded its authority as an administrative agency in adopting the regulations.

Following the Boreali decision, in 1989, the State Legislature passed the Clean Indoor Air Act ("the Act"), which placed greater restrictions on smoking in public places, to the point of barring or restricting smoking in most commercial establishments. This statute is still in effect. Soon thereafter, the Board adopted Article XVI of the Sanitary Code for the County of Niagara, providing for regulations to enforce the Act, as the Act provides that local boards of health are responsible for its enforcement. As originally enacted, Article XVI of the Sanitary Code, which became effective January 1, 1990, virtually mirrors the Act and does not contain any regulations more restrictive of smoking than those contained in the Act.

With that background in mind, the Court turns to the adoption of the regulations that are the subject of the present litigation. Beginning in approximately April of 1996, the Board began discussions about smoking regulations that would be more restrictive than those provided for in the Act. It is undisputed that from that time until May 19, 1998, the Board had discussions in which the members considered a variety of factors — including social, economic, and political factors, as well as health-related ones — that would be affected by more restrictive smoking regulations. The record is replete with evidence that Board members were concerned with the economic effects of further restrictions on local businesses and attempting to balance these concerns with concerns about the effects of Environmental Tobacco Smoke ("ETS").

The parties disagree, however, as to how the Board's activities between April of 1996 and May of 1998 should be characterized. According to plaintiffs, the Board analyzed these health and non-health-related factors because it initially intended to adopt more restrictive regulations on its own. In contrast, according to defendants, the Board was taking into consideration social, economic, and political factors, as well as health factors, as the Board's goal was to assist the County Legislature formulate legislation further restricting smoking.*fn3

In any event, in July of 1996, the Board formed an ad hoc committee consisting of four Board members and members of the Niagara County Smoke-Free Coalition to propose new restrictions. The ad hoc committee met and reviewed information about ETS and, notably, about the economic impact of more restrictive smoking regulations on local restaurants. In September of 1996, the ad hoc committee adopted a "fact sheet" with information about both the health and economic effects of ETS and its regulation. By November of 1996, the committee had agreed upon a draft of the regulations, and it recommended that the Board conduct four public meetings to receive public input on the proposed regulations.

The Board held the public meetings in February of 1997, at which members of the public voiced their arguments in favor of and against the proposed regulations. Some members of the public argued against the regulations based on their anticipated economic impact on the local economy. According to plaintiffs, the Board determined that the passage of a law containing the restrictions would be preferable to the adoption of regulations. Thus the Board brought the matter to the Legislature's attention. As defendants have characterized these events, however, the Board had always intended for the restrictions to be enacted through legislative action.

However, in that same month, elections were held which resulted in a change in the political composition of the County Legislature, with Republican members now numbering in the majority. The newly constituted legislature established another committee — the "Smoking Law Committee" — comprised of members of the Board, legislators, and business owners, to analyze the proposed smoking regulations. By March of 1998, the Smoking Law Committee had drafted a proposed county law, which the Board endorsed.

However, in May of 1998, the Legislature adopted a county law which differed from the law agreed upon by the Smoking Law Committee and recommended by the Board. The county law provided, inter alia, for a smoking area within the dining areas of all restaurants "comprising no more than 30% of the total seating capacity of the restaurant" and an exemption from the law for restaurants with "dining areas seating 45 people or less." Niagara County, N.Y., Local Law in Relation to the Regulation of Smoking in Niagara County (May 19, 1998).*fn4

The Board was dissatisfied with the law passed by the Legislature. Board members indicated at the Board's May meeting that it would consider taking action on the draft regulations it had originally recommended in December of 1996. In July of 1998, the Board first adopted the regulations at issue in the present case, and made minor changes to them on September 24, 1998.*fn5

The regulations prohibit smoking in all public places in Niagara County, except that smoking is allowed in bars, taverns, bar areas of restaurants, and bar areas of bowling alleys. As in the County Law, the regulations do not restrict smoking in private residences, private vehicles, tobacco businesses, hotel and motel rooms, and in "any indoor area where private social functions are being held and when seating arrangements are under the control of the sponsor of such functions and not the owner . . .," and smoking is permitted in separate smoking rooms. Regulations § 6.a-e.

The County Law and the Board's Regulations, however, diverge in several respects. The practical differences between the County Law and the Board's Regulations are as follows: (1) the County Law exempts dining areas with forty-five seats or less, while the Board's Regulations do not; (2) the County Law permits smoking in 30% of the dining area of all restaurants; in contrast, the Board's Regulations prohibit smoking in all dining areas, but allow restaurants and bowling alleys with bars to have smoking in the bar area; (3) the County Law permits a waiver from its provisions based on financial hardship, but the Board's Regulations do not provide for any waiver; and (4) under the Board's Regulations, but not under the County Law, restaurants with bars are required to construct a floor to ceiling partition between the bar area of the restaurant and the dining area and have a smoke-free "patron waiting area."

Plaintiffs filed a complaint in this Court on November 23, 1998; an amended complaint naming additional plaintiffs was filed on December 7, 1998. Defendants filed an answer on December 29, 1998. On February 3, 1999, plaintiffs filed the summary judgment motion and motion for a preliminary injunction presently under consideration. Defendants filed a cross-motion for summary judgment on February 19, 1999, and plaintiffs filed a reply memorandum on February 26, 1999. The Court heard oral argument on the motions on March 4, 1999.

Discussion

1. Subject Matter Jurisdiction

As an initial matter, the Court must address its subject matter jurisdiction over this case. Plaintiffs have set forth two claims. The first claim the Court will address is plaintiffs' claim that the regulations violate the Equal Protection Clause of the Fourteenth Amendment. Second, the Court will address plaintiffs' claim that the defendants violated the non-delegation doctrine by improperly exercising legislative authority.

Plaintiffs have attempted to articulate both claims as those arising under the federal constitution. However, it is clear to the Court that only one of these claims — that defendants violated the equal protection doctrine of the Fourteenth Amendment — truly arises under federal constitutional law. The Court therefore has federal question jurisdiction over the equal protection claim pursuant to 28 U.S.C. § 1331.*fn6

Plaintiffs' other claim, on which they have relied more heavily throughout these proceedings, is that defendants, in adopting the regulations, exercised legislative power in violation of the non-delegation doctrine. In other words, plaintiffs allege that the regulations are invalid because the Board, an administrative agency, in enacting the regulations exercised legislative power, which only a legislative body may properly do. Plaintiffs have attempted to cloak this argument in federal constitutional language, labeling the alleged violation of the non-delegation doctrine a violation of the right to substantive due process under the Fourteenth Amendment. Plaintiffs provide no legal authority in support of this characterization, and the cases upon which plaintiffs rely to support the merits of this claim are New York state cases*fn7 and a federal case decided on state law grounds.*fn8 Moreover, this claim addresses the separation of powers among state entities; it is difficult to see how this claim could be one of federal constitutional concern. In sum, it is patently clear that this claim is truly one of state law. Thus, the Court does not have original subject matter jurisdiction over this claim.

The Court is now faced with the question of whether it should exercise supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. The Court may exercise supplemental jurisdiction over the state law claim as it has original jurisdiction over the equal protection claim, and the state law claim is "so related to the claim[] in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367. But the Court may decline to exercise supplemental jurisdiction over a claim if:

  (1) the claim raises a novel or complex issue of
  State law,
  (2) the claim substantially predominates over the
  claim or claims over which the district court has
  original jurisdiction,
  (3) the district court has dismissed all claims over
  which it has original jurisdiction, or
  (4) in exceptional circumstances, there are other
  compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

As discussed below, the Court finds that plaintiffs' equal protection claim is without merit, although it is not frivolous. In light of the weakness of the federal constitutional claim in relation to the state law claim, the Court has the discretion to decline to exercise supplemental jurisdiction over plaintiffs' state law claim pursuant to § 1367(c)(2) or (3). However, the Court in its discretion has determined that it is appropriate to exercise its supplemental jurisdiction over plaintiffs' state law claim for several reasons related to judicial economy, convenience, fairness, and comity. First, looking at concerns of comity, the Court notes that the state law claim deals with an issue which the New York Court of Appeals has squarely addressed, so that the Court is not facing a situation in which state law is unclear. Thus, if the Court decides the merits of this state law claim, the result should be the same as if the claim were decided by a state court. Second, this case presents a somewhat unusual circumstance in that the determination of plaintiffs' claims is highly timesensitive, as defendants will begin enforcing the challenged regulations on April 30, 1999. Declining supplemental jurisdiction over the state law claim would substantially delay any determination in this matter and result in unfairness to the litigants. Third, the Court has already expended the resources necessary to become familiar with the legal and factual issues involved in this case and no further litigation must be pursued to deal with the state law claim, so considerations of judicial economy weigh in favor of retaining jurisdiction. In light of these considerations, the Court will exercise its supplemental jurisdiction over plaintiffs' state law claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("the doctrine of pendent jurisdiction thus is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values."); Raucci v. Town of Rotterdam, 902 F.2d 1050, 1054-55 (2d Cir. 1990) (finding district court did not err in denying dismissal of state law claims after federal claims dismissed, where unique circumstances of case favored retention of jurisdiction).

2. Summary Judgment

Plaintiffs have moved for both a preliminary injunction and for summary judgment, while defendants have moved for summary judgment. After plaintiffs made their motion for a preliminary injunction, defendants represented to the Court that the challenged regulations would not be enforced for a period of sixty days*fn9 following their effective date lessening the need for immediate relief. The parties have also represented to the Court that the record is complete for purposes of summary judgment. Thus, the Court will decide the parties' motions for summary judgment rather than the plaintiffs' motion for preliminary injunction, which by virtue of this decision is moot.

A moving party is entitled to summary judgment if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). In other words, the moving party is entitled to summary judgment where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once a motion for summary judgment has been made and supported, the nonmoving party may not rest on mere allegations, but must set forth proof of specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).

In deciding a motion for summary judgment, the Court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). At the summary judgment stage, the judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, on a motion for summary judgment, a court cannot try issues of fact; it can only determine whether there are issues to be tried. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987).

3. The Merits of the Parties' Arguments

A. Equal Protection Claim

Plaintiffs claim that the Board's Regulations violate the Equal Protection Clause of the Fourteenth Amendment because they arbitrarily exempt certain businesses from compliance with the smoking restrictions. Plaintiffs contend that if the goal of the regulations is to protect the public health, it is irrational to restrict smoking in some public places but not others, as members of the public will still be exposed to the harmful effects of ETS.

Under equal protection law, if a classification "neither burdens a fundamental right nor targets a suspect class," the classification will be upheld "so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996). Legislative classifications do not have to be a "perfect fit" for the problem they are intended to address in order to survive rational basis review. Accordingly, a legislature can address a perceived problem incrementally if in its judgment that is the best way to address the problem. As the Supreme Court has noted:

  The problem of legislative classification is a
  perennial one, admitting of no doctrinaire
  definition. Evils in the same field may be of
  different dimensions and proportions, requiring
  different remedies. Or so the legislature may think.
  Or the reform may take one step at a time, addressing
  itself to the phase of the problem which seems most
  acute to the legislative mind. The legislature may
  select one field and apply a remedy there, neglecting
  the others. The prohibition of the Equal Protection
  Clause goes no further than the invidious
  discrimination.

F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 316, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (citing Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955)). See also Brazil-Breashears v. Bilandic, 53 F.3d 789, 793 (7th Cir. 1995) ("the government . . . need not comprehensively attack an identified vice: it `must be allowed leeway to approach a perceived problem incrementally.' . . . This is true regardless of the probability that the government will ever address the rest of the problem.") (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).

Applying this rational basis review to the facts of this case, plaintiffs' claim fails to state an equal protection violation. Protecting the public from the dangers of ETS is certainly a legitimate end, which plaintiffs do not dispute. Furthermore, plaintiffs have not shown that the Board's Regulations are not rationally related to this end, as restricting smoking in public places is clearly rationally related to the goal of protecting the public from ETS. And, under the case law discussed above, the Board does not act irrationally by addressing the problems presented by ETS one step at a time — that is, by restricting smoking in some public places rather than others. Therefore, plaintiffs' equal protection claim is without merit.

B. Non-Delegation Claim under State Law

The Court now turns, in exercising its supplemental jurisdiction, to plaintiffs' state law claim, which deals with the non-delegation doctrine as it relates to the separation of powers among state governmental bodies. The starting point for the analysis of plaintiffs' non-delegation claim is the Court of Appeals' decision in Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350, 523 N.Y.S.2d 464 (1987). In Boreali, as discussed briefly above, the Public Health Council ("PHC"), an administrative agency, promulgated regulations prohibiting smoking in a wide variety of public facilities following several years of failed attempts by members of the state legislature to further restrict smoking through new legislation. The New York Court of Appeals found the regulations invalid, stating that although the PHC was authorized by the Public Health Law to regulate matters affecting the public health, "the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be." Id. at 9, 523 N.Y.S.2d 464, 517 N.E.2d 1350. The Court reasoned that even where an enabling statute delegating power to an agency is itself valid, the agency's actions pursuant to the enabling statute are invalid if the agency assumes the legislature's role of exercising "the openended discretion to choose ends." Id. at 11, 523 N.Y.S.2d 464, 517 N.E.2d 1350.

The Court relied on four factors in finding that the PHC's regulations were an invalid exercise of legislative power. First, the Court found the PHC had engaged in the balancing of competing concerns of public health and economic costs, "acting solely on [its] own ideas of sound public policy." Id. at 12, 523 N.Y.S.2d 464, 517 N.E.2d 1350. Second, the PHC did not engage in the "interstitial" rule-making typical of administrative agencies, but had instead written "on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance." Id. at 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. Third, the PHC's regulations concerned "an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions." Id. The Court found that separation of powers principles mandated that elected legislators rather than appointed administrators "resolve difficult social problems by making choices among competing ends." Id. Fourth, the Court found the agency had overstepped its bounds because the development of the regulations did not require expertise in the field of health. Id. at 14, 523 N.Y.S.2d 464, 517 N.E.2d 1350.

Plaintiffs argue that under the principles set forth in Boreali, the Board's regulations are invalid as the Board, like the PHC, engaged in a legislative process in enacting the regulations, which, as an administrative agency, it may not do. Defendants, on the other hand, claim that the enactment of the regulations was a valid exercise of the agency's power as derived from the Public Health Law.

The Court finds that under the principles set forth in Boreali, the Board violated the non-delegation doctrine of New York State law in enacting the regulations. Looking at the first factor, the record establishes that the Board engaged in the legislative function of balancing economic factors with competing health considerations in crafting the regulations. The Court is not persuaded by defendants' argument that at the time the Board was considering non-health factors, it was acting solely to help the Legislature formulate appropriate legislation. It is far from clear from the record that the Board was only assisting the Legislature at this time.

And regardless of the Board's actions prior to the Legislature's passage of the less restrictive law, the Board's actions after this point show the Board considered non-health factors in adopting the regulations. Defendants argue that the regulations reflect the fact that after the Legislature passed the law, the Board only considered factors relating to health. For example, defendants contend that the regulations require a partition between smoking and non-smoking areas — while the state and county legislation allow these areas to be contiguous — based solely on the health consideration that smoke will travel between contiguous smoking and non-smoking areas. In making this argument, however, defendants oversimplify the non-health considerations underlying all the challenged smoking regulations. These regulations necessarily have a serious economic impact — for example, restaurant owners must undertake construction in order to comply with the partition regulation, or else they must disallow smoking in their restaurants, which they fear will result in a loss of business. If defendants characterize this regulatory decision as based solely on health considerations, the Board could ban smoking altogether, claiming it only considered the harmful effect of ETS, as long as it was careful to not mention any non-health considerations on the record. But in making such a decision Board members would necessarily have to take into account non-health considerations.

Defendants also argue that the fact that the regulations restrict smoking in certain establishments and not others — for example, in restaurants, but not in bars — does not reflect any weighing of economic factors by the Board. Defendants contend that these classifications were put in place by the Clean Indoor Air Act, by which the State Legislature preempted regulation of smoking by other government bodies with respect to certain types of establishments, such as bars. Thus, defendants argue, the Board did not restrict smoking in certain establishments not because of economic considerations, but because the Board was preempted from doing so.

The Court finds this argument without merit in light of the express language of the Act, which provides that "nothing herein shall be construed to restrict the power of any county, city, town or village to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimal standards set forth in this article." Public Health Law § 1399-r. Clearly the Act does not bar a government body, acting within the scope of its authority, from adding greater restrictions on smoking than those provided for in the Act.

Turning to the second factor in Boreali, the Court of Appeals found the PHC had exceeded its authority by writing "on a clean slate" rather than using its regulatory powers to fill in the details of a legislative scheme. Defendants argue that this factor works in the Board's favor, as the present case is distinguishable from Boreali because since that case was decided, the State Legislature passed the Clean Indoor Air Act, and the Board was simply filling in the interstices of the Act's provisions. This argument, however, is not persuasive in the context of smoking regulations, an area which the Court of Appeals described in Boreali as one especially suited for legislative determination as it involves "difficult social problems" which must be resolved "by making choices among competing ends." Id. at 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. See also Nassau Bowling Proprietors Assoc. v. County of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997) (invalidating county health agency's smoking ordinance under the Boreali test where agency acted after passage of Clean Indoor Air Act). In this context, even where the state legislature has provided some guidance for the restriction of smoking, the enactment of further substantive restrictions is a task properly left to the legislative arm of government. By adopting regulations that are substantially more restrictive than existing legislation, the Board went beyond interstitial rule-making and into the realm of legislating.

The third Boreali factor weighs particularly heavily in favor of invalidating the regulations. The Court found that the PHC had overstepped its bounds because its regulations concerned "an area in which the legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions." Boreali, 71 N.Y.2d at 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. The record here presents a strikingly similar situation, as the County Legislature debated the very provisions at issue and declined, after considering public debate, to make them law. If anything, the Board's actions here were even more egregious than the PHC's because the Board had worked with the Legislature in drafting the regulations the Legislature ultimately rejected, evidencing that the Board took part in legislative activity. For the Board to immediately thereafter take those rejected provisions and adopt them as rules contravenes the legislative process, which is the proper mechanism for making such difficult decisions of public policy.

Defendants argue that the Board did not exceed its authority by adopting regulations containing, in part, the same restrictions as the provisions rejected by the Legislature. Defendants contend that in matters relating to health, the Board may override the Legislature as the Board's authority is derived from state law, and the Legislature is a governmental body on the county level. It is unclear from the record developed by defendants exactly how much authority the Board is given by state law. However, even presuming that the Board is an arm of the state government, and generally in matters of health has authority superior to that of the county government, this argument is unavailing in this context. Where the regulation of smoking is concerned, the New York Court of Appeals has made clear that health concerns are so intertwined with economic and social concerns that the Board may not override the Legislature, whatever its authority to do so in other instances may be.

The fourth and final Boreali factor requires the Court to examine whether the development of the regulations required expertise in the field of health. Defendants have argued that the members of the Board have a great deal of medical and scientific expertise, which they called upon in adopting the regulations. The Court notes, however, that in Boreali, the Court of Appeals found that the development of smoking regulations did not require any special medical or scientific expertise. See id. at 14, 523 N.Y.S.2d 464, 517 N.E.2d 1350. Moreover, no special expertise is needed to understand the hazards of exposure to ETS; in fact, it is well known to those outside the scientific community that such exposure may lead to the development of serious health problems. The Court finds, therefore, that this factor also weighs in favor of invalidating the Board's regulations.

Before concluding, the Court adds that nothing in this decision is intended to express an opinion on the wisdom of more restrictive smoking regulations, provided that they are enacted by a governmental body with the authority to do so. And, of course, the Board remains free to attempt to persuade the Legislature to duly enact more restrictive smoking laws, in light of the health concerns expressed by the Board.

Conclusion

The Court finds that the Board's Regulations are invalid and thus grants plaintiffs' motion for summary judgment and denies defendants' motion for summary judgment; plaintiffs' motion for a preliminary injunction is moot. Accordingly, defendants are hereby enjoined from enforcing the regulations against plaintiffs. The Clerk of Court is ordered to take all steps necessary to close this case.

IT IS SO ORDERED.

APPENDIX "A"

  FROM: Health Services & Education   DATE:   5/19/98  RESOLUTION #      H5-037-98
        Committee                                                        (Amended)
        ___________________________
  APPROVED             COMMITTEE ACTION  LEGISLATIVE ACTION
  NIAGARA CO. ATTORNEY ________________  Approved: Ayes ____  Abs. ____ Noes   3

                       ________________  Rejected: Ayes ____  Abs. ____ Noes _____
  By __________________________________  Referred: _______________________________

ADOPTION OF LOCAL LAW IN RELATION TO THE REGULATION OF SMOKING IN NIAGARA COUNTY

WHEREAS, the Health Services & Education Committee recommends the adoption of the following Local Law:

A Local Law in Relation to the Regulation of Smoking in Niagara County; and

WHEREAS, a public hearing was held on May 5, 1998 at 6:00 p.m. in the Legislative Chambers, Courthouse, Lockport. New York, on said Local Law, and

WHEREAS, many people appeared to speak on said Local Law, and

WHEREAS, two amendment(s) was (were) made to said Local Law, now, therefore, be it

RESOLVED, that a Local Law regulating smoking in Niagara County be enacted by the County Legislature of the County of Niagara, as follows:

Section I. Legislative Intent.

The Niagara County Legislature finds and determines that the health of the public is seriously threatened by exposure to environmental tobacco smoke (ETS). The Legislature also determines that recent findings by the Federal Environmental Protection Agency (EPA) make clear that ETS, or secondhand smoke, is a human carcinogen belonging in the category of Group A (known human) carcinogens.

The EPA has concluded that exposure to ETS increases the risks of respiratory and middle ear diseases in children, contributing to between 150,000 - 300,000 cases of bronchitis and pneumonia in infants and young children each year. Further, exposure to ETS significantly worsens the condition of up to 1,000,000 asthmatic children and contributes to new cases of asthma in once-healthy children.

The Legislature further finds that reliable studies have shown that primary tobacco use is a major cause of mortality and morbidity, directly causing an estimated 434,000 deaths per year in the United States, more deaths than are caused by the use of any other legal or illegal substance or drug. In addition, ETS is the number three cause of death in the United States, being responsible for over 53,000 deaths.

Moreover, the Legislature concurs in the finds of the EPA that exposure to ETS can pose substantial health risks to children, as it is causally associated with, among other things, increases in the prevalence of childhood respiratory illnesses, increases in the prevalence of fluid in the middle ear of children, and a statistically significant reduction in the lung function of children. The Legislature also concurs in the EPA's findings that ETS results in additional episodes and increased severity of asthma in children who suffer from this disease, and is a risk factor for new cases of asthma in children who have not previously displayed asthmatic symptoms.

Section 2. Definitions.

  a. "Bar" and "Tavern" means any establishment open to
    the public, devoted to the sale and service of
    alcoholic beverages for on-premises consumption,
    where the service of food is merely incidental to
    the operation of the business, and for which the
    sale of food for on-premises consumption does not
    exceed 40% of annual gross sales.
  b. "Bar Area" means an area of Restaurant with Bars
    within a maximum of 15 feet of the bar where the
    service of alcoholic beverages for on-premises
    consumption takes place.
  c. "Business" means any sole proprietorship,
    partnership, joint venture, corporation, or other
    business entity whether for profit or
    not-for-profit, including retail establishments
    where goods or services are sold as well as
    professional corporations, social agencies and
    other entities where legal, medical, dental,
    engineering, architectural, or other professional
    services are delivered.
  d. "Employee" means any person who is employed by any
    employer for direct or indirect monetary wages or
    profit, and any person who volunteers his or her
    services for a non-profit entity.
  e. "Employer" means any person, partnership,
    corporation, including a municipal corporation, or
    non-profit entity who employs the services of one
    or more individual persons.
  f. "Place of Employment" means any area under the
    control of a public or private employer which
    employees normally frequent during the course of
    employment, including but not limited to work
    areas, employee lounges and restrooms, conference
    and classrooms, employee cafeterias, and hallways.
    A private ...

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