United States District Court, S.D. New York
April 7, 2004.
NYC C.L.A.S.H., INC., Plaintiff; -against- CITY OF NEW YORK, THOMAS R. FRIEDEN, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE, ELLIOT SPITZER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, and ANTONIA C. NOVELLO, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, Defendants
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff NYC C.L.A.S.H., Inc. ("CLASH") brings this action to
challenge the constitutionality of the smoking restrictions contained in
the recently amended New York State Clean Indoor Air Act and the
New York City Smoke Free Air Act. Although CLASH challenges the recent
amendments to these statutory provisions that prohibit smoking in most
indoor places, it focuses its challenge on the prohibition of smoking in
bars and food service establishments. The defendants in this action
include the City of New York, and Thomas R. Frieden ("Frieden"), in his
official capacity as the Commissioner of the New York City Department of
Health and Mental Hygiene (collectively, the "Municipal Defendants").
Also named as defendants are Eliot Spitzer, in his official capacity as the Attorney General of the State of New York, and
Antonia C. Novello, in her official capacity as Commissioner of the New
York State Department of Health (collectively, the "State Defendants"
and, together with the Municipal Defendants, "Defendants").
CLASH seeks a declaratory judgment that amendments to the New York
State and New York City laws (the "Smoking Bans") prohibiting smoking in
practically all indoor privately owned premises that are open to
the public are invalid as violations of the federal constitutional
provisions ensuring freedom of association, assembly, and speech; the
right to travel; equal protection; and the right to enter into contracts.
CLASH further asserts that the New York State Smoking Ban is
unconstitutionally vague. As remedies, CLASH seeks injunctive relief
against enforcement of these provisions. Pending before the Court are
Defendants' motions to dismiss CLASH'S amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause
of action upon which relief can be granted. In the alternative, the State
Defendants move for summary judgment pursuant to Federal Rule of Civil
Procedure 56. CLASH opposes Defendants' motions and cross moves
for summary judgment. For the reasons discussed below, the Court sua
sponte converts the Municipal Defendants' motion to dismiss into a
motion for summary judgment, grants Defendants' motions for summary judgment, and denies CLASH'S cross
motion for summary judgment.
A. THE 2003 AMENDMENTS TO THE CLEAN INDOOR AIR ACT
On March 26, 2003, New York State Governor George Pataki signed into
law Chapter 13 of the Laws of 2003 ("Chapter 13"), which amended certain
provisions of the Clean Indoor Air Act ("CIAA"). The Chapter 13
amendments prohibit smoking in virtually all indoor places in New York
State where people work or socialize. See 2003 N.Y. Senate Bill
No. S.3292; 2003 N.Y. Assembly Bill No. A.7136, codified at N.Y. Pub.
Health Law §§ 1399-n et seq. As will be discussed
in greater detail below, Chapter 13 was passed in response to mounting
scientific evidence that links exposure to the airborne smoke that is a
by product of smoking, commonly referred to today as "secondhand
smoke" or environmental tobacco. smoke ("ETS"),*fn2 to serious health
risks to non smokers.
The version of the CIAA in effect prior to the enactment of Chapter 13
placed numerous restrictions on where a person could smoke. Among these
restrictions was an outright ban on smoking in any portion of the indoor
area of many common types of establishments open to the public, including
auditoriums; elevators; public means of mass transportation and the
ticketing/boarding areas thereof; supermarkets; swimming pools; youth
centers; and child care facilities, among others. See id.
(identifying the amendments to the Clean Indoor Air Act). The prior
version of the CIAA permitted smoking in the indoor area of many other
types of establishments only if the owner designated a separate smoking
section. Among the facilities that were permitted to maintain separate
indoor smoking sections were food service establishments; all public and
private colleges and universities; hospitals; public buildings; theaters;
museums; libraries; and retail stores. See id. Smoking was
specifically permitted in bars under the prior version of the CIAA.
With the enactment of Chapter 13, New York State substantially expanded
its restrictions on smoking to include a outright ban in almost every
indoor area in the state, including, for the first time, places of
employment not open to the public, such as private offices.*fn3
See N.Y. Pub. Health Law §§ 1399-n and 1399-o (Consol.
2003). Most relevant for the purposes of the present action, Chapter 13
also amended the CIAA to impose of an outright prohibition on smoking in
all areas of bars, including outdoor seating areas. See id.
§§ 1399-o (2) and 1399(n)(1). Chapter 13 also strengthened the
CIAA's restrictions on smoking in food service establishments by
prohibiting smoking in any indoor area of such an establishment and
permitting smoking in an outdoor area only under certain conditions.
See id. §§ 1399-o and 1399-q(6). B. THE 2002 AMENDMENTS TO THE SMOKE FREE AIR ACT
On December 18, 2002, the New York City Council enacted Local Law 47 of
2002 ("Local Law 41"), which, like its State counterpart, amended the
existing smoking restrictions contained in the New York City Smoke
Free Air Act ("SFAA"). See 2002 N.Y.C. Local Law 47,
Council Int. No. 256-A, codified at N.Y.C. Admin. Code §§
17-501 et seq. Local Law 47 was also passed in
recognition of the scientific evidence linking ETS exposure to adverse
Under the version of the SFAA in effect prior to the enactment of Local
Law 47, smoking was prohibited in many indoor places open to the public,
including mass transportation; retail stores; restaurants with an indoor
seating capacity of more than 35 patrons; business establishments;
libraries; museums; and theaters.*fn4 See id. (identifying the
amendments to the Smoke Free Air Act).
Local Law 47 repealed all existing smoking provisions then in effect
and enacted a more rigorous set of smoking restrictions that, like
Chapter 13, prohibit smoking in virtually all indoor locations in New
York City where people work or socialize. See N.Y.C. Admin.
Code § 17-503. Local Law 47, like Chapter 13, also instituted an
outright smoking ban in all indoor portions of restaurants, regardless of seating
capacity, and in all areas of bars, subject to very narrow
exceptions.*fn5 See id. §§ 17-503(a)(5) and (a)(20).
C. THE PRESENT ACTION
CLASH*fn6 asserts four counts in its amended complaint.*fn7 The first
count alleges that Chapter 13 is unduly vague in violation of the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution. The second count alleges that the Smoking Bans promulgated
under Chapter 13 and Local Law 47 violate certain protections under the
First and Fourteenth Amendments, namely, freedom of association and
assembly, freedom of speech, and freedom of travel. The third count
alleges that the Smoking Bans violate the Equal Protection Clause of the
Fourteenth Amendment. Finally, the fourth count alleges that the Smoking
Bans violate the Privileges and Immunities Clause of the Fourteenth
Amendment by unduly interfering with the right of a smoker to form a
contract with the owner of a bar or restaurant.
Pending before this Court are the parties' motions for dismissal and/or
summary judgment described above. II. DISCUSSION
As a threshold matter, the Court first must determine whether CLASH has
standing to bring this action. Generally, in order to satisfy the
standing requirement under Article III of the United States Constitution,
a plaintiff must demonstrate that: (1) he or she has suffered an injury
in fact; (2) the injury is traceable to alleged actions of the defendant;
and (3) the injury will be redressed by a favorable decision. See
Nike, Inc. v. Kasky, 123 S.Ct. 2554, 2560 (2003) (citation
omitted). In a case such as this, where the only plaintiff is an
organizational entity that purports to represent a class of people
alleged to be aggrieved, the organization must establish that it has
standing to bring suit either in its own right or on behalf of its
members. See Warth v. Seldin, 422 U.S. 490, 511 (1975).
The State Defendants challenge CLASH'S standing on the grounds that
CLASH cannot meet the tripartite test for organizational standing
discussed by the United States Supreme Court in Hunt v. Washington
State Apple Advertising Commission, 432 U.S. 333 (1977). Under Hunt,
an organization can establish standing on behalf of its members if: (1)
its members would otherwise have standing to bring the suit individually;
(2) the interests the organization seeks to protect by means of the suit are germane to the organization's
purpose; and (3) neither the claim asserted nor the relief requested
requires the participation of the individual members. See id.
The State Defendants argue that CLASH cannot meet the first requirement
under Hunt because no individual aggrieved member of CLASH is
identified. (See St. Mem. at 10.) There is, however, no
absolute requirement that individual members be identified in order to
confer organizational standing. See, e.g., NAACP v.
Button. 371 U.S. 415, 428 (1963) (finding that the NAACP had
standing both in its own right, and to assert the rights of its members
although none was named as plaintiff). In a case such as this one,
involving a facial challenge to a statute on First Amendment grounds, the
prudential limitations of organizational standing are generally relaxed
in light of the societal interests that are implicated. See
Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947,
956-57 (1984) ("Litigants, therefore, are permitted to challenge a
statute not because their own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute's very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression."); Lerman v. Board
of Elections in the City of New York, 232 F.3d 135, 143-45 (2d Cir. 2000) (discussing that a facial challenge to a
statute on First Amendment grounds is governed by the overbreadth
doctrine where prudential standing concerns are relaxed). The requirement
that individual members must be able to bring suit on their own behalf is
intended to ensure that the organization, through its members, has
satisfied the general standing requirements of injury in fact,
traceability, and redressability. See Warth, 422 U.S. at 511
("The association must allege that its members, or any one of them, are
suffering immediate or threatened injury as a result of the challenged
action of the sort that would make out a justiciable case had the members
themselves brought suit.") (citation omitted). In this case, the Court
finds that CLASH, as an organization dedicated to advancing and promoting
the interests of smokers who individually would have standing to
challenge the Smoking Bans in their own right, has met the first prong of
Hunt without the need to identify any individual member.
The State Defendants also argue that CLASH has not met the second prong
in Hunt on the grounds that the relief sought is not germane to
CLASH'S purpose. In support of this argument, the State Defendants point
to CLASH'S certificate of incorporation under the New York Business
Corporation Law (the "NYBCL"). The certificate states that its purpose is
to engage in public relations and any other lawful activity. The State
Defendants argue that the amended complaint fails to establish how this
stated corporate purpose establishes standing for the relief sought. (See
St. Mem. at 10-11.)
The Court does not agree. The amended complaint alleges that CLASH is
an organization "formed and organized for the purpose of protecting the
rights of smokers, . . . ." (Amd. Compl. at ¶ 7.) Thus, CLASH'S self
proclaimed purpose is to promote the interests of smokers and
defend smoker's rights. (See Silk Aff. at Ex. A.) There is no requirement
under the NYBCL that a corporation must be specific in setting forth its
purpose in its certificate of incorporation. See N.Y. Bus.
Corp. Law § 201(a) (Consol. 2003) (stating that a corporation may
exist for any lawful purpose). Indeed, it is not uncommon for
corporations to claim a very broad and generic purpose in their
incorporating certificates as a means of preserving the ability to
broaden into other types of business ventures without the need to amend
the certificate. Accordingly, the Court finds that CLASH'S purpose is
germane to the interests it seeks to protect, and thus, has met the
second prong of Hunt.
Finally, the State Defendants argue that the participation of
individual members of CLASH in this action is necessary because the
amended complaint asserts only constitutional claims. This fact, however, only reinforces the
finding that participation of individual CLASH members is not required.
See Warth, 422 U.S. at 515 ("If in a proper case, the
association seeks a declaration, injunction, or some other form of
prospective relief, it can reasonably be supposed that the remedy, if
granted, will inure to the benefit of those members of the association
actually injured."). Because the amended complaint seeks only prospective
relief and no money damages, the Court discerns no basis upon which the
participation of individual CLASH members is required.*fn8 See
United Food and Commercial Workers Union Local 751 v. Brown Group,
Inc., 517 U.S. 544, 546 (1996).
Accordingly, the Court finds that CLASH has sufficiently demonstrated
that it has associational standing to bring this action.
The State Defendants argue that the Court should decline to review
CLASH'S constitutional challenges to Chapter 13 because CLASH alleges
that the statute was "steamrollered into law" and thus, consideration of its claims would ensnare
considerations of social policy choices. According to the State
Defendants, CLASH'S claims constitute a "political question" that the
judiciary should avoid deciding under separation of powers principles.
(See St. Reply at 3-4.)
The State Defendants' argument is without merit. At the outset, the
Court notes that federal law explicitly vests this Court with original
jurisdiction over this action because CLASH'S claims, as alleged, "aris
[e] under the constitution. . . ." 28 U.S.C. § 1331. Moreover,
while it is true that a federal court should refrain from injecting
itself into the political wranglings that sometimes accompany the
legislative process, it does not follow that the public policy choices of
a legislative body are necessarily beyond judicial concern and scrutiny
when such choices are codified. In considering legislative policy
choices, the Court's purpose is not to pass upon the wisdom of the
enactments, but rather, to determine whether the actions taken infringe
upon a constitutionally protected right, and if so, whether, under the
appropriate standard of review, the intrusion is justified.
It is precisely in a case such as this one, where a plaintiff alleges
that governmental action violates federal constitutional rights, that a
federal court has jurisdiction to assess the plaintiff's claim. Were this
not the case, judicial review of the constitutionality of legislative acts would
often be foreclosed an outcome that runs counter to our system of
checks and balances among the three branches of government. This role of
a federal court has long been recognized. See Martin v. Hunter's
Lessee, 14 U.S. (1 Wheat.) 304, 334-40 (1816). In performing its
function for the purposes of the present motion, the Court need not
concern itself with whatever collateral political questions may be raised
by the enactments of the Smoking Bans. Any such political questions are
rightfully left to be answered by New York State and New York City
elected officials directly to their constituencies.
Accordingly, the Court rejects the State Defendants' contention that
this Court should refrain from considering CLASH'S constitutional
challenges to Chapter 13 raised herein on the grounds that they raise
C. TREATMENT OF THE PARTIES' MOTIONS
As an initial procedural matter, the Court must determine the
appropriate treatment of the parties' competing motions. Both the State
Defendants and the Municipal Defendants have moved to dismiss CLASH'S
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for the failure to state a claim upon which relief can be granted. The
State Defendants have moved in the alternative for summary judgment under
Rule 56. CLASH has cross moved for summary judgment. The Court
can thus proceed either under Rule 12(b)(6) and limit itself to
consideration of only the amended complaint, exhibits attached thereto,
and other documents upon which CLASH relies, see Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002), or sua
sponte convert the Municipal Defendants' motion to dismiss into a
motion for summary judgment and consider all the motions and supporting
affidavits under Rule 56.
The Court finds the latter approach preferable in this case,
particularly in view of CLASH'S own cross motion for summary
judgment, because it will permit consideration of the entire record that
the parties have submitted in support of their respective positions. The
Court will address the procedural ramifications of this approach in
subsection G below.
D. STANDARD FOR SUMMARY JUDGMENT
The Court may grant summary judgment only "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show 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). The Court must first look to
the substantive law of the action to determine which facts are material; "[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Even if the parties dispute material facts, summary
judgment will be granted unless the dispute is "genuine," i.e.,
"there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party." Id. at 249.
Throughout this inquiry, the Court must view the evidence in the light
most favorable to the non moving party and must draw all
inferences in favor of that party. See Hanson v. McCaw Cellular
Communications, Inc., 77 F.3d 663, 667 (2d Cir. 1996).
Although in a traditional summary judgment context, the Court must
determine whether there are genuine issues of material fact for the
factfinder to determine, all of CLASH'S claims constitute facial
constitutional challenges, and thus, raise only legal issues. See
Myers v. County of Orange, 157 F.3d 66, 75 n.3 (2d Cir. 1998) ("The
issue of whether . . . [a municipal] policy has a rational basis and
therefore does not violate the Equal Protection Clause, . . ., is a
legal issue for the court and not a factual issue for jury
determination."); Nutritional Health Alliance v. Shalala,
144 F.3d 220, 227 (2d Cir. 1998) (stating that the plaintiff's facial First Amendment challenge "involves a purely legal question");
United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992)
("[T]he constitutionality of a statute is a legal question subject to
de novo review.") (citation omitted). Thus, the Court can rule
as a matter of law on all of CLASH'S constitutional claims.
E. CONSTITUTIONAL CHALLENGES
Having established that CLASH has met the standing requirement, and the
appropriate procedural framework upon which to proceed, the Court turns
to the merits of CLASH'S substantive constitutional challenges to the
The first step in assessing the various constitutional bases upon which
CLASH seeks to invalidate the Smoking Bans is to establish the
appropriate standard of review. CLASH argues fervently that the Court
must apply a heightened level of scrutiny to the Smoking Bans because
they infringe upon the guarantees of the First and Fourteenth Amendments
to the United States Constitution. The Court will determine the
appropriate standard of scrutiny in light of the particular
constitutional provisions invoked and the nature of rights alleged to be
1. First Amendment Claims
CLASH argues that the Smoking Bans impinge upon its members' First
Amendment rights. Specifically, CLASH asserts the Smoking Bans interfere with the freedoms of association,
assembly, and speech. (See Amd. Compl. at ¶¶ 53-59.) To
consider CLASH'S contention that the Smoking Bans require a heightened
level of review, the Court must necessarily determine whether the Smoking
Bans encroach upon any First Amendment protections.
a. Association and Assembly
The United States Supreme Court has explained that the right to
associate protected by the First Amendment is implicated in two general
instances. First, government intrusion into a person's choice to "enter
into and maintain certain intimate human relationships" may violate the
right of freedom of association. Roberts v. United States
Jaycees, 468 U.S. 609, 617-19 (1984) (citing cases). Second, the
right to associate freely is implicated when governmental action
interferes with an organization engaged in activities protected by the
First Amendment, such as speech, assembly, redress of grievances, and the
exercise of religion. See id. at 618. Thus, in order for CLASH
to succeed in its challenge to the Smoking Bans on the basis of freedom
of association, it must demonstrate that the Smoking Bans infringe one of
these two general spheres of activities.
CLASH does not suggest that the gathering of individuals in bars and
restaurants to engage in social or even business activities while smoking is the type of "intimate" relationships
that the Supreme Court contemplated in Roberts, nor does CLASH
allege that the Smoking Bans unduly interfere with any right of intimacy
by smokers in these places.*fn9 Cf. City of Dallas v.
Stanglin, 490 U.S. 19, 24 (1989) ("It is clear beyond cavil that
dance hall patrons, who may number 1,000 on any given night, are
not engaged in . . ., `intimate human relationships'. . . .").
Thus, if CLASH'S challenge to the Smoking Bans on associational grounds
can suceed, it must be grounded in an alleged interference with smokers'
ability to assemble and associate with other persons while exercising
their First Amendment rights. A fair reading of CLASH'S allegations and
arguments supports this interpretation of CLASH'S theory.
CLASH argues that the Smoking Bans "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, in relaxing, and in enjoying the comforts of
public life, that to bar the act of smoking in all privately owned places
that are open to the public deprives smokers of a necessary venue for conducting their private social lives." (Pl.
Mem. at 10.) While conceding that the Smoking Bans do not "technically"
interfere with the ability to associate and assemble, CLASH posits that
because of the Smoking Bans, these rights are "so substantially burdened,
so utterly abridged and so encumbered with humiliation as to virtually be
voided." (Pl. Reply at 7.) On this basis, CLASH argues that the Court
should employ a strict scrutiny standard in this case.
At the outset, the Court notes that CLASH is not entirely clear in
identifying the fundamental right that the Smoking Bans allegedly affect.
Is it the "right to smoke" as such?*fn10 The right to assemble,
associate, and speak? Or a right to smoke during the course of
assembling, associating, and speaking? The Court need not resolve this
quandary because it finds that the Smoking Bans do not infringe upon any
recognized First Amendment right regardless of the manner in which the
perceived right is framed.
A critical flaw inherent in CLASH'S First Amendment arguments is the
premise that association, speech, and general social interaction cannot
occur or cannot be experienced to the fullest without smoking, or,
conversely, that unless smokers are allowed to light up on these
occasions and at these places, their protected right is somehow fundamentally
diminished. Implicit in this premise is that smoking enhances the quality
of the social experience and elevates the enjoyment of smokers' First
Amendment rights; in other words, that only by being allowed to smoke can
smokers contribute fully and enjoy to the maximum the experience of
association, assembly, and speech in public places such as bars and
restaurants. CLASH'S allegation that the Smoking Bans "curtail" certain
activities for smokers, in essence suggests that smokers cannot fully
engage in conversation and other activities in bars and restaurants
unless they are permitted to smoke, or that only by being permitted to
smoke in these places can they fully exercise their constitutional rights
of association and speech.
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. See Boy Scouts of Am. v.
Dale, 530 U.S. 640, 648 (2000) ("[T]o come within . . . [the]
ambit [of the right of freedom of association], a group must engage in
some form of expression, whether it be public or private."). At best,
smoking, where permitted, is but a single component of the entire realm
of associational interactions that a bar or restaurant patron could experience. Other aspects include dining,
drinking, conversing, viewing or listening to entertainment, and meeting
other people. While the Smoking Bans restrict where a person may smoke,
it is a far cry to allege that such restrictions unduly interfere with
smokers' right to associate freely with whomever they choose in the
pursuit of any protected First Amendment activity. See Fighting
Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (stating
that "to be cognizable, the interference with associational rights must
be `direct and substantial' or `significant'") (quoting Lyng v.
International Union, United Auto., Aerospace and Agric. Implement Workers
of Am., 485 U.S. 360, 366-67 & n.5 (1988)). Furthermore,
CLASH'S focus on bars and restaurants ignores the numerous other public
places where smokers associate and engage in speech that were already
covered by a smoking prohibition long before the enactment of the Smoking
The First Amendment guarantees the fundamental freedoms it enumerates,
but not necessarily every purpose or form that exercise of the specific
rights may take. Nothing in the Constitution engrafts upon First
Amendment protections any other collateral social interaction, whether
eating, drinking, dancing, gambling, fighting, or smoking the
list may be endless. While in some circles and events these social enhancements, by custom or practice, may be associated with and
perhaps even augment the enjoyment of protected endeavors, it does not
follow that they are indispensable conditions to the exercise of
particular constitutional rights. The effect of CLASH'S "association
PLUS" theory would be to embellish the First Amendment with extra
constitutional protection for any ancillary practice adherents may seek
to entwine around fundamental freedoms, as a consequence of which the
government's power to regulate socially or physically harmful activities
may be unduly curtailed.
In fact, First Amendment jurisprudence unequivocally rejects CLASH'S
constitutional enhancement hypothesis. Freedom of association does not
extend to gatherings for the purpose of inciting imminent violence or
overthrow of government by unlawful means. See Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969). Likewise, freedom of speech does not
protect child pornography. See New York v. Ferber,
458 U.S. 747, 764-65 (1982). Freedom of religion does not exempt polygamy or
compliance with child labor and immunization laws. See Cleveland v.
United States, 329 U.S. 14, 19-20 (1946); Prince v.
Massachusetts, 321 U.S. 158, 166-67 (1944). Nor does freedom of the
press protect the prior restraint of the publication of the number and
location of military troops during wartime. See Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 716 (1931). These principles clearly establish that purported
ornamentations of First Amendment freedoms warrant no constitutional
protection when such activities are not essential to the enjoyment of a
particular right, or may otherwise be harmful to public health, safety,
order, or general welfare.
On this point, the Court finds the Supreme Court's decision in
City of Dallas v. Stanglin, 490 U.S. 19 (1989), to be highly
persuasive, if not controlling. In Stanglin, a city ordinance
that restricted admission to certain dance halls to persons between the
ages of 14 and 18 was challenged on the grounds that it violated the
right of persons in that age group to freely associate with persons in
other age groups. See id. at 22. The city's proffered reason
for the ordinance was to protect teenagers from the possible corrupting
effects of older persons. See id. at 21. Applying a rational
basis standard of review, the Supreme Court held that the ordinance did
not violate any right of association protected by the First Amendment.
See id. at 28. In so holding, the Supreme Court stated that the
Constitution does not recognize a "generalized right of `social
association,'" although it noted that the right does extend to "groups
organized to engage in speech that does not pertain directly to politics
[,]" such as social, legal, and economic pursuits. Id. at 25. It bears noting that although the ordinance at issue in
Stanglin posed a direct interference with social
interaction, the Supreme Court upheld its validity against a challenge
under the right of free association because the group of teenagers
affected were not gathering as members of an organized association or for
a common purpose protected by the First Amendment. See id. at
24-25. In contrast, the Smoking Bans pose no such direct interference on
the social interaction of smokers, who, like the teenagers in
Stanglin, also do not regularly gather in bars and/or
restaurants as an organization of smokers or in pursuit of a common goal
or lawful purpose that itself would be protected under the First
Amendment. Thus, under the analysis discussed in Stanglin, the
Smoking Bans would certainly not implicate the right of free association.
Relying on the Second Circuit's decision in Fighting Finest, Inc.
v. Bratton, 95 F.3d 224 (2d Cir. 1996), CLASH seeks to distinguish
the instant case from Stanglin by arguing that the Smoking Bans
impinge upon smokers' association rights in bars and restaurants not only
with respect to recreational endeavors, but to business, political, and
social endeavors as well. (See Pl. Reply at 6.) Whatever
generalized non recreational endeavors are alleged, however, the
fact remains that the Smoking Bans do not materially affect any rights protected under the First Amendment. As Defendants correctly point
out, under the Smoking Bans, smokers remain free to associate and
assemble as they please, to smoke or not, whether it be in a bar, a
restaurant, a city street, or any other place where it is otherwise
permissible to do so.
Moreover, the decision in Fighting Finest serves only to
reinforce the Court's finding that the Smoking Bans do not implicate a
smoker's right of free association and assembly under the First
Amendment. The Second Circuit in Fighting Finest found that
although the Plaintiff's, a boxing team comprised of police officers,
enjoyed some constitutionally protected rights of association,
the police commissioner's decision not to permit the team to use the
bulletin boards in police precincts was not a material infringement on
the organization's ability to freely associate under the First Amendment.
See Fighting Finest, 95 F.3d at 228 ("[T]he First Amendment
does not compel government to facilitate the ease with which an
individual may exercise associational rights.") (citation omitted).
For this same reason, CLASH'S reliance on Coates v.
Cincinnati, 402 U.S. 611 (1971), is also misplaced. CLASH cites
Coates in support of its contention that the Smoking Bans are
unconstitutional under the First and Fourteenth Amendments because they
inhibit association on the mere basis that the group's actions may be annoying. (See Pl. Reply at 6.) In
Coates, the Supreme Court struck down an ordinance that made it
illegal for three or more persons to assemble on a public sidewalk and
"annoy" people. See id. at 615. No such actual restriction on
assembly and association is at issue in this case. While it is true that
governmental action need not directly interfere with a person's ability
to associate in order to violate First Amendment associational rights,
see Lyng, 485 U.S. at 367 n.5, the Court finds that
the Smoking Bans present no material impediment to a smoker's ability to
freely associate and assemble under the First Amendment. Moreover, as
will be discussed in greater detail below, the justification for the
Smoking Bans reaches far beyond an attempt to restrict merely "annoying"
Accordingly, the Court concludes that the Smoking Bans do not implicate
First Amendment protections with regard to assembly and association and
thus, would not merit a heightened level of scrutiny for these claims.
Turning more particularly to CLASH'S free speech claim, it is well
settled that governmental action that establishes content based
restrictions on the First Amendment right of free speech is presumptively
invalid under a strict scrutiny standard of review. See United
States v. Playboy Entm't Group. Inc., 529 U.S. 803, 817 (2000). On the other hand,
content neutral restrictions on speech are subject to an
intermediate level of scrutiny. See Bartnicki v. Vopper,
532 U.S. 514, 545 (2001). As with CLASH'S freedom of association and assembly
claims, the determination of the appropriate level of scrutiny to be
employed for CLASH'S free speech claim will turn on both an examination
of the governmental action and a determination as to whether smoking in a
bar or restaurant can be a form of protected speech under the First
The Court begins by noting that mere conduct, such as smoking, is not
generally considered speech, and thus, is not in itself protected under
the First Amendment. It is, however, possible for certain conduct to be
sufficiently imbued with elements of expression so as to merit
constitutional protection. See Virginia v. Black,
123 S.Ct. 1536, 1547 (2003); Church of the Am. Knights of the Ku Klux Klan v.
Kerik, 356 F.3d 197, 205 (2d Cir. 2004); see also Arcara v.
Cloud Books, Inc., 478 U.S. 697, 708 (1986) (stating that the First
Amendment is not implicated when "government is regulating neither speech
nor an incidental, nonexpressive effect of speech") (O'Conner, J.,
Thus, conduct that has been found to be sufficiently expressive to
merit First Amendment protection has included marching in a parade, see Hurley v. Irish American
Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995),
burning the United States flag, see United States v. Eichman,
496 U.S. 310 (1990); marching in uniforms bearing the swastika, see
National Socialist Party of Am. v. Skokie, 432 U.S. 43 (1977);
defacing and displaying the United States flag upside down and with a
peace symbol affixed thereto, see Spence v. Washington,
418 U.S. 405 (1974); wearing a jacket with an expletive regarding the
military draft, see Cohen v. California, 403 U.S. 15 (1971);
wearing an armband to protest a war, see Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503 (1969); and saluting or refusing to
salute the flag, see West Va. Bd. of Educ. v. Barnette,
319 U.S. 624 (1943).
The relevant inquiry thus becomes whether, and to what extent, smoking
in a public indoor establishment, such as a bar or restaurant,
constitutes expressive speech that can be protected under the First
Amendment. To this end, the Court 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." Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing
Spence. 418 U.S. at 410-11). The Court is mindful that the
Supreme Court in Hurley relaxed the requirement articulated in
Spence that the message be particularized. See Hurley, 515 U.S. at 569. This caveat,
however, does not dispense with the requirement that some articulable
message must still exist and otherwise "speak" to someone. See
Kerik, 356 F.3d at 205 n.6 ("[W]e have interpreted Hurley
to leave intact the Supreme Court's test for expressive conduct.").
On this issue, CLASH submits a series of "position papers" written by
Linda Stewart ("Stewart"). (See Mulhearn Aff. at Exs. V-X.) Stewart is
proffered as a New York City resident, CLASH member, and as a "noted
professional writer and journalist." (Id. at ¶ 26.)
Stewart's position papers purport to establish that smokers identify
themselves, in part, by the act of smoking. Specifically, she asserts
that for a smoker, "smoking is indeed part of the person's life and
certainly his social life and crucially, more than that, a part of
his identity." (Id. at Ex. V.) (emphasis in original).
Thus, according to Stewart, the Smoking Bans "so abridge . . .
[smokers'] enjoyment of socializing in public as to render both enjoyment
and socializing impossible." (Id.)
With regard to speech, Stewart submits another position paper that
cites numerous writers and journalists to suggest that smoking is a form
of political speech, an act of "[r]ebellion against a State and a state
of a [sic] affairs for which smokers feel a righteous rage of revulsion."
(Id. at Ex. X.) ("Like samizdat, it says we abhor a repressive state,
and feel compelled to convey the message."). Stewart likens smoking to
flag burning or a statement of racial pride. (See
If First Amendment jurisprudence has taught anything, it is that the
line between mere conduct and expressive speech is not always clear. Not
surprisingly, courts have at times struggled at the fringes of these
issues. Nevertheless, the Court is guided by the notion that an almost
limitless amount of what a person does everyday can be dubbed to be
directly or indirectly expressive, either of one's individuality and
creativity, such as the places where a person chooses to socialize, what
a person hangs on her walls at home or at her office, or conduct that is
expressive of one's support for or opposition to some ideology or cause.
Similarly, choices of fashion or even the types of pets or cars that a
person chooses to obtain can transmit clear messages about individuality
and material values.*fn11 In this vein, the Court proceeds with caution
in considering CLASH'S invitation to recognize protectable First
Amendment expression in the act of smoking. As the Supreme Court has stated, "[w]e cannot accept the
view that an apparently limitless variety of conduct can be labeled
`speech' whenever the person engaging in the conduct intends thereby to
express an idea." United States v. O'Brien, 391 U.S. 367, 376
(1968); Zalewska v. County of Sullivan, 316 F.3d 314, 319 (2d
Cir. 2003). As the Supreme Court has aptly explained:
It is possible to find some kernel of expression
in almost every activity a person undertakes
for example, walking down the street or meeting one's
friends at a shopping mall but such a kernel
is not sufficient to bring the activity within the
protection of the First Amendment.
Stanalin, 490 U.S. at 25. Thus, it is the Court's task to
draw the line in this case and determine whether a person's choice to
smoke in a bar or restaurant rises to the level of protected expressive
speech under the First Amendment.
While it is conceivable that, as CLASH suggests, some smokers may light
up for the explicit purpose of sending some express or subliminal
message, for example, as a rebuke of the Smoking Bans themselves, the
Court is 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. For, in smoking, like
many other commonplace acts, the non expressive purpose subsumes
whatever expressive message may be inferred. Courts that have found protectable expression in conduct have done so
because the expressive component was the primary, if not the sole,
purpose of the act. Thus, a person who burns the American flag at a
political rally, for instance, does so not because of some pyromaniacal
urge or to provide warmth while protesting. Rather, the flag burner is
driven predominantly by his or her desire to make a statement, to voice
an opposition and take a stand on a cause concerning which the flag in
flames manifests the relevant sentiments of the actor. Otherwise, the
arsonist who coincidentally chooses an American flag to douse in gasoline
in order to set a building on fire may rightfully claim that his conduct
qualifies for constitutional protection as an expressive act.
The Court recognizes that the image of a burning flag is at an extreme
when compared to a smoker in a bar. There is no requirement that a
protectable message be as poignant as the burning of the American flag.
This example, however, serves to illustrate the point. While Stewart's
position paper may give scant credence to the notion that some smokers,
under some prearranged conditions, may seek to express a message when
they smoke, the Court finds that the opinion of a single CLASH member is
unpersuasive to suggest that in every instance the act of smoking in a
bar or restaurant is ordinarily so inextricably intermeshed with a
message that it always merits First Amendment protection.
Even assuming that smokers generally do intend some message of
government defiance or some expression of individuality when they light
up a cigarette in a bar or restaurant, the Court wonders whether "the
message would be understood by those who reviewed it" to be what CLASH
says it is.*fn12 Johnson, 491 U.S. at 404. In Zalewska v.
County of Sullivan. 316 F.3d 314 (2d Cir. 2003), the Second Circuit
rejected a female county employee's free speech challenge to the county's
dress code that did not permit her to wear a skirt while working. The
Zalewska Court found that the wearing of a skirt, by itself,
was a "vague and unfocused message" that would likely not be understood
by those viewing her, and thus, merited little, if any, First Amendment
protection. Id. at 319-20. Certainly if opposition to the
Smoking Bans is the message, then its receipt would be better assured if
conveyed in a more appreciable context, such as inside City Hall, Gracie
Mansion, or the State Capitol, where it would be so understood and
possibly protected. See id. at 320 ("Essential to deciding
whether an activity carries a perceptible message entitled to protection
is an examination of the context in which the activity was conducted.") (citing
Johnson, 491 U.S. at 405).
And even assuming that smoking bears some element of detectable
expression that would implicate the First Amendment, the government is
granted greater leeway to restrict expressive conduct than to restrict
the written or spoken word, although it cannot "proscribe particular
conduct because it has expressive elements." Johnson
491 U.S. at 406 (emphasis in original).
There is nothing to suggest that the Smoking Bans are aimed at the
suppression of any expressive conduct. Nor are they aimed at the person
as a smoker by reason of his social habit of choice or addiction, as the
case may be. Rather, the Smoking Bans are aimed at the act of smoking
itself, and only when carried out in certain public places where the
state and city legislatures have deemed it to adversely affect other
people.*fn13 In short, the right of free speech, like the rights of
assembly and association, is not inherently accompanied by the
unrestricted ability to smoke everywhere.
Even further indulging the notion that smoking in a bar or restaurant
embodies some shred of expressive conduct protected under the First Amendment, and that the Smoking Bans
impose some burden on such expression, the Court finds that the Smoking
Bans would pass muster under an intermediate level of scrutiny. The
Supreme Court has defined content neutral restrictions as "those
that are justified without reference to the content of the
regulated speech." Renton v. Playtime Theatres, Inc., 475 U.S. 41,
48 (1986) (internal quotations and citations omitted) (emphasis in
original). A content neutral restriction is one that "does not
contravene the fundamental principle that underlies [the] concern about
`content based' speech regulations: that `government may not
grant the use of a forum to people whose views it finds acceptable, but
deny use to those wishing to express less favored or more controversial
views.'" Id. at 48-49. (citation omitted).
Because the Smoking Bans are neither specifically targeted at the
suppression of the content of any alleged speech nor permit the use of a
forum by one group of speakers over another, they would be properly
classified as "content neutral" regulations under this
definition. Such regulations are upheld under an intermediate level of
scrutiny if they are substantially related to an important governmental
interest. See Ward v. Rock Against Racism, 491 U.S. 781, 798-99
The Court finds that under the more demanding intermediate level of scrutiny, the Smoking Bans would survive
CLASH'S First Amendment challenge 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 ETS. Moreover, the
Smoking Bans do not prohibit smoking in such places as city streets,
private homes, automobiles, and hotel rooms, and thus, they leave open
alternative avenues of expression. See Thomas v. Chicago Park
Dist., 534 U.S. 316, 323 n.3 (2002).
Having carefully considered the evidence in the record in a light most
favorable to CLASH and after giving CLASH the benefit of all reasonable
inferences, the Court is not persuaded that the act of smoking in a bar
or restaurant, as proscribed by the Smoking Bans, is sufficiently
expressive conduct that would merit protection under the First Amendment.
Accordingly, the Court find no basis under CLASH'S free speech claim to
employ a heightened level of scrutiny.
2. Right To Travel
CLASH alleges that the Smoking Bans are an unconstitutional
infringement on the right to travel as guaranteed under the Fourteenth
Amendment. (See Amd. Compl. at ¶ 60.) Aside from this conclusory
allegation, however, CLASH fails to articulate elsewhere in the amended
complaint or in any of its memoranda to the Court, just how this right is
implicated. The Court is thus left to consider this claim on the basis of
CLASH'S general assertion in its amended complaint.
The right to travel "is a part of the `liberty' of which the citizen
cannot be deprived without due process of law." United States v.
Laub, 385 U.S. 475, 481 (1967) (citations omitted). As such, it is
deemed a fundamental right that is "closely related to [the] rights of
free speech and association." Aptheker v. Secretary of State,
378 U.S. 500, 517 (1964).
The Court cannot countenance CLASH'S suggestion that the Smoking Bans
will deter travel to and within New York State, nor is there anything in
the record to support such a contention. Smokers remain free to travel as
they please, to no less degree than non smokers, and may still
smoke while they drive their automobiles or walk in the streets. The
Court doubts that the Smoking Bans will play any material role in
smokers' travel decisions when considering New York State as a
destination, whether it is for a short visit or permanent relocation. In
fact, longstanding smoking bans in airplanes, trains, and other means of
public transportation which CLASH does not challenge or even
mention theoretically may affect smokers' travel plans more
directly and to a greater degree than their inability to smoke in a bar or restaurant at
their New York destination. Because the Court is not persuaded that the
Smoking Bans impact smokers' right to travel in any material way, the
Court rejects CLASH'S right to travel claim.
3. Equal Protection Claim
CLASH alleges that the Smoking Bans violate the Equal Protection Clause
of the Fourteenth Amendment. (See Amd. Compl. at ¶¶ 63-66.)
Specifically, CLASH argues that the enactment of the Smoking Bans "casts
smokers as social lepers by, in effect, classifying smokers as second
class citizens." (Pl. Mem. at 11.) On this basis, CLASH argues that the
Court's equal protection review compels strict scrutiny, or in the
alternative, an intermediate level of scrutiny. (See
id. at 11-15.)
To buttress CLASH'S equal protection challenge to the Smoking Bans, it
submits a position paper written by Stewart that discusses, through
vignettes and writers' excerpts, why smokers merit protection as a class
under the Equal Protection Clause. (See Mulhearn Aff. at Ex.
W.) Stewart explains how smokers have been discriminated against by means
of hate e mail CLASH has received and through articles reporting
incidents of violence against smokers. (See id.)
Drawing an analogy to homosexuals, Stewart states that "just because smokers haven't yet (like homosexuals) become a protected
class, doesn't mean they're not a class for all intents and practical
purposes in everyday life." (Id.) (emphasis in original).
Referring to the Supreme Court's recent decision in Lawrence v.
Texas, 539 U.S. 558 (2003), Stewart also contends that
"criminalizing the defining conduct of smokers in all realms of
their public lives (a public conduct deeply rooted in both history and
tradition and long practiced across the land) both demeans and
stigmatizes smokers as a class, and invites discrimination in both public
and private spheres." (Mulhearn Aff. at Ex. W.)
The appropriate level of scrutiny to be applied to an equal protection
challenge to a statute will necessarily depend upon the type of
classification the statute creates. See Clark v. Jeter,
486 U.S. 456, 461 (1988). Classifications that are based on a suspect class,
such as race or national origin, see Loving v. Virginia,
388 U.S. 1, 11 (1967) (holding that a statute that prohibits interracial
marriages violates the Equal Protection Clause), or that implicate a
recognized fundamental right, see Harper v. Virginia State Bd. of
Elections, 383 U.S. 663, 666-67 (1966) (holding that the right to
vote cannot be burdened with the payment of a poll tax), receive strict
scrutiny. Such classifications are upheld only if the government can
demonstrate that the act is narrowly tailored to further a compelling state interest. See Grutter
v. Bollinger, 123 S.Ct. 2325, 2337-38 (2003).
On the other hand, governmental actions that establish quasi-suspect
classifications, such as those based on gender or illegitimacy, are
subjected to an intermediate level of review. See United States v.
Virginia, 518 U.S. 515, 531-33 (1996) (gender); Mills v.
Habluetzel, 456 U.S. 91, 98-99 (1982) (illegitimacy). In some
instances, classifications that, although not labeled quasi-suspect,
implicate an important governmental interest may also trigger
intermediate scrutiny. See, e.g., Plyler v.
Doe, 457 U.S. 202, 216 (1982) (extending intermediate scrutiny to a
statute that prevented undocumented children from attending school). Laws
that fall into this category are upheld if the government demonstrates
that the action is "substantially related to an important governmental
objective." Clark, 486 U.S. at 461.
Thus, "[i]n areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against [an] equal
protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification."
FCC v. Beach Communications, 508 U.S. 307, 313 (1993)
(citations omitted); see also Center for Reprod. Law and Policy v.
Bush, 304 F.3d 183, 197 (2d Cir. 2002).
After considering the evidence in the record in a light most favorable
to CLASH, the Court is not persuaded that a heightened level of scrutiny
would be appropriate to the equal protection challenge at issue here.
Anti-smoking laws have never been recognized as creating a suspect or
quasi-suspect classification. This is not surprising when considering
that smokers as a class lack the typical characteristics that
traditionally have triggered heightened scrutiny when the governmental
action targets a group, characteristics such as an immutable trait, the
lack of political power, and a "history of purposeful unequal treatment."
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439-43 (1985) (considering factors for suspect and quasi-suspect
classifications in the context of mental retardation) (citations
omitted); Parham v. Hughes, 441 U.S. 347, 351 (1979)
(discussing how governmental actions that create classifications based on
immutable traits are often scrutinized more carefully). Smoking, as a
discretionary or volitional act, does not merit heightened scrutiny
because "[t]he Supreme Court has rejected the notion that a
classification is suspect when `entry into the class . . . is the product
of voluntary action.'" United States v. Coleman, 166 F.3d 428,
431 (2d Cir. 1999) (quoting Plyler, 457 U.S. at 219 n.19)).*fn14 The Court discerns none of the traditional
indicators of a suspect or quasi-suspect classification in
smokers to a sufficient degree that would warrant the use of a heightened
level of scrutiny in this case. Nor do the Smoking Bans interfere with
any fundamental right or any important governmental interest. To the
contrary, as discussed in greater detail below, the Smoking Bans serve to
protect an important governmental interest the health and welfare
of persons exposed to ETS in New York State.
While it is true that the Smoking Bans do single out a particular class
of persons and place some greater burdens on their activities, this
circumstance alone is insufficient to render the governmental action
violative of the Equal Protection Clause. As the Supreme Court stated
over 130 years ago, "persons and property are subjected to all kinds of
restraints and burdens in order to secure the general comfort, health,
and prosperity of the State." Slaughter-House Cases,
83 U.S. 36, 62 (1872). In particular, clean air and other environmental
controls always place burdens on some groups more than others. For example, compliance with a host of state automobile
exhaust emission laws, some rather stringent, undoubtedly increases the
cost of manufacturing and selling automobiles a cost ultimately
borne by motorists. On the basis of CLASH'S equal protection arguments,
an organization such as the Automobile Association of America could argue
for the repeal of these laws on the grounds that they deliberately
discourage driving and unequally burden motorists as a class. Such an
argument, however, would fail for the same reasons applicable to this
case, namely, that a governmental action that does not implicate a
fundamental right or a protected class survives an equal protection
challenge if the government articulates some rational basis for the
The Court finds unpersuasive CLASH'S attempt to analogize smokers to
homosexuals. The act of smoking is entirely unrelated to any condition of
human being, it is simply not on the same elemental plateau as a person's
sexual orientation in defining, in existential terms, who the individual
is.*fn15 Whereas smoking is a human endeavor, one of many a person may
do (and one which many are trying to cease doing), homosexuality cannot
be equated to just an activity, no more so than a person's race may be
called a "thing" on the basis of which the individual's dignity and humanity may be stripped. By the
same token, as recognized by numerous laws including those in New
York City and State banning discrimination on the basis of sexual
orientation, homosexuality constitutes a more deeply-rooted
aspect of a person's total collage of traits that defines the individual.
Thus, the Court finds Stewart's analogy to be inapposite.
For this reason, CLASH'S reliance on Romer v. Evans,
517 U.S. 620 (1996), during oral argument is misplaced. In Romer, the
Supreme Court struck down an amendment to the Colorado State Constitution
that prohibited the enactment or adoption of any law, regulation,
ordinance, or policy that protected homosexuals as a class. See
id. at 624, 632-33. The Romer Court found that the state's
attempt to deny a particular group any and all protections under the law
violated the Equal Protection Clause. See id. at 631-32. In
contrast, the Smoking Bans do not embody a sweeping governmental denial
of protection under the law that is specifically intended to burden a
particular group, like the amendment at issue in Romer.
Furthermore, as discussed above, a comparison between homosexuals and
smokers is simply not appropriate for the purposes of an equal protection
analysis. Finally, to the extent that CLASH seeks a heightened level of
review by analogizing smokers to homosexuals, Romer offers
no support because the Supreme Court invalidated the Colorado amendment on
rational basis grounds. See id. at 632-33.
CLASH also places heavy reliance on the Second Circuit's decision in
Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003), to forge
its position that at the very minimum, the Court should employ an
intermediate level of scrutiny in assessing CLASH'S equal protection
claim. (See Pl. Reply at 2-5.) In Ramos, two minors
and their mother challenged a local curfew ordinance that prohibited any
person under the age of 18 to be out on the street between specified
hours except under certain circumstances. The Ramos Court
carefully analyzed the application of all three levels of scrutiny to the
curfew and determined that, in light of the balance between the state's
interest in protecting minors from their particular vulnerability versus
minors' constitutional right to move about freely, an intermediate level
of scrutiny was warranted. See Ramos, 353 F.3d at 177-81.
The Court finds nothing in Ramos that supports the contention
that the Smoking Bans must be analyzed under a heightened level of
scrutiny. The effect of the restriction on the fundamental right in
Ramos, like in Coates, was direct. In other words,
these two cases involved laws that directly proscribed assembly and free
movement. The Smoking Bans pose no such direct restriction on movement or
assembly. Nor does the Court agree with CLASH that whatever indirect effect the
Smoking Bans are alleged to have on the movement or assembly of smokers
merits constitutional protection. Thus, Ramos offers no support
for CLASH'S arguments that the Court need apply an intermediate level of
scrutiny to the Smoking Bans.
Accordingly, the Court finds no basis to employ either strict scrutiny
or an intermediate level of review to CLASH'S equal protection challenge
to the Smoking Bans.
4. Privileges and Immunities Clause
CLASH alleges that the Smoking Bans violate the Privileges and
Immunities Clause of the Fourteenth Amendment by impairing the right of
smokers to enter into implied contracts with willing bar and restaurant
owners to smoke in their establishments. (See Amd. Compl. at
¶¶ 68-69.) Because CLASH fails to mention, much less argue, this claim
in any of its submissions to the Court, the Court presumes that CLASH has
abandoned the claim.*fn16 The Court will thus give the issue
The Court is not persuaded that there is an implied binding and
enforceable agreement to smoke between a bar or restaurant owner and a
smoker when the smoker enters an establishment, anymore than there is a
binding agreement between these parties committing the smoker to purchase alcohol or food. The Court finds that this claim is wholly without
merit and is thus rejected.
CLASH also asserts a facial challenge to Chapter 13 on the grounds that
it violates the void-for-vagueness doctrine embodied in
the Due Process Clause of the Fourteenth Amendment. (See Amd.
Compl. at ¶ 40.) Under this doctrine, "a statute which either forbids
or requires the doing of an act in terms so vague that [persons] of
common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of law."
Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984)
(quoting Connally v. General Constr. Co., 269 U.S. 385, 391
(1926)). In other words, "[t]he Due Process Clause requires that laws be
Grafted with sufficient clarity to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, and to
provide explicit standards for those who apply them." General Media
Communications, Inc. v. Cohen, 131 F.3d 273, 286 (2d Cir. 1997)
(citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
In meeting these requirements, however, "the degree of linguistic
precision . . . varies with the nature and in particular, with
the consequences of enforcement of the statutory provision."
Id. (citation omitted). As CLASH concedes, the standards governing the vagueness doctrine are relaxed when, as here, the
challenged laws impose only civil penalties. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99
(1982); Upton v. SEC, 75 F.3d 92, 98 (2d Cir. 1996); see
also Ragin v. New York Times Co., 923 F.2d 995, 1002 (2d Cir.
CLASH'S vagueness challenge has two components. First, CLASH argues
that the definitions of "bar" and "food service establishment" under
Chapter 13 are vague insofar as a patron will be unable to distinguish
between them. (See Amd. Compl. ¶¶ 41-44.) Second, CLASH
argues that this alleged vagueness will lead to arbitrary and
discriminatory enforcement of Chapter 13. (See id. ¶¶
45-47.) The Court considers these arguments in turn.
Chapter 13 defines a "bar" 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." N.Y. Pub. Health Law
§ 1399-n(1). A "food service establishment" is defined as "any area,
including outdoor seating areas, or portion thereof in which the business
is the sale of food for on-premises consumption." Id.
at 1399-n(3). While smoking is prohibited in all areas of a bar, a food
service establishment may permit smoking in an outdoor area so designated provided that such area: (1) comprises
no more than 25 percent of the total outdoor seating area; (2) is at
least three feet away from the non-smoking outdoor area; and (3)
is designated with appropriate signs. See id. § 1399-q(6).
With regard to the first prong of CLASH'S vagueness attack, CLASH
argues that Chapter 13 "does not set forth any guidance whatsoever as to
when or by what criteria an establishment's service of food is to be
incidental to the on-premises consumption of alcoholic
beverages." (Pl. Mem. at 20.) Thus, according to CLASH, Chapter 13 "fails
to give a person of ordinary intelligence who desires to frequent an
establishment with outdoor seating which serves both food and alcohol a
reasonable opportunity to know what is prohibited. . . ." (Pl. Mem.
This argument has no merit. The legal designation of a particular
establishment under Chapter 13 is a matter between the bar or restaurant
proprietor and the appropriate county administrative/enforcement agency,
and not the smoking patron. When a patron enters an establishment with an
outdoor seating area and desires to smoke, the legal classification of
the establishment will have been already determined and the appropriate
signs displayed, assuming compliance by proprietors. See N.Y.
Pub. Health Law § 1399-p(1) (requiring the prominent posting of "No Smoking" signs and the like in all
areas where smoking is prohibited). Even if signs are not posted, a
patron can always inquire if smoking is prohibited, lest there be any
doubt. Thus, the Court finds wholly unfounded CLASH'S concern that every
time an "uncertain patron" who wishes to smoke enters an establishment
with an outdoor seating area for the first time, he or she will have to
make an on-the-spot determination as to whether the
service of food is "incidental to" the service of alcohol using the
criteria established by the New York State Department of Health.
In any event, whatever linguistic imprecision exists in Chapter 13 in
this regard is minimal, at best, and insufficient as a basis to nullify
under the vagueness doctrine a civil statute such as Chapter 13 that is
intended to protect public health.*fn17 See United States Civil
Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548,
578-79 (1973); Local 32B-32J, Serv. Employment Int'l Union v. Port
Auth. of N.Y. and N.J., 3 F. Supp.2d 413, 419-20 (S.D.N.Y. 1998). The second component of CLASH'S vagueness argument asserts that the
determination as to whether a premises is a "bar" where the service of
food is "incidental" to the service of alcohol will be made on an ad hoc
basis, and thereby lead to arbitrary and discriminatory enforcement. (Pl.
Mem. at 23.) The Court finds no merit to this argument. As discussed
above, the onus is on the proprietor to determine whether a particular
establishment qualifies as a "bar" or a "food service establishment"
under Chapter 13, not the patrons. Once this determination is made and
the appropriate signs are in place, there is no need for any guesswork by
patrons or discretion by enforcement officials.*fn18 The proprietor who
permits smoking without making the appropriate determination creates the
risk of any inconsistent enforcement.
Accordingly, the Court is not persuaded that Chapter 13 is
unconstitutionality vague and thus, rejects CLASH'S challenge on this
F. RATIONAL BASIS
Having found no basis upon which to employ a heightened level of
scrutiny, the Court proceeds to determine whether the Smoking Bans
survive rational basis review. 1. The Rational Basis Test
Under a rational basis standard of review, government acts carry a
"strong presumption of validity." Beach Communications, 508
U.S. at 314-15 (citation omitted); Cleburne, 473 U.S. at 440.
Indeed, at its most extreme, rational basis review mandates that a
"legislative choice is not subject to courtroom factfinding and may be
based on rational speculation unsupported by evidence or empirical data."
Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotations
and citations omitted); Vance v. Bradley, 440 U.S. 93, 111
(1979). To uphold the Smoking Bans, then, the Court need only find some
"reasonably conceivable state of facts that could provide a rational
basis" for their enactment. Heller, 509 U.S. at 320. In other
words, the Smoking Bans must "find some footing in the realities of the
subject addressed by the legislation." Id. at 321.
2. Evolution of Smoking Research and Regulation
Because CLASH challenges the bases upon which the Smoking Bans were
enacted, it would be beneficial for the Court's analysis to begin with a
discussion of the significant historical developments in the evolution of
scientific research into the health effects of smoking and the resulting
governmental regulations. The purpose of this brief overview is not so
much academic, as it serves as a backdrop against which the enactments of the Smoking Bans can be evaluated.
Government regulation of smoking in the United States spawned by
scientific research linking smoking to detrimental health effects is
hardly a recent phenomenon or novel concept. As early as 1964, the United
States Surgeon General (the "Surgeon General") first warned the American
public of the hazards of smoking tobacco.*fn19 See generally
Smoking and Health, Report of the Advisory Committee to the Surgeon
General of the Public Health Service, United States Department of Health,
Education, and Welfare (1964) (the "1964 Report"). The 1964 Report laid
the foundation for further scientific research into the health effects of
smoking over the ensuing 40 years; and has led to a legion of federal,
state, and local statutory enactments in response to the mounting
evidence that smoking is hazardous to a person's health.*fn20 For
example, in 1965, New York State responded to the 1964 Report by enacting
a statute to regulate the labeling and advertising of cigarettes. See 1965 N.Y. Laws, ch. 470.
Congress also responded that same year by enacting the Federal
Cigarette Labeling and Advertising Act (the "1965 Act"). See
Pub.L. 89-92, 79 Stat. 282 (1965), as amended, 15 U.S.C. § 1331
et seq. The 1965 Act was the first federal law that required
all cigarette packs sold or distributed in the United States to bear a
warning label, specifically the statement: "Caution: Cigarette Smoking
May Be Hazardous To Your Health." Id. 79 Stat. 283. The 1965
Act, however, did not require any such warnings on cigarette
advertising.*fn21 See id.
A few years later, Congress amended the 1965 Act by enacting the Public
Health Cigarette Smoking Act of 1969 (the "1969 Act"). See Pub.
L. 91-222, 84 Stat. 87 (1969), as amended, 15 U.S.C. § 1331
et seq. Most notable among the 1969 Act's amendments
was an outright ban on cigarette advertising on television and radio,
effective January 1, 1971.*fn22 Id. 84 Stat. 89. Thus, on
December 31, 1970, the Marlboro Man rode off into the red desert sunset
on television for the last time. In 1972, the Surgeon General issued a subsequent report on the health
effects of smoking. See generally The Health Consequences of
Smoking, A Report of the Surgeon General: 1972, United States Department
of Health, Education, and Welfare (1972) (the "1972 Report").*fn23 It
was in the 1972 Report that the Surgeon General first warned
non-smokers that exposure to ETS posed health risks. See id. at
In 1975, New York State first enacted restrictions on where people
could smoke as Article 13-E of the Public Health Law. See 1975
N.Y. Laws Ch. 80. The 1975 law prohibited smoking in any means of public
transportation, and in certain indoor facilities open to the public, such
as libraries, museums, and theaters. See id. In a memorandum
regarding the 1975 law, New York State Senator John Dunne, one of the
sponsors of the bill, discussed its purpose as follows:
Non-smokers have a right to clean air and
should be able to enforce this right. . . .
Tobacco. smoke represents an immediate physical
discomfort for a large number of
non-smokers. Additionally, it presents a clear and
immediate danger to persons afflicted with
emphysema, chronic bronchitis, asthma, various
allergies and aggravated heart conditions. For persons so afflicted, they
are in many cases denied the opportunity to visit
and enjoy public facilities.
1975 N.Y. Legislative Annual at 257. Thus, in 1975, when scientific
data on the health effects of ETS was in its relative infancy, the New
York anti-smoking law was aimed more at reducing both the health
problems of those with preexisting conditions and the annoyance of ETS to
By 1986, scientific data on the adverse health effects of ETS had
continued to mount. That year, the Surgeon General issued a landmark
report that, for the first time, provided a serious indictment of ETS as
a harmful agent for healthy non-smokers. See generally
The Health Consequences of Involuntary Smoking, A Report of the Surgeon
General, United States Department of Health and Human Services (1986)
(the "1986 Report").*fn24 The 1986 Report, a 359-page
comprehensive review of numerous scientific studies establishing a
possible correlation between ETS and cancer and other human ailments,
concluded that: (1) "[i]nvoluntary smoking is a cause of disease,
including lung cancer, in healthy nonsmokers," (2) children of parents
who smoke are at greater risk of health problems than children of
nonsmokers; and (3) the separation of smokers and nonsmokers in the same airspace may reduce, but not
eliminate, exposure to ETS by nonsmokers. See id. at 13.
According to the then-Assistant Secretary for Health, "[o]n the
basis of [the 1986] Report, it is clear that actions to protect
nonsmokers from ETS exposure not only are warranted but are essential to
protect public health." Id. at viii.
In 1989, the New York State Legislature enacted the CIAA, which
substantially overhauled the state's existing smoking prohibitions. As
discussed in subsection A above, the 1989 CIAA placed significant
restrictions on smoking in indoor public locations. See 1989
N.Y. Laws Ch. 244. Citing the 1986 Report, the Governor's Approval
Memorandum regarding the CIAA states that "[t]he case against
environmental tobacco. smoke has reached compelling proportions" and that
the "overwhelming scientific evidence that second-hand smoke
poses a grave danger to public health is not subject to serious dispute."
1989 N.Y. Chapter Law Memoranda at 148.
The data against ETS continued to mount in the 1990's. In 1992, the
United States Environmental Protection Agency ("EPA") issued a report
that examined ETS research to date. The report concluded that ETS was a
significant risk factor in the development of lung cancer in nonsmokers.
See generally Respiratory Health Effects of Passive Smoking:
Lung Cancer and Other Disorders, United States Environmental Protection
Agency (1992) (the "1992 EPA Report"). The 1992 EPA Report found
compelling evidence that ETS is a human carcinogen and approximated that
every year 3,000 lung cancer deaths were attributable to exposure to ETS.
See id. at 1-4. The 1992 EPA Report also found that research
suggested a possible connection between ETS and other forms of cancers,
cardiovascular disease, and respiratory ailments. See id. at
In 1995, New York City responded to the accumulation of medical and
scientific evidence regarding ETS by enacting its own smoking regulations
as the SFAA. The New York City Council began deliberations on the SFAA in
March 1994 and heard testimony from over 200 witnesses during public
hearings related to the passage of these laws. See Beatie v. City of
New York, 123 F.3d 707, 710 (2d Cir. 1997).*fn25
Today, over 40 states have enacted laws restricting smoking in public
places and approximately half of all the states have laws restricting
smoking in private work locations.*fn26 When it comes to state
prohibition of smoking in the indoor portions of bars and/or restaurants,
New York is not alone.*fn27 Federal regulation of smoking has continued to
evolve as well. For example, federal law now prohibits smoking on all
domestic commercial flights; and on foreign commercial flights, subject
to any objection by the particular foreign government. See
49 U.S.C. § 41706. Smoking is also prohibited in most non-chartered
motor common carriers transporting passengers in interstate
commerce. See 49 C.F.R. § 374.201. And in 1997, President
Clinton issued an Executive Order prohibiting smoking in all indoor
government locations subject to the Executive Branch. See Exec.
Order No. 13058, 62 Fed. Reg. 43,451 (Aug. 9, 1997).*fn28
3. Legislative History of the Smoking Bans
Defendants have provided evidence with regard to what the New York
State Legislature and the New York City Council considered in enacting
the Smoking Bans. Most telling is the affidavit of New York State
Assembly Member Alexander B. Grannis ("Grannis"), who has been an
Assembly Member since 1975 and was the author of the original 1989 CIAA
and all its amendments, including Chapter 13. (See Grannis
Aff. at ¶¶ 1-2.) Grannis attests that he has followed the scientific and medical
research detailing the health hazards of ETS. According to Grannis, "the
Assembly obtained and reviewed many scientific and medical studies and
other publications dealing with the health effects of secondhand smoke."
(Id. at ¶ 6.) Attached to the Grannis affidavit is a list
of 15 documents that Grannis attests that the New York Assembly
considered in enacting Chapter 13, among them, the 1986 Report, the 1992
EPA Report, and studies reported in the Journal of the American Medical
The record also includes the affidavit of Ursula Bauer ("Bauer"), the
Director of the New York State Department of Health Tobacco. Control
Program. In Bauer's affidavit, she sets forth in greater detail the
methodologies and findings of the materials Grannis cites as having been
considered by the New York Assembly during the passage of Chapter 13.
(See Bauer Aff. at ¶¶ 4-16.)
The New York State Senate issued a memorandum in support of Chapter 13
that states that the justification for the bill is "to protect all
workers from exposure to deadly secondhand smoke in all workplaces,
including bars and restaurants." (2003 N.Y. Laws Ch. 13, Leg. Memo.
(McKinney).) Shortly after Governor Pataki signed Chapter 13 into law, a
spokesperson for the Governor issued the statement that the Governor has "signed the bill because he believes a statewide ban on smoking in
the workplace will lead to a healthier New York and will reduce the cost
of health care for New Yorkers." James M. Odato, Pataki Signs Ban on
Smoking, Times Union, Mar. 27, 2003, available at 2003
With regard to Local Law 47, the record illustrates that the New York
City Council also considered the mounting evidence against ETS as a basis
for its enactment. In testimony before the New York City Council
Committee on Health a few months prior to the enactment of Local Law 47,
Frieden discussed the justification for considering more restrictive
You have the opportunity to enact legislation that
can . . . serve as a national model for worker
protection protection from deadly
secondhand smoke that disproportionately affects
minority workers, underpaid and working long
Every day, the Health Department registers the
deaths of 25 New Yorkers who were killed by
tobacco. About one out of every 10 people who die
from tobacco. die because of other people's smoke.
The evidence that second-hand smoke kills
is clear and consistent. The evidence comes from
studies of the chemicals in second-hand
smoke, from animal studies, and from studies
analyzing the health of hundreds of thousands of
people. There is no scientific doubt about the
Second-hand smoke is an occupational
hazard whether you are a waiter or a secretary, a
bartender or a banker. African-Americans,
Latinos and Latinas, and those with low incomes
are twice as likely to have to breathe
second-hand smoke on the job. Owners don't have the right to expose workers to
the hazardous chemicals in second-hand
smoke. The fundamental principle of worker safety
is that workers should not have to choose between
their health and their jobs.
(Testimony of Thomas R. Frieden, Mun. Decl. at Ex. E.) As this
passage discusses, Local Law 47 was enacted as a measure to further
protect New Yorkers in response to the evidence that ETS exposure poses
serious health effects.*fn29
4. CLASH'S Evidence
CLASH counters with an effort to discredit the juggernaut of scientific
ETS evidence that Defendants have submitted in support of the Smoking
Bans.*fn30 Specifically, CLASH submits voluminous amounts of documents,
including articles, reports of independent medical research, and other
miscellaneous reports that criticize the findings that ETS is harmful.
(See Mulhearn Aff. at Exs. C-Q; Jenkins Aff. at ¶¶
8-17.) While some of these documents seek to discredit ETS research in
general, a large portion of CLASH'S ETS evidence (and CLASH'S arguments)
is targeted particularly at discrediting the 1992 EPA Report, presumably
as a result of Defendants' stated reliance on this report and on its
conclusion that ETS is a carcinogen. (See Mulhearn Aff. at
Exs. C-G, K-L, EE; Stewart Aff. at Ex. B; Pl. Mem. at 16-17.)
Another significant focus of CLASH'S assault on the ETS data Defendants
rely upon is an attempt to cast doubt on the precise number of fatalities
that Defendants cite in support of the Smoking Bans. (See,
e.g., Mulhearn Aff. at Exs. T, Z; Stewart Aff. at 2-3, Ex. A.)
Noteworthy among CLASH'S submissions is Stewart's position papers and
affidavit. In these submissions, Stewart single-handedly attempts
to: (1) rebut the scientific ETS findings Defendants rely upon; (2)
review contrary scientific findings on ETS; (3) discuss how to properly
interpret the reported findings of scientific research; (4) comment on
what the legislatures considered when they passed the Smoking Bans; and
(5) rebut, paragraph-by-paragraph, the affidavits of
Grasior, Grannis, and Bauer, including Grannis' attestations relating to
what the lawmakers considered during the enactment of Chapter 13 and the
overall legislative process. (See Mulhearn Aff. at Exs.
Z-AA, CC-JJ, KK; Stewart Aff. at ¶¶ 4-53.)
Stewart's analysis may be as impressive as it is ambitious. It is,
however, largely besides the point, and thus, the Court need not engage
in any substantive assessment of which side presented the more compelling
and supportable medical evidence. For, in the final analysis, the test is not
whether the scientific materials the legislators relied upon was
medically sound or empirically correct, but whether the enactments find
some rational basis on some "conceivable state of facts."
Heller, 509 U.S. at 320.
Upon careful consideration of all the evidence submitted by the parties
in a light most favorable to CLASH, the Court finds that the Smoking Bans
easily survive this rather expansive standard. New York State's and New
York City's stated basis for enacting the Smoking Bans protecting
its citizenry from the well-documented harmful effects of ETS
provides a sufficient rational basis to withstand CLASH'S
constitutional challenges. See Hill v. Colorado, 530 U.S. 703,
715 (2000) ("It is a traditional exercise of the States' police powers to
protect the health and safety of their citizens.") (internal quotations
and citation omitted). The record is clear that both the New York State
Legislature and the New York City Council had more than ample "footing in
the realities of the subject" to justify enactment of the Smoking Bans.
Heller, 509 U.S. at 321. The Smoking Bans are the classic
exercise of the well-recognized and far-reaching police
power of the state over the health and welfare of its citizens.*fn31 See Metropolitan Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 756 (1985); DeCanas v. Bica,
424 U.S. 351, 356 (1976).
Similarly, as discussed in the Court's equal protection analysis above,
the mere fact that the Smoking Bans single out and place burdens on
smokers as a group does not, by itself, offend the Equal Protection
Clause because there is no fundamental right implicated nor is there a
basis upon which to grant smokers the status of a protected class. Thus,
CLASH'S equal protection challenge fails under the rational basis
standard of review. As the Supreme Court explained:
The general rule is that legislation is presumed
valid and will be sustained if the classification
drawn by the statute is rationally related to a
legitimate state interest. . . . When social or
economic legislation is at issue, the Equal
Protection Clause allows the States wide latitude,
. . . and the Constitution presumes that even
improvident decisions will eventually be rectified
by the democratic process.
Cleburne, 473 U.S. at 440 (citations omitted). Because
the record is replete with data upon which the legislators could have
rationally relied upon in enacting the Smoking Bans, the Court rejects
CLASH'S equal protection claim. See Harris v. McRae,
448 U.S. 297
, 322 (1980) ("It is well settled that where a statutory
classification does not itself impinge on a right or liberty protected by
the Constitution, the validity of [the] classification must be sustained unless the classification
rests on grounds wholly irrelevant to the achievement of [any legitimate
governmental] objective.") (internal quotations and citations omitted).
And it is not the province of this Court to second-guess such
legislative choices. See Beach Communications, 508 U.S. at 313
("[E]qual protection is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices.").
Whatever respect Stewart may be due for the scope of her effort, the
Court must question whether she possesses sufficient competency to attest
to all of these matters, many of which were determined by trained
professionals and high-ranking government officials whose
scientific and professional credentials and experience are indisputable.
Stewart, as a free-lance writer and journalist, is hardly
qualified to opine on matters pertaining to the reliability and accuracy
of scientific ETS research.*fn32 Moreover, Stewart's personal knowledge
of events, in particular with regard to the legislative process behind the enactment of the Smoking Bans, has
not been established, which further undermines the probative value of her
testimony. See Fed.R.Civ.P. 56(e) ("Supporting and opposing
affidavits shall be made on personal knowledge, . . . and shall show
affirmatively that the affiant is competent to testify to the matters
Notwithstanding these evidentiary obstacles to much of CLASH'S motion
papers, the Court acknowledges that some of CLASH'S submissions may
support its argument that the widely-accepted belief that ETS is
harmful may not enjoy unanimous support in the scientific and medical
community. Nor is every finding that ETS poses health risks immune from
legitimate questioning and criticism. Indeed, the Court cannot rule as a
matter of law that the various reports and studies CLASH submits to
support its contention that ETS is not materially harmful to non-smokers
are wholly without merit or are not sufficiently credible.
Conceivably, all of CLASH'S documentation, were it on the record as
admissible evidence, might be relevant under a strict scrutiny standard.
Under a rational basis standard, however, the fatal premise in CLASH'S
attempt to discredit this data is that it requires the Court to accept in
toto CLASH'S cited research and studies on ETS in place of all the
contrary research that has accumulated since 1986, and which comes by way
of well-respected sources and endorsed by high-ranking government officials and other
renowned authorities. While it is certainly in the realm of
possibilities that other authority may reach a different conclusion,
or at minimum take reasonable issue with some of the research
Defendants rely upon, it does not render irrational Defendants'
decision to rely on one body of relevant evidence over another.
For this reason, CLASH'S attempts to discredit particular scientific
evidence regarding ETS that Defendants cite are unpersuasive. With regard
to the 1992 EPA Report, CLASH relies upon Judge William L. Osteen's
decision in Flue-Cured Tobacco. Cooperative Stabilization
Corp. v. EPA, 4 F. Supp.2d 435 (M.D.N.C. 1998) vacated and
remanded, 313 F.3d 852 (4th Cir. 2002). In Flue-Cured
Tobacco, a group of tobacco. companies alleged, inter
alia, that the EPA exceeded its authority under the Radon
Research Act, 42 U.S.C. § 7401 et seq. (the "Act"), when it
issued the 1992 EPA Report and that the EPA's risk assessment of ETS was
not a result of reasoned decision making. See id. at 438-39. In
an exhaustive opinion, the Court in Flue-Cured Tobacco
granted the Plaintiff's' motion for partial summary judgment after
setting forth a detailed and scathing criticism of the 1992 EPA Report.
Specifically, the Court concluded that with the 1992 EPA Report, the EPA:
(1) violated the Act's procedural requirements; (2) publicly committed to a conclusion before
research had begun; (3) adjusted established procedures and scientific
norms to validate its conclusions; and (4) established a de facto
regulatory scheme intended to influence public opinion. See id.
at 465-66. The Flue-Cured Tobacco Court also concluded
that the EPA's risk assessment was flawed. See id. at 466.
Judge Osteen's criticism of the 1992 EPA Report in Flue-Cured
Tobacco does not alter the reasoning in this case. As
discussed above, the record is replete with other scientific evidence
that Defendants could have rationally relied upon in enacting the Smoking
Bans. Thus, the fact that one report has been seriously called into doubt
does not change the Court's analysis herein. Moreover, because a
legislative choice may be sustainable even if it is based on "rational
speculation unsupported by evidence or empirical data," Heller,
509 U.S. at 320, CLASH'S constitutional challenges would likely fail even
if the 1992 EPA Report were the only source of empirical data Defendants
cited in support of the Smoking Bans.
In this case, the record makes clear that Defendants have gone well
beyond mere unsupported rational speculation. The intent behind the
Smoking Bans finds immense support from empirical data and other evidence
and therefore, the Court finds that Defendants have well surpassed the
minimal requirement to satisfy the rational basis standard.
The Second Circuit in Beatie v. City of New York, 123 F.3d 707
(2d Cir. 1997), addressed the pertinent considerations governing the
rational basis standard in a case factually similar to this one. In
Beatie, a cigar aficionado brought a substantive due process
challenge to the pre-Local Law 47 version of the SFAA as it
pertained to cigars. Specifically, the plaintiff argued that while
scientific evidence suggested that ETS from cigarette smoke was harmful,
there was no evidence that ETS from cigar smoke was likewise harmful.
See id. at 709. The Beatie Court flatly rejected such
a contention and found that under the highly-deferential rational
basis level of review, the ETS evidence fully supported the legislature's
desire to protect non-smokers from cigar smoke. See id.
at 712-13. The same result is warranted here.*fn33
CLASH casts the enactment of the Smoking Bans as a "knee jerk" reaction
by the New York State Legislature and New York City Council based on one
or two novel and specious scientific reports. According to CLASH, the
government interest at issue here is based on a false premise because the allegations of the
"purported lethal impact of secondhand smoke have no scientific basis
whatsoever." (Pl. Mem. at 15.) CLASH alleges the enactment of the Smoking
Bans was based upon "false, misleading, and dubious quasi-scientific
studies and methodologies which greatly exaggerate the extent
of the public and workplace risks of secondhand smoke. . . ." (Amd.
Compl. at ¶ 58.)
Quite to the contrary, the evidence in the record before the Court
makes clear that smoking prohibitions contained in the Smoking Bans are
but the latest development of what has been an evolution of smoking
regulation prompted by scientific research confirming over the past 20
years or so that ETS poses potential health risks to non-smokers.
In enacting the Smoking Bans, the New York State Legislature and New York
City Council were not writing on a clean slate. The findings that ETS
poses serious health risks are now well-documented from numerous
independent sources. CLASH and its members can hardly be surprised by the
progression of smoking restrictions. In fact, when the original CIAA and
SFAA were enacted in 1989 and 1995 respectively, they could just as
rationally have been extended to bars and restaurants as they were to
other public places when these laws were adopted at that time. Moreover, the justification for smoking in a bar or restaurant is not
materially different from that which pertains to offices, theaters,
libraries, retail stores and other public places that were already
covered prior to the enactment of the Smoking Bans. Conversely, there is
nothing about a bar or a restaurant that makes ETS any less harmful to
persons affected by it, and an outright prohibition on smoking there any
less compelling. In other words, there is no inherent quality in bars and
restaurants that offer some protective shield from ETS that other public
places do not have. Indeed, in light of the greater incidence and amount
of smoking that has traditionally occurred in bars and restaurants when
compared to other places where smoking is prohibited, it is a wonder that
the contrary argument has not been advanced, namely, that the prior
versions of these laws were flawed insofar as they exempted some of the
places where arguably the greatest risks may have existed.
CLASH'S fixation with discrediting both the particular reports that
Defendants relied upon and the particular quoted death tolls quoted
misapprehends the rational basis standard. It is of no consequence under
rational basis review whether there were serious statistical flaws in the
1986 Report or the 1992 EPA Report; or whether the annual number of
deaths attributable to ETS may actually be substantially less than the 63,000 figure cited in these reports. What is relevant for the
purposes of the instant motion is that Defendants have persuasively
demonstrated that there is a plethora of reliable and consistent
evidence, upon which they relied in adopting the Smoking Bans, which
concludes that ETS poses health risks to non-smokers. This body
of evidence provides more than a sufficient rational basis to justify
their enactments. As the Second Circuit explained in Beatie
with regard to cigar smoke:
At best, plaintiff's evidence suggests a lack of
direct empirical support for the assumption that
cigar smoke is as harmful as cigarette smoke or
his evidence might demonstrate the existence of a
scientific dispute over the risks in question.
. . .
Contrary to plaintiff's arguments, due
process does not require a legislative
body to await concrete proof of reasonable but
unproven assumptions before acting to safeguard
the health of its citizens. Thus, although
the parties dispute the existence of and weight of
direct scientific proof of cigar smoke's dangers,
that dispute is not a material issue of fact in
considering whether to grant summary judgment.
Beatie, 123 F.3d at 713 (emphasis added). Although
Beatie dealt with a due process claim, the same rationale
applies here. Even granting CLASH the benefit of the doubt that despite
approximately 20 years of scientific findings to the contrary, there
still exists a serious dispute over whether ETS is in fact harmful, such
dispute does not affect the Court's holding that as a matter of law, the
Smoking Bans satisfy the rational basis test.
For the same reasons, CLASH'S argument that the rationale for the Smoking Bans can be met with less-restrictive
alternatives also misses the mark. Under the rational basis standard,
such considerations are not relevant. "We will not strike down a law as
irrational simply because it may not succeed in bringing about the result
it seeks to accomplish, . . . because the problem could have been
better addressed in some other way, . . . or because the statute's
classifications lack razor-sharp precision, . . ."
Beatie, 123 F.3d at 712 (citations omitted). It is sufficient
"that there is an evil at hand for correction, and that it might be
thought that the particular legislative measure was a rational way to
correct it." Id. at 711 (quoting Williamson v. Lee Optical
of Oklahoma, Inc., 348 U.S. 483, 488 (1955)).
Indeed, the Court notes, borrowing from other applications of the law,
that the Supreme Court has held that forcing a prisoner to share a jail
cell with a smoker against his wishes can rise to the level of cruel and
unusual punishment in violation of the Eighth Amendment, even if the
non-smoking prisoner has yet to develop any medical conditions.
See Helling v. McKinney, 509 U.S. 25, 31-35 (1993). Various
Circuit Courts of Appeals also have discussed the well-documented
harmful effects of ETS in similar contexts. See,
e.g., Atkinson v. Taylor, 316 F.3d 257 (3d Cir.
2003); Davis v. New York, 316 F.3d 93 (2d Cir. 2002); Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001);
Warren v. Keane, 196 F.3d 330 (2d Cir. 1999); Rochon v.
City of Angola, 122 F.3d 319 (5th Cir. 1997); McKinney v.
Anderson, 959 F.2d 853 (9th Cir. 1992), aff'd and remanded
sub nom. Helling v. McKinney, 509 U.S. 25
(1993). In citing to these precedents, it is not the Court's intent to
equate a prison inmate with a bar patron or employee.*fn34 However,
these cases, many of which discuss the well-known harmful effects
of ETS, illustrate the extent to which other authoritative matters of
public record available to the legislators form the overall basis upon
which, in enacting the Smoking Bans, they could rationally have concluded
that ETS is a hazard to human health. Even Philip Morris, one of the
largest cigarette manufacturers in the world, now publicly concedes that
the results of ETS research support the passage of smoking prohibitions
in public places. (See Grasior Aff. at Ex. 2.)
The Court's application of a rational basis standard of review to the
Smoking Bans is consistent with other New York federal and state courts
that have reviewed the constitutionality of smoking restrictions.*fn35 See,
e.g., Dutchess/Putnam Rest. & Tavern Ass'n, Inc. v.
Putnam County Dep't of Health, 178 F. Supp.2d 396, 405-06 (S.D.N.Y.
2001) (rejecting plaintiff's equal protection and free speech challenges
to the county board's anti-smoking regulations); Justiana v.
Niagara County Dep't of Health, 45 F. Supp.2d 236, 242-43 (W.D.N.Y.
1999) (holding that it was not irrational to enact legislation to protect
against ETS in a piecemeal fashion); Sayville Inn 1888 Corp. v.
County of Suffolk, No. 98-CV-4527, 1998 U.S. Dist. LEXIS 23472, at
*6 (E.D.N.Y. Aug. 3, 1998) (applying rational basis review in the context
of a preliminary injunction to determine the Plaintiff's' likelihood of
success on the merits of their equal protection challenge); Fagan v.
Axelrod, 550 N.Y.S.2d 552, 556-59 (Sup.Ct. 1990) (rejecting
Plaintiff's' constitutional challenges to the 1989 CIAA under a rational
Indeed, as is evident from the discussion above, the evidence against
ETS is consistent, profound, and widely-accepted. Through the
prism of a rational basis standard, CLASH'S attempt to cast serious doubt
on the mountainous evidence over the past two decades that has
demonstrated that ETS poses health hazards is a hurdle that it simply
cannot overcome with the materials it has marshalled here. It is akin to
trying to scale Mount Everest with a ball of string.
In sum, while it is true that, as CLASH suggests, the Smoking Bans
figuratively and literally leave smokers "out in the cold," CLASH has
failed to demonstrate that the enactment of the Smoking Bans was not
rationally related to some legitimate governmental purpose. The Court
finds that the New York State and City legislators had a rational basis
to enact the Smoking Bans, and such enactments were a valid exercise of
the State's police powers over the health and welfare of its citizens.
Accordingly, the Court rejects all of the claims in CLASH'S amended
complaint and grants summary judgment in favor of Defendants.
As a final procedural note, the Court recognizes that although it is
granting summary judgment to Defendants, the parties have not engaged in
discovery. The general rule is that a Court should permit parties an
adequate opportunity to engage in full discovery before considering
summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Schering Corp. v. Home Ins. Co., 712 F.2d 4, 10
(2d Cir. 1983). Furthermore, the Court sua sponte has converted
the Municipal Defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) into a motion for summary judgment under Rule 56. In these circumstances, the Court must ensure that
the party against whom summary judgment is entered had adequate notice of
the materials relied upon by the opposing side and an opportunity to
present its own submissions to defeat summary judgment. See Pugh v.
Goord, 345 F.3d 121, 124-25 (2d Cir. 2003) ("A sua sponte
award of summary judgment may well be appropriate if it is clear that all
of the evidentiary material a party might submit is before the court and
no material issue of fact exists.") (citation omitted). Thus, it would be
unfair to consider summary judgment if the losing party would be taken by
In its memoranda to this Court, CLASH informally requests discovery on
the issue of the lethal effects of ETS. (See Pl. Reply at 5.)
At a conference before the Court held on January 30, 2004, counsel for
CLASH also suggested that he would like to depose the legislators
responsible for enacting the Smoking Bans to determine what they
considered. At oral argument before the Court, counsel for CLASH again
requested further discovery on the "lethality" of ETS.
In this case, the Court finds that consideration of summary judgment
against CLASH is proper. First, CLASH has responded to the State
Defendants' motion for summary judgment with its own cross-motion
for summary judgment, thus tacitly conceding that the record is complete
for proper resolution of all the issues presented. See Demery v. Extebank Deferred
Compensation Plan (B), 216 F.3d 283, 286 (2d Cir. 2000) (affirming
the district court's grant of summary judgment with no discovery when
plaintiff had made its own motion for summary judgment). Moreover, it is
clear that CLASH cannot claim unfair surprise because it has had the
opportunity to respond to the submissions of Defendants, as shown by
CLASH'S competing evidence and arguments tending to refute Defendants'
submissions pertaining to both ETS research and the enactment of the
Smoking Bans. (See Pl. Mem. at 15-17; Mulhearn Aff. at Exs.
B-Q; Stewart Aff. at ¶¶ 4-53.)
At oral argument, counsel for CLASH cited the decision in Latino
Officers Association v. City of New York, No. 97 Civ. 1384, 1998 WL
80150 (S.D.N.Y. Feb. 25, 1998), in an attempt to defeat Defendants'
motions to dismiss the amended complaint. In Latino Officers,
the Court held that the Plaintiff's had alleged sufficient facts to
support their claims under the First and Fourteenth Amendments. See
id. at *3-*6. Thus, the question in Latino Officers was
whether the allegations in Plaintiff's' complaint established a claim
upon which relief could be granted. Because the Court in this case is not
considering Defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), but rather, is granting summary judgment pursuant to
Rule 56 based on the evidence in the record, the question of whether CLASH has sufficiently pled facts
to establish constitutional violations and defeat a motion to dismiss is
Finally, the Court rejects CLASH'S request for additional discovery on
the potential lethal effects of ETS. Further evidence on this question
would not affect the Court's analysis or conclusions. In light of the
Court's ruling that, as a matter of law, the Smoking Bans need only
satisfy a rational basis standard of review; and in light of the
overwhelming and widely-accepted evidence in the record that the
legislators considered in passing these laws, the Court is persuaded that
any additional evidence that CLASH would adduce through discovery aimed
at disproving Defendants' evidence on the harmful effects of ETS would
fail to rebut the strong presumption of validity that attaches to the
Smoking Bans. As discussed above, under a rational basis standard, the
legislators are free to select which body of evidence to rely upon. In
the words of Justice White, "it is the very admission that the facts are
arguable that immunizes from constitutional attack the [legislative]
judgment represented by this statute." Vance, 440 U.S. at 112;
see also Powers v. McGugan, 769 F.2d 72, 76 (2d Cir. 1985) ("[W]here the
discovery sought would not meet the issue that the moving party contends
contains no genuine issue of fact, it is not an abuse of discretion to
decide the motion for summary judgment without granting discovery.").
Because Defendants have made more than an ample showing under the
rational basis standard, additional scientific evidence to the contrary
would not alter the Court's conclusion that the Smoking Bans are
For the same reason, deposition testimony on what the State and City
legislators considered in enacting the Smoking Bans would add nothing
relevant to the record before the Court. The record already contains
sufficient information upon which the Court determined that the Smoking
Bans are rationally related to a legitimate state interest. Thus,
additional evidence tending to refute specifically what the legislators
considered would be of no consequence.*fn37 Accordingly, the Court finds
that no prejudice to CLASH would result from the grant of summary judgment to Defendants without the
benefit of discovery on this issue.
For the reasons discussed above, it is hereby
ORDERED that the motion of defendants City of New York and
Thomas R. Frieden (the `"Municipal Defendants") pursuant to Federal Rule
of Civil Procedure 12(b)(6) to dismiss the amended complaint of
plaintiff NYC C.L.A.S.H., Inc. ("CLASH") in its entirety is converted
into a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 and as such is GRANTED; it is further
ORDERED that the motions of defendants Eliot Spitzer and
Antonia C. Novello (the "State Defendants") for summary judgment on all
the claims in CLASH'S amended complaint is GRANTED; and it is further
ORDERED that the cross-motion of CLASH for summary
judgment is DENIED.