The opinion of the court was delivered by: VICTOR MARRERO, District Judge
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).
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., ...