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April 20, 2004.


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


On April 9, 2004, the Court received a letter from John P. Gasior, the Assistant New York State Attorney General representing defendants Elliot Spitzer and Antonia C. Novello in this action, requesting that the Court correct certain typographical errors in the Court's Decision and Order dated 7 April 2004 issued in the above-captioned matter (the "Decision"). In particular, on page 3, footnote 1, line 19 of the Decision, the last name "Gasior" is misspelled as "Grasior." The same misspelling appears in the Decision on page 64, line 15; page 67, footnote 32, line 7; and page 76, line 16. Having considered the request, and noting that the requested corrections are proper, it is hereby

ORDERED that the Court's Decision and Order, dated 7 April 2004, is reissued in the corrected form attached and incorporated by reference hereto, the page numbers and content of which are otherwise identical.


  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.



  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 47"), 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 health effects.

  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. at 342.

  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 political questions.


  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.


  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.


  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 Smoking Bans.

  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 affected.

  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 ...

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