Skip to comments.Appeals Court Rejects Challenge to Outdoor Smoking Ban
Posted on 11/08/2012 5:21:17 PM PST by Drango
Legal challenges to indoor smoking bans have failed. But prohibitions on smoking in outdoor areas are churning in the courts~
Arthur Gallagher, an avid outdoor smoker, sued Clayton in 2011, claiming a ban on smoking in city parks it had enacted a year earlier was unconstitutional. He asked the federal courts to recognize smoking as a fundamental right and argued that any law restricting tobacco use deserves the utmost scrutiny from judges.
On Thursday, the St. Louis-based U.S. Court of Appeals for the Eighth Circuit declined to recognize a right to smoke and held that Clayton had a rational basis to restrict smoking in parks namely, to preserve and protect the health, safety and welfare of the public.
Gallagher had argued that the ordinance unfairly targeted smokers but failed to address other sources of air pollution, such as smoke from barbeques or exhaust from nearby vehicles. He also argued that no member of the public could be harmed by secondhand smoke outdoors, because it dissipates in the air.
Clayton relied on a number of studies in enacting the law~ indicating there is no risk-free level of exposure to secondhand smoke, ~
We need not determine whether outdoor secondhand smoke exposure actually causes harm. Because the City reasonably could believe this to be true, the Ordinance survives, Judge Riley wrote. ~ (One of the few studies found that nonsmokers who visited outdoor restaurants and bars where smoking was allowed had elevated levels of tobacco-related chemicals in the body compared with people at a smoke-free control site.)
People who smoke are pariahs in polite, sophisticated society, but people in the lower rungs of society smoke all the time, he said. There is a class warfare element to this thing that is unattractive, and were pushing for liberty.
(Excerpt) Read more at blogs.wsj.com ...
I don’t smoke, but I find the ever increasing restrictions on smoking absurd.
Sure, I understand that smoking indoors should be curtailed because it effects non-smokers, but outdoor bans are ridiculous?
What next? Corporal punishment for smoking?
What do you say?
“We need not determine whether outdoor secondhand smoke exposure actually causes harm. Because the City reasonably could believe this to be true,”.
Therefor, by this logic, whatever the City reasonably believes gives them the right to control.
I must ask, who owns “the City”?
The laws are exactly backward.
There should be smoking bans in public places, indoors or outdoors. Either that or everyone should be able to combust whatever they like in public places. Smokers are given ‘special rights’ that others do not have in public places.
But, there should be NO BANS in private places, private businesses and private outdoor places.
Outdoor bans in public places are not ridiculous. As a non-smoker I am prohibited from combusting any material I want in public places ... therefore smokers are given ‘special rights’ that I do not have.
I do not agree with smoking bans in private places or private businesses. That is of no concern to government.
Smoking nazis can all kma. Myfervent hope is that one day all smoking nazis will receive the exact treatment they are so willing to foist on others.
People who smoke are pariahs in polite, sophisticated society, but people in the lower rungs of society smoke all the time,
Now you know liberals want to promote pot and ban smoking.
“Outdoor bans in public places are not ridiculous. As a non-smoker I am prohibited from combusting any material I want in public places ... therefore smokers are given special rights that I do not have.”
It is true you can make the case for banning smoking to prevent people from burning down the park.
The only moral (and presumably, legal) reasoning for such prohibition outdoors is preventing real (and physical) harm to others; NOT THE RESULT OF NEUROTIC PANIC. This has NEVER been scientifically proven.
In fact, The largest, most detailed true scientific study of second hand smoke was buried by the anti-smokers, both in and out of government, and was prepared by the World Health Organization under the auspices of the UN. It lasted many years, and involved tens of thousands of people, but failed to arrive at the "politically correct" answer.
The neurotic, rabid anti-smokers can be tolerated; the careless government rulemakers cannot. The Constitution still applies to everyone, and most obviously and evidently, the Federal Rules of Evidence have been blatantly ignored.
The latest version is 2012. Remember, these apply by order of the Supreme Court!
Specifically see Historical Note.
I wasn’t so much commenting on second-hand smoke’s health effects, so much as it is obnoxious to non-smokers. Similar to noise violations.
I’ll leave the health issues to people who are more informed on the matter.
No, there are other grounds for laws. Nuisance laws ban loud noise, bright or strobe lights at night, nudity, lewd behaviour, etc.
Now you can make a case there there should be no nuisance laws of any kind. But what about a community’s right to make it’s own laws?
Community and local laws have always been around. Sure, some of them are silly ... like no vegetable gardens in front yards. But people have the opportunity to change those at the local level.
Unfortunately, you are one of the arrogant crazies who absolutely believes that if you can smell burning tobacco it's exactly the same as burning toxic trash in your back yard, or in a public park.
Fortunately, the Federal Rules of Evidence does not make exceptions for small, arrogant delusional twits; they cannot trump real science!
I’m not talking about science.
If I can’t burn what I want in a public place, then neither can anyone else!
Tobacco is not sacred.
Smokers have always wanted special rights above and beyond anyone else. Although I don’t believe in the ban on smoking in PRIVATE places and I’d work to get that repealed I have to say smokers brought all that upon themselves by their absolute arrogance and intransigence.
Now they want others to stand up for their ‘special rights’.
From the nuisance point of view, I can say that as a non-smoker, I find ANY smoking nearby to be a nuisance.
If I am outdoors and somebody is smoking 30 feet away, it is an instant irritation. At that distance it’s not as bad as some of the idiots who play pounding music in traffic, but it is still a significant irritation and annoyance.
I had a fake cigarette once and I acted like I was smoking it. People were actually waving their hand and doing that fake coughing thing. Pretty funny stuff.
I would be forced to agree with you, were it not for your false premise. Not all, or even most smokers fit your description.
Many years ago, when I smoked, at an outdoor music performance, I had an insane woman (no other description fits) who ran a couple of hundred feet to scream at me, for "poisoning" her air.
The fact that she was upwind the entire time had no effect whatsoever on her neurosis.
You want to talk absolute intransigence and arrogance?
she blamed you for somebody else’s smoke
See post #18.
Therapy might help...
Don't be silly.
Even rabid anti-smokers aren't that stupid.
By a band shell and/or surrounded by other large objects, winds can whip around rather than being “up” or “down.” She smelled smoke, she saw you. Blamed.
That’s your opinion. In my experience the majority of smokers feel they are special and deserve special privileges. And if they don’t get them they become bullies.
I do think that smokers have the right to smoke in their own property and in private businesses and privately owned places where the owners of those private places allow smoking. Property owners should set smoking policy, not any government. The anti-smoking laws are absolutely wrong in that respect and should be changed.
But in public places, smoking laws are no different than any other nuissance law. The question then goes beyond smoking and into the realm of whether or not communities have the right to self-regulate.
An example: in some cities it is illegal to talk on your cell phone and drive, or text and drive ... and in others it is not illegal to do those things. Each community sets its own standards and I don’t think we need a state or federal law for this. Each community sets their own laws for noise, litter, public decorum, speed limits, drinking in public, etc. The same should apply for smoking in public places. If a community want to allow or disallow smoking in public places, the citizens of that community have the right to set their own public policy on this.
Talk about your arrogance and intransigence.
I don't have to see someone smoking to be irritated about it. I can tell instantly if somebody is smoking a cigarette from about 30 feet away, AND IT IS A PHYSICAL IRRITATION TO MY SYSTEM.
I never really expected that to be the case. In fact, I grew up with two parents who were both smokers. But years later, I find - somewhat to my surprise - that cigarette smoke is a very significant, PHYSICAL irritant.
I’m a smoker and I agree with you.
On private property...I have no problem respecting the wishes of the owner...but not the government.
A public place to you means a place that is owned by a government...?
The Federal Rules would apply, say, if Joe sued Moe for the harm caused by Moe’s cigarette smoke. Or if the presence of cigarette smoke were evidence in a criminal case.
It has nothing to do with whether a law banning something needs to first absolutely prove a harm from the something. Not even the USSC will strike a ban for such a failure.
kind of ironic to be a Winston isn’t it :-)
Second-hand smoke is a killer....the problem is....it isn’t 100% effective.
Does beef broth throw off or irritate your stomach as well?
now that was damn funny
Just having a bit of fun with ya Winston......I am sure your condition is a serious one. Forgive me?
As a life-long smoker and former RN...you are both naive and/or so self-centered that you must live under a rock. Crying about second-hand smoke? Get a real issue to whine about. There are so many!
Like how in the hell did the pot head smoker in the White House win a re-eleciton with a majority turnout of the GOP? Once again just so you catch it...BO and his supporters smoke!
Didn’t think so.
I can handle multiple issues at once.
Smoking is a public nuissance no different than any other and my post was about the right of communities to self-regulate on this front. Only smokers think their issue is ‘special’ and demand special rights in the public realm.
You needn’t have identified yourself as a smoker because that is self evident in your name-calling, bullying attitude. It’s a smoker’s ‘tell’.
I have no idea why you think Obama’s smoking habit has anything to do with the election results or that it’s news to me that he is a smoker. What does any of that have to do with this discussion?
Any place that is owned in common and maintained by citizens/taxpayers. Public buildings and their grounds, public streets and sidewalks, public parks, etc. Nuisance laws cover these areas and the people of the community have the right to put in place nuissance laws.
If they don’t have that right it would be an interesting case if it were ever brought to the Supreme Court. For example, does a community have a right to impose laws against public nudity? Noise? Camping in parks? Littering? ... you get the idea, the list is infinite.
I don’t think a private restuarant or business is a public place as it is currently construed by anti-smoking laws. Those laws intentionally misconstrued the English language which is another issue which needs attention.
Then we would have to say no campfires and no grilling in the park.
I simply noted that as a non-smoker, I find cigarette smoke to be a nuisance. It is an irritant, to the extent that even if someone is 20 or 30 feet away, it bothers me.
For that I was advised to “get therapy.” But there’s nothing to get therapy for. It doesn’t bother me mentally. I frankly don’t give a flip whether anybody else smokes or not. It bothers me physically. That’s the case even though I grew up in a smoking household. And I doubt that I am alone in this.
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