Posted on 07/23/2003 11:20:57 AM PDT by Outraged At FLA
Six New York taverns - including two in Syracuse - sued the state Tuesday and asked a federal judge to stop authorities from enforcing the new law that bans smoking in all indoor work sites, including bars and restaurants.
Buies Inc., the owner of Dodester's, a bar at 2426 South Ave., and Barmarsue Inc., owner of Murray's, at 2722 Burnet Ave., are plaintiffs in the lawsuit, along with the Empire State Restaurant and Tavern Association, and four other bar owners.
The lawsuit - which seeks to block the law statewide - was filed in U.S. District Court in Syracuse because five of the plaintiffs are Upstate bars. The sixth is on Long Island.
U.S. District Judge Lawrence Kahn, of Albany, is not expected to rule on the request to block the new law before the smoking ban takes effect at midnight today, said Scott Wexler, executive director of the state tavern association.
Wexler said he hopes that within a few weeks the court will issue a decision that will block the state from enforcing the law.
"We feel the state shouldn't be telling us how to run our business," said Sue Murray, co-owner of Murray's. "Our customers should be able to smoke if they want to. Tobacco is not illegal."
The Legislature passed the law in March to protect New Yorkers from being exposed to cancer-causing second-hand smoke while working.
New York's law is constitutional and the attorney general's office will vigorously defend it, countered Marc Violette, a spokesman for Attorney General Eliot Spitzer.
Donald Distasio, the chief executive officer of the American Cancer Society's Eastern Division, said the tavern owners' lawsuit "is the equivalent to a 'Hail Mary' play in football. It's a last act of desperation with little hope of success."
The lawsuit claims the state law is unconstitutional because it conflicts with workplace safety standards established by the federal Occupational Safety and Health Administration. Those standards were designed to protect workers from airborne contaminants, including second-hand smoke.
OSHA established permissible levels of exposure for hundreds of substances, including the chemicals found in second-hand smoke, according to the lawsuit.
"The law is pretty clear that once a federal standard is in place, a state law can't supplement, supersede or supplant that issue," said lawyer Kevin Mulhearn, of Orangeburg, who represents the Empire State Restaurant and Tavern Association.
The lawsuit also claims that the state law is unconstitutional because it is vague.
It notes that the law allows county health departments to grant waivers from the smoking ban to property owners who would experience undue financial hardship.
But the state Health Department has ruled that such waivers cannot be granted because the Legislature did not include in the law any criteria for waiver applicants to meet.
Included as an exhibit in the lawsuit is a letter Onondaga County Health Commissioner Dr. Lloyd Novick wrote July 10 to the owner of Mac's Bad Art Bar in Mattydale in which he denied Mac's a waiver from the smoking law.
Dodester's co-owner, Caren Snyder, said Dodester's agreed to be a plaintiff because the law will hurt her bar and other taverns.
"People come here for the entertainment of each other, and smoking seems to be part of it. If they have to go outside to have a cigarette, I believe they won't stay as long," Snyder said.
She said Central New York bars will especially get hurt in the winter when customers will not want to go outside to smoke.
Sue Murray said it is frustrating that she and other tavern owners have to sue the state to get politicians to listen to them.
She said she's not sure why the tavern association invited her bar - out of the thousands of bars in New York - to join the lawsuit as a plaintiff.
"Probably because we're a small bar, and it's just my mother and me that own it," she said.
But she admitted to being nervous about the attention the lawsuit might bring her and her mother, Barbara Murray, who co-owns Murray's.
"We're not limelight people," Sue Murray said. "We're just a neighborhood bar. Nobody knows about us. Now they will."
The other four bars suing the state are Stash's Pub in Lowville, Lost & Found Inn in Tyrone, Tazmond's Pub in Uniondale and Keefe's Tavern in Elmira.
I love freedom more than I hate smoke.
Hopefully there are some non-smokers involved in this. If we all sit back and watch our private property rights eliminated by the busy-bodies then we'll get what we deserve.
This is just a property rights grab, plain and simple.
They've been moving as fast as they could - they needed to raise a bunch of money to get it started.
There are going to be several more coming down the road here very shortly, and not just in NY!!!!!!!!!!!
Their lawsuit also began this week.
PRESS RELEASE For immediate release: July 23, 2003 Contact: Audrey Silk (917) 888-9317 Contact: Kevin Mulhearn (845) 398-0361
SMOKERS' RIGHTS GROUP SUES NYC, NY STATE OVER SMOKE BAN
On behalf of its members, the 2 million smokers in New York City, and the 4 million smokers in New York State, NYC CLASH, the state's largest smokers' rights organization, has today filed suit in the federal Southern District Court of NY against both City and State, contending that the sweeping bans against smoking recently enacted in Albany and Manhattan are arbitrary, discriminatory and unconstitutional.
"There is no rational basis for any of these laws," says NYC CLASH founder, Audrey Silk, "and they obviously discriminate against smokers, as a class. The people who smoke seem to have been forgotten and this lawsuit is a chance for the people to be heard."
The lawsuit, filed by the group's attorney, Kevin T. Mulhearn, asserts that the laws, which prohibit smoking in virtually all privately owned establishments in the state ("with the exception--so far," Silk adds, "of private homes") violate the fundamental rights of all smokers as described in the First, Fifth and Fourteenth Amendments. Among these rights, granted to all citizens, are the unabridgeable right to enter into contracts, the right to free assembly and free association, and the federal guarantees of both equal protection and due process.
"It's as though," Silk says, "we've lost all our rights as American citizens just because we've made the legal choice to smoke. In fact, the only right these laws want to leave us is the right to pay taxes."
Link here:
FMCDH
My favorite pub will now have to go no smoking and I will not go there as often and when I do go, I can't see myself staying that long. I feel bad for the owner-operator who is my friend, but he understands. People will not buy a product if they do not like it. I do not enjoy craving for a cigarette while drinking a frosty one that in turn makes me want a cigarrette even more.
http://www.forces.org/humor/files/thermo.htm
an interesting chart where “truth” merits a zero. Secondhand smoke is still a myth and studies incomplete.
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