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Posted on 07/05/2003 10:26:55 PM PDT by JOHN W K

AMERICAN CONSTITUTIONAL RESEARCH SERVICE

RE: FLORIDA’S SMOKING BAN…and a class action suit!

Florida’s Amendment 6 , is a statewide smoking ban adopted by voter initiative which has approved government force to be used to prohibit business owners to allow their guests to smoke in their business establishments, and, as such, determines a use of privately owned property.

NOTE: The U.S. Supreme Court in LLOYD CORP. v. TANNER, 407 U.S. 551 (1972) involving rights associated with property ownership pointed out that property does not “loose its private character merely because the public is generally invited to use it for designated purposes.”

The ownership of property and rights associated with property ownership are indisputably constitutionally recognized rights, that is, both the United States Constitution, and Florida’s Declarations of Rights, recognizes, protects and secures, rights associated with property ownership.

Florida’s Declaration of Rights declares:

SECTION 2. “All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property…”

SECTION 9 “No person shall be deprived of life, liberty, or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against himself…”

QUESTION:

May a majority vote of the People of Florida alter or deny constitutionally protected and fundamental rights of those who they may outvote?

The U. S. Supreme Court has emphatically stated:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” see:WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624

And, the Court, in LUCAS v. COLORADO GEN. ASSEMBLY, 377 U.S. 713 (1964) continued from the above paragraph by adding:

“A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be…”

Likewise, and only a few years ago, the Court, in ROMER v. EVANS, affirmed that a constitutionally protected and fundamental right could not be voted away by a statewide referendum saying that:

“It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U.S., at 24.”

1ST CONCLUSION

So, according to the Court, it would appear that a majority vote which may be allowed to effectuate certain legislation by Florida’s Constitution, its voter initiative process, may not be used to deny fundamental rights of Citizens which, among other rights includes, rights associated with property ownership, due process of law, equal protection of the law, protection from discrimination, etc. ___ each of which is affected by Amendment 6 and thus, forbidden to be determined by a majority vote!

POINT OF LAW

The enabling legislation of Amendment 6, as it forbids smoking in some indoor “workplaces” of privately owned business establishments because of an alleged health hazard to employees, while allowing smoking in other indoor “workplaces” of privately owned business establishments having similar and like environmental conditions, is discriminatory on its face and is therefore a violation of equal protection of the law and due process.

How is it not discriminatory when the employees of one workplace are protected under the law and other workers, under similar working conditions, are not protected? Likewise, what is the rational for imposing a smoking ban on an identifiable group of businesses establishments because of an asserted public health hazard, while allowing smoking in other business establishments which are quite similar in nature? Is there some magic in this government discrimination which reduces the alleged health hazard for employees in the latter group of businesses establishments having no smoking ban?

2ND CONCLUSION

A peek into the future as to what the SCOTUS will tell Florida’s intolerant mob:

Seems quite clear to this Court, those who voted for Amendment 6, and those who participated in its enabling legislation, did so to use the force of government to control the property of others [restaurants and other business establishments which are privately owned properties] for their own personal use and comfort [forbid smoking on that privately owned property] , to the exclusion of an identifiable group [those who smoke, which is discriminatory in nature], and do so without the permission of the owner of said property [a denial of a particular use of property], and, they, those who voted for Amendment 6 and those who participated in its enabling legislation, want to accomplish all this without scientific evidence that a public health hazard exists on the specific properties affected, which amounts to a denial of what is called due process of law protected by the 14th Amendment to the U.S. Constitution, and Florida‘s very own Constitution!

This Court has taken note of the fact that countless business owners,many of whom are Petitioners in this case, to accommodate their non-smoking customers several years back, and, because of reasonable state imposed clean air legislation, see: Florida Clean Indoor Air Act, spent considerable sums of money to have well designed and efficient ventilating systems installed, and re-arranged their seating in such a manner so their non smoking customers could enjoy their meals without being bothered from the nuisance of other people‘s smoke.

To date, no substantial scientific evidence has been presented to any Court to show the air quality in these Petitioners’ business establishments, much less all those business establishments attacked byAmendment 6 and its enabling legislation, presents a clear and imminent danger to the general public health as has been alleged. Having made the allegation that a public health hazard exists on the business properties of Petitioners, it would seem proof is available to support the allegation which would then legitimize government regulation of said businesses for health and safety purposes. But in the absence of such proof and to allow such regulation, would permit a principal of law which allows arbitrarily legislation and/or legislation within the realm of pure speculation, and therefore, be permissive in a total deterioration of rights associated with property ownership under the pretext of health and safety regulations.

As stated by Florida’s own Attorney General:

“It is undisputed that an individual has an inherent right to engage in a lawful business or trade. It is also axiomatic, however, that a municipal corporation (as an arm of the state) may impose reasonable restrictions upon the conduct of such activities in the interest of the public peace, health, morals, or general welfare, so long as such regulation is exercised reasonably, within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.” SEE: AGO 77-139

It should also be noted what this Court stated inLochner v. New York 198 U.S. 45 (1905) with regard to regulatory legislation:

“It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty….”

Truth is, those business owners in Florida and who are Petitioners in this case, who intentionally, and in good faith, addressed the nuisance issue of second hand smoke, and did so before Amendment 6 was even a twinkle in the eye of those who voted for it, have been tried, convicted and sentenced under Amendment 6___ not upon the facts___ not based upon any ascertainable air quality standard set by the state and to be met by them in their particular business establishments___ but upon the “feelings” and the pure speculation of an intolerant and belligerent mob which disrespects the property rights of others and has chosen to conspire to use government force to impose its arbitrary sentence upon those who may be innocent victims… a shotgun approach in which those who may be innocent victims now pay the price for those who may be guilty!

This Court, in HELLING v. McKINNEY, 509 U.S. 25 (1993) stated the following in regard to the alleged dangers concerning 2nd hand smoke:

“We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.”

And we do so here again! Those who have asserted a public health hazard exists, to justify a prohibition upon the use of property owned by the petitioners in this case, must prove their allegations which will also require them to prove both the subjective and objective elements necessary to sustain the asserted use of government force which unquestionably has collided with Petitioner’s individual and constitutionally protected rights.

To this end, without proof that a health hazard exists within the Petitioners businesses establishments, we see an obvious tyranny of the majority at work and a depravation of rights under color of law, and this Court will not participate in what amounts to be nothing more than state sponsored discrimination forced to be practiced and observed by the Petitioners who are asked, against their will, to forbid their former smoking guests to smoke on Petitioners’ property and to do so based upon the unsubstantiated assertions of an intolerant mob.

Frome smoke free, to fat free, to obese free, and now,Fragrance free is a civil rights issue!

Have a great day you socialists, wherever you are.

And you guys thought I was kidding?

John William Kurowski, Founder

American Constitutional Research Service

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

Please note: the author of the above is a non-smoker, believes smoking is a disgusting habit and for weak minded people, is more than likely a danger to the health of those who smoke, and may be a danger under specific and unusual conditions to those in near proximity of a smoker. However, there is a much bigger picture involved…the unalienable rights of individuals to make their own choices, and, constitutionally protected rights associated with property ownership. For this larger reason the article was produced.

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

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