Protect us or leave us alone: the New York state smoking ban.

• Author: Levin, Justin C.

The kind of man who demands that government enforce his ideas is always the kind whose ideas are idiotic.

Henry Louis Mencken (1)

1. INTRODUCTION

   The United States of America has always placed a premium on freedom. As Americans, we have never been afraid to make sacrifices to attain and preserve the freedom that we enjoy. Nor have we hesitated in championing causes to spread our notion of freedom to other peoples of the world. We believe in freedom so strongly that our Constitution contains a Bill of Rights, which protects individuals from the power of government. (2) Additionally, the Fourteenth Amendment, ratified in 1868, guarantees all United States citizens equal protection, and due process, under the law. (3)

   Given this dedication to freedom, one would assume that Americans would have the ability--perhaps the right--to perform a perfectly legal act in a private establishment. One would be mistaken though. Recently, the State of New York banned smoking in almost all indoor places, including restaurants and bars, (4) furthering its position that benefits to public health justify limitations on the freedom of New Yorkers. (5)

   This paper asserts that the recent tobacco legislation represents a cowardly and deceitful act on the part of New York State legislators. While medical experts continuously warn of the dangers of smoking and the harmful effects of environmental tobacco smoke ("ETS"), the legislature refuses to completely ban smoking. A total ban would be the obvious step in adequately protecting public health. Instead, the legislation prevents competent adults from deciding for themselves whether and where to smoker The argument of this paper is that the legislation takes this middle-of-the-road approach due to enormous financial, economic and societal pressures urging each side of the argument. By taking this stance, the legislature attempts to appease both the tobacco industry and anti-tobacco advocates, while neither protecting public health nor our rights as citizens of New York and the United States. Furthermore, the State of New York continues to benefit from the tax revenue generated from smoking, (6) and legislators keep lining their pockets with the tobacco industry's money. (7)

2. NEW YORK STATE'S SMOKING BAN

   The smoking ban, codified in Article 13-E of the New York Public Health Law, prohibits smoking in almost every indoor area. (8) This present smoking ban became effective on July 24, 2003, amending the Clean Indoor Air Act of 1989. (9) Among the places to which smoking restrictions extend are bars and food service establishments. (10) The statute defines a "bar" as "any area, including outdoor seating areas, devoted to the sale and service of alcoholic beverages for on-premises consumption and where the service of food is only incidental to the consumption of such beverages." (11) "Food service establishment" is defined as "any area, including outdoor seating areas, or portion thereof in which the business is the sale of food for on-premises consumption." (12) Finally, "smoking" is "the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco." (13)

   Although the law extends to almost all indoor areas, there are a few exceptions. Smoking is allowed in private homes, residences and automobiles. (14) In addition, smoking is allowed in hotel rooms, (15) retail tobacco businesses, (16) certain membership associations (17) and certain cigar bars. (18) Restaurants may allow smoking in outdoor seating areas so long as there is no roof or ceiling, (19) the area does not amount to more than twenty-five percent of outdoor seating, (20) the area is at least three feet from the non-smoking outdoor seating, (21) and there are conspicuously placed signs designating the area as a smoking section. (22)

   In addition to the specific exceptions, the law also has a waiver provision. (23) In order to qualify for a waiver, the applicant must establish that compliance would cause "undue financial hardship" or that other factors make compliance unreasonable. (24) The statute further provides that all issued waivers shall be conditioned or otherwise limited as needed to minimize the adverse effects upon persons involuntarily exposed to ETS, (25) while conforming with the general purpose of the statute. (26)

   A civil penalty of up to $2,000.00 may be imposed for a violation of the smoking ban. (27) Persons subject to liability for violations of the smoking ban include "(1) any person or entity that controls the use of an area in which smoking is prohibited, (2) any employer whose place of employment is an area in which smoking is prohibited, and (3) any person who smokes in an area where smoking is prohibited." (28) The statute leaves its enforcement mechanisms to the Board of Health of the individual counties. (29) In cities with populations of more than one million people, enforcement is left to the Department of Health and Mental Hygiene. (30) Officers from the Board of Health have sole jurisdiction to enforce the smoking ban in their respective counties, (31) as do officers from the Board of Health and Mental Hygiene in their cities. (32) The decisions of these officers may be appealed to the Commissioner of Health of the State of New York under Article Seventy-Eight of the Civil Practice Laws and Rules of New York. (33)

3. BACKGROUND OF THE ANTI-SMOKING MOVEMENT IN THE UNITED STATES

   Tobacco, characterized as "a purely American product in its origin, development, and domination of the world market," (34) has a long and important place in the history of the United States. From its cultivation by American Indians, (35) to its trade by American farmers, (36) to its favor among American soldiers, (37) both the commercial and recreational values of tobacco were quickly realized. As tobacco infiltrated American culture, consumption increased dramatically, reaching an all-time high in 1952. (38)

   Yet, as popular as tobacco came to be, it was never without its critics who tried to prevent its use. King James I and Queen Victoria were both critics of smoking. (39) In fact, King James I denounced tobacco as '"lothsome to the EYE, hatefull to the NOSE, harmfull to the BRAINE, [and] daungerous to the LUNGS."' (40)

   Furthermore, Vienna, Paris and Berlin outlawed smoking in the streets during the Napoleonic period. (41) This anti-tobacco attitude was also present in the United States. (42)

   Prior to the 1800s, Americans viewed tobacco as merely a bad habit. Unlike alcohol, no general moral or social stigma attached to users or manufacturers of tobacco. In fact, Americans viewed tobacco as a positive and stable economic commodity. (43) The antitobacco campaign in the United States began around the late nineteenth and early twentieth centuries, with Lucy Page Gasten leading the way. (44) At this time, most of the opposition to the use of tobacco related to its negative effects on the health of the smoker, as tobacco use itself was not viewed as "a deviant action." (45)

   Beginning in the 1950s, the notion that smoking may be seriously harmful to a person's health began to appear in the media. Medical studies reporting such findings sparked the modern anti-tobacco movement. Drs. Ernst L. Wynder and Evarts A. Graham, from the Sloan Kettering Institute in New York, published a report in 1950 in which they concluded that "smokers had a greater risk of lung cancer than nonsmokers did." (46) In December of 1953, Cancer Research printed a second paper by Drs. Wynder and Graham detailing their results from studies with mice that indicated a causal connection between cigarettes and cancer. (47) These results were published in the New York Times on May 27, 1950, Reader's Digest on December 1952, and Life on December 21, 1953. (48) "For the first time, the health dangers of cigarette smoking were on the front pages of newspapers." (49)

   Two reports released in the 1960s, by the British Royal College of Physicians (RCP) and the U.S. Surgeon General, announced further findings of a relationship between smoking and health problems. (50) The RCP published its findings on March 7, 1962. (51) Its report concluded that "'[c]igarette smoking is a cause of lung cancer and bronchitis, and probably contributes to the development of coronary heart disease and various other less common diseases."' (52) Following publication of the RCP report, the U.S. Surgeon General commissioned the Surgeon General's Advisory Committee on Smoking and Health to prepare a comparable report. (53) In 1964, the Surgeon General presented its report, (54) which concluded in part that "'[c]igarette smoking is causally related to lung cancer in men,"' (55) and further revealed that '"[t]he risk of developing lung cancer increases with duration of smoking and the number of cigarettes smoked per day."' (56) The tobacco industry's response to these findings has, at times, been despicable, but lies beyond the scope of this paper. (57)

   The discovery that truly launched the anti-tobacco movement as we know it today was not the discovery that smoke causes harm to cigarette smokers, but that it causes harm to non-smokers. People around smokers may inhale "sidestream" smoke, which is smoke that comes off the tip of a burning cigarette. (58) The combination of sidestream smoke and the smoke exhaled by smokers creates air pollution referred to as "secondhand smoke" or "environmental tobacco smoke." (59) Research conducted in the 1970s and 1980s revealed the dangers of exposure to ETS, finding that children exposed to ETS suffered from respiratory diseases at higher rates and that non-smoking women married to smokers were more likely to die of lung cancer than non-smoking women married to non-smokers. (60) ETS was also linked to an increased risk of heart disease. (61) Today, it is estimated that ETS causes between 1,000 and 4,000 cases of lung cancer per year. (62)

   Indeed, in 1992, ETS was labeled as a "Class A (known human) carcinogen"...