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Smoking ban in Juneau upheld by state Supreme Court

Fraternal Order of Eagles loses appeal to allow smoking in private club

Posted: July 5, 2011 - 8:34pm
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Justice Morgan Christen, Justice Dana Fabe, Chief Justice Walter L. Carpeneti, Justice Daniel E. Winfree and Justice Craig Stowers listen to oral arguments in Fraternal Order of Eagles, et al. v. City and Borough of Juneau at the Juneau-Douglas High School auditorium last September. The court ruled in favor of the city on Friday.   Klas Stolpe / Juneau Empire
Klas Stolpe / Juneau Empire
Justice Morgan Christen, Justice Dana Fabe, Chief Justice Walter L. Carpeneti, Justice Daniel E. Winfree and Justice Craig Stowers listen to oral arguments in Fraternal Order of Eagles, et al. v. City and Borough of Juneau at the Juneau-Douglas High School auditorium last September. The court ruled in favor of the city on Friday.

The Alaska Supreme Court upheld the City and Borough of Juneau’s smoking ban for private clubs on Friday, ruling in favor of the city after hearing the appeal of the local Fraternal Order of Eagles chapter, a private, nonprofit corporation.

The appeal was heard in front of the Supreme Court at Juneau-Douglas High School Sept. 17, 2010, as part of Supreme Court Live, a program to help foster the understanding of the justice system for the public.

The case had challenged the constitutionality of a local ordinance that bans smoking in private clubs to protect non-smokers from secondhand smoke.

“Certainly it gives the local governments guidance as to what is permissible in the way of regulating smoking,” said attorney Paul Grant, who represented the Eagles. “To that extent I think it clears the way for local governments to do a lot more regulating of what goes on in private clubs.”

The case stemmed from a 2001 ordinance in which the city restricted smoking in public places as a health-protection measure.

According to the Supreme Court decision, the city’s anti-smoking ordinance originally exempted enclosed areas used for conferences or meetings in restaurants, service clubs, hotels, or motels while the spaces are in use for private functions as well as bars and bar restaurants. In 2004 it was amended to ban smoking in restaurants and in bars as of 2008.

A concern was raised that private clubs selling food or alcohol had an unfair business advantage and the ordinance was amended to “clearly prohibit smoking in all places where either alcoholic beverages or food are offered for sale.”

In July 2008, the local Eagles’ chapter and three of its members filed suit against the city, claiming the ban violated the state and federal constitutions’ freedom of assembly clauses. The Eagles also asserted the city’s smoke-free ordinance was pre-empted by a state system of tobacco-use regulations.

The Supreme Court found that all of the local chapter’s members, including the smokers and the non-smokers, are harmed by exposure to second-hand smoke in the enclosed space of their facility.

The court disagreed, holding the city had a legitimate interest in protecting the public, non-smokers and smokers alike, from the well-established dangers of second-hand tobacco smoke. Additionally, since the local chapter has a state-regulated liquor license and sells alcoholic beverages, and establishments that offer that service are likely to be places where members of the public gather, then the city’s decision to ban smoking in such an enclosed space bears a close and substantial relationship to the public health.

“We brought the appeal so we thought we would win,” Grant said. “I don’t have any quarrel with it. We asked the court to decide the case and they decided it. With any case like this there are nuances to what they say that can change how you view it. Certainly we would have liked to prevail on the appeal but we didn’t. Life goes on. I think it gives municipalities a lot more leeway to regulate private conduct. I think it is a concern in areas beyond smoking.”

At the oral argument presented in 2010, Grant gave the example that the city could also ban trans fats in food.

“I had raised the issue with the court and I think a couple of the justices were interested in discussing it at least, that it is a slippery slope and when you walk out on that slope you don’t know where you are going to wind up,” he said.

• Contact reporter Klas Stolpe at 523-2263 or at klas.stolpe@juneauempire.com.

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