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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.
Comments (50)
Add commentWonder . . .
What would be the outcome of the decision if one was to open a cigar & tobacco shop in town that had a separate smoking room in the back for their customers to try various brands and blends?
Would a cigar and tobacco shop be considered illegal, or can a business license even be procured for such a venture? Obviously the only people who would have any business being in such a place would be smokers, and non-smokers would just steer clear of the business, right?
I'm glad there are still
I'm glad there are still enough people looking for loopholes to keep all of Juneau's lawyers employed.
Ban smoking everywhere!
I was at a music concert last Friday in Marine Park. The polka music was fun. Little kids were dancing. No one was smoking, it was a great time.
Then, some inconsiderate jerk from about 40 feet behind us lit up a cigar by the Hangar. The stench of his drug addiction made its way through the entire crowd, to women with babies, and the musicians themselves. The musicians rely on their lungs to produce the music we were all enjoying. I'm sure the stench didn't help their breathing.
To all smokers reading this, this is the very reason non-smokers are fighting back and winning.
With every Supreme Court victory allowing us as a society to declare where people can smoke and when, it brings us closer to our ultimate goal of a smoke-free Juneau!
And we are winning.
So I have a suggestion. This wouldn't even be an issue if you would keep your disgusting drug addictions inside your homes or cars. But since you insist on sharing it with everyone around you, on the sidewalks, in the parks, we are fighting back.
So please take your drug addicted stench and your cigarette butts and be a little more considerate. Then maybe there'd be less need for ordinances regulating your collective behavior.
coughing still coughing
power to the people!!! Right on Jo now that the supreme courts determined the city is our keeper, its only a matter of time before we run all those unintelligent smoking morons out of town. Oh wait,if we did that we'd lose too much tax revenue, so lets have them smoke only in in their homes. Ya that's the answer, but they'd have to keep the windows closed & fans off. Once we get that then we'll take all those internal combustion engines off the road, that way I can ride my bike to the polka festival without having to breathe in all that brunt fossil fuel. After the cars we can go after heating fuel you know diesel, propane, wood & well anything that's got an odor to it. Jo for mayor
A Court Divided Against Itself?
"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."
Wait - so the Supreme Court disagreed with itself? With reporting like this, it seems that the Empire would do well to include a link to the opinion, no?
http://www.courts.alaska.gov/ops/sp-6574.pdf.
@Jo: you actually inhale more
@Jo: you actually inhale more carcinogens during your daily commute than you do from being around smokers, cigar smokers especially, since cigar tobacco isn't adulterated (or as high in nicotine) the way cigarette smoke is.
If you were inside a building, I'd say you might have a point about second hand smoke being irritating. But you were outside. You could have moved a few spaces to your right or asked the smoker to move a little to his left.
Jerks
At the parade, we (as in the whole family) was on the hill next to school by the docks (in douglas). Everything was fine until an idiot stood in the middle of kids and started smoking. Good thing I got that jerk on camera.. gonna be fun to name and shame him ...
Interesting comparisons
I took my class to the court hearing at JDHS, the city's lawyer made favorable comparisons between the smoking ban and what communist and totalitarian governments do to their citizens. Just saying.
Just think Jo.
Without the smoking ban in bars, the guy might have been IN the Hanger, where his smoke wouldn't have apparently devastated the good times everyone was having. I can imagine all the innocent citizens fleeing in terror from some guy 40 feet away downwind, smoking a stogie.
I believe that the article is about a lawsuit between a private club and the city. Sooo, unless you're a member of one of the several private clubs in town, this lawsuit has no effect on you.
@Sync
Hilarious. You're going to "shame" someone for doing something he has a legal right to do? Why not just be a non-anonymous human being and ask him to stop or move so it's not bothering people?
Also, work on your subject - verb agreement.
considerate?
Ms MacNamara says "So please take your drug addicted stench and your cigarette butts and be a little more considerate." So because one man lights up a cigar, the rest of the population of smokers in Juneau also gets your rath? And who is being inconsiderate? I cant help but wonder if you express that same hatred towards cruise ship smoke or wood smoke from people burning outdoor fires or wood stoves? I agree that smokers should be considerate but my experience around town has been that the majority of them are. While you indicate you worry about kids, I would suggest that perhaps your attitude of hatred towards a group of people that, yes may be addicted, but at the same time are not doing anything illegal, doesnt teach kids well. There are better ways of teaching our kids than the way you have displayed.
@FBomb
Yes, they have the legal right to do so. The fact that they specifically walked to a location with tons of kids around, pulled out a cig and started smoking shows they are not mentally stable.
There is a big difference between bothering and killing.
As for my subject ... what are you talking about?
I disagree with the smoking ban. Private institutions should have the right to allow smoking in their buildings. If people don't like smoke, don't visit the building .. real simple.
also....
Does Ms MacNamara wear perfume? One of my pet peeves is women's perfume, some apparently think that bathing in it is a good thing so the rest of us can smell them from a mile away. For people with asthama, perfume can be just as problematic as cigarette smoke. But last I knew, wearing perfume is also legal and I dont happen to think chastizing and denegrating the women or even men who might wear too much aftershave is a proper thing to do. So if Im around someone who think others like the smell of their colosal amounts of perfume as much as they do, guess what? I move and get away from it. Unlike cigarette smoke that isnt allowed on planes, etc, perfume is. The guy who lit up a cigar probably isnt a mean person, and might even be a nice guy who would help the next person that might be in trouble, if the occasion arose. The point is he's also human, you dont know what has gone on his life, how do you know he isnt a veteran who has served our country for example. Cant we show respect even to those we dont agree with or may not normally associate with because of whatever their habits may be?
Life
I show respect to people I don't agree with, as long as it isn't life threatening.
Yo, Joe, take a chill pill...
A non-addictive one of course! Before commencing the burning of the witches, at least think of switching to de-caf - that caffeine's tweaking you out. Calling people names and likening your cause to a 'war' that you're 'winning' is pretty creepy dude. I think it would be humorous to watch you squirm over a guy 40 feet away smoking a stogie. Another unhealthy exercise in frustration for you is your thinking that an outdoor ban on smoking has a shot at passing - not. The issue of an outdoor smoking ban is a tolerance issue for ban proponents, and also a litter issue, but certainly not a health issue.
@wolfmagic2012
What? What are you talking about? All I see is assumptions, and nothing related to my post. If you are replying to someone else, I apologize. If it was to me .... what are you talking about?
I should clarify that I never
I should clarify that I never stated that I agree with people smoking in public outdoor places where there are lots of people around, whether it be kids or adults. I also dont think someone is mentally unstable if they do, perhaps unthinking and maybe even a little selfish, yes. But I think because one man in large crowd does it, the reaction is overblown. Saying that totally ruined an evening, when one can respond by moving, in my opinion, is overreacting. Did you even try to ask the man to put it out? Or is it better for you to call him a jerk, when you dont even know him, and take a video of him and then try to shame him? Where might I ask will you post his video? It just seems to me its a little overblown behavior in response. Are you sure he isnt the only one being a jerk?
@sync: second hand smoke,
@sync: second hand smoke, especially cigar smoke, especially outside, is far less a danger than driving in your car on the road. Like the media and population at large, you are very much so overestimating the danger cigarette smoke poses (in fact, wood smoke is more carcinogenic).
@Sync
Subject - verb agreement is when you use the right verb for your noun. You wrote "we (as in the whole family) was on the hill . . ." We was on the hill = bad grammar.
The fact that someone smokes outdoors in a public place does not indicate that person is mentally ill. However, the fact that you would go to the lengths of photographing him doing something you did not appreciate, with the intent to "name and shame" him for doing it does suggest that you may have some issues that you may want to deal with.
If you don't like someone smoking in public, either move or ask them to stop. As you said, "real simple."
@ Jo MacNamara
WOW...the "I am right and you are evil" mantality never ceases to amaze and disgust me. JO you and intolerant people such as yourself are what is wrong with this country- not a citizen legally enjoying a smoke!
I am a non smoker by the way...so get a life jo and leave the crazy at home where it doesn't bother the rest of us.
Sync???? Jerk??? We was on
Sync???? Jerk??? We was on the hill. Hope your kids don't learn grammar from you
Idiot
Idiot
Secondhand smoke:
“Secondhand smoke from cigars varies from that of cigarettes for a couple of reasons. First, the manufacturing process for cigars requires a fermentation period in which high concentrations of tobacco-specific nitrosamines (TSNAs) are produced. TSNAs are some of the most carcinogenic compounds known to man. Secondly, cigar wrappers are not as porous as cigarette wrappers, making the combustion of a cigar less complete. These two factors result in higher concentrations of some of the most toxic chemicals found in cigars over cigarettes.”
I don’t worry about second hand smoke; I just don’t hang around those who wish to smoke. I don’t like the smell, it’s terrible. Sure smokers have the right to smoke in public, I also have the right to [filtered word] in public when needed, I’m sure the smokers wouldn’t like that no more then those who wish not to smell you’re stench of smoke. Of course I wouldn’t do that. However older age does give a person the walking farts now and then.
Responses to adults
Lol, are kids trolling JE more often, I know school is out, but really...
To respond to the adults in this thread...
@kiki - when someone goes out of their way to find a patch of kids and smoke around them, yes there is a problem. There is no excuse for that kind of behavior. His actions show what kind of person he is.
@Persnickety Persimmon - I to have found the media and population at large either ignorant or paid under the table. That is why research is awesome.
@millspec - Your post showed up in the thread after I pressed the post button (I don't know why, but I can guess). I like your post, it shows thoughtfulness and well .. it's a good darn post.
@Trolls - Keep on trolling.
lol
Milspec, how would one know downtown in that area, that it wasnt you who poo'd? The aroma sometimes in that area from leftover night on the town would be hard to differentiate. Just saying....
Again, Im just saying that I think there is a bit of overreaction when its one person in a crowd of hundreds. I know people worry about their kids, and its understandable. I think some could say some people's kids could go just as far as ruining a night for others as well. But seriously, if you are downtown at the wharf listening to music, you are how close to cruise ships putting out their stack smoke? Or if you take your kids to the fireworks, Im sure they arent breathing in smoke from that or from the countless boats and their exhaust. Or if you take your kids to a parade that has lines of cars sitting and idling. I just think that when you compare all this to one insensitive man pulling out a cigarette, its all relative. And then to go and vide tape him, Im assuming without his permission in a plan to show it somewhere to do what, embarass him or get even somehow? I just dont understand. Its just beyond silliness, imo.
Ok, I'll try again. When in
Ok, I'll try again. When in public, smoking is allowed, I understand that. That is why I avoid those buildings and people. We gravitated towards areas where there are other kids due to this reason as well.
So yes, we were in a relatively smoke free area (hello fireworks, ah well). As mentioned above, a smoker came on over specifically to the area to smoke ... ...
Does he have that right? Yes, he does. Is he considerate of others? No. No one that I know of, video taped him. I took a picture, yes. Do I need permission to take a picture? No, not in a public location.
Name and shame? It is just as silly as his actions.
@sync
Research IS a wonderful thing:
"Although many people associate tobacco smoke with certain health risks, research indicates that second hand wood smoke has potentially even greater ability to damage health."
http://des.nh.gov/organization/divisions/air/cb/ceps/npsap/smoke.htm
And this lovely chart of all the non-tobacco sources of air pollutants most of us inhale on a daily basis:
http://des.nh.gov/organization/divisions/air/cb/ceps/npsap/documents/smo...
My point being this: second hand smoke is not "life threatening" any more than most other daily occurrences. Being exposed to some cigar smoke outside for a few minutes is not going to affect your health in the slightest. Considering it takes years for primary smokers to develop problems, it doesn't even make sense to assert that one occurrence is dangerous.
And Milspec., I stand corrected. Still, you are not getting a large dose of smoke outside.
Sync
I have no argument with you. I do find it a little hard to believe he went out of his way to find a group of kids to smoke in, Im not sure how you would know that. But if he did do that, my suspicion is he was probably drunk which is yet another addiction. I totally understand your view on wanting to protect your kids but I just think things can be dealt with in a better way. Just because you think someone is acting like a jerk, and maybe they are, I dont know, what does it accomplish to in turn enflame things even more. He isnt the majority. You are reacting to a minority and labeling everyone the same way because of one person's actions.
Peace.
@kiki - Ah, I am not trying
@kiki - Ah, I am not trying to argue as well, though I do come off a bit .. rough? I think this is a healthy conversation, and I love it, and apologize if I am being ... erm... rude or so.
@pers - thank you for the links.
Hey Sync, no problem. I
Hey Sync, no problem. I think healthy conversation is a good thing. Im really not trying to be difficult, just wanting to present perhaps another way to look at things, that I know full well others wont agree with and thats OK.