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Superior court judge upholds city smoking ban

Fraternal Order of Eagles claimed ban infringes on private association's rights

Posted: Friday, October 23, 2009

The legality of the Juneau smoking ordinance is less hazy after Superior Court Judge Philip Pallenberg shot down a private association's assertion that it was not subject to the city smoking ban.

In its lawsuit, the Fraternal Order of Eagles claimed that the ordinance infringed on its freedom of association under the United States and Alaska constitutions, its right to privacy and claimed illegal "intrusion" by the Juneau Police Department into its private establishment in the Mendenhall Valley to enforce the ordinance. The Eagles are the only group to have challenged the ordinance in court.

Eagles representatives could not be reached for comment Thursday, though they had contended in the past that the ordinance, which banned smoking in all bars as of Jan. 2, 2008, didn't apply to them because it is a private fraternal organization that is not open to the public.

City Attorney John Hartle said he is gratified that the court upheld the smoking ordinance.

"The ordinance is the law and the court agreed," he said. "The court upheld the ordinance against the challenge, and it was a strong challenge, and the court's opinion, as you can see, is quite in-depth, very well done."

The 19-page decision was filed Oct. 14. Pallenberg wrote in the summary judgment that other courts have uniformly rejected claims that smoking ordinances infringe on the freedom of association under the U.S. Constitution's First Amendment.

"One could not seriously argue that application of other penal laws, such as the laws against drug possession, theft, sexual contact with minors, or prostitution, to the conduct of members within the confines of a private club infringes upon the members' freedom of association," Pallenberg wrote. "All such laws regulate the actions of the members, not their choice of the people with whom they associate. In terms of its impact on freedom of association, regulation of smoking as an activity is not different in kind from regulation of these other activities."

The Eagles' privacy argument did not have any legal weight, either, Pallenberg ruled. Even though the Eagles' lodge, also known as Aerie Home 4200, is a private establishment, it does not have the same privacy considerations as someone's residence, he wrote.

"Calling the Eagles lodge the 'Aerie Home' does not make it the members' home, any more than the Home Depot is a railroad station," Pallenberg wrote. "In fact, it would be unlawful for members to live in the 'Aerie Home' because, as a premises licensed for the sale of alcohol, it must be closed during specified hours each day. The 'Aerie Home' is not a home."

Pallenberg said the Juneau Assembly has the right to pass laws that protect public safety.

"Given the serious public health consequences of second hand smoke, it is unquestionable that an ordinance prohibiting smoking in specified places where people gather together indoors is justifiable as a public health and welfare measure," he wrote.

Assuming there's no appeal, Pallenberg's opinion resolves the claims dealing with federal law. If the Eagles want to pursue its claims dealing with state law, it had 20 days as of the Oct. 14 judgment to file its intentions.

Hartle said the Eagles have no legal ground to stand on regarding the smoking ordinance.

"The other claims are unlikely to succeed," he said. "The parties and the court went forward on the main claims at issue and the court seems to strongly suggest that (the other claims won't succeed)."

The city plans to pursue legal fees incurred fighting the lawsuit. They have yet to be totaled but could be in the tens of thousands of dollars, Hartle said.

Matt Felix, executive director of the Juneau office of the National Council on Alcohol and Drug Dependence, said he is not surprised by the court's decision.

"The law is clear and, you know, this is all about secondhand smoke, and nobody has a right to injure another person's health," he said. "There is no right written in law or in the constitution that allows health injury. So I wasn't surprised at all. I felt it would come out this way."

Felix does not believe the Eagles will be able to successfully appeal the ruling.

"As far as I know, no other group has gotten anywhere in any other state with (smoking ordinances)," he said. "The cities and the states have a right to pass legislation that protects the safety and the health of the citizens and to ensure that safety, and that's simply what was done here."

The smoking ordinance has been a success in Juneau, Felix said.

"We've taken a look at the tax revenue from restaurants and bars and various other businesses that were affected by the ordinance and we see no reduction in business," he said. "We see no reduction in tax revenue to the city at this point, and that's what has happened across the United States as well."

• Contact reporter Eric Morrison at 523-2269 or eric.morrison@juneauempire.com.



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