P.O. Box 1036
Brooklyn, New York 11234
Phone: (917) 888-9317
Email: nycclash@nycclash.com

                                                                                                                    March 22, 2002
 
 

Internal Revenue Service
TE/BE Division, Customer Service
P.O. Box 2508
Cincinnati, Ohio 45201

RE: IMPROPER ACTIVITY BY A CHARITABLE ORGANIZATION
 
 

Dear Commissioner Rossotti,

I request an investigation into the activities of SmokeFree Educational Services, Inc., a charitable organization registered with the Internal Revenue Service as a 501(c)(3).

After examining the operating rules for 501(c)(3) organizations established by the IRS it is apparent that SmokeFree Educational Services, Inc. (SES) is in violation of these rules.  While limited political activities are allowed, this group engages in excessive lobbying and politicking activities that are clearly illegal and should result in revocation of the organization's tax-exempt status.
 
They act more as a political action organization, in violation of 501(c)(3) rules, than a group whose alleged role is to educate the public about smoking and secondhand smoke.

OPERATING UNDER ALIASES

Mr. Joseph Cherner is president of SmokeFree Educational Services, Inc.  He also operates under, or in conjunction with, SmokeFreeAir.org, Smokescreen.org, SmokeFree.org and Coalition for a SmokeFree City.  SmokeFree Action Network is sponsored by SmokeFree Educational Services, Inc.  He uses 375 South End Avenue, Suite 32F, New York, NY 10280 and P.O. Box 3316, New York, NY 10008-3316 as mailing addresses.
 

To Wit:

Visitors to the Internet website Smokescreen.org are met with “Welcome to Smokescreen Lists!” and are directed as follows:

“For letter writing, go to http://www.SmokefreeAir.org.”

“Questions? Contact tac@smokescreen.org or Joe@smokefree.org.”

When accessing SmokeFree.org via the Internet you are directed to SmokeFreeAir.org.

“Coalition for a SmokeFree City” is headed by Joseph Cherner as evidenced by the contact address and phone number provided in an advertisement in the NY Times, July 31, 2000, both of which are exactly the same as SmokeFree Educational Services, Inc. (reproduction of advertisement provided in attachments – Marked “Item #2”).
 
 

In order to delineate the violations I will first provide the section of the IRS rules that define misconduct and then provide the proof of illegal activities taking place:
 

IRS EXEMPTION REQUIREMENTS:

[501(c)(3)] may not attempt to influence legislation as a substantial part of its activities.

[501(c)(3)] may not participate at all in campaign activity for or against political candidates.

[501(c)(3)] organization may not engage in carrying on propaganda, or otherwise attempting, to influence legislation as a substantial part of its activities.

[501(c)(3)] organization may not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

Activities that encourage people to vote for or against a particular candidate, even on the basis of non-partisan criteria, violate the political campaign prohibition of 501(c)(3).

LOBBYING ISSUES:

Indirect communications through the electorate or general public (“grass roots” lobbying) also constitute attempts to influence legislation.

Both direct and grass roots lobbying are nonexempt activities subject to the IRC 501(c)(3) limitation on substantial legislative action.

Reg. 1.501(c)(3)-1(c)(3)(ii) also provides that, more generally, advocating the adoption
or rejection of legislation constitutes an attempt to influence legislation for purposes of the IRC 501(c)(3) lobbying restriction (including engaging in attempts to influence legislation, even if legislation is not pending).

“ACTION” ORGANIZATIONS:

For purposes of the lobbying restriction, an organization is an “action” organization on either of two distinct grounds. The first occurs if a substantial part of the organization’s activities involves attempting to influence legislation. Reg. 1.501(c)(3)-1(c)(3)(ii) states that an organization will be regarded as attempting to influence legislation if it does the following:

(A) Contacts, or urges the public to contact, members of a legislative body for the purpose of proposing, supporting, or opposing legislation, or

(B) Advocates the adoption or rejection of legislation.

The second ground is found in Reg. 1.501(c)(3)-1(c)(3)(iv), which provides that an organization is an action” organization if it has the following two characteristics:

(A) Its main or primary objective or objectives (as distinguished from its incidental or secondary objectives) may be attained only by legislation or a defeat of proposed legislation; and

(B) It advocates, or campaigns for, the attainment of such main or primary objective or objectives as distinguished from engaging in nonpartisan analysis, study, or research and making the results thereof available to the public.
 
 

PROOF OF ILLEGAL ACTIVITY

SmokeFree Educational Services, Inc. and its aliases have violated every provision noted above.

Each is numbered to correspond with the attached evidence:

ITEM #1 - A questionnaire, printed on the back of an article advocating government legislation, was mailed to restaurants across New York City.  Among other questions it asked owners, “Would you be willing to attend a meeting with the Mayor or City Council about smokefree workplace legislation?”

ITEM #2 - A full page ad in the NY Times on July 31, 2000 that lobbies the NYC Council to “insist that all workplaces, including small restaurants, restaurant bars, and stand-alone bars and nightclubs, become 100% smokefree.”
 
 

NOTE:  Also enclosed is a copy of SES’s 2000 Return of Organization Exempt From Income Tax, Form 990-EZ.  Statement 5, Schedule A, Part VI-B, Line I, Descriptions of the Lobbying Activities states “Less than $100 was expended for these activities.”  This is a gross inaccuracy.  The printing of the questionnaire letter and contribution to the NY Times ad must have exceeded that amount by far.
 
 

ITEM #3 - An editorial written by Dr. Elizabeth M. Whelan, president of the American Council on Science and Health in New York, chastises the Coalition for a Smoke-Free City’s NY Times ad for carrying on propaganda in order to win smokefree legislation.  Dr. Whelan wrote, “To state that occupational exposure of bartenders is the ‘#1 killer in the American workplace’ is without scientific basis.”  She goes on to illustrate the ultimate intent of such an ad is to influence policy: “By exaggerating, the Coalition… frequently play quick and dirty with the facts in an attempt to justify the interventions they want.”

ITEM #4 - The editor of the NY Post independently arrives at the same conclusion as Dr. Whelan.  Entitled: “A Prohibitionist Smokescreen,” the editorial comments on the propaganda techniques used by the Coalition for a Smoke-Free City to “seek sweeping bans.” The editor notes, “Take the full-page ad run by the Coalition for a Smoke-Free City last Monday. ‘We are not prohibitionists.  We do not want to prohibit smoking,’ the ad claims.  But that is exactly what its signatories seek.” The editor adds that they also “rehash hokey figures.”

ITEM #5 - We are in possession of internal documents that provide self-incriminating evidence that SES has violated their tax-exempt status.  Included in the internal email correspondence discussing a survey (believed to be our Item #1), lobbying and funding is the statement, “…we cannot do the survey with coalition funds.  Although this is due to an unfortunate loophole that we fell into it is a fact just the same.  Next time we will all be more careful.”  That last sentence implies that they did do the survey already with coalition funds.

ITEM #6 – A list provided by the New York State Department of Health Tobacco Control Program that contains Coalition for a Smoke-Free City as a recipient of funds disbursed from the monies received from the Master Settlement Agreement.  Although the contact information for the Coalition on this list notes Joanne Koldare of the NYC Dept. of Health it is questionable since, as noted previously, Mr. Cherner’s personal contact information appeared on the ad in the NY Times. Funds from the NYS DOH are making it to Mr. Cherner.

ITEM #7 - A list of all candidates running for office in the September 2000 Primary Election in NYC and their response to a “SmokeFree Questionnaire” distributed and collected by SES.  This list is posted on the Internet at URL http://www.smokefreeair.org/SmokeFreeQuestionnaires.cfm.
By clicking on each candidate’s name the viewer is able to see how each candidate responded to the questionnaire. This questionnaire clearly indicated the intent was to gauge the willingness of the candidate to support legislation favorable to the poser.  The statements were then electronically published (making the results thereof available to the public) to encourage people to vote for or against a particular candidate dependent upon their position that either did or did not favor the objective (smokefree legislation) of SES.  Among other violations this also constitutes participating in campaign activity for or against political candidates.

ITEM #8 - An action alert by SES to its members and other visitors to the website with the heading “Write NYC Mayor Bloomberg to Introduce Smokefree Workplace Law.” Included in this alert is a reproduction of Michael Bloomberg’s questionnaire response before he was elected to mayor.  SES is shown to contact, and urges the public to contact, members of the legislative body (in this case the mayor with an option to send copies to “other high ranking NYC officials”) for the purpose of proposing and supporting legislation. Examples of such letters are also included.

ITEM #s 9 thru 14 - Further documention that reveals SES is operating wholly as an “action” organization.

ITEM #15 – A letter written by Joseph Cherner on behalf of SES to the newly installed Health Committee Chairperson of the NYC Council. Although legislation is not currently pending he urges her to support his objective (smokefree legislation) through her powers.

ITEM #16 - An action alert by SES to its members and other visitors to the website with the heading “Write NYC Health Chair Chris Quinn to Support Smokefree Air.” SES urges the public to contact this member of the legislative body for the purpose of proposing and supporting legislation. Examples of such letters are also included.

ITEM #17 - A list of all lobbying efforts undertaken by SES to either influence legislation (locally and nationally) to enact smoking bans or influence support of smokefree initiatives only attained through legislative powers.

ITEM #18 - Joe Cherner’s personal introduction and individual efforts as president of SES.  This document details his personal involvement in lobbying activities by listing all letters he has written to politicians and private organizations and companies.

Joe Cherner clearly states: “SmokeFree’s goal is to win the right to live and work in a smoke-free environment and to educate people about the disadvantages of tobacco addiction.”

There is very little evidence found to support the latter.  The vast majority of his work has little to do with educating the public. The former can ONLY be attained through legislation. That objective accounts for the greatest percentage of his work.
 

CONCLUSION:

SES ATTEMPTS TO INFLUENCE LEGISLATION AS A SUBSTANTIAL PART OF ITS ACTIVITIES

The evidence concludes that SES and its president, Joseph Cherner, lobby full-time for pending and/or future legislation regarding the enactment of smoking bans and all forms of smokefree/anti-tobacco initiatives either locally or nationally and violate every IRS provision of prohibited conduct for tax-exempt organizations. We further estimate that SES is guilty of hiding its lobbying political expenditures. The evidence provided is only a small sampling of all the illegal activities engaged in by SES.

Smoking bans are SES’s main or primary objective and may be attained ONLY by legislation. Furthermore, SES advocates, or campaigns for, the attainment of such main or primary objective or objectives as distinguished from engaging in nonpartisan analysis, study, or research and making the results thereof available to the public.

Due to the evidence provided we respectfully request that SmokeFree Educational Services, Inc and all applied aliases have their tax-exempt 501(c)(3) status revoked.

Please inform us of action taken.
 
 

        Sincerely,

        Audrey Silk
        Founder
 
 

Disclaimer:   NYC C.L.A.S.H. is a grassroots organization operating as a DBA since October 11, 2001.  We have no ties in any shape or form to any of the tobacco producing companies.  We do not formally speak on behalf of restaurant and tavern owners.

cc: New York State Attorney General