THE CASE
New York City smoking ban to be challenged
Mid-Hudson News; May 9, 2003
A group opposed to the smoking
ban in New York City has hired a Rockland County attorney to represent
it in a lawsuit to be filed against the Big Apple.
NYC CLASH – Citizens Lobbying
Against Smoker Harassment – has retained Kevin Mulhearn of Orangeburg to
represent its members in a suit to be filed in the weeks ahead.
Mulhearn is the same attorney
who is representing the tavern and restaurant associations against the
counties of Dutchess and Orange, which also have no smoking laws in place.
NYC CLASH will argue that
the anti-smoking law is unconstitutional, said attorney Kevin Mulhearn.
“I have been retained by the organization to analyze the issues, to mount
a constitutional challenge to the efficacy and enforcement of the law,
which I am doing,” he said. “I hope to file a lawsuit in the next couple
of months and our goal is to have the law invalidated.”
--------------------------------------------
July
23, 2003 Press Release
--------------------------------------------
Case Files
Complaint
Filed - July 23, 2003
Brief
on Standing
Brief
- January 15, 2004
Affidavit
of Kevin T. Mulhearn - January 15, 2004
Affidavit
of Audrey Silk - January 15, 2004
Reply
Memo - February 27, 2004
HISTORY OF EVENTS
JULY
23, 2003
Suit
Filed
SEPTEMBER 26, 2003
4 brief stages were set that
will last until at least December.
This will consist of
motions by the city and state and our answer to those motions, then their
response then our response again until which time the judge is satisfied
and can render a decision on whether the case has merit or not and choose
to proceed with the case or not. It's likely that it will be another two
months after the final attorney's response in December before Judge Marrero
makes the next move -- taking this phase of the suit to February.
NOVEMBER 21, 2003
State and city attorneys
deliver first defense response.
JANUARY 20, 2004
NYC C.L.A.S.H. submits response
to above.
JANUARY 30, 2004
Judge Marrero consolidates
NYC C.L.A.S.H. suit with Player's Club suit (see
2003 news). Intends to hold off briefing Player's Club suit until
our motion is decided.
FEBRUARY 16, 2004
State and city attorneys
deliver second defense response.
MARCH 1, 2004
NYC C.L.A.S.H. submits response
to above.
This is the last legal brief
to be submitted by all parties.
Await Judge Marrero's ruling.
MARCH 26, 2004
Judge Marrero directs all
parties to appear for a
hearing and oral argument
on April 5th
APRIL 8, 2004
Judge Marrero denies NYC
C.L.A.S.H. summary judgement.
COURT DECISION
NY Post; April 9, 2004
New York's smoking ban does
not violate the Constitution, a federal judge ruled yesterday.
NYC CLASH, a smokers-rights
group, filed a lawsuit last year against the city and state arguing that
the ban violates several constitutional rights.
But U.S. District Judge Victor
Marrero ruled yesterday that "New York state's and New York City's stated
basis for enacting the smoking bans - protecting its citizenry from the
well-documented harmful effects of [secondhand smoke] - provides a sufficient
rational basis to withstand CLASH's constitutional challenges."
CLASH - Citizens Lobbying
Against Smoker Harassment - also argued that the scientific data used in
passing the law was flawed.
--------------------------------------------
Court
Decision (requires
Adobe Acrobat)
--------------------------------------------
April
19, 2004 Press Release
FINANCING THE LAWSUIT / LEGAL
FUND
Mr. Mulhearn did not represent
us
pro bono.
(For all who have asked/wondered
-- The ACLU would NOT take this case. They have refused on several occassions,
approached by many people. They are in favor of smoking bans).
With the generosity of a
philanthropic donor (not the tobacco industry) who wishes to remain anonymous
we were able to make payment on the retainer fee. This was NOT enough
to see us through to the end.
DONATE: Though
unsuccessful, we got you your day in court. Rather than taking this lying
down we tried! We remain committed to fighting against the smoke
bans and to getting the laws amended.
You
can show your appreciation for our efforts on your behalf by choosing to
donate so that we can meet our financial obligations for attorney services
rendered and to be able to continue in all of our efforts.
RUNNING
IN THE RED
This
is the amount we currently owe: $27,491
(as
of 10/14/04)
Proudly
"Track its Reduction" Because of YOU !
You
can either choose to purchase a fundraising mug,
or a regular t-shirt,
or
Joe
Jackson's single CD "In 20-0-3,"
or
donate whatever you can afford,
or
donate as little as $1.00
Each
person who donates any amount towards reducing this figure
will
earn their own Groucho
We'll
add your name or initials (however requested) to our
"I'm Making A
Difference"
Free to Choose wall
Anyone wishing to contribute
to the legal fund can find the contact information here.
(Donations to NYC C.L.A.S.H.
are not tax deductible.)
ACKNOWLEDGEMENT
Our gratitude to FORCES
for their invaluable support and assistance in this effort.
OTHER COURT CASES OF INTEREST
United
States District Court Northern District of New York: Empire State
Restaurant and Tavern Association vs. New York State
- March 17, 2005
Supreme
Court - Suffolk County (NY) - October 13, 2004
Supreme
Court of the State of New York; Appellate Division Fourth Judicial Department
(Erie County) - October 1, 1004
Supreme
Court of Kentucky - April 22, 2004 (See Dissenting Opinion)
United
States District Court Eastern District Of New York (Nassau County)
- June 3, 2003
