A Law Synopsis by the Tobacco Control Legal Consortium

May 2009

Legal Authority to Regulate Smoking and

Common Threats and Challenges: 2009 5PCBDDP
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Cheryl Sbarra

Law. Health. Justice.

 This synopsis is provided for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal
advice from an attorney. Laws cited are current as of March 2009. The Tobacco Control Legal Consortium provides legal information
and education about tobacco and health, but does not provide legal representation. Readers with questions about the application of the
law to specific facts are encouraged to consult legal counsel familiar with the laws of their jurisdictions.

Suggested citation:
Cheryl Sbarra, Tobacco Control Legal Consortium, Legal Authority to Regulate Tobacco and Common Threats and
Challenges: 2009 (2009).

Tobacco Control Legal Consortium

875 Summit Avenue
Saint Paul, Minnesota 55105 USA
tobaccolaw@wmitchell.edu
www.tobaccolawcenter.org
651.290.7506

Copyright © 2009 Tobacco Control Legal Consortium

This publication was made possible by the financial support of the American Cancer Society and the Robert Wood
Johnson Foundation.
Legal Authority to Regulate Smoking and
Common Threats and Challenges: 2009
Cheryl Sbarra

Introduction
The 2006 Report of the Surgeon General outlined the negative health Key Points
consequences of involuntary exposure to secondhand smoke, including
cancer and cardiovascular diseases in adults and respiratory diseases in • The 2006 Surgeon
both children and adults.”1 A wealth of scientific evidence supported the General’s Report
following conclusions in the report: outlined the negative
health consequences of
1. Secondhand smoke exposure causes premature death in involuntary exposure
nonsmoking adults and children. to secondhand smoke,
2. Children exposed to secondhand smoke are at an increased including cancer and
risk of acute respiratory infections, ear problems and asthma cardiovascular diseases
exacerbation. in adults and respiratory
diseases in both
3. Secondhand smoke exposure has immediate adverse
children and adults.
cardiovascular effects and causes coronary heart disease and
lung cancer.
• Smoke-free laws
4. There is no safe level of exposure to secondhand smoke. continue to be the most
5. Millions of Americans are still exposed to secondhand effective and economic
smoke in homes and workplaces, despite much progress in strategy for protecting
eliminating it. nonsmokers from
exposure to secondhand
6. Eliminating smoking in enclosed spaces fully protects
smoke.
nonsmokers from exposure to secondhand smoke. Separating
smokers from nonsmokers, ventilating buildings and clearing
• State and local
the air cannot eliminate exposure.2
governments have the
Smoke-free policies continue to be the most effective and economic legal authority to pass
strategy for protecting nonsmokers from exposure to secondhand smoke-free laws.
smoke.3 As of April 2009, 16,519 municipalities across the United States
have passed a state or local law with a 100 percent smoke-free provision • Recent preemption
covering workplaces, and/or restaurants, and/or bars, and protecting 70.2 challenges to state and
percent of the United States population.4 local smoke-free laws
have failed.
This law synopsis is an update of the Tobacco Control Legal Consortium’s
2004 synopsis, Legal Authority to Regulate Smoking and Common Legal • Smoke-free laws can
Threats and Challenges, and includes legal challenges to smoke-free withstand constitutional
ordinances that have arisen since the 2004 synopsis was published. challenges brought
Section I of this synopsis outlines state and local governmental authority on the basis of equal
for regulating smoking, and also addresses the legal doctrine of protection, vagueness,
preemption, which raises concerns in some, but not all states. Section II privacy, takings,
outlines several constitutional legal challenges to smoke-free ordinances freedom of association
that are often threatened, but which lack merit. Section III examines the and freedom of speech
legal authority of local regulatory bodies to pass smoke-free ordinances. arguments.
Section IV uses the example of private clubs to illustrate the need for
care when drafting smoke-free ordinances.

 Section I – Legal Authority to
Pass Smoke-Free Laws and the
Doctrine of Preemption
Legal Authority to Pass Smoke-free Laws
It is a long recognized principle of American
jurisprudence that a municipality has broad latitude
to adopt local ordinances and regulations that protect
and promote the health, safety, morals and general
welfare of its residents pursuant to its police power.5
Public health protection is “uniformly recognized as a
most important municipal function” and is “not only a
right but a manifest duty of a city.”6
Since “[t]he focus of public health is to protect the
health of every member of the community,”7 health
regulations have a strong presumption of validity.
A plaintiff challenging such a regulation has the
burden of proving it “cannot be supported upon
any rational basis of fact that reasonably can be
conceived to sustain it.”8 This can be a heavy burden
to meet. “Insofar as public health is concerned,
private property may become of public interest and
the constitutional limitations upon the exercise of
that power of regulation come down to a question of
‘reasonability.’”9
Laws that protect members of the community from
exposure to secondhand smoke are public health and
safety laws well within the policy-making powers of
state and local government.10 Despite falling within
the ambit of public health protection, smoke-free
ordinances have been and continue to be challenged
in courts throughout the nation. The overwhelming
majority of plaintiffs are unsuccessful. On the rare
occasion that plaintiffs succeed and a smoke-free
ordinance is struck down, the reason is usually
preemption.
Doctrine of Preemption
The preemption doctrine is derived from the
Supremacy Clause of the United States Constitution.
It states, “[T]he laws of the United States . . . shall
be the supreme law of the land; and the judges in
every state shall be bound thereby.”11 Essentially,
this means a hierarchy of laws exists where, in certain
circumstances, federal law trumps (preempts) state
law and state law trumps (preempts) local law. The

United States Supreme Court has stated “the historic
police powers of the states are not to be superseded
by a federal act unless that was the clear and manifest
purpose of Congress.”12 In the near absence of
federal regulation of secondhand smoke, smoke-free
ordinances are mostly established at the state and
local levels of government.
Unless the law in question contains express
preemption or express anti-preemption language,
there are no precise guidelines in determining whether
a law is preemptive. Each case must be decided on
its own merits.13 The United States Supreme Court
enumerated the factors to consider as follows:14
1. Is the scheme of the regulation so
pervasive as to infer that Congress left no
room for states to supplement it? In other
words, did Congress effectively preempt
the entire field?
2. Is the federal interest so dominant that
the federal system will be assumed to
preclude enforcement of state laws on the
same subject?
3. Does the state law produce a result that
conflicts with the objective of the federal
law?
Generally speaking, these same factors apply to state
laws as they affect local governments’ ability to pass
local laws, including smoke-free laws.
Several court decisions have been instructive in
upholding smoke-free laws in the face of preemption
challenges. In upholding a town ordinance prohibiting
smoking in town-licensed facilities or requiring the
facilities to construct enclosed, adult-only areas for
smoking, the Rhode Island Supreme Court found
there was no conflict between the ordinance and state
law, nor an indication expressed or implied that the
State Legislature intended to occupy the field.15 While
the Rhode Island Legislature enacted a statewide
law regulating smoking in public places, it allows
municipalities to adopt more stringent restrictions on
smoking. “No restaurant or bar in East Greenwich [or
other Rhode Island municipality] will violate rules and
regulations promulgated by the Department of Health
if it is bound to comply with stricter regulations,”
according to the Rhode Island Supreme Court.
The Supreme Judicial Court in Massachusetts
reached a similar conclusion when it held the state
law regulating smoking in public places is not in
conflict with a municipal board of health’s smoke-free
regulation for restaurants and bars.16 Instead, the court
stated, the board of health’s regulation “furthers, rather
than frustrates” the intent of Massachusetts statewide
law on smoking in public places. The state law
contained express anti-preemption language, which
clearly provided that cities and towns could restrict
smoking further than the statewide standard.17
Likewise, the Arizona Court of Appeals upheld the
City of Tucson’s smoke-free ordinance in restaurants,
finding it furthers, not frustrates, the state law on
smoking.18 “Both a city and a state may legislate
on the same subject when it is of local concern,”
according to the Arizona court. The court reiterated
the general principle that a local law will not be found
invalid if it can reasonably be interpreted in a manner
that avoids conflict with a state statute.
Also, preemption challenges to smoke-free ordinances
in the South Carolinian cities of Greenville and
Sullivan’s Island were both defeated when the
South Carolina Supreme Court upheld the right of
local authorities to enact indoor smoke-free laws.19
Both challenges were based on an interpretation of
preemption language in the state’s youth access law
– a reading that the South Carolina Supreme Court
found flawed.20
Recent cases have examined other preemption
issues surrounding smoke-free laws. For example, a
federal court in New York upheld New York State’s
Clean Indoor Air Act, finding that the state statute
was not preempted by the federal government’s
Occupational Safety and Health Act of 1970 (OSH
Act).21 The OSH Act was “created to promulgate
and enforce national consensus standards regarding
permissible safe exposure levels for employees in the
workplace.”22 The plaintiffs – owners and operators
of bars and food service establishments – alleged that
because the OSH Act created standards regarding
safe levels for employee exposure to “toxic and
hazardous substances,” it thereby preempted the State
of New York from regulating tobacco smoke. They
also alleged that every component of secondhand
smoke is included in the OSH Act. Disagreeing with
the plaintiffs, the court referred to several formal
statements by the Occupational Safety and Health
Administration (OSHA) indicating that it had no
intent to regulate secondhand smoke through the OSH
Act. “For instance,” the court stated, “in a March 30,
1990 letter, Gerard F. Scannell, Assistant Secretary,
writes that ‘[c]urrently, OSHA has no regulation
which specifically addresses tobacco smoke as a
whole because it is such a complex mixture.’”23
The court continued, “Thus, formal OSHA policy
indicates not only the compatibility of state and local
smoking legislation and the OSH Act and regulations,
but also the acknowledgment and approval of OSHA
with such state and local action.”24 Furthermore, the
court noted the OSH Act’s specific statement that
“[n]othing in this Act shall prevent any State agency
or court from asserting jurisdiction under State Law
over any occupational safety or health issue with
respect to which no standard is in effect under [29
U.S.C. §655].”25
In another case – this one involving the possible
preemptive effect of a state smoke-free law on a
county ordinance prohibiting smoking in public
buildings – the Supreme Court of Kentucky upheld
the county ordinance. The court stated, “The simple
fact that the state has made certain regulations does
not prohibit local government from establishing
additional requirements so long as there is no conflict
between them.”26 A conflict appears only where the
purpose of a state law cannot be achieved in the face of
a local regulation. When a local regulation augments
a state law, the purpose of the state law is achieved
and the local law can be viewed as complimentary.
Using a similar rationale, the Massachusetts Supreme
Judicial Court upheld a municipal board of health
regulation that prohibited smoking in private clubs
even though the state’s smoke-free law did not
include such a prohibition. The court stated, “The

 purpose of the [state] statute and the town regulation
are complimentary; the latter merely extends the
reach of the former to membership associations.”27
That case is particularly interesting because the
plaintiffs alleged preemption even though the state’s
smoke-free workplace law contains specific anti-
preemption language.28 The court concluded that
“The intention of the Legislature could not be more
clear: the language of the statute itself defeats any
claim of preemption.”29
Court decisions striking down smoke-free ordinances
are also instructive on the issue of preemption. In
2000, a New Jersey superior court struck down a
regional ordinance prohibiting smoking in most
indoor public places on the grounds that state law at
the time preempted it.30 New Jersey had numerous
state statutes that addressed smoking in public places.
The court noted that the preamble of each such statute
“repeatedly emphasizes that the purpose of the statutes
is to balance the rights of smokers and nonsmokers
and that it is not the public policy of this State to deny
anyone the right to smoke.” The court also relied on
explicit preemption language featured in the state law
on smoking.31 The court concluded that “the State
scheme is so pervasive and comprehensive that it
precludes coexistence of municipal regulation.”
The Supreme Court of New Hampshire struck down
a municipal smoke-free ordinance on the ground that
the New Hampshire Indoor Smoking Act preempted
the ordinance.32 The court found that the state law
was comprehensive and detailed. The court rejected
arguments that language in the Act disavowed any
intent to preempt local action, interpreting the alleged
anti-preemption language to permit additional
municipal regulation of smoking “only with respect to
fire protection, safety and sanitation, not with respect
to public health.”33 In 2003, the Iowa Supreme
Court also struck down a local smoke-free ordinance
in Ames on the ground that state law at the time
preempted those ordinance provisions that prohibited
designated smoking areas.34
These cases highlight the importance of anti-
preemption language. Any proposed statewide
smoke-free ordinance, whether strong or weak,
should include specific anti-preemption language.
This will enable local governments to enact local
laws that are stronger than state law without fear of a
legal challenge on the basis of preemption.

Section II – Constitutional
Challenges
Constitutional challenges to public health laws must
overcome an overwhelming presumption in favor
of the validity of these laws. Challengers to a state
law “bear the burden of proving it unconstitutional
beyond a reasonable doubt.”35 The challenger must
prove that “no set of circumstances exists under which
the [law] would be valid.”36 This section will review
some of the more common constitutional challenges
to smoke-free laws.
Equal Protection Arguments
The Fifth and Fourteenth Amendments to the United
States Constitution guarantee all persons equal
protection of the law. Laws that discriminate against
a protected class or impinge on a fundamental right
are strictly scrutinized and rarely pass. If, however, a
law does not affect a fundamental right or a protected
class, it need only be rationally related to a legitimate
state interest. Equal protection challenges to smoke-
free ordinances fall into two categories: the equal
protection of smokers and that of business owners.
Both arguments are based on the ill-conceived premise
that smoke-free ordinances somehow “discriminate”
against smokers or business owners.
Smokers have challenged smoke-free ordinances
on the basis that they are unfairly subordinated to
nonsmokers. The argument is articulated in the New
York case Fagan v. Axelrod.37 In this case, the plaintiff
argued the New York Clean Indoor Air Act “curtails
access by the subordinate class (smokers) to places of
public accommodation by reasons of their personal
habits,” “forces the subordinate class to work in a
smoke-free environment” and “discriminates against
members of the subordinate class on the basis of a
physiological impairment (nicotine addiction).” The
court held that these claims were without merit for
two reasons.
First, the classification of smokers does not infringe
on a fundamental right. A right is fundamental “if it is
deeply rooted in our nation’s history and tradition or
so ingrained in concept of ordered liberty that neither
justice nor liberty would exist if it were impaired.”38
For example, freedom of the press and the right to vote
are fundamental rights under the U.S. Constitution.
Smoking is not. In fact, no court has determined that
smoking is a fundamental, constitutionally protected
right. The court in Fagan v. Axelrod said it best:
“there is no more a fundamental right to smoke
cigarettes than there is to shoot-up or snort heroin or
cocaine.”39
Second, smokers are not a “suspect” classification
under the law. A law can treat one group of
individuals or entities differently than others as
long as there is a rational basis for the distinction
and the group affected is not part of a suspect class.
Classifications that are considered suspect are those
types of classifications that “share a common element
– an immutable characteristic determined solely
by the accident of birth,”40 such as race, national
origin, sexual orientation or gender. According to
the Fagan court, if the classification is not suspect
or does not involve a fundamental right, as is the
case with smokers, a presumption of constitutionality
attaches to the classification being analyzed, and the
challenging party must prove that the classification
is not related to a legitimate government purpose.41
Courts have consistently held that protecting people
from exposure to secondhand smoke is a valid use
of the state’s police power, thereby furthering a
legitimate government purpose.42
In addition to equal protection challenges by smokers,
restaurant and bar owners have also brought equal
protection challenges, which have almost always
failed. Some restaurant and bar owners have argued
smoke-free ordinances unfairly discriminate against
certain types of establishments when the regulations
allow smoking in some establishments and not in
others. In Justiana v. Niagara County Department
of Health, the plaintiffs argued a New York county
law that prohibited smoking in some but not all public
places was arbitrary and discriminatory, and thus
in violation of the Equal Protection Clause.43 The
plaintiffs also argued “if the goal of the regulations
is to protect the public health, it is irrational to
restrict smoking in some places but not others.”
The U.S. district court disagreed with the plaintiffs
and stated that “if a classification neither burdens a
fundamental right nor targets a suspect class, then
the classification will be upheld so long as it bears a
rational relation to some legitimate end.” In Tucson
v. Grezaffi, the Arizona Court of Appeals dismissed
a similar challenge, stating “It is no requirement
of equal protection that all evils of the same genus
be eradicated or none at all.”44 Communities may
address the public health problem of secondhand
smoke incrementally by prohibiting smoking in some
but not all public places, regardless of the probability
that the government will ever address the rest of the
problem.
Constitutional challenges to a smoke-free ordinance
on equal protection grounds were also raised in the
2006 Colorado case Coalition for Equal Rights v.
Owens.45 The Coalition for Equal Rights (CEO) is
a non-profit organization of more than 500 business
owners of bars, taverns, restaurants, billiard parlors
and others, many of whom allowed smoking before
the implementation of a Colorado law prohibiting
smoking in most indoor areas. The smoke-free
law exempted cigar-tobacco bars, airport smoking
concessions, and licensed casinos.46 CEO claimed
that the law was “facially unconstitutional” by
prohibiting smoking in some businesses and not in
others. Specifically, CEO argued that the law was
irrational because it permitted smoking in casinos but
prohibited it in bingo halls.47
Nevertheless, because the Colorado law did not
infringe upon a fundamental right or affect a protected
class, the law could be overturned only if it was not
“rationally related to a legitimate state interest.”48
The court stated, “Social and economic legislation
is presumed to be rational and this presumption ‘can
only be overcome by a clear showing of arbitrariness
and irrationality.’”49 The challenger has the “burden to
negat[e] every conceivable basis which might support
it.”50 The state argued that casinos were exempted
from the law because towns with licensed casinos
were dependent on the revenues generated by them
and they had only recently become legal.51 Upholding

 the law, the court quoted from U.S.R.R. Retirement
Board v. Fritz, which stated,
In the area of economics and social welfare,
a State does not violate the Equal Protection
Clause merely because the classifications
made by its laws are imperfect. If the
classification has some “reasonable basis,”
it does not offend the constitution simply
because the classification “is not made with
mathematical nicety or because in practice it
results in some inequality.”52
The court continued, “While it may be true that [bingo
halls] will face hardships that casinos will be spared,
this by itself does not render the Act unconstitutional.
The government has a reasonable basis to exclude
casinos; that is sufficient for the Act to pass equal
protection muster.”53
CEO also argued that because the law was aimed at
an “unpopular group” (i.e., smokers), it should be
subject to more serious scrutiny than the rationality
test.54 In rejecting this argument, the court stated,
“laws impacting politically weak or unpopular
groups who are not suspect classes” are not subject
to more serious scrutiny than the rationality test.55 In
addition, assuming that the court accepted the premise
that smokers were a weak and unpopular group, the
impacted group was not smokers as a whole, but rather
the owners of establishments. To be successful, CEO
would have had to prove that the state passed the law
solely for the purpose of harming smokers, which
was not the case.
Vagueness Arguments
According to the United States Supreme Court, “It is
a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined.”56 “Vague laws may trap the innocent by
not providing fair warning.”57 For an ordinance to be
considered unconstitutionally vague, “the complainant
must demonstrate that the law is impermissibly vague
in all of its applications.”58 This is an extremely
heavy burden because “[f]acial invalidation is,
manifestly, strong medicine that has been employed
by the Court sparingly and only as a last resort.”59
Facial vagueness challenges must be addressed on a
case by case basis, examining the facts of the case at
hand. The complainant’s conduct must be examined
“before analyzing other hypothetical applications of

the law” because “[a] plaintiff who engages in some
conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of
others.”60
In determining whether an ordinance is
unconstitutionally vague in all of its applications,
a court considers (1) whether the law “give[s]
the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that
he may act accordingly,” and (2) whether the law
provides explicit standards for those applying them
to avoid arbitrary and discriminatory applications.61
However, these standards should not be mechanically
applied.62
The degree of vagueness that the Constitution
tolerates – as well as the relative importance
of fair notice and fair enforcement – depends
in part on the nature of the enactment. Thus,
economic regulation [e.g., a smoke-free
law] is subject to a less strict vagueness
test because its subject matter is often more
narrow and because businesses, which
face economic demands to plan behavior
carefully, can be expected to consult relevant
legislation in advance of action. Indeed, the
regulated enterprise may have the ability to
clarify the meaning of the regulation by its
own inquiry, or by resort to an administrative
process. The Court has also expressed greater
tolerance of enactments with civil rather than
criminal penalties because the consequences
of imprecision are qualitatively less severe.63
In Roark & Hardee LP v. City of Austin,64 bar owners in
Austin, Texas sued the city claiming that an ordinance
adopted by means of a ballot initiative that prohibited
smoking in enclosed areas, including restaurants
and bars, and required owners and operators to take
“necessary steps” to prevent or stop people from
smoking in enclosed areas, was unconstitutionally
vague on its face “because it is so indefinite that it does
not give fair notice as to what conduct is prohibited
and lacks explicit standards for enforcement.”65
Penalties for violating the City of Austin’s ordinance
were criminal in nature.66 However, the ordinance
did not threaten any constitutionally protected rights.
In addition, the evidence revealed that the owners and
operators could clarify the meaning of the ordinance
and, in fact had meetings with city officials and
other business owners relative to clarification of the
ordinance.67 The Court considered the ordinance
“quasi-criminal” in nature because it regulated
business activity and businesses had the opportunity
to clarify the ordinance’s meaning. “To be safe,”
however, the court applied the “relatively strict test”
required for penal statutes.68
A law with criminal penalties must define the offense
with “sufficient definiteness that ordinary people can
understand what conduct is prohibited. . . .‘Only
a reasonable degree of certainty is required.’”69 In
reversing the district court’s judgment declaring
the “necessary steps” provision of the ordinance
unconstitutionally vague, the Fifth Circuit Court
of Appeals held that the ordinance did not have to
identify the exact actions an owner would have to take
to meet the requirement of taking “necessary steps.”
The court found that the “necessary steps” language
“is sufficiently clear to put Plaintiffs on notice of what
the statute governs and at whom it is directed. . . . [I]t
requires that said owner or operator ‘take necessary
steps to prevent or stop another person from smoking
in an enclosed area in a public place.’”70
The court then examined whether the bar owners had
ample notice of what conduct was prohibited and
whether there were adequate enforcement standards
to prevent arbitrary enforcement. The court noted
that the City of Austin had drafted two sets of detailed
guidelines in an effort to further define “necessary
steps.” These guidelines included “posting no
smoking signs, removing ashtrays, asking the patron
to stop smoking, asking the patron to leave the
establishment if he continues to smoke, and following
standard business practices for enforcing house
rules.”71 Additional guidelines were promulgated that
included refusing to serve a patron who continued to
smoke and making verbal requests to stop smoking
and leave the premises.
The court noted that these specific plaintiffs/bar
owners blatantly failed to implement any steps
to stop smoking in their establishments. In two
establishments, “[b]artenders themselves were
seen smoking when inspectors entered the bar. . . .
Additionally, . . . testimony revealed that [one bar
owner] failed to instruct his employees to refuse
service to his smoking customers” – a clear violation
of the guidelines.72 Numerous examples of similar
behavior led the court to find that “most of the time,
the only ‘steps’ taken were in trying to find a loop-
hole to avoid enforcing the ordinance.”73 The court
concluded, “The ordinance and its concomitant
guidelines provide adequate notice of the actions
required, as well as an ascertainable standard of guilt
for inspectors.” It therefore found that the law was
not unconstitutionally vague and vacated the lower
court’s permanent injunction that had enjoined
enforcement.
In another case, the Supreme Court of Kentucky
was asked to decide whether a local ordinance was
unconstitutionally vague because it required smokers
to maintain a “reasonable distance from the outside
entrance of any building.”74 The court continued, “As
long as an ordinance . . . can be reasonably understood
by those affected by [it] and they can reasonably
understand what the statute requires of them, it is not
unconstitutionally vague. . . . The test for whether a
law is unconstitutionally vague
involves a ‘man on the street’
approach,”75 with the challenged
statute providing “‘fair warning’ to
the public and ‘explicit standards’”
for those who apply it. . . .”76
The court held that because the
ordinance’s goal was to keep
smoke from entering the building,
“[s]urely individuals can reasonably
understand that if their tobacco
smoke is entering the building they
are not at a reasonable or required
distance.”77 It thus held that this
portion of the ordinance was not
unconstitutionally vague.

 The court, however, did find unconstitutionally vague
the section of the ordinance that required all non-
exempt businesses to remove “all ashtrays and other
smoking paraphernalia” from any area where smoking
is prohibited. The court pointed out that “‘smoking
paraphernalia’ could reasonably be interpreted to
include any or all of the following: cigarettes, cigars,
pipes, rolling tobacco, pipe tobacco, rolling papers and
cigarette tubes, . . . pipe cleaners, . . . matches, lighters,
. . . and smoking jackets.”78 Because the term “smoking
paraphernalia” was not defined, the ordinance as it
was written required department stores to remove all
items defined as “smoking paraphernalia” from their
premises. It would have also required restaurants
selling cigarettes and matches from behind the bar to
remove them from their premises. The court held that
this section “flunks the so-called ‘man on the street’”
test because it provides “insufficient guidance.”79 The
court noted, however, that the law could be amended
easily by defining “smoking paraphernalia” and by
requiring the removal of such paraphernalia that is
“intended for use on the premises.”80
In Empire State Restaurant and Tavern Association,
Inc. v. New York State Department of Law, the New
York Clean Indoor Air Law was challenged on
vagueness grounds.81 The law prohibits smoking
in bars and food service establishments and allows
smoking in outdoor seating areas of food service
establishments, but not outdoor seating areas of bars.
“Bar” is defined in the law as “any area, including
outdoor seating areas, devoted to the sale and service
of alcoholic beverages for on-premises consumption
and where the service of food is only incidental to
the consumption of such beverages.”82 The plaintiffs
contended that the distinction between bars and food
service establishments is vague because of the phrase
“incidental to” in the definition of “bar.”83
The United States District Court for the Northern
District of New York, citing McGowan v. Maryland,84
noted the United States Supreme Court’s ruling that
the term “incidental to” with reference to business
practice was constitutional. The court stated, “The
Court [in McGowan] determined that the ‘incidental
to’ language did not require Maryland business
owners ‘to guess at the statue’s meaning to determine
what conduct it makes criminal.”85 The court
continued, “The owners of bars and taverns in New
York State are sufficiently capable of employing their
experience and common sense to determine whether

what they own and operate is a bar or a food service
establishment. Moreover, if experience and common
sense are insufficient . . . the owner can contact the
local board of health [or another governmental entity]
for a determination.”86
The law also provides that enforcement officers may
grant waivers from specific provisions of the law if
compliance would cause “undue financial hardship” or
if “other factors exist which would render compliance
unreasonable.”87 The plaintiffs claimed that because
there are no specific criteria set forth for enforcement
officers to use in making these decisions, this section
of the law is unconstitutionally vague. The court
disagreed, stating “The language used in establishing
these criteria [“undue financial hardship” and
“unreasonable”] are commonly used and understood
phrases that withstand constitutional challenge.”88
In addition, the New York State Department of
Health circulated memoranda providing non-binding
guidelines for granting waivers. “Even if the waiver
provision[s] were vague prior to the statements of
the DOH [Department of Health],” the court said,
“administrative guidance has the potential to save an
otherwise vague statute.”89
In Taverns for Tots v. City of Toledo, the City of
Toledo, Ohio enacted an ordinance prohibiting
smoking in public places and exempted membership
associations (private clubs) and private social
functions.90 The plaintiff alleged that the ordinance
was unconstitutionally vague because it failed to
define “private social function.” The United States
District Court for the Northern District of Ohio held
that the failure to define “private social function” did
not render the law unconstitutionally vague. “In view
of the language of the ordinance and its legislative
purpose,” the court found the law “to be clear,
unambiguous, and easily understood by persons of
common intelligence.”91
Privacy Arguments
The United States Supreme Court has held that “one
aspect of the liberty protected by the Due Process
Clause of the Fourteenth Amendment is a right of
personal privacy, or a guarantee of certain areas or
zones of privacy.”92 State constitutions and laws also
establish certain privacy rights. This constitutionally
protected right to privacy and, generally, a right to
privacy offered by a state, extends only to fundamental
personal interests, such as marriage, procreation,
contraception, family relationships and education and
rearing children.93
Smoke-free laws do not violate any constitutionally
protected right to privacy. As discussed above, there
is no fundamental right to smoke. Moreover, smoke-
free laws do not prohibit smokers from smoking,
only from smoking in areas that will expose others to
secondhand smoke.
The right to privacy was the subject of a suit in
which three private clubs/membership associations
in Athol, Massachusetts sued the town’s Board of
Health claiming that the local regulation prohibiting
smoking in private clubs was an “unreasonable,
substantial and serious interference” with the right
of privacy of the associations and their members in
violation of the Massachusetts Constitution.94 The
plaintiffs argued that “[b]ecause their premises are
‘locked and not open to the public’ . . . the regulation
of activities that occur inside the buildings constitutes
an invasion of privacy.”95 In dismissing this argument,
the Massachusetts Supreme Judicial Court held that
the constitutionally protected right to privacy “does
not sound in trespass; it protects the invasion of some
personal aspect of an individual, not a location.”96
First Amendment Arguments
Individuals have a First Amendment right to
associate, which the United States has recognized
in two different senses.97 First, “the Court has held
that the Constitution protects against unjustified
government interference with an individual’s choice
to enter into and maintain certain intimate or private
relationships.”98 The types of relationships afforded
this protection include “marriage, . . . the begetting
and bearing of children, . . . child rearing and
education, . . . and cohabitation with relatives.”99
The First Amendment protects “those relationships,
including family relationships, that presuppose ‘deep
attachments and commitments to the necessarily few
other individuals with whom one shares not only a
special community of thoughts, experiences, and
beliefs but also distinctly personal aspects of one’s
life.’”100 Second, there is a right to “associate for the
purpose of engaging in those activities protected by
the First Amendment – speech, assembly . . . and the
exercise of religion.”101
In 2002, New York City expanded its Smoke-Free Air
Act by banning smoking in virtually all indoor areas
where people socialize.102 New York State followed
suit in 2003 by similarly expanding the state Clean
Indoor Air Act.103 A group, Citizens Lobbying Against
Smoker Harassment (CLASH), sued the city and
state on the grounds that the laws violated CLASH’s
freedom of association and assembly. CLASH did not
claim that the gathering of smokers in bars for social
or business purposes constituted a constitutionally
protected “intimate association,” but rather that the
laws interfered “with smokers’ ability to assemble and
associate with other persons while exercising their
First Amendment rights.”104 CLASH argued that the
laws “interfere with . . . [CLASH members’] rights . . .
to associate with other smokers in pursuit of [a] wide
variety of political, social, economic, educational,
religious, and cultural ends” because for smokers,
“smoking is so inherent in the act of socializing and
conversing . . . that to bar . . . smoking in all privately
owned places . . . open to the public deprives smokers
of a necessary venue for conducting their private social
lives.”105 CLASH admitted that the smoking bans did
not “technically” interfere with their members’ rights
to assemble and associate, but claimed that their rights
“were so substantially burdened, so utterly abridged
and so encumbered with humiliation as to virtually be
voided.”106
This argument suggests that smokers cannot fully
engage in meaningful conversation and other social
activities in bars without being allowed to smoke and
that only by being allowed to smoke in bars can they
fully exercise their constitutional right to associate.107
The United States District Court, Southern District
of New York, disagreed. The court stated, “Without
summarily dismissing all possibility that smoking
may contain some scintilla of associational value for
some people, there is nothing to say that smoking is
a prerequisite to the full exercise of association and
speech under the First Amendment.”108 The court
found that smoking is merely one of any number of
“collateral social interactions” or “ornamentations,”
similar to eating, drinking and dancing that may
occur while one is socializing.109 “While [s]moking
[b]ans restrict where a person may smoke,” the court
continued, “it is a far cry to allege that such restrictions
unduly interfere with smokers’ rights to associate
freely with whomever they choose in the pursuit of
any protected First Amendment activity.”110
CLASH also argued that the smoking bans violated
its members’ constitutionally protected First

 Amendment right to freedom of speech. The court
noted that although conduct is not usually considered
“speech,” certain types of conduct can be “sufficiently
expressive to merit First Amendment protection.”111
Expressive conduct that merits First Amendment
protection includes “marching in a parade . . . burning
the United States flag . . . marching in uniforms
bearing the swastika . . . and saluting or refusing to
salute the flag.”112
or liberty interests.”116 Due process protection is
afforded to those rights and liberties “deeply rooted
in this Nation’s history and tradition,” so much so
that “neither liberty or justice would exist if they were
sacrificed.”117 “The Fourteenth Amendment forbids
the government to infringe . . . fundamental liberty
interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to serve a
compelling state interest.”118

The court considered whether smoking in a bar
constituted expressive speech requiring constitutional
protection. Noting that it “must first inquire ‘whether
[a]n intent to convey a particularized message was
present, and [whether] the likelihood was great that
the message would be understood by those who
viewed it,’”113 the court was “not persuaded by
the general proposition that a smoker’s prevailing
motivation for smoking a cigarette, whether it is done
in a bar, restaurant, or on a city street, is to convey a
message with some profound expressive content to
those around him.”114
Assuming, for purposes of argument, that smoking
in a bar carried with it “some shred of expressive
conduct,” the court concluded that the smoking
bans would still pass constitutional muster because
they are “content-neutral, reasonable time, place,
and manner restrictions that are substantially related
to the important governmental interest of protecting
individuals from the harmful effects of [secondhand
smoke].”115 The court thus granted the defendants’
motion for summary judgment.
Since the act of smoking is not a constitutionally
protected fundamental right or liberty interest, any law
prohibiting the activity need only be rationally related
to a legitimate government interest. In Beatie v. City
of New York, the plaintiff alleged a law that restricted
smoking of cigars violated his substantive due process
rights.119 He claimed there was insufficient scientific
evidence that secondhand cigar smoke was harmful
to nonsmokers and, therefore, the law had no rational
relationship to a legitimate government interest.
The United States Court of Appeals for the Second
Circuit held that in the area of “social welfare, . . .
being the category under which this case falls, as
distinct from those freedoms guaranteed citizens by
the Bill of Rights . . . it is up to those who attack the

Substantive Due Process Arguments

Substantive due process challenges to smoke-free

ordinances have been unsuccessful. The Due Process
Clause of the U.S. Constitution provides that the
government may not deprive one of a constitutionally
protected liberty interest or property interest without
due process of law. Substantive due process protects
against governmental interference with liberty
interests, also referred to as fundamental rights. These
fundamental rights, in addition to those contained in
the Bill of Rights, have been held to include the right
to marry, to procreate, to educate and raise children,
to marital privacy, to travel and to vote. Smoking is
not a fundamental right.

Courts are extremely reluctant to expand substantive

due process protection to other “asserted rights

10
law to demonstrate that there is no rational connection
between the challenged ordinance and the promotion
of public health, safety or welfare.”120 Even if there
were evidence of a dispute as to the harmful effects of
cigar smoke, this dispute cannot rebut the presumption
that the ordinance is rational. “Moreover, to succeed
on a substantive due process challenge, a plaintiff
must do more than show that the legislature’s stated
assumptions are irrational – he must discredit any
conceivable basis which could be advanced to support
the challenged provision, regardless of whether that
basis has a foundation in the record,” according to
the court.121
Procedural Due Process Arguments
As stated above, the Due Process Clause of the U.S.
Constitution provides that the government may not
deprive one of a constitutionally protected liberty
or property interest without due process of law.
Procedural due process safeguards are intended to
protect individuals not from the deprivation itself,
but from inadequate procedural safeguards prior to
the deprivation. Procedural due process is meant to
ensure that the government utilizes a fair and open
process in enacting and enforcing laws.
Procedural due process is a flexible concept varying
with the particular situation, with the ultimate goal of
ensuring a law is implemented fairly. “An essential
principle of due process is that a deprivation of
life, liberty, or property be preceded by notice and
opportunity for a hearing appropriate to the nature of
the case.”122 To constitute a procedural due process
claim, one must establish that he or she has been
deprived of a liberty or property interest.123 Also,
state and local laws and procedures usually mandate
certain notice and hearing requirements for the passage
of any state or local law. Communities interested
in prohibiting smoking should take care to provide
notice and allow for public comment, in accordance
with their state and local requirements.
The Supreme Court of Appeals of West Virginia held
that an administrative regulation prohibiting smoking
in the prison system violated procedural due process
by not affording sufficient procedural safeguards
as required by the State Administrative Procedures
Act.124 Similarly, in 2003, a smoke-free regulation
in Abington, Massachusetts was challenged on the
grounds that the public was not notified about hearings
on the regulation. Although there is no Massachusetts
statutory requirement that a public hearing be held
prior to passage of a smoke-free regulation, almost all
boards of health in Massachusetts provide notice and a
public hearing. In an effort to avoid this challenge, the
board simply rescinded the regulation it passed, held
another public hearing after properly posting notice
of same, and passed the regulation once again.125
Takings Arguments
The Takings Clause of the U.S. Constitution
provides that no private property may be taken for
public use without just compensation.126 Owners of
restaurants and bars in Toledo, Ohio challenged the
constitutionality of a city ordinance that restricted
smoking in public places on the basis that the
ordinance amounted to a regulatory taking without
just compensation.127 Their claim was based upon an
allegation that, as a result of the smoking prohibition,
their businesses had no economically viable use.
The plaintiffs did not allege a physical taking, but
rather a partial regulatory taking. Regulatory takings
fall into two categories. First, if the taking “allows
the property owner ‘no productive or economically
beneficial use of land’ (sometimes called a categorical,
or complete taking),” the owner is entitled to
compensation.128 Second, a partial regulatory taking
may occur if a regulation prevents a property owner
from some economic use of his property, depending on
the state interest at stake and the level of governmental
intrusion.129
Whether a partial regulatory taking occurs is
determined on a case-by-case basis. Factors a court
considers include:
1. The character of governmental action;
2. The economic impact of the action on the
property owner; and
3. The extent to which the action interferes
with the claimant’s “distinct investment-
backed expectations.”130
In the Toledo case, a federal district court examined
these factors and held that the smoking prohibition
did not represent a partial regulatory taking. First,
in examining the character of the municipal
government’s action, the court stated that “[t]his
is not, like nearly all takings cases, . . . a land-use
regulation; it is, rather, a response to a serious public
health problem.”131 While the court acknowledged
11
 evidence that some of the businesses experienced
loss of revenue,132 that fact alone was insufficient to
render the government’s action a taking, especially
when the court considered the distinct investment-
backed expectations of businesses dependent on
smoking.133
Smoking has been a public health issue for nearly
fifty years, in light of growing concerns expressed
by public health experts and scientists, “not just
to smokers themselves from smoking, but also to
non-smokers exposed to second-hand smoke.”134
The court noted that the trend across the country
was to lessen the public’s exposure to second-hand
smoke. “Businesses dependent in whole or part on
patronage by smokers, and those who invest in such
businesses and seek to make their livelihoods from
them, have long been on notice that the value of
their investments, and implicitly, the ability to profit
from such businesses, may be affected adversely by
continuing governmental efforts to reduce exposure
to second-hand smoke.”135
The restaurant and bar business is regulated from
door to dumpster. “Those who do business in
[a] regulated field cannot object if the legislative
scheme is buttressed by subsequent amendments to
achieve the legislative end.”136
Section III - Challenges to
Legal Authority of Regulatory
Agencies
Numerous legal challenges have alleged that local
regulatory bodies have no authority to regulate
smoking. Many communities pass smoking
regulations through such local regulatory bodies.
For example, the vast majority of local smoking
regulations in Massachusetts are passed through
municipal boards of health. Unlike municipal
and county governments, which are political
subdivisions of a state, local regulatory bodies
derive their authority from state statute. They
function in part as quasi-state agents, although their
membership, operation, and rulemaking occur at
the local level.
The primary argument used by smoke-free
regulation opponents is that state law grants the
12
local regulatory agencies “rule making” authority,
but withholds “substantive authority” to enact
regulations not explicitly contemplated within the
statutory grant. Not surprisingly, the breadth of
authority for each local regulatory agency varies
from state to state. If a state legislature only
authorizes “rule making” authority to its local
regulatory agencies, tobacco control efforts can still
move forward in that state through local legislative
bodies, such as by city ordinance or town bylaw.
In determining whether a regulatory agency has the
authority to enact substantive laws, courts examine
the statutory language that grants the authority, the
legislative history surrounding the enactment of the
statute, and the overall statutory scheme. The Ohio
Supreme Court conducted this type of analysis and
found that Ohio boards of health do not have the
substantive legal authority to prohibit smoking in
all public places.137 According to the court, Ohio
law does not grant boards of health “unfettered
authority to promulgate any health regulation
deemed necessary,” and the “petitioners engaged
in policy-making requiring a balancing of social,
political, economic, and privacy concerns” that are
legislative in nature. In striking down the New York
Public Health Commission smoke-free regulation
on similar grounds, the New York Court of Appeals
held that “a number of coalescing circumstances
that are present in this case persuade us that the
difficult-to-define line between administrative rule-
making and legislative policy-making has been
transgressed.”138
In Massachusetts, the Supreme Judicial Court
upheld the authority of municipal boards of health
to pass smoke-free regulations.139 Boards of
health in Massachusetts act under several statutory
delegations of authority, but primarily rely on one
particularly broad delegation for passing smoke-
free regulations. This broad delegation of authority
states “boards of health may make reasonable health
regulations.”140 The court found this language
indicated that the Massachusetts Legislature made
the policy decision that public health matters
affecting local cities and towns could be the subject
of reasonable regulations developed at the local
level. Additionally, according to the court, the
Massachusetts Legislature has provided guidance
for implementing such authority by requiring that
municipal regulation of local health matters must
address the “health” of the community and be
“reasonable.”141
Section IV - Challenges to
Regulating Smoking in Private
Clubs
Local smoke-free ordinances sometimes exempt
“distinctly private clubs” that sell food and alcohol.
The theory behind the exemption is that the goal of
the ordinance is to protect the general public from
exposure to secondhand smoke and a private club is
not open to the general public.142 Private clubs that
are exempted are usually nonprofit, private entities
owned by their membership.143 Because these clubs
are nonprofit, not open to the public, and distinctly
private, they enjoy certain tax benefits, and are not
subject to state action for discriminatory acts.144
Whether a club is distinctly private is a question of
fact. A Court of Appeals for New York set forth five
factors to consider:145
1. Is membership determined by
subjective, not objective factors?
2. Is use of the club’s facilities limited to
members and guests?
3. Is the club controlled by its
membership?
4. Is it nonprofit and operated solely for
the benefit of its members?
5. Is its publicity directed exclusively and
only to members for their information
and guidance?
Other states also consider the size of the membership
of the club, the degree to which non-members use
the club’s facilities, and the frequency with which
the premises are rented to non-members.146
Often, when a city or town is considering the
adoption of a smoke-free ordinance, restaurant and
bar owners complain that if these clubs are exempted
from the ordinance, restaurant and bar patrons will
simply frequent these clubs in order to smoke. If
a club is truly distinctly private, this flight should
not occur. However, many of these purportedly
distinctly private clubs do not operate as distinctly
private, but rather operate as public bars. They
freely advertise card game nights and bingo nights
that are “open to the public.” Anyone can walk in
the door and order a drink. Therefore, the notion
that patrons will simply walk across the street to
these clubs to smoke if smoking is prohibited in
restaurants and bars can prove to be true.
As a result, communities often have applied local
smoke-free ordinances to private clubs on the
grounds that these private clubs are workplaces
and protecting the health of workers is a legitimate
public health goal, well within the police powers of
local government. That an establishment is private
does not somehow remove it from municipal
regulation. These clubs hold club liquor licenses
granted by municipal licensing authorities. They
hold occupancy permits granted by municipal
building departments and food service permits
granted by municipal boards of health. Thus, these
clubs already are subject to municipal regulation.
As mentioned earlier, under the First Amendment
right to associate, individuals have the right to be
free from undue intrusions into certain intimate
human relationships. In determining whether a
particular relationship is sufficiently intimate to
require constitutional protection, the Court considers
“factors such as size, purpose, selectivity, and
whether others are excluded from critical aspects
of the relationship.”147 The relationship among
members of the types of private clubs described
above is not usually the kind of intimate relationship
afforded constitutional protection. Many of these
clubs are not bona fide private clubs but really
public bars “masquerading as . . . private club[s]”148
and, thus have no constitutionally protected right
of intimate association.149 In Taverns for Tots, for
example, a group of Ohio bar and restaurant owners
set up a non-profit corporation, where members
could purchase one-dollar “memberships” entitling
them to smoke at the “club’s” “private social
functions.”150 A federal district court granted the
city of Toledo a preliminary injunction ordering
the “club” to stop allowing smoking at its “events.”
The court rejected the corporation’s claim that it
was a charity, stating that “the organization exists
not primarily to raise funds for needy children, but
to evade the strictures and consequences of the anti-
smoking ordinance.”151
13
 The second type of freedom of association to which
the Court has afforded constitutional protection
– freedom of expressive association – is even less
applicable to these private club cases.152 Prohibiting
smoking in private clubs does not affect “in a
significant way the group’s ability to advocate public
or private viewpoints.”153 Moreover, the prohibition
does not prevent people from associating; it simply
prevents associates from smoking.
Conclusion
The vast majority of laws that protect the public
from exposure to secondhand smoke have been
upheld. These smoke-free laws are well within the
14
police powers of state and local government and
represent the government’s legitimate interest and
primary obligation to protect the health and safety
of its citizens.
About the Author
Cheryl Sbarra is Senior Staff Attorney and
Director of the Tobacco Control and Chronic
Disease Prevention Program for the Massachusetts
Association of Health Boards. The views expressed
here are those of the author and are not meant to
represent the views of the Massachusetts Association
of Health Boards.
Endnotes
1 U.S. Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke:
A Report of the Surgeon General – Executive Summary, U.S. Department of Health and Human Services, Centers
for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, 2006 at iii.
2 Id. at 9.
3 Id. at i.
4 Americans for Nonsmokers’ Rights, Overview List – How Many Smokefree Laws?, http://www.no-smoke.org/pdf/
mediaordlist.pdf. As smoke-free workplace laws have proliferated across the U.S., some jurisdictions have passed
laws to prohibit smoking in venues such as casinos, where secondhand smoke exposure is often more severe than
exposure employees experience in other workplaces. See Micah Berman & Caris Post, Tobacco Control Legal
Consortium, Secondhand Smoke and Casinos (2007), available at http://tclconline.org/documents/casino.pdf. Other
jurisdictions are beginning to expand the scope of smoke-free regulation and enforce smoke-free policies in areas
previously regarded as off limits, such as outdoor dining areas of restaurants and bars, public parks, beaches and
golf courses; multi-unit residential housing; and motor vehicles. See Tobacco Control Legal Consortium, Going Too
Far? Exploring the Limits of Smoking Regulation, 34 William Mitchell Law Review 4 (2008), available at http://tclconline.
org/symposium-proceedings.html.
5 Lexington Fayette County Food and Beverage Ass’n v. Lexington-Fayette Urban County Gov’t et al., 131 S.W.3d 745,
749 (Ky. 2004).
6 Id. at 750 (citation omitted).
7 American Lithuanian Naturalization Club, et al. v. Bd. of Health of Athol, et al., 844 N.E.2d 231, 238 (Mass. 2006).
8 Id., quoting Druzik v. Bd. of Health of Haverhill, 85 N.E.2d 232, 237 (Mass. 1949).
9 Lexington Fayette County, 131 S.W.3d at 752, quoting Adams, Inc. v. Louisville and Jefferson County Bd. of Health,
439 S.W.2d 586, 590 (Ky. 1969).
10 Id. at 749.
11 U.S. Const. art. VI, cl. 2.
12 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
13 City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).
14 Rice, 331 U.S. at 231.
15 Amico’s, Inc. v. Mattos, 2001 WL 1685597 (R.I. Super. 2001).
16 Tri-Nel Mgmt. v. Bd. of Health of Barnstable, 741 N.E.2d 37 (Mass. 2001).
17 The anti-preemption language stated “nothing in this act shall be construed to permit smoking in any area in which
smoking is or may hereafter be prohibited by law including, without limiting the generality of the foregoing, any
other provision of law or ordinance or any fire, health, or safety regulation.” Mass. Gen. Laws ch. 270, § 22 (1987),
superseded by Mass. Gen. Laws ch. 270, § 23 (2008).
18 City of Tucson v. Grezaffi, 23 P.3d 675, 680 (Ariz. Ct. App. 2001).
19 See Foothills Brewing Concern v. City of Greenville, 660 S.E.2d 264 (S.C. 2008) and Beachfront Entertainment, Inc.
v. Sullivan’s Island, 666 S.E.2d 912 (S.C. 2008).
20 The South Carolina Supreme Court ruled that “Merely because section 16-17-504 was added to the Code in the same
piece of legislation which amended the Clean Indoor Air Act does not require that this section’s language about local
laws be interpreted as part of the Clean Indoor Air Act.  . . . In other words, it is patent that the language regarding
‘ordinances’ found in section 16-17-504 is intended to relate specifically to the distribution of ‘tobacco products’ to
minors, and not to the regulation of indoor smoking.” Foothills Brewing Concern, 660 S.E.2d at 268.
21 Empire State Restaurant and Tavern Ass’n, Inc. et al. v. New York State et al., 360 F. Supp.2d 454 (N.D.N.Y. 2005).
22 Id. at 458.
23 Id. at 459.
24 Id. at 459-60.
25 Id. at 458, quoting 29 U.S.C. § 667(a).
26 Lexington Fayette County, 131 S.W.3d at 749. See also Foothills Brewing Concern, 660 S.E.2d. 264.
27 American Lithuanian Naturalization Club, 844 N.E.2d at 241.
28 Id. at 236 (“Nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited

15
 by law including, without limitation: any other law or ordinance or by-law or any fire, health or safety regulation. Nothing
in this section shall preempt further limitation of smoking by the commonwealth or any department, agency or political
subdivision of the commonwealth.”).
29 Id. at 240.
30 LDM, Inc. v. Princeton Regional Health Comm’n, 764 A.2d 507 (N.J. Super. Ct. Law Div. 2000).
31 The language stated “The provisions of this act shall supersede any other statute, municipal ordinance, and rule
or regulation adopted pursuant to law[s] concerning smoking in restaurants….” N.J. Stat. Ann. § 26, chs. 3D, 3E,
superseded by P.L. 2005, Ch. 383, N.J.S. 26:3D-55.
32 JTR Colebrook v. Town of Colebrook, 829 A.2d 1089 (N.H. 2003).
33 The preemption language stated “Nothing in this subdivision shall be construed to permit smoking where smoking is
prohibited by any other provision of law or rule relative to fire protection, safety and sanitation.” N. H. Rev. Stat. Ann.
§ 155:77 (2002), superseded by N. H. Rev. Stat. Ann. § 155:77 (2007).
34 Cyclone Truck Stop v. City of Ames, 661 N.W.2d 150 (Iowa 2003). See also Entertainment Industry Coalition v. Tacoma-
Pierce County Bd. of Health, 105 P.3d 985 (Wash. 2005) (holding that the state’s Clean Indoor Air Act preempted local
regulation banning smoking in all indoor public places where state law expressly empowered proprietors to designate
smoking areas in most public places).
35 Musgrove v. Town of Federal Heights, 543 P.2d 715, 717 (Colo. 1975).
36 Coalition for Equal Rights, Inc. v. Owens, 458 F. Supp.2d 1251, 1259 (D. Colo. 2006).
37 550 N.Y.S.2d 552 (Sup. Ct. 1990).
38 See Washington, 521 U.S. 702, 721 (1997).
39 Fagan, 550 N.Y.S. at 560. See also Buckeye Liquor Permit Holders Association, Inc. et al. v. Ohio Dep’t of Health
et al. No. A0610614 (Common Pleas Court, Hamilton Ohio May 2007) (“neither the Constitution of the United States
nor the Ohio Constitution creates a fundamental right to smoke in public.”) See generally Samantha K. Graff, Tobacco
Control Legal Consortium, There is No Constitutional Right to Smoke: 2008 (2008), available at http://www.tclconline.
org/documents/constitutional-right.pdf.
40 Fagan, 550 N.Y.S.2d at 560.
41 The court in Fagan also noted that, contrary to their assertions, laws restricting or prohibiting smoking do not restrict
smokers’ access to public places, only their ability to smoke in those places.
42 Fagan, 550 N.Y.S.2d at 560.
43 Justiana v. Niagara County Dep’t. of Health, 45 F. Supp.2d 236 (1999).
44 City of Tucson, 23 P.3d at 682, quoting Rossie v. State, 395 N.W.2d 801, 807 (Ariz. Ct. App. 1986).
45 Coalition for Equal Rights, 458 F. Supp.2d at 1251.
46 See Colo. Rev. Stat. § 25-14-205.
47 Coalition for Equal Rights, 458 F. Supp.2d at 1260.
48 Id. (citation omitted).
49 Id., quoting Hodel v. Indiana, 452 U.S. 314, 331-22 (1981).
50 Id. at 1259, quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
51 Id. at 1260.
52 Id., quoting U.S.R.R. Retirement Board v. Fritz, 449 U.S. 166, 175 (1980).
53 Id.
54 Id. at 1261.
55 Id.
56 Grayned v. City of Rockland, 408 U.S. 104, 108 (1972).
57 Id. at 109.
58 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).
59 Roark & Hardee LP v. City of Austin, 522 F.3d 533, 548 (5th Cir. 2008), quoting Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 580 (1998).
60 Id. at 546, quoting Village of Hoffman Estates, 455 U.S. at 497.
61 Grayned, 408 U.S. at 109.
62 Roark & Hardee LP, 522 F.3d at 552.
63 Village of Hoffman Estates, 455 U.S. at 499.

16
64 Roark & Hardee LP, 522 F.3d at 533.
65 Id. at 539.
66 Violation of the ordinance is a Class C misdemeanor punishable by a fine or by revocation or suspension of the license
or permit. Austin, Tex., Code § 10-6-11 (A)-(B).
67 Roark & Hardee LP, 522 F.3d at 552.
68 Id.
69 Id. at 553 (citations omitted).
70 Id.
71 Id.
72 Id. at 554.
73 Id.
74 Lexington Fayette County, 131 S.W.3d at 753.
75 Id.
76 Id., quoting Hardin v. Commonwealth, Ky., 573 S.W.2d 657 (Ky. 1978).
77 Id.
78 Id. at 755.
79 Id.
80 Id. at 754.
81 Empire State, 360 F. Supp.2d at 454.
82 N.Y. Pub. Health Law § 1399-n (2003).
83 Empire State, 360 F. Supp.2d at 461.
84 McGowan v. Maryland, 366 U.S. 420 (1961).
85 Empire State, 360 F. Supp.2d at 461.
86 Id.
87 N.Y. Pub. Health Law § 1399-u (2003).
88 Empire State, 360 F. Supp.2d at 463.
89 Id. at 464, quoting Village of Hoffman Estates, 455 U.S. at 504.
90 Taverns for Tots v. City of Toledo, 341 F. Supp.2d 844 (N.D. Ohio 2004).
91 Taverns for Tots, 341 F. Supp.2d at 856.
92 Carey v. Population Services Int’l, 431 U.S. 678, 684 (1977).
93 Id. at 684, 685.
94 Mass. Gen. Laws ch. 214, § 1B (“A person shall have a right against unreasonable, substantial or serious interference
with his privacy.”)
95 American Lithuanian Naturalization Club, 844 N.E.2d at 242.
96 Id.
97 Bd. of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987).
98 Id. at 544.
99 Id. at 545.
100 Id.
101 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).
102 See 2002 N.Y.C. Local Law 47, Council Int. No. 256-A, codified at N.Y.C. Admin. Code §§ 17-501 et seq.
103 See N.Y. Pub. Health Law §§ 1399-o(2) and 1399-n(1).
104 NYC C.L.A.S.H., Inc. v. City of New York et al., 315 F. Supp.2d 461, 472 (S.D.N.Y. 2004).
105 Id.
106 Id.
107 Id. at 474.
108 Id.
109 Id. at 475.

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 110 Id. (citation omitted).
111 Id. at 476.
112 Id. (citations omitted).
113 Id. at 477 (citations omitted).
114 Id. at 478.
115 Id. at 479-480.
116 Washington, 521 U.S. at 720.
117 Id. at 721.
118 Id.
119 Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997).
120 Id. at 711.
121 Id. at 713.
122 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
123 R.J. Reynolds Tobacco Co. v. Bonta, 272 F. Supp.2d 1085 (2003).
124 State v. Parsons, 483 S.E.2d 1 (W. Va. 1996).
125 In a similar decision, a Maryland appeals court found a smoke-free regulation invalid because the Montgomery County
Council did not have sole authority to act as a board of health in passing the law. Montgomery County Council v.
Anchor Inn, 822 A.2d 429 (Md. 2003).
126 U.S. Const. amend. V.
127 D.A.B.E., Inc. v. City of Toledo, 292 F. Supp.2d 968 (N.D. Ohio 2003), aff’d 393 F.3d 692 (6th Cir. 2005).
128 Id. at 971.
129 Id.
130 Waste Mgmt., Inc. v. Metropolitan Gov’t of Nashville, 130 F.3d 731, 737 (6th Cir. 1997).
131 D.A.B.E., Inc., 292 F. Supp.2d at 972.
132 Many economic studies have examined restaurant sales tax revenues and found no loss of revenue as a result of
smoking prohibitions. See, for example, Michael Ericksen & Frank Chaloupka, The Economic Impact of Clean Indoor
Air Laws, 57 CA: A Cancer Journal for Clinicians 6, 367-78 (Nov. 2007) and Michelle Scollo and Anita Lal, VicHealth
Centre for Tobacco Control, Summary of Studies Assessing the Economic Impact of Smoke-free Policies in the
Hospitality Industry (Feb. 2008), available at http://www.vctc.org.aultc-res/Hospitalitysummary.pdf. See also the
websites of Americans for Nonsmokers Rights (www.no-smoke.org) and the Campaign for Tobacco-free Kids (http://
tobaccofreekids).
133 In Arizona, for example, a federal district court dismissed a lawsuit that claimed Tempe’s anti-smoking ordinance
is an illegal taking of property, stating “Plaintiff cannot show that an ordinance that merely bans smoking strips the
establishment of all economically viable uses.” Clicks Tempe, Inc. v. City of Tempe, No. CV 02-2000-PHX-ROS (D. Ariz.
2003).
134 D.A.B.E., Inc., 292 F. Supp.2d at 972.
135 Id. In a Kentucky case, for example, the state supreme court ruled that state law did not preempt a local ordinance
that prohibits smoking in public places, including bars and restaurants, and that the ordinance did not infringe on the
property rights of business owners. Lexington Fayette County, 131 S.W.3d. at 745.
136 Id., quoting FHA v. Darlington, Inc. 358 U.S. 84, 91 (1958).
137 D.A.B.E., 773 N.E.2d. 536.
138 Boreali v. Axelrod, 517 N.E.2d 1350 (N.Y. 1987).
139 Tri-Nel Mgmt., 741 N.E.2d at 46.
140 Mass. Gen. Laws ch. 111, § 31.
141 Importantly, the Massachusetts Supreme Judicial Court also held that the broad delegation of authority used to pass
smoke-free regulations does not violate separation of legislative, executive, and judicial powers in Massachusetts.
The Massachusetts Constitution and those of other states require that legislative delegations of authority must be
accompanied by safeguards and standards for using such authority. This requirement is intended to limit legislatures
from delegating their powers to other branches of the government. Courts in Massachusetts test whether a delegation
is proper by considering three factors: “(1) Did the Legislature delegate the making of fundamental policy decisions,
rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction
for implementation…; (3) does the act provide safeguards such that abuses of discretion can be controlled?” Tri-Nel

18
 Mgmt., 741 N.E.2d at 44. Courts in other states apply similar factors. See, for example, LDM, Inc., 764 A.2d at
507, where a New Jersey superior court held that a regional health commission ordinance was preempted by a statute
exempting bars from smoking regulations.
142 If, however, the goal of the regulation is to protect all workers from exposure to secondhand smoke, then private
clubs would be included because these clubs have workers that perform services for the club, such as bartenders and
custodians.
143 Loyal Order of Moose v. Bd. of Health of Yarmouth, 790 N.E.2d 203 (Mass. 2003).
144 Citizens Council on Human Relations v. Buffalo Yacht Club, 438 F. Supp. 316 (1997).
145 New York State Club Ass’n. v. City of New York, 505 N.E.2d 915, 919 (N.Y. 1987).
146 See, e.g., 204 Code of Mass. Reg. 10.02.
147 Bd. of Directors of Rotary Int’l, 481 U.S. at 546.
148 Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177 (1972).
149 Assuming that a private club meets the strict criteria of a distinctly private club and its members have a constitutionally
protected right of intimate association, prohibiting smoking would still be permissible on the ground that it is a valid
exercise of police powers and an extension of the right of municipalities to license and regulate the consumption of
liquor in private clubs. See Moore v. City of Tulsa, 561 P.2d 961 (Okla. 1977).
150 Taverns for Tots, 341 F. Supp.2d at 856.
151 Id.
152 Bd. of Directors of Rotary Int’l, 481 U.S. at 549.
153 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

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About the Tobacco Control Legal Consortium
The Tobacco Control Legal Consortium is a network of legal programs
supporting tobacco control policy change throughout the United
States. Drawing on the expertise of its collaborating legal centers, the
Consortium works to assist communities with urgent legal needs and to
increase the legal resources available to the tobacco control movement.
The Consortium’s coordinating office, located at William Mitchell
College of Law in St. Paul, Minnesota, fields requests for legal technical
assistance and coordinates the delivery of services by the collaborating
legal resource centers. Our legal technical assistance includes help with
legislative drafting; legal research, analysis and strategy; training and
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