Action on Smoking and Health A National Legal-Action Antismoking Organization Entirely Supported by Tax-Deductible Contributions    Search  | Info About  | ash.org| To Join |  Email Page

A recent judicial proceeding in Friendship Heights Maryland raised the issue of whether a ban on smoking on sidewalks and other public areas in the municipality was constitutional; more specifically, whether it violated with the Due Process or Equal Protection Clauses of the U.S. Constitution.

ASH WAS THE ONLY ORGANIZATION TO RESPOND TO THE REQUEST OF THE MUNICIPALITY TO FILE A FRIEND OF THE COURT BRIEF ARGUING THAT SUCH A BAN IS CONSTITUTIONAL.

ASH's John Banzhaf also participated in oral arguments.  The judge stated from the bench that he was tentatively convinced that the ban would be constitutional, but was troubled about whether his unique type of municipality had the power to regulate any kind of conduct on its sidewalks.

The court has no issued a preliminary injunction preventing the ban from going into effect, but only because the municipality may lack the legal authority to regulate conduct outdoors -- IN OTHER WORDS, THE CONSTITUTIONALITY OF THIS AND OTHER SMOKING BANS, ESPECIALLY THOSE OUTDOORS, REMAINS INTACT.  2nd Blow To Village Ban on Smoking (washingtonpost.com)

Summarized immediately below are some of the major judicial decisions holding that smoking bans are constitutional.

Following that is the brief submitted by Action on Smoking and Health.  YOUR CONTRIBUTIONS HELPED MAKE THIS WORK POSSIBLE.

Courts have repeatedly held in a wide variety of circumstances that there is no constitutional or other legal right to smoke, especially when others may be present. Here is a sample of the judicial opinions.

STADIUM — "The City of New Orleans in the exercise of its police power could prohibit smoking in public stadiums." {1}

AIRPLANE — Passengers have no right to be in a smoking section. {2}

WORKPLACE — Court upheld workplace smoking ban despite smoking worker's argument that his "private rights and interests" are affected. {3}

JAIL — Persons awaiting trial have no right to smoke in jail. {4}

HOME — A municipality may refuse to hire persons who smoke, even in their own homes: "Clearly the 'right to smoke' is not included within the penumbra of fundamental rights [constitutionally] protected" . . . "the act of smoking a cigarette does not rise to the level of a fundamental right." {5}

OFF-THE-JOB — A governmental employer may fire an employee from smoking only one cigarette, even off the job. {6}

SCHOOL — "The right to smoke in public places is not a protected right, even for adults." {7}

RESTAURANT — "Whether tobacco smoke is toxic may be arguable, but that question is one for the legislature and not the court. And it is clearly within the police power of the legislature to abuse what it finds to be injurious to the public health." {8}

{1} Gasper v. Louisiana Stadium, 577 F.2d 897 (5th Cir. 1978); {2} Diefenthal v. CAB, 681 F.2d 1039 (5th Cir. 1982); {3} Rossie v. State, 395 N.W. 2d 801 (Ct. of Appeals Wisc. 1986); {4} Washington v. Tinsley, 809 F. Supp 504 (S. Dis. TX 1992); {5} City of North Miami, v. Kurtz, 653 So.2d 1025 (Supreme Ct. Fla 1995); {6} Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987); {7} Craig v. Buncombe County Board of Education, 343 S.E.2d 222 (Ct. of Appeals NC 1986); {8} Alford v. City of Newport News, 260 S.E. 2d 241 (Supreme Ct. Va 1979).

  IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

Jacobo Rodriquez, |

Plaintiff, |

|

v. | Case No. 217814

|

Friendship Heights Village Council, et al. |

Defendants. |

BRIEF OF LAW PROFESSOR JOHN F. BANZHAF III,

EXECUTIVE DIRECTOR OF ACTION ON SMOKING AND HEALTH (ASH),

IN SUPPORT OF THE CONSTITUTIONALITY OF DEFENDANT'S ORDINANCE

RESTRICTING TOBACCO USE IN SOME OUTDOOR PUBLIC PLACES

SUMMARY

The ordinance restricting the use of tobacco products on sidewalks and parks is neither as extensive nor as far reaching as Plaintiff has suggested, both on the facts, and also in comparison to restrictions on various similar activities in public places and on smoking in other jurisdictions — all of which have been upheld or at least are presumptively constitutional. The ordinance does not violate substantive due process because courts have repeatedly held that the use of tobacco products is not protected by the Constitution.

Moreover, laws routinely prohibit many similar activities — including drinking alcoholic beverages, gambling, playing loud music, spitting, lewd or boisterous conduct etc. — in public places, even in the absence of harm to others. Laws also prohibit the use of many allegedly harmful substances — e.g., marijuana, laetrile, cyclamates, etc. — even in private, simply to protect users.

The ordinance does not violate equal protection under the "rational basis" test since smoking is a leading cause of litter, and the use of smokeless tobacco almost inevitable leads to spitting. Moreover, laws may also prohibit the use of tobacco in public for the same well-established reasons for prohibiting gambling or consuming alcoholic beverages in public: to deter children from engaging in an activity before they can fully appreciate the consequences.

Since the use of smokeless tobacco can lead to nicotine addiction and therefore to smoking, Defendant has at two additional legitimate public interests in preventing children from using smokeless tobacco: to protect them from the well-established dangers of mouth cancer, and to prevent them from becoming addicted to nicotine, and thereafter "graduating" to cigarettes. TABLE OF CONTENTS

INTRODUCTION 3

THE IMPACT OF THE ORDINANCE HAS BEEN VASTLY EXAGGERATED AND

MAY BE DE MINIMIS IN COMPARISON TO OTHER COMMON INCONVENIENCES 3

A. The Ordinance Doesn't Cover "the Vast Majority" of Outdoor Space 3

B. The Restrictions are Far Less Extensive Than Those on Similar Activities 4

C. The Impositions on Tobacco Users Appear to be De Minimis 6

D. The Ordinance is Similar to Many Antismoking Restrictions Already in Force 7

THE ORDINANCE DOES NOT VIOLATE SUBSTANTIVE DUE PROCESS 9

A. Many Decisions Hold There is No Right to Smoke, Especially in Public Places 9

B. By Analogy to Many Other Activities, There is No Right to Smoke 11

C. The Alford Case is Clearly Inapposite For Two Major Reasons 13

THE ORDINANCE DOES NOT VIOLATE EQUAL PROTECTION 15

A. The Ordinance Reduces Citizen Exposure to Dangerous Chemicals 15

B. The Ordinance Reduces A Major Source of Litter 17

C. The Standard is a Very Difficult One For Plaintiff to Meet 17

D. A Ban on Smokeless Tobacco Use Reduces Spitting and its Health Hazards 18

E. A Ban on Smokeless Tobacco Use Discourages Tobacco Use by Children 19

SUMMARY AND CONCLUSION 21

A. The Ordinance is Clearly Constitutional With Regard to Smoking 21

B. The Ordinance is Clearly Constitutional With Regard to Smokeless Tobacco 22

Movant respectfully submits this brief amicus curiae in support of the constitutionality Movant has no particular expertise in this area of law, and therefore this brief does not address that issue. His brief does, however, address the arguments of Plaintiff that adoption of any law which prohibits the use of tobacco products on sidewalks and in public parks would be unconstitutional; in other words, that such a law could not be passed even by the State of Maryland, much less by Montgomery County and/or Friendship Heights. of the Friendship Height's ordinance which restricts tobacco use in certain outdoor public places.

Before addressing Plaintiff's legal arguments that such restrictions violate substantive due process and/or equal protection, it might be well to clarify the scope of those restrictions. Plaintiff states that "the regulation at issue here applies to the vast majority of outdoor space in the special taxing district," [complaint at 2], a claim which is repeated in substantially the same form several times in Plaintiff's pleadings. However, it would appear that this claim greatly exaggerates the scope of the regulation and its restrictions on tobacco users.

The ordinance applies to all sidewalks, buildings, parks or sodded areas owned or maintained by the Village Council. By its terms, it does not apply to the streets which run through the municipality. Thus, since streets (which are made primarily for cars) are almost always substantially wider than sidewalks (which are made primarily for people), it would appear that "vast majority of outdoor space" consisting of the combined area of streets and sidewalks is not covered by the ordinance.

In addition, in most urban areas such as Friendship Heights, not all of the privately owned areas are covered by buildings or fenced in so that pedestrians are unable to go upon it. For example, pedestrians ordinarily are not restricted from walking through and/or standing upon both commercial outdoor parking lots, and private outdoor parking areas adjacent to buildings.

Similarly, since many buildings are not built right up to the sidewalk, but rather for legal and/or aesthetic reasons have setbacks (i.e., space between the edge of the public sidewalk and the building wall), these very substantial areas are also not covered by the restrictions in the ordinance.

Finally, commercial buildings frequently have paths or walkways leading from the sidewalk to one or more entrances to the building, and/or lawns or other small mini-park areas within the property itself. Since the ordinance does not reach these areas, the percentage of outdoor space where smoking is not prohibited by the ordinance is even greater.

Needless to say, the ordinance also does not purport to cover the rooftops of private buildings (including those to which residents may have access), balconies, lawns, or back yards, etc.

In summary, although Movant has not had an opportunity to conduct a personal survey of the outdoor areas covered and not covered by the ordinance, common sense and everyday experience from walking on sidewalks on the sides of wide streets, and observing parking lots, walk ways, lawns, etc. around buildings, it appears doubtful that the ordinance covers even half of the total outdoor space, much less "the vast majority" as Plaintiff claims.

Although Plaintiff appears to argue that the ordinance imposes severe restrictions on only one activity which can be conducted indoors or outdoors — smoking or using smokeless tobacco — the limits imposed are far less extensive than those customarily imposed on many similar activities.

In most urban areas, the consumption of alcoholic beverages — and even the possession of open containers of such beverages — is ordinarily prohibited in all public places. This includes not only the areas covered by the instant ordinance, but also on public streets and on areas adjacent to public sidewalks but on private property: e.g., lawns, walkways, parking lots, etc.

While the use of both tobacco products and alcoholic beverages is legal, both contain chemicals which can be addicting (nicotine and alcohol), and which by law — and in large part for that reason — cannot be sold to minors.

Persons who use them do so not because they are needed for any nutrition or medicinal purpose, but rather to bring the user relief and/or pleasure. Thus, to the extent that these two activities are similar, the scope of the prohibition on tobacco use is far less extensive than that on alcohol use.

Similarly, in most urban areas, gambling — including card or dice games played for money — is prohibited in all public places. This includes not only the areas covered by the instant ordinance, but also on public streets and on areas adjacent to public sidewalks, but also on private property: e.g., lawns, walkways, parking lots, etc. Thus the restriction on this activity (gambling) are also far more extensive than those under the ordinance in question.

Another common example is the growing practice of prohibiting the playing of loud amplified music through the use of so-called "boom boxes" and other similar devices. Once again the prohibitions are generally far more extensive in scope than the areas covered by the instant ordinance.

In summary, the coverage of the ordinance challenged by the Plaintiffs as excessively broad is in fact far less extensive in its sweep than restrictions on many other forms of conduct in outdoor areas, many of which do not involve even the suggestion of a health risk to passers by. Indeed, many states prohibit riding motorcyles without helmets, the handling of deadly snakes, etc. — based not upon the risk the activity poses to third parties, but primarily if not solely to protect the adult engaging in the activity.

Another way of comparing the impact of this ordinance on those affected might be to ask how far they might have to walk in order to engage in the activity of using tobacco products. The answer in most cases is only a few feet, since people can easily step off a sidewalk into the space between two parked cars on the street, onto outdoor parking areas, walkways, setbacks, etc. to use tobacco products.

In contrast, persons who wish to use a restroom might have to walk several blocks before they would find one. Mothers who wish to breast feed their children during cold winter months might likewise have to walk a block or two before finding a building lobby or other similar area in which to engage in this activity. The same is true of parents who have a sudden need to change the diaper on their baby. Finally, persons who wished to consume alcoholic beverages might have to walk several blocks before finding a bar or restaurant where they could lawfully engage in this activity.

In summary, the imposition on any smoker or user of smokeless tobacco — to step off a sidewalk or to walk a few steps to private property — may be so small as to be de minimis, especially in comparison to the many other restrictions on public smoking which are accepted without question.

For example, smoking is now banned on all airlines flights to, from, or in the U.S.; on all interstate bus trips; in a growing number of businesses and office buildings; and even on the outdoor grounds (including parking lots) of post offices, schools, and private businesses. Thus all smokers increasingly must restrict their behavior, and are often required to refrain from smoking entirely for many hours at a time (e.g., on a cross-country flight).

For this reason it would appear that any imposition on a smoker (or smokeless tobacco user) from a law prohibiting tobacco use on the streets and in the parks of a very tiny municipality would be inconsequential and de minimis. This is especially true since the ordinance does not prohibit smoking on sidewalks of two of the main avenues, on the many streets which pass through the municipality, on outdoor parking lots, walkways, or other outdoor portions of private property from which the public is not barred, etc.

The U.S. Supreme Court has repeatedly upheld legal actions which may result in only a brief imposition or delay upon members of the public, even where it would otherwise constitute an unconstitutional "search" and/or "seizure." In the instant situation the delay is less; the activity delayed is not constitutionally protected; and a mere delay would not by itself constitute and "search," "seizure," or other constitutionally-limited police action. In the instant situation, residents of Friendship Heights — especially children, the elderly, etc. — cannot conveniently avoid walking on sidewalks. In contrast, as previously noted, those desiring to use tobacco products in public can easily do so by taking only a few steps to stand on the street between parked cars, to an outdoor parking area, a walkway, etc.

To aid in its evaluation of Plaintiff's claims, it might be useful for the Court to understand restrictions on smoking in public places are becoming increasingly common. Here is an excerpt from what the New York Times reported almost three years ago in an article entitled "Battle Over Smoke Moves Outdoors" [06/21/98]:

Despite the criticisms, communities across the United States have forged ahead to expand their no_smoking agendas. Here in the county, Eastchester passed a law earlier in the spring forbidding smoking in some sections of Lake Isle Park, a public recreation area. Greenburgh has limited smoking at Anthony J. Veteran Park, its primary recreation area, leaving only two designated smoking sections there. And Scarsdale recently adopted a no_smoking policy for all public parks that have play equipment for children and at playing fields and pools as well as in all village_owned vehicles. The county government, too, this spring banned smoking in the Kiddyland section of Playland Park in Rye and in all lines for rides at the amusement park.

Elsewhere in the United States, San Francisco is about to ban smoking at 29 playgrounds and recreation centers, becoming the sixth city in California to restrict outdoor smoking. In Santa Cruz, an ordinance outlawing smoking in lines for movies and buses will take effect this week. Palo Alto, Clayton, Davis and Arcata also have laws against lighting up in some outdoor areas, including within 20 feet of public buildings.

Smoking is prohibited on beaches and in public playgrounds in Sharon, Me., where a law was passed after a crusade by a woman whose toddler picked up a cigarette butt at a beach and tried to eat it. Also, smoking is forbidden at outdoor recreation areas in Mount Olive, N.J., and in public parks in Bellaire, Tex. In New York City, smoking is prohibited at children's playgrounds and in public places like work sites, sports arenas, schools and restaurants.

The New York Times went on to report on a statute, now more than three years old, which is almost as far reaching as Friendship Heights':

One of the strictest anti_smoking laws exists in Mesa, Ariz., where fines start at $100 for smoking in just about every outdoor space where the public congregates. In Bellaire, fines for smoking at some places are as high as $500. [emphasis added]

In summary, the Friendship Height ordinance is not a radical and unprecedented extension of clean indoor air legislation to cover outdoor areas, but an incremental extension of protections already in place in many jurisdictions. It is far less restrictive than ordinances restricting many other outdoor activities, including possession or consumption of alcoholic beverages, gambling, playing loud music, lewd or lascivious conduct, immodest dress, etc. which often prohibit such conduct anywhere outdoors in a municipality.

In sharp contrast, the instant ordinance restricts conduct in only such limited areas that any person desiring to use tobacco products outdoors can generally do so by taking only a few steps from anywhere he may find himself. Thus the impositions on this non-constitutionally protected activity appear to be de minimis.

Although the Plaintiff claims that the ordinance violates substantive due process, he cites no judicial opinions or other authority for that unique proposition. The reason is simple; the issue of whether or not smoking is a constitutionally protected activity (“right”) has been repeatedly addressed, and each time the courts have held that it is not. Several examples follow.

In 1987, the U.S. Court of Appeals for the 10th Circuit held that a governmental body could constitutionally prohibit an employee from smoking both on and off the job, and could fire him for taking three puffs on one cigarette during a luncheon break. In doing so the court rejected arguments that his due process rights had been violated, even though the rule prohibiting smoking by employees extended not only to his workplace (where others might be directly affected) and working hours (where the government has a stronger and more immediate interest), but even to his off duty hours in his own home or other strictly private place. Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987).

Similarly, in City of North Miami, v. Kurtz, 653 So.2d 1025 (1995), the Supreme Court of Florida held that a provision requiring new employees not to have smoked for at least one year prior to seeking employment did not violate any substantive due process right to smoke, citing Grusendorf:

Having determined that Kurtz has no legitimate expectation of privacy in revealing that she is a smoker under the Florida constitution, we turn now to her claim that the regulation violates her rights under the federal constitution. As noted, the federal constitution's implicit privacy provision extends only to such fundamental interests as marriage, procreation, contraception, family relationships, and the rearing and educating of children. Carey. Clearly, the "right to smoke" is not included within the penumbra of fundamental rights protected under that provision. Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987) (the act of smoking a cigarette does not rise to the level of a fundamental right). Moreover, even if we were to find that some protected interest under the federal constitution were implicated so as to require a rational basis for the regulation we would still find the regulation to be constitutional. [emphasis added]

It must be noted that both cases involving impositions on an alleged right to smoke, not only in public places like sidewalks where others might be affected, but within the confines of an individual's own home. Thus any such alleged "right" to smoke on public sidewalks or on similar places where others are immediately and adversely affected cannot possible be any greater.

In Washington v. Tinsley, 809 F.2d 504 (S. Dis. TX 1992), a federal court upheld a total prohibition on smoking over numerous claims by persons in jail awaiting trial that it violated their constitutional and other rights. These claims are obviously far more serious than those raised in the instant case by Plaintiff. The hardship to persons who are confined against their will and have no opportunity whatsoever to smoke obviously dwarfs the objection of Plaintiff that he would have to step off a sidewalk or on to a nearby walkway to smoke. G. Their safety is unreasonably threatened by the increase in the likelihood of fighting in the jail caused by the ban.

Similarly, in Rossie v. State, 395 N.W. 2d 801 (1986), the Court of Appeals of Wisconsin upheld regulations prohibiting smoking at his workplace over the objection of a long-time smoker who "argues that his 'private rights and interests' are affected because if the directives go into effect, he will lose his job." Nevertheless, the court rejected all of his arguments, including those based upon equal protection which are discussed subsequently.

Also, in Diefenthal v. CAB, 681 F.2d 1039 (5th Cir. 1982), the Fifth Circuit held that smokers who had purchased first class seats on an airplane had no right to be seated in the smoking section, even though this denial prevented them from smoking for an extended period of time. Although their claims were based upon a wide variety of legal theories, and their case was brought prior to the time that it was known that secondhand tobacco smoke could cause cancer and heart attacks in nonsmokers who inhaled it, the plaintiffs dared not even suggest that smoking was protected by substantive due process.

Finally, in Gasper v. Louisiana Stadium, 577 F.2d 897 (5th Cir. 1978), a nonsmoker had sued to require, on constitutional grounds, that smoking be banned in the Louisiana Superdome. In rejecting his claim, the court nevertheless admitted:

We assume that the Superdome authorities, if they saw fit, could prohibit smoking in the facility, or the City of New Orleans in the exercise of its police power could prohibit smoking in public stadiums, or the State of Louisiana could enact a similar statute of statewide application.

Once again, this admission in the context of a constitutional case that it would be perfectly lawful for governmental authorities to prohibit all smoking in the vast confines of the Superdome, and to do so at a time when the harmful effects of secondhand tobacco smoke were barely suspected, seems most persuasive.

If there were indeed a legal right to smoke — or even to use smokeless tobacco — in public, then logically there should be a corresponding right to engage in other similar activities. Since there clearly is no such right — whether established and protected by substantive due process or otherwise — there is no reason to believe that such a right exists with regard to the consumption of tobacco products.

People use alcoholic beverages for roughly the same reasons they use tobacco products: it provides relief, enjoyment, relaxation, or satisfaction — or, from an alternative point of view, it permits them to ingest a substance (alcohol or nicotine) which affects their bodies in ways they desire. Thus, if there is a right to use tobacco products in public places, there should be a corresponding right to use alcoholic beverages. But clearly no such right exists.

In virtually every urban jurisdiction, the consumptions of alcoholic beverages in public — and often the possession of an opened bottle of such beverages — is prohibited by law. This appears to be uniformly accepted, with no attempt to weigh the interests of imbibers against those who oppose public consumption, to require a showing that the restriction reduces overall consumption or the incidence of drinking by youngsters, to compare whether it denies equal protection to drinkers as opposed to gum chewers, etc.

Another common activity which is increasingly prohibited in public places is the playing of amplified music as from a "boom box" or other portable radio or record/tape/CD player. People like to listen to music because, like smoking, they may find it relaxing, enjoyable, stimulating, etc. Yet no serious attempt has been made to argue that such prohibitions violate substantive due process, or that a right to play amplified music in public places exist, even though playing music may have some expressive (First Amendment) elements.

Dancing nude or semi-nude is ordinarily not permitted in the public places covered by the Friendship Heights ordinance (e.g., on sidewalks), nor even in areas not covered by the ordinance (e.g., on streets, parking areas, etc.), even though it does enjoy some First Amendment protection, and, like smoking, may be relaxing or enjoyable to the person engaging in the activity. Despite this, rather obviously, semi-nude dancing is no more protected by substantive due process than smoking, or chewing and spitting tobacco — and for the same reasons.

In summary, whether based upon the apparently unanimous conclusions of all of the judicial opinions which have considered whether there is a legal right to smoke, or based upon common sense analogies to other similar activities, substantive due process does not establish a legal right to smoke or use other tobacco products in public places.

Plaintiff's self-styled "Comprehensive Memorandum" cites only one case related to smoking in support of the suggestion that smoking in public places is a constitutionally protected right. However, the opinion, which struck down an ordinance which required restaurants to have at least one (but only one) table set aside for nonsmokers, is inapposite for at least two reasons.

The first reason is set forth in Craig v. Buncombe County Board of Education, 343 S.E.2d 222 (1986), in which the Court of Appeals of North Carolina distinguished Alford in holding that a ban on the use and possession of tobacco products in the Buncombe County schools was valid since it was reasonably related to the educational process, and the fact that teachers were allowed to smoke while students were not did not violate the constitutional guarantee of equal protection. As the court put it:

Appellants contend that the smoking ban imposed by the Buncombe County Board of Education deprives students who smoke of the "fundamental right" to an education. However, in our view, the right deprived is only the right to use or possess tobacco products on school grounds during school hours. . . . The right to smoke in public places is not a protected right, even for adults. [emphasis added]

With regard to Alford, the court said:

In Alford v. City of Newport News, 270 Va. 584, 260 S.E. 2d 241 (1979), a case relied upon by appellants, the Virginia Supreme Court ruled that a municipal ordinance prohibiting smoking in restaurants, health care facilities, schools and elevators was unconstitutional as applied to the owner of a private, one_room restaurant. The court invalidated the ordinance only in its impact upon the regulation of the use of private property. [emphasis added]

In the instant situation, and completely unlike Alford, the restrictions on smoking apply not to private property, but rather to areas owned or maintained by the government. In addition, they are all not only governmentally owned or maintained, but also areas which are used by all members of the public. Therefore, Alford does not support the Plaintiff's claims.

Second, and perhaps even more importantly, the only reason the Alford court struck down the smoking ordinance is that it was nonsensical; i.e., by no stretch of the imagination could it provide any protection whatsoever.

Since the ordinance, as applied and interpreted, required that only one table in a restaurant be labeled "no-smoking," such a designation or restriction provided no protection whatsoever to a nonsmoker seated at the table from smoke generated by persons seated at all of the other tables.

In other words, whether or not the table at which a nonsmoker was seated was labeled "no-smoking" or not, he would be subjected to exactly the same amount of tobacco smoke from patrons seated at the other tables.

Ironically, Alford the court began its opinion by holding that, even with regard to private property, there was no constitutional impediment to restricting smoking — exactly the opposite of what the Plaintiff contends:

The due process guarantee does not forbid reasonable regulation of the use of private property. "The legislature may, in the exercise of the police power, restrict personal and property rights in the interest of public health, public safety, and for the promotion of the general welfare." Gorieb v. Fox, et als., 145 Va. 554, 560, 134 S.E. 914, 916 (1926); see also Mumpower v. Housing Authority, 176 Va. 426, 11 S.E.2d 732 (1940). The purpose of the no smoking ordinance, manifest upon its face, is to protect the non_smoking public from what the ordinance terms "the toxic effect of smoke". Whether tobacco smoke is toxic may be arguable, but that question is one for the legislature and not the courts. And it is clearly within the police power of the legislature to abate what it finds to be injurious to the public health. [emphasis added]

The only reason for striking down the ordinance was as follows:

As applied to defendant in this case, the means employed by this ordinance are not reasonably suited to the achievement of the legislative goal. The requirement to designate one of several dining tables located in the same room as a non_smoking area hardly limits the amount of smoke in the air. If smoke exhaled in such an environment is toxic, its harmful effects are ambient. Yet, the ordinance requires posting a sign which leads the non_smoking diner to expect that the place he has chosen to patronize is a wholly protected environment. By relying on the sign, he will be exposed to "the toxic effect" from which the ordinance purports to protect him. Hence, these requirements tend to defeat the very legislative purpose the ordinance is supposed to promote. [emphasis added]

Even without the detailed analysis in the next section of the brief, there is no basis for this Court to follow the Alford court's lead, and conclude that the ordinance would "tend to defect the very legislative purpose the ordinance is supposed to promote." If tobacco smoke is toxic — "a question [which] is one for the legislature and not for the courts" — then prohibiting smoking on sidewalks and in other places where nonsmokers go will undoubtedly reduce their exposure to it.

As Plaintiff concedes, since tobacco users are neither a suspect or a quasi-suspect class, and the use of tobacco is not a fundamental right, the Court can invalidate the ordinance on equal protection grounds only if it is not "related to a legitimate state interest." [brief at 52] Here there are number legitimate state interests to which the ordinance is very clearly rationally related.

Recently the "9th Report on Carcinogens (Revised January 2001)," a publication of the Public Health Service of the U.S. Dept. of Health and Human Services," included "Environmental Tobacco Smoke" [ETS] among the "Agents, Substances, Mixtures or Exposure Circumstances Known to Be Human Carcinogens." [http://ehis.niehs.nih.gov/roc/toc9.html] [emphasis added]

Thus, secondhand tobacco smoke was classified as a known human carcinogen, in exactly the same category as other well-known killers such as:

arsenic, asbestos, benzene, mustard gas, radon, and vinyl chloride. Similar conclusions have been reached by numerous other scientific and medical bodies, both here and abroad,COUNCIL, AUSTRALIA, "The Health Effects of Passive Smoking" (11/97); http://www.health.gov.au/nhmrc/advice/nhmrc/index.htm; and the WORLD HEALTH ORGANIZATION (WHO), "Tobacco Use: A Public Health Disaster," http://www.who.int/ntday/ntday97/ta3e.htm.both public and private.

Maryland has also reached the same conclusion — the secondhand tobacco smoke causes lung cancer in nonsmokers. It was announced by the Decision of the Commissioner of Labor and Industry, Dept. of Licensing and Regulation, Maryland, which concluded:

With respect of lung cancer, the Commissioner is persuaded, for the reasons set forth in the Board's [Maryland Occupational Safety and Health Advisory Board] report, that exposure to ETS causes lung cancer in nonsmokers. The evidence showing the causal relationship is reputable, reliable and worthy of considerable weight.

Based primarily on published reviews of epidemiological studies of nonsmokers married to smokers, the Board concluded that exposure to ETS contributes to coronary artery disease and increases the risk of death from it. [emphasis added]

Even if, as the tobacco industry suggests, some doubt remains about the conclusiveness of such evidence, a legislative body may "rationally" rely upon such scientific conclusions by respected and responsible governmental agencies, and choose to protect its citizens from involuntary exposure to chemicals, even if the risk is less than 100% conclusively established. Thus a regulation which prohibits the release into the air on municipal sidewalks of asbestos, arsenic, radon, vinyl chloride, or secondhand tobacco smoke can hardly be termed irrational, and therefore unconstitutional.

Moreover, since so many governmental bodies — including the U.S. Post Office, school boards, etc. — now prohibit smoking even in outdoor areas such as parking lots, and a growing number of businesses are likewise prohibiting smoking outdoors on their own property, it would be even more difficult to argue that it is irrational and not reasonably related to a valid interest.

In other words, the mere fact that so many governmental as well as private entities have independently reached the conclusion that it is appropriate to prohibit smoking outdoors very strongly suggests that the reasons given for prohibiting it — to protect nonsmokers from the health risk and annoyance of secondhand tobacco smoke, to reduce littering caused by cigarette butts and cigarette ashes, and to discourage children from smoking — are reasonable and valid ones.

Common everyday experience and observation demonstrates what many studies have confirmed: cigarette butts, as well as cigarette ashes, are a major source of litter in many public places. The following article illustrates the problem.

The Cincinnati Department of Health has warned smokers in the Cincinnati Commerce Center at Sixth and Vine streets and at the 525 Vine St. building downtown that they will start enforcing litter laws after March 31 because of complaints about cigarettes.

Keep Cincinnati Beautiful, the nonprofit group that sponsors downtown cleanups and street adoptions, found 7,000 cigarette butts in a four_square_block area one day three years ago in a study of cigarette littering.

The organization estimated that if all the one_inch cigarette butts littering downtown in a year were laid end to end, the line would stretch from here to Orlando, Fla. Smokers get many fuming on litter: Cigarette users share in disgust by Cindy Kranz, Cincinnati Enquirer [03/19/99]: [emphasis added]

Since Friendship Heights is somewhat comparable in size to the "four-square-block area" described above, and there is no reason to believe that smokers in Cincinnati are any more prone to litter than those in Friendship Heights, it is clear that cigarette butts are a major source of litter, and that the government has a legitimate governmental interest in reducing this litter.

Indeed, as the Cincinnati Enquirer article suggests, and common experience indicates, "smokers probably discard cigarette butts unconsciously by reflex, or because there's no ashtray handy." Thus, prohibiting smoking on sidewalks and other public places can rationally be expected to reduce the problem of cigarette litter.

In this regard, and in connection with the discussion to come, it is well to note what the applicable standard is. The rule appears to be as set forth in Rossie v. State, 395 N.W. 2d 801 (1986), the case cited previously, in which the Court of Appeals of Wisconsin upheld regulations prohibiting smoking in a workplace over objections that they violated equal protection:

Our analysis of an equal protection challenge is governed by the following principles:

A legislative classification is presumed to be valid. The burden of proof is upon the challenging party to establish the invalidity of a statutory classification. Any reasonable basis for the classification will validate the statute. Equal protection of the law is denied only where the legislature has made irrational or arbitrary classification.

. . .

Judicial response to a challenged legislative classification requires only that the reviewing court locate some reasonable basis for the classification made. Omernik v. State, 64 Wis. 2d 6, 18_19, 218 N.W.2d 734, 741_42 (1974) (footnotes omitted and emphasis added). In searching for that reasonable basis, we note that absolute equality and complete conformity of legislative classifications are not constitutionally required. WKBH Television, Inc. v. DOR, 75 Wis. 2d 557, 566, 250 N.W.2d 290, 294 (1977). A statute does not violate the equal protection clause merely because it is not all_embracing. The state may direct its laws against problems it perceives without covering the entire field of possible abuses. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 512, 261 N.W.2d 434, 444 (1978). [emphasis added]

As applied to the instant situation, it seems clear that Friendship Heights could seek to reduce a major source of litter (cigarette butts) even if the ordinance does not completely eliminate them (e.g., from smoking while standing on a street), and/or even if it did not prohibit other activities which might also create litter (e.g., eating fast food, chewing gum, reading a newspaper, etc.)

It is clear that spitting in public places — of the type which almost always occurs with the use of smokeless tobacco — can create not only an unsightly situation, but also an unhealthy one. Indeed, the health hazards caused by spitting were one of the major reasons for the many prohibitions on the use of spittoons. They were passed even though most — but not all — of the spit landed in the spittoon where its hazard to the general public health was far more limited, and not yet fully appreciated by medical science.

For similar reasons, many municipalities prohibit spitting in public, especially where the expectorate will remain on a paved surface such as a sidewalk. Thus, prohibiting the use of smokeless tobacco in an urban area would appear to serve an important public health goal of reducing the germs spread by spitting, as well as the unsightly remains from the practice.

Experience and everyday observation strongly suggests that very few people who use smokeless tobacco carry with them a cup or other device to serve as a receptacle for the spit which is inevitable caused by chewing tobacco, and which cannot as a practical matter safely be swallowed. Thus the most practical way — or a least a legislative body may so find — to reduce spitting caused by the use of smokeless tobacco is to prohibit its use in public places.

This is especially true since common sense suggests that it might be very difficult to achieve the same goal simply by an ordinance which only prohibited spitting, and therefore required a police officer to witness the actual act of expectoration before he could take action.

The use of tobacco products is America's number one preventable health problem, killing well over 400,000 Americans each year; far more than all those killed by alcohol, motor vehicle accidents, firearms, and illegal drugs COMBINED. Moreover, addiction to nicotine is also a major pediatric disease, with more than 1,000 American children becoming addicted every single day.

Restrictions on smoking in public places have played a major role in deterring tobacco use by making it less convenient, and also by emphasizing that, contrary to the images portrayed by the tobacco industry, smoking does not necessarily make a user popular with the vast majority of Americans who don't use tobacco, and who object to tobacco smoke.

For these reasons, major public health and antismoking organizations endorse and support restrictions on smoking in public places, not only to protect nonsmokers, but also to discourage tobacco use.

Prohibiting adults from using smokeless tobacco in outdoor public places can serve the same important public health objectives of prohibiting adults from using alcoholic beverages or gambling in public places — it discourages children from engaging in an activity when they are far too immature to fully comprehend its possible consequences.

The use of smokeless tobacco among children is already at epidemic levels. Smokeless tobacco causes very serious risks to users — of which mouth cancer is a primary example — and, since it involves an addiction to nicotine, can also lead kids — who take up smokeless tobacco in the mistaken belief that it is less dangerous than smoking — to eventually become smokers.

The idea that reducing images of people using smoking tobacco can help prevent kids from getting started is hardly unique to Friendship Heights. Baseball legends Troy Aikman and Joe Garagiola are only two of the many who are using their star power to help discourage kids from taking up smokeless tobacco through the National Spit Tobacco Education Campaign (NSTEP).

The purpose of the NSTEP campaign is to discourage the use of smokeless tobacco among minor-and major-league baseball players because their use of the products in public can influence children to emulate them.

Indeed, as another recent article points out:

The recent legislation against the tobacco industry brought one significant change in major league baseball clubhouses everywhere. Tobacco companies will no longer be allowed to send free samples of their products (mostly smokeless tobacco) to players. Gomez, BASEBALL MISSES CHANCE TO TAKE TOBACCO STAND, Arizona Republic [03/07/99]

Once again, the obvious purpose is not so much to protect mature baseball players from the health hazards of smokeless tobacco, but rather to reduce the number of situations in which impressionable young people might witness such use and seek to copy it.

If all of these individuals, organizations, and even governmental bodies believe that reducing the number of instances where children will be exposed to the use of smokeless tobacco can help protect the public health, it certainly is not irrational for Friendship Heights to accept that view, and adopt an ordinance seeking to achieve the same public health objective in the same way. Clearly there is a rational relationship — all that the law requires.

Smoking is an activity which some people desire to engage in because it brings them pleasure, relief, or satisfaction. But then so too are many other activities: drinking alcoholic beverages, gambling, listening to loud music, masturbating and other lewd conduct, etc. The mere fact that people wish to engage in an activity — even if it doesn't harm bystanders — does not make it a right which the government cannot prohibit, at least in public places.

When the smokescreen and hype created by the Plaintiff are cleared away, there is no reason to believe that the government could not constitutionally prohibit this one activity (smoking) in public places, just as it frequently does the others. Indeed, since smoking will be permitted in many outdoor public areas — e.g., on streets, on outdoor parking lots, walkways, set backs, etc. — where the other activities are not, it is hard to see how the ordinance in question could possibly even be arguably unconstitutional.

In any event, the cases uniformly hold that restricting smoking in a wide variety of both indoor and outdoor places — as is increasingly being done all over the country — violates neither substantive due process nor equal protection. The rational reasons for doing so are numerous: to protect citizens from exposure to a proven human carcinogen; to avoid the annoyance and irritation of being forced to inhale it; to reduce one of the most common forms of litter; and — as with restrictions on drinking and gambling — to avoid encouraging young children to engage in these activities.

Therefore, there can be no legal basis for enjoining the enforcement of the ordinance (and/or invalidating it) with regard to smoking. Even in the very unlikely event that the portion of the ordinance related to smokeless tobacco were to be found constitutionally suspect, the two portions are clearly severable. Indeed, since the public signs ready for erection read simply: "THANK YOU FOR NOT SMOKING ON VILLAGE SIDEWALKS AND IN PARKS: $100 Fine - Friendship Heights Village Regulation #12,"

and contain the universal "no-smoking" symbol, there is no reason why they cannot be posted as originally intended.

Since chewing and spitting tobacco obviously enjoy no greater constitutional protection than smoking it, the only remaining issue is whether there could possibly be any rational basis for prohibiting the use of smokeless tobacco in public places. Once again the answer is clearly yes.

These reasons include substantially limiting the spitting and the public health hazard of spitting which inevitably accompanies smokeless tobacco use, especially when few chewers and spitters bother to use a cup, and catching them in the act of spitting may be very difficult.

It also includes — as with restrictions on drinking and gambling — to avoid encouraging young children to engage in these activities. The fact that there are major active campaigns by major sports figures and organizations to discourage chewing and spitting tobacco — to avoid setting a very bad example for children — strongly suggests that this is a significant government interest, and that Friendship Heights did not act completely irrationally in seeking to protect children this way.

Finally, of course, the warnings on the sides of smokeless tobacco containers are ample evidence — of which the Court may take judicial notice — that smokeless tobacco creates serious health hazards to all users; adults as well as children. Therefore Friendship Heights would appear to have still another valid governmental interest — protecting the health of users by discouraging the consumption of smokeless tobacco — to form the underlying constitutional basis for this ordinance.

In summary, the ordinance in its entirety is clearly constitutional.

Respectfully submitted,

Professor John F. Banzhaf III

Executive Director and Chief Counsel

Action on Smoking and Health (ASH)

2013 H Street, NW, Washington, DC 20006

Telephone: (202) 659-4310