Academic journal article Albany Law Review

Protect Us or Leave Us Alone: The New York State Smoking Ban

Academic journal article Albany Law Review

Protect Us or Leave Us Alone: The New York State Smoking Ban

Article excerpt

The kind of man who demands that government enforce his ideas is always the kind whose ideas are idiotic.

Henry Louis Mencken (1)


The United States of America has always placed a premium on freedom. As Americans, we have never been afraid to make sacrifices to attain and preserve the freedom that we enjoy. Nor have we hesitated in championing causes to spread our notion of freedom to other peoples of the world. We believe in freedom so strongly that our Constitution contains a Bill of Rights, which protects individuals from the power of government. (2) Additionally, the Fourteenth Amendment, ratified in 1868, guarantees all United States citizens equal protection, and due process, under the law. (3)

Given this dedication to freedom, one would assume that Americans would have the ability--perhaps the right--to perform a perfectly legal act in a private establishment. One would be mistaken though. Recently, the State of New York banned smoking in almost all indoor places, including restaurants and bars, (4) furthering its position that benefits to public health justify limitations on the freedom of New Yorkers. (5)

This paper asserts that the recent tobacco legislation represents a cowardly and deceitful act on the part of New York State legislators. While medical experts continuously warn of the dangers of smoking and the harmful effects of environmental tobacco smoke ("ETS"), the legislature refuses to completely ban smoking. A total ban would be the obvious step in adequately protecting public health. Instead, the legislation prevents competent adults from deciding for themselves whether and where to smoker The argument of this paper is that the legislation takes this middle-of-the-road approach due to enormous financial, economic and societal pressures urging each side of the argument. By taking this stance, the legislature attempts to appease both the tobacco industry and anti-tobacco advocates, while neither protecting public health nor our rights as citizens of New York and the United States. Furthermore, the State of New York continues to benefit from the tax revenue generated from smoking, (6) and legislators keep lining their pockets with the tobacco industry's money. (7)


The smoking ban, codified in Article 13-E of the New York Public Health Law, prohibits smoking in almost every indoor area. (8) This present smoking ban became effective on July 24, 2003, amending the Clean Indoor Air Act of 1989. (9) Among the places to which smoking restrictions extend are bars and food service establishments. (10) The statute defines a "bar" 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." (11) "Food service establishment" is defined as "any area, including outdoor seating areas, or portion thereof in which the business is the sale of food for on-premises consumption." (12) Finally, "smoking" is "the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco." (13)

Although the law extends to almost all indoor areas, there are a few exceptions. Smoking is allowed in private homes, residences and automobiles. (14) In addition, smoking is allowed in hotel rooms, (15) retail tobacco businesses, (16) certain membership associations (17) and certain cigar bars. (18) Restaurants may allow smoking in outdoor seating areas so long as there is no roof or ceiling, (19) the area does not amount to more than twenty-five percent of outdoor seating, (20) the area is at least three feet from the non-smoking outdoor seating, (21) and there are conspicuously placed signs designating the area as a smoking section. (22)

In addition to the specific exceptions, the law also has a waiver provision. (23) In order to qualify for a waiver, the applicant must establish that compliance would cause "undue financial hardship" or that other factors make compliance unreasonable. …

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