Nyc C.L.A.S.H., Inc. v. City of New York

• Decision Date: 21 April 2004
• Docket Number: No. 03 CIV.5463(VM).,03 CIV.5463(VM).
• Citation: 315 F.Supp.2d 461
• Parties: NYC C.L.A.S.H., INC., Plaintiff, v. CITY OF NEW YORK, Thomas R. Frieden, in His Official Capacity as Commissioner of the City of New York Department of Health and Mental Hygiene, Elliot Spitzer, in His Official Capacity as Attorney General of the State of New York, and Antonia C. Novello, in Her Official Capacity as Commissioner of the New York State Department of Health, Defendants.
• Court: U.S. District Court — Southern District of New York

315 F.Supp.2d 461

NYC C.L.A.S.H., INC., Plaintiff, v. CITY OF NEW YORK, Thomas R. Frieden, in His Official Capacity as Commissioner of the City of New York Department of Health and Mental Hygiene, Elliot Spitzer, in His Official Capacity as Attorney General of the State of New York, and Antonia C. Novello, in Her Official Capacity as Commissioner of the New York State Department of Health, Defendants.

No. 03 CIV.5463(VM).

United States District Court, S.D. New York.

April 21, 2004.

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Kevin T. Mulhearn, Kevin T. Mulhearn, P.C., Orangeburg, NY, for Plaintiff.

Ave Maria Brennan, Paul A. Crotty, Corp. Counsel, John P. Gasior, Eliot Spitzer, Attorney General, New York, NY, for Defendant.

AMENDED DECISION AND ORDER

MARRERO, District Judge.

Plaintiff NYC C.L.A.S.H., Inc. ("CLASH") brings this action to challenge the constitutionality of the smoking restrictions contained in the recently-amended New York State Clean Indoor Air Act and the New York City Smoke Free Air Act. Although CLASH challenges the recent amendments to these statutory provisions that prohibit smoking in most indoor places, it focuses its challenge on the prohibition of smoking in bars and food service establishments. The defendants in this action include the City of New York, and Thomas R. Frieden ("Frieden"), in his official capacity as the Commissioner of the New York City Department of Health and Mental Hygiene (collectively, the "Municipal Defendants"). Also named as defendants are Eliot Spitzer, in his official capacity as the Attorney General of the State of New York, and Antonia C. Novello, in her official capacity as Commissioner of the New York State Department of Health (collectively, the "State Defendants" and, together with the Municipal Defendants, "Defendants").

CLASH seeks a declaratory judgment that amendments to the New York State and New York City laws (the "Smoking Bans") prohibiting smoking in practically all indoor privately-owned premises that are open to the public are invalid as violations of the federal constitutional provisions ensuring freedom of association, assembly, and speech; the right to travel; equal protection; and the right to enter into contracts. CLASH further asserts that the New York State Smoking Ban is unconstitutionally vague. As remedies, CLASH seeks injunctive relief against enforcement of these provisions. Pending before the Court are Defendants' motions to dismiss CLASH's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action upon which relief can be granted. In the alternative, the State Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. CLASH opposes Defendants' motions and cross-moves for summary judgment. For the reasons discussed below, the Court sua sponte converts the Municipal Defendants' motion to dismiss into a motion for summary judgment, grants Defendants' motions for summary judgment, and denies CLASH's cross-motion for summary judgment.

I. INTRODUCTION¹

A. THE 2003 AMENDMENTS TO THE CLEAN INDOOR AIR ACT

On March 26, 2003, New York State Governor George Pataki signed into law Chapter 13 of the Laws of 2003 ("Chapter 13"), which amended certain provisions of the Clean Indoor Air Act ("CIAA"). The Chapter 13 amendments prohibit smoking in virtually all indoor places in New York State where people work or socialize. See 2003 N.Y. Senate Bill No. S.3292; 2003 N.Y. Assembly Bill No. A.7136, codified at N.Y. Pub. Health Law §§ 1399-n et seq. As will be discussed in greater detail below, Chapter 13 was passed in response to mounting scientific evidence that links exposure to the airborne smoke that is a by-product of smoking, commonly referred to today as "secondhand smoke" or environmental tobacco smoke ("ETS"),² to serious health risks to non-smokers.

The version of the CIAA in effect prior to the enactment of Chapter 13 placed numerous restrictions on where a person could smoke. Among these restrictions was an outright ban on smoking in any portion of the indoor area of many common types of establishments open to the public, including auditoriums; elevators; public means of mass transportation and the ticketing/boarding areas thereof; supermarkets; swimming pools; youth centers; and child care facilities, among others. See id. (identifying the amendments to the Clean Indoor Air Act). The prior version of the CIAA permitted smoking in the indoor area of many other types of establishments only if the owner designated a separate smoking section. Among the facilities that were permitted to maintain separate indoor smoking sections were food service establishments; all public and private colleges and universities; hospitals; public buildings; theaters; museums; libraries; and retail stores. See id. Smoking was specifically permitted in bars under the prior version of the CIAA.

With the enactment of Chapter 13, New York State substantially expanded its restrictions on smoking to include a outright ban in almost every indoor area in the state, including, for the first time, places of employment not open to the public, such as private offices.³ See N.Y. Pub. Health Law §§ 1399-n and 1399-o (Consol.2003). Most relevant for the purposes of the present action, Chapter 13 also amended the CIAA to impose of an outright prohibition on smoking in all areas of bars, including outdoor seating areas. See id. §§ 1399-o (2) and 1399-n(1). Chapter 13 also strengthened the CIAA's restrictions on smoking in food service establishments by prohibiting smoking in any indoor area of such an establishment and permitting smoking in an outdoor area only under certain conditions. See id. §§ 1399-o and 1399-q(6).

B. THE 2002 AMENDMENTS TO THE SMOKE FREE AIR ACT

On December 18, 2002, the New York City Council enacted Local Law 47 of 2002 ("Local Law 47"), which, like its State counterpart, amended the existing smoking restrictions contained in the New York City Smoke-Free Air Act ("SFAA"). See 2002 N.Y.C. Local Law 47, Council Int. No. 256-A, codified at N.Y.C. Admin. Code §§ 17-501 et seq. Local Law 47 was also passed in recognition of the scientific evidence linking ETS exposure to adverse health effects.

Under the version of the SFAA in effect prior to the enactment of Local Law 47, smoking was prohibited in many indoor places open to the public, including mass transportation; retail stores; restaurants with an indoor seating capacity of more than 35 patrons; business establishments; libraries; museums; and theaters.⁴ See id. (identifying the amendments to the Smoke Free Air Act).

Local Law 47 repealed all existing smoking provisions then in effect and enacted a more rigorous set of smoking restrictions that, like Chapter 13, prohibit smoking in virtually all indoor locations in New York City where people work or socialize. See N.Y.C. Admin. Code § 17-503. Local Law 47, like Chapter 13, also instituted an outright smoking ban in all indoor portions of restaurants, regardless of seating capacity, and in all areas of bars, subject to very narrow exceptions.⁵ See id. §§ 17-503(a)(5) and (a)(20).

C. THE PRESENT ACTION

CLASH⁶ asserts four counts in its amended complaint.⁷ The first count alleges that Chapter 13 is unduly vague in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The second count alleges that the Smoking Bans promulgated under Chapter 13 and Local Law 47 violate certain protections under the First and Fourteenth Amendments, namely, freedom of association and assembly, freedom of speech, and freedom of travel. The third count alleges that the Smoking Bans violate the Equal Protection Clause of the Fourteenth Amendment. Finally, the fourth count alleges that the Smoking Bans violate the Privileges and Immunities Clause of the Fourteenth Amendment by unduly interfering with the right of a smoker to form a contract with the owner of a bar or restaurant.

Pending before this Court are the parties' motions for dismissal and/or summary judgment described above.

II. DISCUSSION

A. STANDING

As a threshold matter, the Court first must determine whether CLASH has standing to bring this action. Generally, in order to satisfy the standing requirement under Article III of the United States Constitution, a plaintiff must demonstrate that: (1) he or she has suffered an injury in fact; (2) the injury is traceable to alleged actions of the defendant; and (3) the injury will be redressed by a favorable decision. See Nike, Inc. v. Kasky, 539 U.S. 654, 123 S.Ct. 2554, 2560, 156 L.Ed.2d 580 (2003) (citation omitted). In a case such as this, where the only plaintiff is an organizational entity that purports to represent a class of people alleged to be aggrieved, the organization must establish that it has standing to bring suit either in its own right or on behalf of its members. See Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

The State Defendants challenge CLASH's standing on the grounds that CLASH cannot meet the tripartite test for organizational standing discussed by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Under Hunt, an organization can establish standing on behalf of its members if: (1) its members would otherwise have standing to bring the suit individually; (2) the interests the organization seeks to protect by means of the suit are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the individual members. See id. at 342, 97 S.Ct. 2434.

The State Defendants argue that CLASH cannot meet the first requirement under Hunt because no individual aggrieved member of CLASH is identified. (See St. Mem. at 10.) There is, however, no absolute requirement that individual members be identified...