Empire State Restaurant and Tavern Association, Inc., et al. v. New York State, et al.
Several owners and operators of bars and food service establishments challenged the constitutionality of a tobacco control law in New York State that regulated smoking in public places and in places of employment, claiming that the law was preempted by federal law and was impermissibly vague. The Court denied the plaintiffs' request for a preliminary injunction prohibiting enforcement of the law, finding that the federal regulation cited by plaintiffs did not preempt state law because it regulated exposure to hazardous chemicals in the workplace generally and was not intended to regulate environmental tobacco smoke specifically. The Court further found that neither the definition of a bar as an establishment in which the sale of food is "incidental to" the alcohol-driven business nor the language permitting waiver of the regulations in specified situations were unconstitutionally vague.
Empire State Restaurant and Tavern Association, Inc., et al. v. New York State, et al., 289 F. Supp. 2d 252 (N.D.N.Y. 2003).
United States
Oct 21, 2003
United States District Court, Northern District of New York
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
The subject matter of the case should be dealt with at a state level or national level.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Plaintiffs' second vagueness challenge relates to Chapter 13's waiver provision, which states that an enforcement officer may grant a waiver from the application of specific provisions of Chapter 13 if the applicant for a waiver can establish that compliance with a specific provision would cause "undue financial hardship" or that other factors exist which would render compliance "unreasonable." NY Pub Health § 1399-u. This waiver provision is qualified in that "[e]very waiver granted shall be subject to such conditions or restrictions as may be necessary to minimize the adverse effects of the waiver upon persons subject to an involuntary exposure to second-hand smoke and to ensure that the waiver is consistent with the general purpose of [Chapter 13]." Id. The Court finds that this language is sufficiently definite to render it constitutionally acceptable. The United States Supreme Court has held that in examining a facial vagueness challenge to a statute that implicates no constitutionally protected conduct, a court should uphold the challenge "only if the enactment is impermissibly vague in all of its applications."1 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). The Court also stated in that case that "the degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment," and that "the Court has ... expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Id., at 498-99, 102 S.Ct. 1186."
"However, Plaintiffs characterize the vagueness problem as one pertaining to patrons of bar/restaurant establishments rather than owners or operators. "Chapter 13 is unconstitutional," they argue, "because a patron who frequents an establishment with outdoor seating will necessarily have to guess as to whether such an establishment is a `food service establishment' or a `bar.'" (Plaintiffs' Reply Memorandum at 16).
The Court finds this argument unpersuasive. Given that this Court has determined that the owners and operators of bar and restaurant establishments can reasonably determine whether their particular establishments are classified as bars or restaurants, Plaintiffs present no reason as to why a patron could not simply walk into an establishment and ask whether smoking is permitted. In addition, § 1399-p requires that "Smoking" or "No Smoking" signs, or the international "No Smoking" symbol be prominently posted and properly maintained by the owner, operator, manager, or other person having control over an area where smoking is regulated by Chapter 13. Certainly it is not unreasonable to expect a patron to enter an establishment and look for a "prominently posted" sign regarding whether or not smoking is permitted in that establishment. Chapter 13's "incidental to" language is not unconstitutionally vague with respect to the owners or operators of bar and restaurant establishments, nor can it be deemed unconstitutionally vague with respect to patrons, since the owners or operators have an affirmative duty to notify their patrons whether smoking is permitted."
"Defendants also refer to a February 24, 1998 letter from Frank Frodyma, OSHA's Acting Director of
Policy, to the State of Wisconsin as further evidence that state regulations of tobacco smoke in the
workplace are not preempted by any OSHA regulations. This letter informed the state that "[s]ince OSHA
has not promulgated a rule on Indoor Air Quality, Wisconsin's promulgation and enforcement of State
laws and local ordinances addressing the issue of occupational exposure to tobacco smoke would not be
subject to claims of preemption until such time as Federal OSHA adopts such a standard." (Defendants'
Memorandum at 11, FN 27) (quoting February 24, 1998 letter from Frank Frodyma, OSHA, Acting
Director of Policy). This letter explicitly states that the standards regulating permissible exposure to the individual substances listed in the Statute do not apply to environmental tobacco smoke as a whole.
Further, this letter states that laws such as Chapter 13 should not be deemed preempted by OSHA
regulations. Plaintiffs' preemption claim, then, must fail."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Several owners and operators of bars and food service establishments challenged the constitutionality of a tobacco control law in New York State that regulated smoking in public places and in places of employment, claiming that the law was preempted by federal law and was impermissibly vague. The Court denied the plaintiffs' request for a preliminary injunction prohibiting enforcement of the law, finding that the federal regulation cited by plaintiffs did not preempt state law because it regulated exposure to hazardous chemicals in the workplace generally and was not intended to regulate environmental tobacco smoke specifically. The Court further found that neither the definition of a bar as an establishment in which the sale of food is "incidental to" the alcohol-driven business nor the language permitting waiver of the regulations in specified situations were unconstitutionally vague.