NYC C.L.A.S.H. LAWSUIT
THAT CHALLENGED
THE NYS & NYC SMOKING BAN
 
 
ON APRIL 8, 2004 THE COURT DENIED NYC C.L.A.S.H. SUMMARY JUDGEMENT 
 WE STILL NEED YOUR HELP 
 Chances are you're here because you're angry. 
You want something to be done about ending this smoking ban. You want your voice to be heard! You want justice! 
Though unsuccessful, we got you your day in court. Rather than taking this lying down we tried! 
We remain committed to fighting against the smoke bans and to getting the laws amended. 
You can show your appreciation for our efforts on your behalf by choosing to donate 
so that we can meet our financial obligations for attorney services rendered. 

 

 

The Case
News Report 
Press Release 
Case Files
 
 
History Of Events

 

Court Decision
News Report 
Link to Decision 
Press Release
 
 
Financing The Lawsuit / 
Legal Fund

 

Acknowledgement

 

Other Court Cases 
of Interest

 

 

THE CASE 

New York City smoking ban to be challenged 
Mid-Hudson News; May 9, 2003 

A group opposed to the smoking ban in New York City has hired a Rockland County attorney to represent it in a lawsuit to be filed against the Big Apple. 

NYC CLASH Citizens Lobbying Against Smoker Harassment has retained Kevin Mulhearn of Orangeburg to represent its members in a suit to be filed in the weeks ahead. 

Mulhearn is the same attorney who is representing the tavern and restaurant associations against the counties of Dutchess and Orange, which also have no smoking laws in place. 

NYC CLASH will argue that the anti-smoking law is unconstitutional, said attorney Kevin Mulhearn. I have been retained by the organization to analyze the issues, to mount a constitutional challenge to the efficacy and enforcement of the law, which I am doing, he said. I hope to file a lawsuit in the next couple of months and our goal is to have the law invalidated. 

-------------------------------------------- 
July 23, 2003 Press Release 
-------------------------------------------- 

Case Files 

Complaint Filed - July 23, 2003 
Brief on Standing 
Brief - January 15, 2004 
Affidavit of Kevin T. Mulhearn - January 15, 2004 
Affidavit of Audrey Silk - January 15, 2004 
Reply Memo - February 27, 2004 



HISTORY OF EVENTS 
JULY 23, 2003 
Suit Filed 
SEPTEMBER 26, 2003 
4 brief stages were set that will last until at least December. 
 This will consist of motions by the city and state and our answer to those motions, then their response then our response again until which time the judge is satisfied and can render a decision on whether the case has merit or not and choose to proceed with the case or not. It's likely that it will be another two months after the final attorney's response in December before Judge Marrero makes the next move -- taking this phase of the suit to February. 
NOVEMBER 21, 2003 
State and city attorneys deliver first defense response.  
JANUARY 20, 2004 
NYC C.L.A.S.H. submits response to above. 
JANUARY 30, 2004 
Judge Marrero consolidates NYC C.L.A.S.H. suit with Player's Club suit (see 2003 news).  Intends to hold off briefing Player's Club suit until our motion is decided. 
FEBRUARY 16, 2004 
State and city attorneys deliver second defense response. 
MARCH 1, 2004 
NYC C.L.A.S.H. submits response to above. 
This is the last legal brief to be submitted by all parties. 
Await Judge Marrero's ruling. 
MARCH 26, 2004 
Judge Marrero directs all parties to appear for a  
hearing and oral argument on April 5th 
APRIL 8, 2004 
Judge Marrero denies NYC C.L.A.S.H. summary judgement. 



COURT DECISION 

NY Post; April 9, 2004 

New York's smoking ban does not violate the Constitution, a federal judge ruled yesterday.  

NYC CLASH, a smokers-rights group, filed a lawsuit last year against the city and state arguing that the ban violates several constitutional rights.  

But U.S. District Judge Victor Marrero ruled yesterday that "New York state's and New York City's stated basis for enacting the smoking bans - protecting its citizenry from the well-documented harmful effects of [secondhand smoke] - provides a sufficient rational basis to withstand CLASH's constitutional challenges."  

CLASH - Citizens Lobbying Against Smoker Harassment - also argued that the scientific data used in passing the law was flawed.  

-------------------------------------------- 
Court Decision (requires Adobe Acrobat) 
-------------------------------------------- 

April 19, 2004 Press Release 



FINANCING THE LAWSUIT / LEGAL FUND 

Mr. Mulhearn did not represent us pro bono. 

(For all who have asked/wondered -- The ACLU would NOT take this case. They have refused on several occassions, approached by many people.  They are in favor of smoking bans). 

With the generosity of a philanthropic donor (not the tobacco industry) who wishes to remain anonymous we were able to make payment on the retainer fee.  This was NOT enough to see us through to the end. 

DONATE:  Though unsuccessful, we got you your day in court. Rather than taking this lying down we tried!  We remain committed to fighting against the smoke bans and to getting the laws amended. 

You can show your appreciation for our efforts on your behalf by choosing to donate so that we can meet our financial obligations for attorney services rendered and to be able to continue in all of our efforts. 

RUNNING IN THE RED 
This is the amount we currently owe:  $27,491 (as of 10/14/04) 
Proudly "Track its Reduction" Because of YOU ! 
You can either choose to purchase a fundraising mug, or a regular t-shirt 
or Joe Jackson's single CD "In 20-0-3," 
or donate whatever you can afford, 
or donate as little as $1.00 
Each person who donates any amount towards reducing this figure  
will earn their own Groucho  
 
 We'll add your name or initials (however requested) to our  
"I'm Making A Difference" Free to Choose wall 
 
 
Anyone wishing to contribute to the legal fund can find the contact information here. 
(Donations to NYC C.L.A.S.H. are not tax deductible.)



ACKNOWLEDGEMENT 

Our gratitude to FORCES for their invaluable support and assistance in this effort. 



OTHER COURT CASES OF INTEREST 

United States District Court Northern District of New York:  Empire State Restaurant and Tavern Association vs. New York State - March 17, 2005 

Supreme Court - Suffolk County (NY) - October 13, 2004 

Supreme Court of the State of New York; Appellate Division Fourth Judicial Department (Erie County) - October 1, 1004 

Supreme Court of Kentucky - April 22, 2004 (See Dissenting Opinion) 

United States District Court Eastern District Of New York (Nassau County) - June 3, 2003  
 

 
 

LEGAL FUND RUNNING IN THE RED:  TRACK ITS REDUCTION
 
 

$25,362 
- 65 
$25,297 
-65 
$25,232 
-65 
$25,167 
-65 
$25,102 
-65 
$25,037 
-17 
$25,020 
-65 
$24,955 
-65 
$24,890 
-65 
$24,825 
-130 
$24,695 
-65 
$24,630 
-100 
$24,530 
-65 
$24,465 
-50 
$24,415 
-65 
$24,350 
-65 
$24,285 
-65 
$24,220 
-65 
$24,155 
-65 
$24,090 
-65 
$24,025 
-65 
$23,960 
-10 
$23.950

FREE TO CHOOSE WALL 
"I'M MAKING A DIFFERENCE"

 
          R.L. (x55)        G.M. (x2)       M. BURKE       R.D.                E. R.                I.C. 

 
         CRIN                 S.C.                  K.G.                 F.L.                 D.Wo.              J.L.  

 
            O.B.                 L.C                 D.Wr.               D.C.                C.H.                 S.M. 

 
            J.L.                  K.J.                   L.C.                B.B. (x3)        N.C.                L.T. (x6) 
 

 
            E.W.                J.B.                 E.R.                 M.D.                  S.D.               A.S. 
 

 
            B.G.                J.F.                   J.L.                  J.C.                 J.W.                 M.W. 
 

 
          G.B. (x2)          J.E.                  S.H.                  R.D.                 P.F.                C.H. 

 
           R.P.G.             K.D. 
 Back