New York Based. Nationally Active.

New York State Governor Eliot Spitzer


“No Tobacco Sales at Fair”
- The Post-Standard, April 5, 2007
[Private Vendors Told to Get Lost]

"In an effort to continue to make New York state the healthiest state in the nation, we have determined that the sale of tobacco products is not appropriate on the New York State Fairgrounds and we want to encourage people to participate in a healthy lifestyle," fair Executive Director Dan O'Hara said Wednesday. 

Tobacco products will no longer be sold at any event at the fairgrounds, not just during the fair, he said. Gov. Eliot Spitzer is pushing to make New York the healthiest state, O'Hara said. 

"The reason it's good is it's part of the broader process at work in society," said Russell Sciandra of the Albany-based Center for a Tobacco Free New York. "We are seeing the promotion and sale of tobacco sort of being denormalized.”

Gov. Spitzer has proclaimed that although cigars are legal he will not allow you to have them.


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NYS Fair

Related News

(Colorado) Wider smoking ban backed.  Senate panel votes to include cigar bars



"Those who do not learn from history are doomed to repeat it." - George Santayana

Before going into the relevant details of Spitzer's plan I think it's important to first address the stupidity -- yes, there's no kind way to say it, the stupidity -- of those who brush this aside as nothing more than a small, unthreatening event/situation. Topping the list are the vendors directly affected by this ban who have allowed government to shut down their business without a whimper.  What a disgrace.  They should be ashamed. Whether they like it or not they are the front line and by giving in have left open the floodgates for government to come after YOU next.  Every tobacco vendor's livelihood is at risk!  It's up to you to pick up their slack.  And those who don't believe that receive the honor of being listed second on the Stupid List.   One only need to look at smoking bans to see this is true:

Local / Global

Your first reaction might be: "It's only one Fair" (actually it's any event held on the fairgrounds) and "It's only in New York."

Our NYC-based organization was especially established in 2000 -- three years before NYC and then the state enacted the toughest smoking bans in the country -- in order to try to head off this incursion on civil liberties and private property rights.  We knew the proposal was coming by following the anti-smoker crusaders, and we knew that if NYC fell it would be seen as the standard bearer. When Mayor Bloomberg proposed the smoking ban for NYC we screamed that if NYC goes, so goes the rest of the country. 

While we knew what the fall out would be, the anti-smokers were counting on it. And it was worse than that.  So went the rest of the world (i.e. Ireland, Scotland, Italy, France, Britain, etc.) like dominoes. 

Why?  Because NEW YORK DID IT.

Like with the smoking ban, [Bloomberg] said, “we did it, and whole countries followed us.” - NY Times, April 22, 2007


"In 2003, local smoking bans ballooned by 62. Two of the new bans proved extremely influential, tobacco control advocates said. One was New York City... New York is perhaps the country's most blunt-spoken, culturally diverse, politically challenging city. 'If something can be done in New York, it can be done anywhere', [Daniel Smith, the American Cancer Society's national vice president for government relations] said. ...Officials in many other cities have noted New York's action, Smith said."  - "Small-town America joins no-smoking trend," USA Today, April 22, 2006


"Spurred on by the success of smoking bans elsewhere, such as... New York City, Scotland pressed ahead and became the first constituent country of the UK to ban smoking in pubs, clubs and restaurants." - "Scotland's medical ingenuity," Scotlandnow, March '07 Issue


New York’s ban on smoking in bars and restaurants has now spread to Wales, Germany and Italy. “We started it here,” the mayor said. “New York is such a bellwether that the rest of the world pays attention.” - "Economic Threat From London? Not to Worry, Mayor Insists," NY Times, October 2, 2007

You should care because it's NOT "just New York."  It will not stop here.  It is where the disease will originate.


As stated, our group of private individuals knew what was coming and sounded the alarm to act ahead of time.  To preempt this strike.  But in order for that to happen the hospitality industry needed to be out in front. 

The reaction before it happened?  "It will never happen here." 

The reaction once it was upon them?  The hospitality organizations that took up the fight still had a hard time getting their members involved and were themselves deaf to our pleas to act with a stiffer backbone -- to stand up to the lawmakers with hard data and tactics that we would provide them with as an addition to the tactics and strategy they were mistakenly confident were enough. 

Toward the very end, after many debates about the tactics we implored them to expand, this was the "pat on the head" we received from one of the leaders of one of the hospitality groups that followed his stated reason for sticking to doing it HIS way: 

"...then, if we're lucky, you can smoke in bars and bingo halls again, and I can 
get some sleep." - Email correspondence June 4, 2004

In other words, "look, we know what we're doing, now be a good girl and let us do it our way and you can thank us for it when we're done."

Three years later and HIS way has led to the NYC smoking ban being duplicated around the country and then the world.

Which one of these do you plan to be?

[Back to Index]


Gov. Spitzer's new policy broke in the news on April 4th and 5th:

NY State Fair Halts Tobacco Sales
Associated Press; April 4, 2007

Patrons who puff at this year's New York State Fair won't be able to buy tobacco products on the grounds.

"This is an initiative of trying to continue to promote a healthy New York state," O'Hara said Wednesday. "The governor has set goals of making New York the healthiest state in the nation, and this is working toward that effort."

Only a handful of vendors will be affected, fair spokesman Joe LaGuardia said.

The new regulations do not restrict people from bringing their own products and smoking on the grounds in outdoor areas. Currently, smoking is not allowed in covered areas, but that policy could be extended to outdoor areas, LaGuardia said.

No final policy on the issue of making the entire fair smoke-free has been reached.
"Not at this point," O'Hara said.

Still, the ban on tobacco sales and sponsorship was welcome news to activists.

"The reason it's good is it's part of the broader process at work in society," said Russell Sciandra of the Albany-based Center for a Tobacco Free New York. "We are seeing the promotion and sale of tobacco sort of being denormalized. What the fair board is saying is, 'We're not going to be part of that anymore.'"

No Tobacco Sales at Fair
The Post-Standard; April 5, 2007

Visitors to the New York State Fair this year can still buy a sausage sandwich, cheese fries, fried dough and beer, but they can't spend a dime on tobacco. 

"In an effort to continue to make New York state the healthiest state in the nation, we have determined that the sale of tobacco products is not appropriate on the New York State Fairgrounds and we want to encourage people to participate in a healthy lifestyle," fair Executive Director Dan O'Hara said Wednesday. 

Tobacco products will no longer be sold at any event at the fairgrounds, not just during the fair, he said. 

The state fair will continue to allow smoking in certain locations around the fairgrounds, he said. 

Gov. Eliot Spitzer is pushing to make New York the healthiest state, O'Hara said. 

He had a conference call with state Agriculture Commissioner Patrick Hooker and Health Commissioner Dr. Richard Daines last week, and they all agreed to end tobacco sales, he said. 
Last year, three vendors sold tobacco at five different locations around the fairgrounds, according to O'Hara.

The fair notified them they could no longer sell tobacco but encouraged them to come back with another product to sell, O'Hara said. 

"You can't put a price on someone's health," he said. 

The change of direction was good news for anti-tobacco groups. 

Elizabeth Toomey, of the Prevention Network, was thrilled to hear the news about tobacco sales and sponsorship. She is coordinator of Reality Check, a teen anti-smoking effort, which has worked for some time to get the state fair to end tobacco sponsorships. 

"We think it's a fantastic idea," Toomey said. 

The American Cancer Society thinks the same. 

"Think of the message it will be sending to our children," said Amy Norpell, spokeswoman for the society's Central and Northern New York Region.

No Tobacco Sales at NY State Fair
Capital News 9; April 4, 2007

New Yorkers just got word that tobacco products will no longer be sold at the state fair.

"It's always good not to have it as accessible," Syracuse resident Gail Eberl said.

Fair Director Dan O'Hara said that's exactly the point. He said his administration wants to help out with a statewide goal.

"Obviously, it's an issue in the state. People are trying to encourage a more healthy New York," NYS Fair Director Dan O’Hara said.

You won't be able to buy tobacco products at the fair, but you can still use them. As of right now, smoking is only banned from covered buildings, but that could also change, as officials look into the possibility of a smoke-free fair.

"At this point, we will evaluate that going forward to see what makes sense, and we'll see what develops in the next six to 12 months,” O’Hara said.

[Back to Index]

  • There is no law against the sale of tobacco.
  • This is not “Public Health,” it’s social engineering of your private life
  • This is revocation of your free will and free choice
  • Your mind and body belong to the state now.
  • This is a denial of free commerce
  • This excludes one consumer group from being able to make a legal purchase of their choice.
  • This is censorship of “speech.”   (If Spitzer says the ban promotes a "message" then it stands to be perfectly reasonable that our side is having its "message" censored.)
  • This is product discrimination and consumer persecution.
  • This is policy driven by one's definition of immoral behavior, not "public health."
  • This is arbitrary and capricious.
  • Beer, wine and junk food are “unhealthy” but are not banned for sale at the fair.
[Back to Index]


No Law
Paternalism and Jurisdictional Misapplication
Private Lives vs Public Health
Arbitrary and Capricious
So? By What Authority?

No Law

The sale of tobacco is still legal.  There is no NYS law that bans the sale of cigarettes or cigars between a licensed vendor and adults over 18 in a face to face transaction. 

Paternalism and Jurisdictional Misapplication

These are the grounds on which the state is telling cigar/tobacco vendors that their private booths will not be allowed at the state fair: 

"The sale of tobacco products is not appropriate." 
"To promote a healthy New York State."

By their own words this is a restriction to force one's idea of "moral" behavior on another "for your own good" any time they think they have control over it (i.e. owning the land and holding the event). Except they are not the owners of the booths who must pay a fee for the space.  These are not government run "concessions," they're privately run booths. 

Private Lives vs Public Health

In the sense of "Public Health" as it's been used by anti-smokers the issue here is not "environmental tobacco smoke."  It's not exactly primary smoking either because "The new regulations do not restrict people from bringing their own products and smoking on the grounds in outdoor areas."

In this case, "To promote a healthy New York State," means to meddle in the private lives and choices of adult individuals by limiting accessibility to a legal product.  There's nothing "public" about it. 

"You can't put a price on someone's health," [fair Executive Director Dan O'Hara] said. 

Rather, it's not the state's place to do so.  Apparently the price of that tyranny is the loss of control over private legal choices, private lifestyle choices,  freedoms and commerce.

Arbitrary and Capricious

And there's nothing non-discriminatory about it either.  "To promote a healthy New York State"?  By singling out tobacco. An arbitrary and capricious act. 

*Trans fat is banned in NYC -- giving great legitimacy to comparing the french fries, potato chips, popcorn, and other foods cooked in oil that no doubt will be sold at the fair to cigars that have been singled out for a sales ban as far as this alleged "health promotion" choice goes.

* "We know trans fats increase the chance for heart attack, stroke and death, and they don't have to be there," [NYC Health Commissioner] Frieden says. The rules are "going to make New Yorkers live longer and healthier lives," he says. - USA Today

Red meat has been accused of doubling a woman's risk of developing breast cancer.  If Gov. Spitzer was a woman and a vegetarian would it be okay to impose her own views on everyone else and ban those hamburgers? 

*Cured meats such as bacon, sausage, luncheon meats and hams have just been accused of damaging lung function and increasing the risk of lung disease. The study was conducted at Columbia University Medical Center in New York. 

* Professor Peter Calverly of the British Thoracic Society said: "This study illustrates that factors other than smoking may contribute to COPD." - BBC News

* Frequent consumers of cured meat have almost double chances of developing COPD, a lung disease often found in chronic smokers.  - Woyano

As bad as "chronic smokers?"  But none of that Fair style food banned from being sold at the NYS Fair.  And I bet some of those concessions are actually owned and run by the state.

And let's not forget about Obesity -- said to be about to overtake smoking as the top health crisis.  Gov. Spitzer just went on record with his new "Children's Agenda" and is calling to “strengthen our state’s school nutrition and junk-food standards, restricting candy, fast food and soda from being sold in schools.”  But not at the Fair.

This is product prejudice and consumer group persecution motivated by hate.


It denies one consumer group the right of opportunity to purchase a product based on an imposed morality, not legality of the product.   It interferes in contracts between the seller and the buyer.

Though not exactly alike in nature, the similarities between this and the 2005 Supreme Court ruling which struck down New York's law (and remember, there is no law restricting tobacco sales in NY) restricting interstate shipment of wine can't be ignored.

As the NY Times itself highlighted from the majority opinion:  "Laws such as those at issue contradict the principles underlying this rule [Commerce Clause] by depriving citizens of their right to have access to other States' markets on equal terms." 

While it's a fact that the state is not discriminating against only out-of-state vendors, it's worth considering that most, if not all, of the vendors are from out of state, thus consumers are being deprived of their right to have access to cigars and other tobacco  they wouldn't normally be able to obtain from a New York State merchant.


There are also First Amendment considerations. Spitzer et al are themselves stating that they are promoting/conveying a "message" by banning sales:

"Think of the message it will be sending...," said Amy Norpell, spokeswoman for the [Cancer] society's Central and Northern New York Region.

It stands to be perfectly reasonable to argue that the other side of this coin is then having its "message" censored.  (Hey, they started it). 

So?  By What Authority? 

This is the statute that Spitzer is likely clinging to in order to say he has the authority:

Text is current through September 30, 2006.

Section 369.2 Issuance of solicitor's license.

Licenses shall be issued in the order in which applications are received and on a nondiscriminatory basis, without regard to the content of the message the applicant wishes to convey, except in the case where such message is clearly against public policy, shocks the collective conscience of the general public, or is directly contrary to the health, safety or welfare of members of the general public. However, at no time shall one type of exhibition become so dominant over the whole so as to prevent the Division of the State Fair from offering a varied and effective group of exhibitions.

Commentary / Summary

To repeat: In the sense of "Public Health" as it's been used by anti-smokers the issue here is not "environmental tobacco smoke."  It's not exactly primary smoking either because "The new regulations do not restrict people from bringing their own products and smoking on the grounds in outdoor areas."

A box of unlit cigars or pouch of pipe tobacco or unopened pack of cigarettes can't possibly be deemed "contrary to the health of the public" EXCEPT in moral terms. 

There is no "harm to health" of anyone by the mere selling and possession of the product.  A LEGAL one at that. 

It is not pornography that if displayed could be deemed offensive ("shocks the collective conscience") to the eye. And even that isn't a good example because likely the First Amendment plays here but it's something to hold up to help illustrate moralistic comparisons.  Is a pack of cigarettes in the same league as a porno mag? 

Beer and wine (and possibly even hard liquor) can be sold on the grounds.  That is NOT banned from being sold by private vendors.  So we're back to arbitrary and capricious in their choice of "contrary to the health of the public" if we want to accept that definition that broadly.

Of utmost legal importance is the fact that these vendors have been allowed to sell in previous years. If it wasn't dangerous to health last year why is it dangerous now?

And again, what is their reason for picking out this one product to deny a license to?  To "convey a message."  Turning that back at them, to them, the disdain for the sale of cigarettes isn't about health, it's about not allowing a "message to be conveyed"  ("it's okay to smoke"). 

Putting these points together this action can be found to be in violation of "Licenses shall be issued... on a nondiscriminatory basis, without regard to the content of the message the applicant wishes to convey."

The vague "contrary to public health" could be applied to anything a person of authority doesn't like. See above regarding trans fat and red meat, for example.  This is what I mean by vague (and don't forget about the beer and alcohol sold there). 

If you think about it, this is technically prohibition of a legal product not only without a rational basis but with really no law to back it up.

[back to index]


In addition to Governor Spitzer there are three others involved in this decision.  They are:

Governor Eliot Spitzer
Email Form:
Phone: (518) 474-8390

Health Commissioner Richard F. Daines, M.D.
Email: None
Phone: (518) 474-7354

Dept. of Agriculture Commissioner Patrick Hooker (oversees the Fair)
Email Form:
Phone: (800) 554-4501

NYS Fair Executive Director Dan O'Hara
Phone: (800) 475-FAIR

[back to index


In 2003, during the debate on the bill to smoking ban, then Assemblyman Daniel Hooker -- brother of Agriculture Commissioner Patrick Hooker who is a party to this sales ban -- got up on the floor of the Assembly and delivered the following statement:

I am from a rural district as well, and while we don’t have any cities, we do have a lot of restaurants, taverns, and diners, and this bill will hurt their business. We also have a lot of VFW Posts, American Legion Posts, and Marine Corps League Posts. I can’t help but think of the irony of the situation where a soldier or Marine comes home from the war, goes into a local VFW for a beer and a cigarette, and the bartender says "I’m sorry, young man, while you were overseas fighting for freedom, your State Assembly was quietly legislating it away here at home."

However, Mr. Speaker, I am chiefly opposed to this bill because it presumes that people are incapable of thinking and acting for themselves without the government telling them what to do.

At present, people are free to choose to work in an environment that is smoke free or not. A lot of waitresses who smoke choose to work in a bar specifically because it is a smoke-friendly environment. This bill would limit that freedom.

I don’t smoke but believe that others should be free to smoke if they choose to.

I am not insensitive to the health hazards of smoking. My Dad smoked, and he died of lung cancer. Cause and effect? Probably, but he died a free man who made his own choices.

My general philosophy is that our government spends way too much time telling people what to do and this seems like a good example of that practice.

I am opposed.

[Emphasis added]

-- Assemblyman Daniel Hooker’s comments made on the floor of the Assembly during debate on the smoking ban, Wednesday, March 26th, 2003
Daniel Hooker is currently a major in the Marine Corps Reserve.

We know that just because people are related it does not mean they think the same way.  But in this case we would hope that wasn't the case or hope that Dan's words would have some effect on his brother and that his opinion would be respected and have some influence.

We suggest that you copy Daniel Hooker's statement into an email and send it to Patrick Hooker at or print it out and mail it to:

New York State Department of Agriculture & Markets
Patrick Hooker, Commissioner
10B Airline Drive 
Albany, NY 12235 

[back to index]


Join NYC C.L.A.S.H. in this fight.  Volunteer your voice, your time, your body, your services, your dollar.  One, any, or all.

We are presently researching legal options. 
We invite sympathetic lawyers to please contact us.

Social pressure must be brought to bear. 
Plans include press releases, press conferences, protest events, and to ultimately boycott the Fair if necessary.
We need you to participate.

Get Involved:
Protest Material 
Contact Us


Start your protest by contacting the parties above

When emailing, Cc these reporters so that we have witnesses!:
Maureen Nolan at Syracuse Post-Standard:
William Kates at Associated Press:

Print out a color flier to pass out
In Microsoft Publisher format (best) - (set paper size to legal)
In Microsoft Word format


There is strength in numbers. Unite with us to form a coalition so that we can stand up to this as a powerful group.  Add your name and/or business as a member of this Coalition. 

More than anything we will need people who are willing to attend press conferences, protests, etc.  Please sign up to receive notifications of such events so that you might attend.

Of course, any type of assistance you can offer is welcome.  Passing out fliers and/or making phone calls and/or letting anyone and everyone you know that might be interested is greatly appreciated.  Post a notice on appropriate forums. Spread the word! 


Please help toward the costs of any legal fees and material 

Contribute any amount 
using the safe and secure 
PayPal method

(click on the button to begin)

Or send a check or money order, payable to NYC C.L.A.S.H., Inc., to:
P.O. Box 1036
Brooklyn, NY 11234

(Donations to NYC C.L.A.S.H., Inc. are not tax deductible.)


Contact Audrey Silk, Founder
Phone: (917) 888-9317

P.O. Box 1036
Brooklyn, NY 11234

[back to index]

LAWSUIT FILED (July 6, 2007)

Now more than ever we need your help funding this suit 
(donate above)

Read Press Release

Report By Syracuse Post-Standard, July 7, 2007: 
"Smoking Mad. Vendor files lawsuit challenging as "discriminatory" a recently added state fairgrounds" 

Report By CigarCyclopedia, July 12, 2007: 
"Smoke Free or Die!" 

Editorial By Smokeshop Mag, June 2007 issue: 
"As Smoking Bans Give Way to Sales Bans,
Smoking Inches Ever Closer to Prohibition" 

Report By Smokeshop Mag, June 2007 issue:
"Tobacco Sales Banned At New York State Fairgrounds"

Case Files

Complaint - July 6, 2007 
Brief - August 1, 2007 
Reply to State's Response - August 16, 2007 

Court Decision - August 23, 2007 

Audrey Silk to Syracuse Post-Standard - Reported by Delen Goldberg, September 12, 2007:

Audrey Silk, founder of NYC Citizens Lobbying Against Smoker Harassment, said this evening that Michael Tarnowicz and his lawyer, David Novak, plan to appeal the judge's decision. NYC Citizens Lobbying Against Smoker Harassment is a smokers' rights group backing Tarnowicz's lawsuit. "It's a David and Goliath case," Silk said. "You fight the state, and it's almost pre-ordained that your chances are slim. But there comes a point you have to challenge them, win or lose."


The grounds for the dismissal rests almost entirely on this line: 

"[Defendants] are expressly authorized... to deny a vendor's license... under certain circumstances.  Specifically applicable here is the PUBLIC POLICY exception." (emphasis mine)

The other relevant excerpts of the decision are these:

"It is undisputed that a tobacco policy exists in New York State... [Defendants] have demonstrated...that permitting the sale of tobacco products...would be contrary to PUBLIC POLICY."

"[T]he court finds [the ban and denial of license] was not arbitrary and capricious, and was thus rationally based"

"[Defendant] O'Hara avers that 'based upon New York State's policy concerning tobacco and tobacco products, it made little sense for the State Fair to make tobacco products available for purchase during the State Fair, while the New York State Department of Health was promoting cessation of smoking.'  Additionally, defendants submit proof of New York's tobacco policy and its efforts in furtherance of such policy, including a report from the Department of Health addressing tobacco use in the State as well as information on statewide efforts and programs promulgated under the policy.  Because defendants [actions] has a rational basis before the court, it was neither arbitrary nor capricious and, therefore, will not be disturbed."

I've summed it up this way:

The judge concluded that the existence of a "public policy" adopted by the state to control tobacco is enough to allow them the authority to deny a license to sell tobacco ("especially" on state run grounds) in furtherance of the goal of their policy.  In the same light, the judge determined that a rational basis existed and thus was not an arbitrary and capricious act.  No matter that they didn't also ban smoking or any other "unhealthy" (e.g. fried foods) items, the ban on the sale of tobacco adheres to the "public policy" the state Dept. of Health has established.

Once again, in another extremely disturbing way, all it takes is for the state to declare what will be and for everyone to have to fall in line with no choice.  "Public Policy" is determined NOT by the public but by paternalistic agents in government -- both elected AND appointed.

After receiving and weighing expert advice, and on our own opinions in addition to that, WE HAVE DECIDED TO APPEAL

Meanwhile, never doubt that the slippery slope alarm we ring is not real. Reported on September 6th was this:

"State Fair Director Dan O'Hara thought a photo [the picture won a blue ribbon in the Fair's 2007 Photography Exhibition] of a smoking blow-up sex doll was inappropriate. It was the cigarette, not the sex."

O'Hara made them take it down, saying, "I believe that it wasn't in keeping with the fair's policy, which is not to advertise tobacco products. In the blow-up doll's mouth, there was a cigarette." 

And here it is -- touching art and expression.  O'Hara, drunk with power over this anti-tobacco intolerance that no one will challenge. A tyrant who apparently feels he can violate any right on the issue of tobacco/smoking because it's unpopular and who would dare dissent. 

How soon until it's the cigar magazines... or the picture of Churchill found at the top of this page? 

[back to index]


People write in regarding their own similar experiences:

From Spokane, WA:

Hi - I just wanted to let you know - about 3 years ago here in Spokane WA the Spokane Interstate Fair implemented a smoking ban at the fair. This is a large fair in the area with people coming from multiple states.The attendance that year dropped by almost half. Because of that the next year they put in smoking areas which brought attendance back up. I know that your fair still has smoking areas, but with the ban on selling tobacco products will the smoking areas be next? With all the wonderful fattening foods, beer and farm animals at a fair it is ridiculous to be worried about smoking except where there could possibly be a fire caused such as in a barn/animal area which is why I do not mind smoking areas at the fairgrounds. Some people are just not used to being around/or are careless enough to smoke around hay and other combustibles at a fair. So maybe you should look in to getting a boycott of the fair going which is really sad to have to do because I do not know if it is true there but many of the people showing at the fair here use it to help their farm/ranch livelihood of selling their stock, stud services, etc. 


[back to index]


None right now