HISTORY LESSON: WHY
YOU SHOULD CARE
"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
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
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
should care because it's NOT "just New York." It will not stop here.
It is where the disease will originate.
OSTRICHES / APATHY / COMPLACENCY / WEAKNESS
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.
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.
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."
years later and HIS way has led to the NYC smoking ban being duplicated
around the country and then the world.
one of these do you plan to be?
Gov. Spitzer's new policy
broke in the news on April 4th and 5th:
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.'"
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
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
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.
There is no law against
the sale of tobacco.
This is not “Public Health,” it’s social
of your private life.
This is revocation
of your free will and free
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
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
This is arbitrary
Beer, wine and junk
food are “unhealthy” but are not banned for sale at the fair.
Paternalism and Jurisdictional Misapplication
Private Lives vs Public Health
Arbitrary and Capricious
So? By What Authority?
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
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.
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.
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.
rules are "going to make New Yorkers live longer and healthier lives,"
he says. - USA
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?
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.
Peter Calverly of the British Thoracic Society said: "This study illustrates
that factors other than smoking may contribute to COPD." - BBC
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
-- 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:
OFFICIAL COMPILATION OF CODES, RULES
OF THE STATE OF NEW YORK
TITLE 1. DEPARTMENT OF AGRICULTURE
CHAPTER VIII. ADMINISTRATION
PART 369. EXHIBITION AND SOLICITATION
AT THE NEW YORK STATE FAIR
Text is current through September
Section 369.2 Issuance of solicitor's
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
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
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.
WHO'S TO BLAME
In addition to Governor Spitzer
there are three others involved in this decision. They are:
Governor Eliot Spitzer
Email Form: http://184.108.40.206/govemail
Phone: (518) 474-8390
Health Commissioner Richard
F. Daines, M.D.
Phone: (518) 474-7354
Dept. of Agriculture Commissioner
Patrick Hooker (oversees the Fair)
Email Form: http://www.agmkt.state.ny.us/contact.html
Phone: (800) 554-4501
NYS Fair Executive Director
Phone: (800) 475-FAIR
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.
-- 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
JOIN THE FIGHT
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
We invite sympathetic lawyers
to please contact us.
Social pressure must be brought
Plans include press releases,
press conferences, protest events, and to ultimately boycott the Fair if
Start your protest by contacting
the parties above.
When emailing, Cc these reporters
so that we have witnesses!:
Maureen Nolan at Syracuse
William Kates at Associated
Print out a color
to pass out
In Microsoft Publisher
format (best) - (set paper size to legal)
In Microsoft Word
There is strength in numbers.
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
Please help toward the costs
of any legal fees and material
Contribute any amount
using the safe and secure
(click on the button to begin)
send a check or money order, payable to NYC C.L.A.S.H., Inc., to:
(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
LAWSUIT FILED (July 6, 2007)
Now more than ever we need your
help funding this suit
By Syracuse Post-Standard, July 7, 2007:
"Smoking Mad. Vendor
files lawsuit challenging as "discriminatory" a recently added state fairgrounds"
By CigarCyclopedia, July 12, 2007:
"Smoke Free or Die!"
By Smokeshop Mag, June 2007 issue:
"As Smoking Bans Give
Way to Sales Bans,
Smoking Inches Ever Closer
By Smokeshop Mag, June 2007 issue:
"Tobacco Sales Banned
At New York State Fairgrounds"
- July 6, 2007
- August 1, 2007
to State's Response - August 16, 2007
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."
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
"[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
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?
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.
None right now