2011-03-30 P-D: “O’Fallon smoking ban, St. Charles mayor’s race highlight St. Charles County ballot”

The following story by reporter Mark Schlinkmann appeared on page B1 of the Community section in yesterday’s St. Louis Post-Dispatch. The excerpt below just focusses on the smoking issue.

Stacy Henry Reliford, Field Government Relations Director of the American Cancer Society in St. Louis, who is involved in this effort, was interviewed and her quote is highlighted below.

O’Fallon smoking ban, St. Charles mayor’s race highlight St. Charles County ballot

BY MARK SCHLINKMANN mschlinkmann@post-dispatch.com > 636-255-7203 | Posted: Wednesday, March 30, 2011 12:05 am | (19) Comments

Related stories:
City inspects MAC again: Smoking continues, sources say
Illinois House votes to re-light smoking in state’s casinos
Bill to amend St. Louis County’s smoking ban in nursing homes introduced
Smoking issue resurfaces at St. Charles County Council

ST. CHARLES COUNTY • “Yes Smoke-Free O’Fallon April 5″ reads one set of signs. An opponent plans placards along the lines of “What’s Next, O’Fallon? Cheeseburgers?”
         Voters in O’Fallon, St. Charles County’s largest city, will decide Tuesday whether their town joins the growing list of communities with smoking bans.
         The measure, which has few exemptions and applies to all commercial bars and restaurants in the community of more than 79,000, is among a wide range of issues and candidate races on the ballot across the county.
         Advocates of the smoking prohibition, who last fall submitted more than 1,900 signatures on petitions to get the issue on the ballot, are making telephone calls, sending mailings and putting up yard signs with a ‘smoke-free O’Fallon” message.

Stacy Reliford
American Cancer Society

They say the measure will protect the health of customers and employees from second-hand smoke.
         “When all places are covered, it’s easier to enforce and the public understands it better,” said Stacy Reliford, an official with the American Cancer Society who has been helping with the effort.
         So far no organized opposition campaign has developed, but City Councilman Jim Pepper opposes the measure. “What happened to property rights and the right of self-determination among businesses?” he asked.

Councilman Jim Pepper
O'Fallon City Council

         Pepper says he plans to put up a few signs on his own, including that “What’s Next, O’Fallon” message.
         Phone calls to a few businesses last week turned up a range of opinions.
         A sharp critic was Pat Edwards, who owns the P&R Lounge on North Main Street. “I think it stinks,” she said. “It will definitely hurt business because I’m a smoking bar. They’ll come in less.”
         Calvin Hoelting, who helps manage Frontier Lanes, said “health-wise I think it’ll be better for everybody.”
         He said, though, he doesn’t know how business at the bowling alley would be affected.
         ”We could lose a lot of loyal customers that smoke,” he said. “We might gain some, too.”
         Maria Clayton, a bartender at a Show-Me’s restaurant on Highway K, says she believes business won’t suffer because nearby competitors also are in O’Fallon and would be bound by the same rules.
         The measure, set to take effect June 4, is patterned after a law imposed in October in Lake Saint Louis — a much smaller municipality and the first part of the county to go smoke-free. Advocates hope approval in O’Fallon will add momentum toward passing a countywide ban.
         Bans with exemptions for some bars took effect in January in St. Louis County and St. Louis. More restrictive versions are in place in Clayton, Kirkwood, Ballwin, Brentwood and Creve Coeur and in Illinois statewide.
         Pepper said if the O’Fallon measure passes, he’ll try to get the City Council to change some provisions. One possibility, he said, is to exempt businesses that agree to maintain separately ventilated smoking and non-smoking sections. Sponsors say that won’t prevent harmful material from getting into non-smoking areas.
         Residents in three other Missouri cities — Cape Girardeau, Springfield and Webb City near Joplin — also will vote Tuesday on a smoking ban.

2011/01/29: “New study: Bars and restaurants did well in Smoke-free Wisconsin cities”

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After seeing this report earlier this year I wanted to verify that it wasn’t likely to be found flawed after publishing it on the mogasp blog. Dr. Michael Siegel, Associate Chairman, Social & Behavioral Sciences
Professor, Social & Behavioral Sciences, Boston University School of Public Health, provided reassurance that it was a reliable study in his e-mail reply below:

From: Dr. Mike Siegel
Subject: RE: New study: Bars and restaurants did well in Smoke-free Wisconsin cities
Date: January 30, 2011 3:28:51 PM CST
To: [MoGASP]

The study looks solid to me.
The only studies which tend to be problematic it seems are those which look at the effect of smoke-free laws on heart attacks. The economic studies are generally solid.

Mike

The newspaper article is pasted in full below, together with a link to the study itself.

New study: Bars and restaurants did well in Smoke-free Wisconsin cities
Milwaukee Courier 29 JANUARY 2011

Analysis shows ordinances enacted before state law did not harm hospitality industry

Roughly six months into Wisconsin’s statewide smokefree law, a new study offers further proof that getting the smoke out is good for health and good for business.
         The study, done by the UW Carbone Cancer Center, compared economic data between five Wisconsin cities that enacted smoke-free ordinances before the statewide law and similar cities where workplace smoking was still permitted.
         The results showed bars and restaurants in the smokefree cities continued to do well under the ordinances. In fact, in virtually every smokefree community the number of Class B alcohol licenses increased after the ordinances took effect and employment remained strong despite the recession.
         “This is excellent news for employers and employees in the hospitality industry,” said Gail Sumi, Wisconsin Government Relations director for the American Cancer Society.
         “This study, like dozens of similar studies nationwide, offers more proof that going smoke-free does not pit business against health, but rather is a common sense health law that keeps workers and employers both physically and fiscally healthy.”
         The study looked at a number of factors in Madison, Appleton, Eau Claire, Marshfield and Fond du Lac including:

The number of alcohol licenses issued to bars and restaurants
The number of establishments operating before and after the ordinance
The number of employees in the year before the ordinance took effect and the following years after

         Despite the significant economic recession of 2008, the study found the hospitality industry to be the most economically successful industry in the smoke-free cities. Employment in the industry remained high and overall there were no significant differences in economic trends between those with and without smokefree ordinances.
         “Today’s study coupled with state data showing widespread compliance with the new law is encouraging. It shows the law is working to protecting workers from the serious health effects of secondhand smoke exposure while still enabling businesses to adapt and thrive,” said Sumi. “Wisconsin really is better smoke-free.”

To see the full study please visit:
http://sep.uwcarbone.wisc.edu/

Popular Interests In This Article: American Cancer Society, Hospitality Businesses, SmokeFree Wisconsin, UW Carbone Cancer Center

2011/03/15 KMOV: “The Missouri Athletic Club (MAC) could soon be shut down”

Reminder: A comment for consideration must be accompanied by your full name. First name only or a pseudonym is not normally accepted. Also, please limit your comment to 1,000 characters, which is twice that set by the St. Louis Post-Dispatch. Finally, avoid epithets and personal attacks.

It seems that when members are used to puffing on their expensive cigars they also feel the law shouldn’t apply to them, even when it does.

Scofflaw members of the Missouri Athletic Club and an apparently quiescent management are putting that storied institution’s future in jeopardy by ignoring the new St. Louis City smoke-free air ordinance, effective since January 2nd this year, that requires the MAC to be smoke-free.

It would be a pity if this institution were to push its defiance of the law to the point where it is actually shut down, but that seems to be the direction in which it’s headed.

The story below is from KMOV.com but the St. Louis Post-Dispatch also published a story the day before:

City inspects MAC again: Smoking continues, sources say

KMOV.com
Posted on March 15, 2011 at 8:51 PM
Updated Tuesday, Mar 15 at 10:55 PM

ST. LOUIS (KMOV) — The Missouri Athletic Club (MAC) could soon be shut down.

Missouri Athletic Club, St. Louis City

After repeated complaints were made against the private club, the MAC is now under a strict watch by the City of St. Louis for violating the smoking ban.
         Earlier this year, the MAC was cited and fined by the city for violating the smoking ban, but the St. Louis Health Department has learned that the private club is still non compliant with the ordinance.
         While the MAC is a private organization, St. Louis officials say the club must obey the city’s smoking ban because it is a place of employment.
         Repeated violations could cause the City of St. Louis to shut down the MAC.

2011/03/12 KMOV Ch 4 “Extra Edition” with Martin Pion (MoGASP) vs attorney Beavis Schock re. Clayton outdoor smoking

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The following is a MoGASP transcript of the broadcast which aired at 6 am on Saturday morning. Images were captured from the TV with a digital camera, hence the quality.

“Extra Edition” from NEWS 4 and the St. Louis Post-Dispatch

Moderator John Knicely introducing NEWS 4 Extra Edition

Moderator, John Knicely: “Good morning, and welcome to “Extra Edition.” I’m John Knicely.
         In recent years, more and more local communities have adopted smoking bans in public buildings, restaurants, even bars and lodges.
         Now, smokers are saying a new ban in Clayton goes too far, and they’re fighting back.
         The new ban prohibits smoking in public parks.
         The lawsuit was filed last week alleging a violation of constitutional rights. News 4 Jasmine Huta filed this report the day the lawsuit was filed.”

[Jasmine Huta's News 4 report, which is posted on the mogasp blog here, was shown.]

John Knicely:”That report was filed last week when the lawsuit challenging the outdoor smoking ban was filed. Since then anti-smoking advocates have also spoken out, voicing their strong support for the smoking ban in public parks. It’s a spirited debate.

Pion, Schock and moderator Knicely at the start of the program

Joining us this morning to explain both sides are Beavis Shock, right next to me: he’s the Clayton attorney who filed the lawsuit. And down on the end is Martin Pion. He’s a long-time anti-smoking advocate and leader of the local chapter of GASP. That stands for Group to Alleviate Smoking Pollution.
So we’ll start with you Beavis. Where is this lawsuit now in the process?”

Plaintiff's attorney Bevis Schock challenging legality of smoke-free air ordinance

Beavis Shock: “Well, we just started, er, the other side will be getting their pleading today, and then they have, gosh, 60 days to file an answer.
         Er, the law doesn’t work very quickly. Um, er, so we don’t know what their position’s going to be.          Clayton may decide that they just, their position is so silly that they want to repeal it, which of course is what we hope.
         Um, or they may dig in for a long fight and we’re prepared for the long fight if that’s what they want to do ’cause it’s a freedom issue.

John Knicely: “Martin, you were obviously happy that this ban was put in place. Now that it’s being challenged what are your thoughts?”

Martin Pion, president of Missouri GASP

Martin Pion: “Well let me just correct something: we’re Group Against Smoking Pollution. We used to be Group to Alleviate Smoking Pollution. We were lucky if we could get a smoke-free section in a restaurant. That was pretty absurd because the smoke doesn’t stay put. Now were Group Against Smoking Pollution.
         And we’re not anti-smoking, we’re pro-smokefree. That’s what we want. We want smoke-free environments. We’re not against smokers, because when you talk about Group Against Smoking Pollution it sounds like you’re against smokers. We’re not.
         If this gentleman wants to smoke, it’s fine. He’s not going to do it in here is he, let’s face it. If he smokes in the privacy of his own home it’s fine by us. We don’t have any objection to that.”

John Knicely: “When you look at the smoking bans that have been put in place, one of the main arguments across the nation have been the health risks of secondhand smoke, and so those issues obviously pop up in an indoor environment. But when you look at an outdoor environment where is the argument in your standpoint?”

Martin Pion: “Well, I understand the, why it’s hard to grasp that outdoor smoking should be a problem because we’ve got, er, you know, dilution. It’s obvious. But there’s two things:

Pion holding Young Choices leaflet

One, there are people like this gentleman who we had with us just recently in the park. I don’t know if you can see that: Don Young. (Holding up brochure featuring Don Young of “Young Choices.“)
         And another lady who was with us, Vivian Dietemann, who’s an asthmatic and is exceptionally smoke-sensitive. She can’t be anywhere near smoke, and neither can that gentleman. They’re made sick by it.
         So I, I’m not as allergic to smoke as they are. In other words I don’t react, I don’t get an asthma attack or anything like that. I don’t have asthma.
         But talk to my wife. She doesn’t take me anywhere anymore. She’s French. She doesn’t take me to France anymore because I’m like a ball and chain around her ankle. I’m very sensitive to tobacco smoke, so it doesn’t make me sick but just the smell is a problem. And even in an outdoor environment there’s enough smoke, if there’s smokers around, that I’m going to be going in the opposite direction.
         And if you’ve got a park situation, let’s say, and you allow smoking there there’s going to be smokers dotting around in the park, and so you’ll never be, you’ll always be downwind from a smoker if you allow smoking in a park situation.
         Now, quite honestly, it’s absurd to allow smoking on a sidewalk and ban it in the park. We want to see no smoking. Period. Except in the privacy of somebody’s home. That’s what we want.”

John Knicely: “Beavis, as you look at the legality of this, you’re questioning the constitutional rights of people being violated here. We know that smoking bans have been held up in indoor places across the country. Er, what do you think as far as, or what have you seen, I should rather say, about different smoking bans in public places outdoors, such as New York City and other places?”

Plaintiff's attorney Beavis Schock

“Well, the ban on outdoors is surreal because they have all these beaches. So, you can’t even go have a smoke on a beach. And they assert that this is for some health reason. Now, I’m really sympathetic to, er, Martin’s concern about asthmatics, and his own, he doesn’t want to smell it, I understand that. But how far do you take it?
         I mean, a lot of these children can’t be around peanuts. Are we going to ban peanuts in the parks. Maybe we ought to ban peanuts at the ballgame. I mean at some point a person who has these specialized needs has a kind of a duty to work it out with their neighbors. I mean, if these schools now: they’ll have no peanut zones, and that’s indoors.
         Now outdoors, I think, if there’s a mother who has her child and a peanut allergy the mother says to the person smoking, hey, my child has a peanut allergy, would you mind moving down a little bit, and they will, ’cause people learn how to interact with each other in a friendly and peaceful manner to solve these little problems.
         This morning, I was at Starbucks and a young lady came in. Very honestly, I’m not a perfume expert, but when I smell cheap perfume I know it. Should we ban her because she interferes with my aromatic coffee experience? That’s ridiculous!
         What you have to do is let people work these things out. Outdoors is over the top. When we banned alcohol in this country it didn’t work, and the reason it didn’t work was that it was too strong an infringement on people’s liberty. And they reacted the way people normally react when you tell ‘em they can’t do something they want to do; they go underground, they do it more, and crime ensues.”

John Knicely: “And real quickly, we’ve only got a few seconds left. Martin, I want your take on this argument.”

Martin Pion: “It’s the slippery slope argument that I hear all the time. “Where is it gonna stop?” Well frankly, I’m not interested in anything else other than secondhand smoke. That’s the problem for us. And these other issues are irrelevant. You deal with those separately. If peanut allergies are a problem you deal with those as a separate health issue. And so let’s just talk about secondhand smoke.
         We know that smoking is the leading cause of death and disease in this country. What we didn’t know for a long time was that secondhand smoke was a serious problem too. And now we know that it is.”

John Knicely: “Martin, I’m sorry, we’re running out of time. This argument obviously is one that we could continue all morning long. You both made excellent points and this is obviously gonna play out in court. In Clayton the ban is currently in place in public parks as you heard the, er, the lawsuit is moving forward and we will continue to follow it here on NEWS 4. Thank you gentlemen.”

2011/03/11 Mo Lawyers: “MoGASP speaks out against smoking lawsuit”

MoGASP speaks out against smoking lawsuit
By Anna Vitale
Mar 11, 2011 11:54 am
Lawsuit, U.S. District Court in St. Louis

A state anti-smoking organization has spoken out against a federal lawsuit filed March 3 over Clayton’s outdoor smoking ban.

“We’re trying to suggest that this is a frivolous lawsuit,” said Martin Pion, president of Missouri Group Against Smoking Pollution, or MoGASP.

Arthur Gallagher, represented by St. Louis attorney Bevis Schock, is the named plaintiff in the potential class action. Gallagher is a smoker who also likes to visit parks. The city of Clayton penalizes outdoor smoking in its parks with penalties of up to $1,000 and 90 days in jail. Gallagher asserts that violates the due process and equal protection clauses under the 14th Amendment, among other allegations.

Pion, who is not a lawyer, said MoGASP was not planning to try and intervene in the case. He said his group doesn’t have the means to do so.

Gallagher argues there is no health risk from outdoor smoking, but Pion said that’s not true for everyone.

“If you are very smoke-sensitive, I’ve been told it doesn’t take much to bring about an asthma attack, and an asthma attack can be fatal,” Pion said. “Even a single exposure can be fatal.”

Anna Vitale

Anna Vitale
Communications Specialist
314.397.7515

http://annavitale.blogspot.com

2011/03/11 MoGASP Point-by-point rebuttal of attorney Schock’s TV claims in support of Clayton lawsuit

For those interested, below (highlighted in blue) is what Bevis Schock, attorney for plaintiff Arthur Gallagher, said during his press conference on 2011/03/05, as reported on KSDK-TV Channel 5, interspersed with rebuttals by MoGASP president, Martin Pion, prepared and distributed to the media on Wednesday, March 9, 2011:

Attorney Bevis Schock announcing the lawsuit to the media near Shaw Park (Photo taken from KSDK Channel 5)

1) “There is no rational basis for any kind of health risk from outdoor smoking. It’s basically ridiculous. First of all, the dose is the poison: nobody can get enough smoke to get hurt from an outdoor cigarette.”

Martin Pion, MoGASP president, rebutting attorney's statement

Rebuttal: Highly smoke-sensitive asthmatics, like Vivian Dietemann, and others like Don Young, can be harmed by even small tobacco smoke exposures. In Ms. Dietemann’s case they can lead to a serious or even fatal asthma attack. Additionally, when smoking is allowed in the park there isn’t the likelihood of just one smoker being present but of several so that a nonsmoker can find him or herself always downwind from a smoker.

 2) “Second of all, of course, we have barbecue pits, the baseball fields over in Shaw Park here are right next to an intersection of Forest Park Expressway and I-70 (sic) with all kinds of smog. To ban smoking is an improper infringement on liberty.”

Rebuttal: Outdoor smoking is a public nuisance, akin to other such nuisances caused by outdoor air pollution, and can be easily addressed by local ordinance, as in this case. While it would be beneficial for public health if all outdoor air pollution could be eliminated, the fact that it can’t doesn’t mean it shouldn’t be addressed wherever possible.

 3) “Also, under the law, certain things are so important in American culture and history that they become a fundamental right, and we think smoking is in that class, along with the rights of privacy and travel: things like that.”

Rebuttal: Smoking is not a fundamental right, especially when it puts the health and welfare of others at risk. Cigarettes and other tobacco products are similar to other legal products like pencils, except that they happen to be the leading cause of death and disease in this country. It isn’t legal for someone using a pencil to poke your eye out. Likewise it defies logic that a smoker should be allowed to threaten your health and welfare by polluting the air you breathe.

4) “So the government has to be very careful when it stops it.”

Rebuttal: One of government’s primary duties is protecting the health and welfare of its citizens. When it makes public places and workplaces, both indoors and out smoke-free, it is fulfilling that duty. There is case law to support this.

Billy Williams, Executive Director of GASP of Texas, has studied the case law as it pertains to secondhand smoke. He has advised MoGASP as follows in this case:

“Numerous federal courts have held that smoking is not a fundamental right and that the question of a smoking ban requires only a rational basis standard of scrutiny. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); Brashear v. Simms, 138 F.Supp.2d 693, 694 (D.Md. 2001).
 
Also, the U.S. Supreme Court has held that: “Courts should normally defer to the reasonable medical judgments of public health officials.” Olmstead v. L.C. by Zimring, 527 U.S. 581, 602, 119 S.Ct. 2176, 2188 (1999).”

5) Attorney Beavis Schock concluded: “What I think is interesting in this case is that the majority of people favor a smoking ban. That’s true. The voters were in favor of it. So we ask, how far can the government go to stop the minority from engaging in the pleasures of liberty; to enjoy a nice cigarette? How far can the majority control the minority?
       
 That’s a very important question as to how we conduct ourselves as a nation.”

I agree with Mr. Schock that protecting the public from secondhand smoke exposure is a very important question that many support but the suggestion that this is somehow a tyranny of the majority is absurd. In fact, until recently there’s been a lack of leadership by government to act to protect the public from secondhand tobacco smoke pollution.

It was originally Ballwin which took the lead on this issue locally, being the first metro St. Louis city to enact comprehensive smoke-free air legislation in 2005, thanks to former Alderman Charles Gatton’s leadership. Mayor Linda Goldstein of Clayton took a critical step last year in following that example. Brentwood, Creve Coeur, Kirkwood, and Lake St. Louis have also adopted strong smoke-free air laws, often thanks to citizen involvement. Finally, St. Louis City and County, thanks to Alderwoman Lyda Krewson and former County Councilwoman Barbara Fraser, adopted ground-breaking measures with good laws going into effect just this year, but with exemptions which need to be removed. That followed a public county vote on Prop N which was approved by a 2-to-1 majority.

Clayton’s most recent progressive legislation, extending smoke-free air to its public parks and similar outdoor spaces it controls, is important and in line with Missouri GASP’s goals of promoting smoke-free air for adults and smoke-free lives for children. To paraphrase the last of our three goals:

Smoking (like sex) should only be done in private between consenting adults.

2011/03/10 P-D: “Anti-smoking activist calls Clayton lawsuit “flippant”"

Related Stories
Smoking ban in Clayton parks is challenged — with humor
Suit challenges Clayton ban on smoking in parks

Anti-smoking activist calls Clayton lawsuit “flippant”


BY MARGARET GILLERMAN • mgillerman@post-dispatch.com > 314-725-6758 | Posted: Wednesday, March 9, 2011 5:36 pm |

St. Louis Post-Dispatch reporter, Margaret Gillerman, interviewing Don Young during the Press Conference

Comments (15 as of 3/10/11 @ 4:46 pm)

CLAYTON • Puffing on cigars, and with cameras rolling, W. Bevis Schock and Hugh A. Eastwood last week handed out copies of their lawsuit challenging Clayton’s ban in parks and other outdoor places.

They stood – legally – on the sidewalk just outside Shaw Park.

This week, Martin Pion and friends from his organization, Missouri GASP (Group Against Smoking Pollution) held a news conference near the new inclusion playground inside the park – but on the other side of the park. They handed out literature sharply criticizing the suit.

Don Young, holding electrolarynx, hatted Martin Pion, and Vivian Dietemann, who is the only one smiling in this photo, thanks to her all-enveloping parka

Pion, in his quiet British way, said the suit, which contains dialogue from a Marx Bothers movie and other humor, was “irrational.”

“I find it a flippant lawsuit … being done for the publicity more than anything else,” Pion said. “Smoking isn’t something you should impose on others.”

He said that second-hand smoke — indoors or outdoors — endangered health and caused diseases.

Don Young, using his electrolarynx during the interview

With him were Don and Kay Young, whose non-profit group Young Choices Inc. visits schools to talk about the dangers of smoking. Also there was Vivian Dietemann, who has asthma and is highly smoke-sensitive.

Young described his bouts with throat cancer and severe cardiovascular disease. Because of operations to save his life from cancer, he can no longer speak on his own. He speaks through an electro-larynx in what he calls “robot-like” speech.

“It’s upsetting to me that people think they have the right to smoke in front of other people and in their faces,” Don Young said through his electro-larynx. “Children don’t need to be around this and in a public park, that’s where you find children.”

The suit argues that the ban denies Gallagher his constitutional rights. In specific, it cites the 14th Amendment’s due process and equal protection clauses.

The suit also argues that the ban discriminates against smokers, shows an irrational dislike of smokers and is arbitrary and capricious. It says the ban violates the Missouri Constitution’s guarantee of the “pursuit of happiness.”

Dietemann said that many courts have said that smoking is not a “fundamental right.” The suit claims it is a “fundamental right” that is “part and parcel of ancient American history, traditions and customs,” including American Indian peace pipes.

Pion argued his points in a two page rebuttal to the suit. He ended it with one of the group’s mottos: “Smoking (like sex) should only be done in private between consenting adults.” Another is: “Smoke-free air for non-smokers and smoke-free lives for children.”

The suit names as defendants the city of Clayton and Mayor Linda Goldstein, City Manager Craig Owens, Parks Director Patty DeForrest and Police Chief Thomas J. Byrne.

Nearly 500 communities around the U.S. have banned smoking in public parks. The Clayton community in surveys has strongly endorsed a smoking ban, including in outdoor places.

Clayton enacted an indoor ban on July 1. The outdoor ordinance, which became effective Jan. 1, bars lighting up in parks, on playgrounds and all other city-owned or leased facilities. That includes city-owned parking garages and lots.

The law allows smoking on sidewalks, streets and in alleys.

(L to R facing camera) Don Young, Martin Pion, and Vivian Dietemann during KMOV Channel 4 TV interview. The Inclusion Playground - designed for use by all children, including those with disabilities - with a MoGASP banner on the railings, is behind them.

2011/03/08 P-D Editorial: “Smoking ban in Clayton parks is challenged — with humor”

Yesterday’s St. Louis Post-Dispatched featured an editorial and editorial cartoon, both targeting Clayton’s smoke-free outdoor air ordinance and the recently announced lawsuit challenging it.

Most of the editorial was somewhat light-hearted in its view of the whole thing, and on balance was supportive of the city’s position that this was for the benefit of Clayton citizens and visitors, as well as children in the park.

The editorial cartoon, on the other hand, picked up on one of the arguments by the plaintiff’s attorney – that with all the nearby vehicle exhausts polluting the air, wasn’t it a bit absurd to focus on tobacco smoke pollution from a solitary cigarette?

R. J. Matson editorial cartoon, St. Louis Post-Dispatch 2011-3-8

Not if you’re highly tobacco smoke-sensitive it’s not. And anything you can do to reduce other sources of air pollution is a good idea too.

Smoking ban in Clayton parks is challenged — with humor

By The Editorial Board | Posted: Monday, March 7, 2011 9:00 pm | Comments (10 as of March 9, 2011 @ 5:07 pm)

Arthur Gallagher, plaintiff in a lawsuit against Clayton over the right to smoke in city parks. (Photo courtesy KMOV Channel 4)

Although a federal judge may very well do so, we cannot quite dismiss as unworthy of discussion the smoking-related lawsuit filed last week against Clayton by attorneys W. Bevis Schock and Hugh A. Eastwood on behalf of Clayton resident Arthur Gallagher.
         Clayton was among the area’s first smoke-free communities. Not long after its muscular indoor public smoking ban took effect last July, St. Louis County and several other municipalities followed suit. As Clayton goes, it appears, so goes the region when it comes to controlling smoking. So a legal challenge to Clayton’s smoking restrictions merits at least some scrutiny.
         Mr. Gallagher’s lawsuit takes on a newer Clayton ordinance that extends smoking prohibitions to outdoor areas of city-owned or city-leased property, including parks, playgrounds, athletic fields, parking lots and the grounds outside such city facilities as City Hall and the Center of Clayton fitness complex.
The suit, filed after Mr. Schock advertised for plaintiffs, claims that the ordinance violates the constitutional rights of Mr. Gallagher, who “ecstatically enjoys” smoking in city parks.

         It is not easy to take this suit seriously:
         • In an apparent attempt at mockery, the lawsuit opens with lyrics from a song from “Duck Soup,” the classic 1933 Marx brothers movie.
         • The suit claims that “smoking is a fundamental right,” then immediately concedes that every court that has considered such a claim has ruled that it’s not.
         • The suit asserts that smokers are persecuted and members of a legally protected class, even though federal law grants no such status to smokers. For legal authority, the complaint footnotes a slogan used by the “Dirt Cheap Chicken,” the marketing mascot of an area cigarette retailer.
         If we weed out the considerable silliness, the suit revolves around the effects of secondhand smoke in outdoor settings. Clayton prohibited outdoor smoking on city property, the complaint claims, to protect non-smokers from secondhand smoke. But it says few studies have been done in outdoor settings, and those found widely varying results depending on wind direction and speed, temperature, humidity, sunlight and traffic patterns.
         And, in fact, although there is overwhelming evidence that secondhand smoke in enclosed spaces damages the health of non-smokers, evidence of the impact in outdoor settings is sketchy at best.

         So does Clayton – and the nearly 500 other American communities with similar laws – simply care more about people who are annoyed by fleeting outdoor exposure to tobacco smoke than those who are annoyed by not being able to smoke outdoors on city property?
         Legally, it might not matter. U.S. Supreme Court decisions have granted wide latitude to legislative bodies to enact laws without being second-guessed by courts.
         But Clayton Mayor Linda Goldstein told us that in recommending the outdoor ordinance, the citizen-directed Parks and Recreation Commission also wanted to ensure healthy adult role-modeling for children who play in city parks and playgrounds.
         She added that the ordinance also reinforces Clayton’s broader identity as a community that values health and healthy activity.
         We think the opening lines of Mr. Gallagher’s complaint might have been more accurate had Mr. Schock quoted a different Marx brothers movie. As Groucho Marx sang in the 1932 film “Horse Feathers”:
         Your proposition may be good,
         But let’s have one thing understood:
         Whatever it is -
         I’m against it!

EDITOR’S NOTE: The original text of this editorial incorrectly cited the movie “Animal Crackers” as the source of the above quotation.

2011/3/3 Mo Lawyers: “Clayton smoker lights up lawsuit against ban”

The following article, published on the Missouri Lawyers Media website (bottom of their page), includes a photo showing plaintiff, Arthur Gallagher, plus his legal team deliberately violating Clayton’s new smoke-free air law by leaning into Shaw Park and blowing smoke into it for the benefit of the reporter.

It may have been intended as a joke or an act of childish civil disobedience but it could also get Gallagher and his fellow clowns into hot water with the city attorney.

Clayton smoker lights up lawsuit against ban 
Published: March 3, 2011
Missouri Lawyers Media – molawyersmedia.com
On-line at
http://molawyersmedia.com/blog/category/our-publications/the-countian-st-louis-county/

By Anna Vitale

Just about six months after Clayton banned smoking in parks, one resident is making the city defend its ordinance in court.
         Plaintiff Arthur Gallagher, front, and civil rights attorney Bevis Schock, center left, smoke Thursday with lawyer Hugh A. Eastwood, center right, and law clerk Russell Anhalt on a Clayton sidewalk by Shaw Park. Gallagher and Eastwood decided after a service at The Church of St. Michael & St. George to file a lawsuit against the city of Clayton challenging its outdoor smoking ban in parks and other areas.
         It’s legal to smoke on the sidewalk, but the four lean into Shaw Park, daring to cross a line to make their point.

Gallagher and his legal team puff cigar smoke into Shaw Park for a reporter

2011/03/04 P-D: “Cigar lover files suit against Clayton’s ban on smoking in parks”

Reminder: A comment for consideration must be accompanied by your full name. First name only or a pseudonym is not normally accepted. Also, please limit your comment to 1,000 characters, which is twice that set by the St. Louis Post-Dispatch. Finally, avoid epithets and personal attacks.

Missouri GASP strongly supports this ordinance, which is in line with our three stated goals, and in particular the last one:

“A society where smoking is done only between consenting adults in private.“

We don’t allow sexual intercourse in public, which does no harm to others nearby but is socially unacceptable and considered indecent exposure. Why should public smoking, which does harm others, be tolerated? Mr. Gallagher, the cigar smoker filing this frivolous lawsuit, shou`ld be allowed to puff his cigar as long as it doesn’t affect anyone else.

We’re behind the curve in Missouri and playing catchup, but in some progressive communities outdoor smoking – and not just around building entrances – is now also being curtailed to provide a healthier environment for all.

On a scientific note: Whether or not you’re exposed to someone else’s secondhand smoke when outdoors isn’t just dependent on the wind direction, as alluded to by one person interviewed by reporter Margaret Gillerman. Because most tobacco smoke particles are in the invisible sub-micron size range, they will diffuse outwards from the source in ALL directions, not just downwind.

Cigar lover files suit against Clayton’s ban on smoking in parks

BY MARGARET GILLERMAN mgillerman@post-dispatch.com 314-725-6758 | Posted: Friday, March 4, 2011 12:25 am | Comments (62 as of March 4, 2011, 11:15 am)

Arthur Gallagher, plaintiff in a lawsuit against the City of Clayton over the right to smoke in city parks.
(Photo courtesy KMOV Channel 4)

CLAYTON • Arthur Gallagher used to enjoy strolling down the street every morning, getting a cup of java and a newspaper, and smoking a cigar in Concordia Park, near his home in the DeMun neighborhood.
         ”It’s one of life’s simple pleasures,” said Gallagher, 55, a retired vineyard owner from Napa, Calif., who moved to Clayton about three years ago.
         That pleasure ended on Jan. 1, when Clayton’s ban on smoking in parks went into effect.
         On Thursday, while puffing on cigars on the sidewalk abutting Shaw Park near downtown Clayton, Gallagher and his legal team announced they had filed a suit challenging Clayton’s ordinance. The suit, filed Wednesday in U.S. District Court, argues that the ban denies Gallagher his constitutional rights. In specific, it cites the 14th Amendment’s due process and equal protection clauses.
         Gallagher’s lawyers are W. Bevis Schock and Hugh A. Eastwood, assisted by Washington University law graduate Russell Anhalt.
         The suit contends that smoking is a “fundamental right” that’s “part and parcel of ancient American history, traditions and customs.” Schock mentioned American Indian peace pipes as an example.
         The suit also argues that the ban discriminates against smokers, shows an irrational dislike of smokers and is arbitrary and capricious. It says the ban violates the Missouri Constitution’s guarantee of the “pursuit of happiness.”
         The suit names as defendants the city of Clayton and Mayor Linda Goldstein, City Manager Craig Owens, Parks Director Patty DeForrest and Police Chief Thomas J. Byrne.
         Goldstein, a strong advocate of anti-smoking laws, defended the ordinance. She said nearly 500 communities around the U.S. had banned smoking in public parks.
         She said community response has been positive.
         City Attorney Kevin O’Keefe said the ordinance addressed “litter and unhealthy conduct on property owned by the city. The legal basis for the ordinance is strong and straightforward. …”
         O’Keefe noted that the suit was prefaced by the musings of comedian Groucho Marx, a cigar lover. That, O’Keefe said, “is telling evidence of the merits of the case.”
         Eastwood said the Groucho Marx reference was added to mock the city of Clayton.
         Many at Shaw Park Thursday afternoon were unaware of the ban, and some thought it silly.
         Clayton resident Jim Harper, who was practicing a form of karate in the park, said he didn’t mind the smoking, as long as he’s not able to smell it. “It’s over the top banning it,” said Harper, a nonsmoker. “You’re outside. As long as you’re not downwind.”
         John Saleeby, a Clayton resident, was pushing a child on a swing in a playground. He was unaware of the ban.
         ”It’s a park. It’s outdoors,” he said. He added: “I don’t smoke – except for maybe the occasional cigar – but this is ridiculous.”

ON THE SIDEWALKS

         Clayton enacted an indoor smoking ban on July 1. The outdoor ordinance bars lighting up in parks, on playgrounds and all other city-owned or leased facilities. That includes city-owned parking garages and lots.
         The law allows smoking on sidewalks, streets and alleys. Penalties are up to a $1,000 fine and 90 days in jail.
         Bill Hannegan, an advocate for smokers’ rights who is paying some of the legal fees for this suit, said he was “glad to see it got filed. If that’s successful, that would help put a stop to it across the country. It was just passed in New York City. There’s no rational basis for it – and you’re pushing smokers onto the sidewalks and they get in people’s way.”
         On the other side, Stacy Reliford, field government relations director for the American Cancer Society here, said the agency strongly supported Clayton’s outdoor ban.
Reliford also cited an opinion by a national group of public health lawyers, the Minnesota-based Tobacco Control Legal Consortium.
That says for smokers “there is no protected right under the due process clause of the Constitution, and smokers are not a protected category of people under the equal protection clause,” Reliford said.

Marlon A. Walker of the Post-Dispatch contributed to this report.