2011/03/05 KSDK Ch 5: “The City of Clayton went smoke free last July, but a group of attorneys is challenging part of the ordinance.”

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KSDK-TV News Channel 5 focused on the attorney’s comments to the media during the announcement of the lawsuit against Clayton near Shaw Park. That provides a good explanation of the various theories being pursued as the basis for repeal of the ordinance making the city’s public parks etc. smoke-free. MoGASP finds the attorney’s arguments are either flawed or a bit far-fetched and plans to respond to them in detail later.

Immediately below is the text accompanying the TV report on the Channel 5 website, followed by a full transcript of the attorney’s remarks to the media.


Clayton, Mo (KSDK) — The City of Clayton went smoke free last July, but a group of attorneys is challenging part of the ordinance.

         Arthur Gallagher said the ban on outdoor smoking in city parks is unconstitutional.  His attorneys filed a lawsuit on his behalf.  They believe smoking is an inherant right, and when done outside, poses no risk to others.
         “There’s no rational basis for any kind of health risk from outdoor smoking,” said Bevis Schock, attorney. “It’s basically ridiculous. The doses, the poisons, nobody can get enough smoke to get hurt from an outdoor cigarette”
         The City’s attorney Kevin M. O’Keefe issued a response:
         “I hope Mr. Schock enjoys the publicity he so avidly seeks. The fact that Mr. Schock paid to advertise for a volunteer plaintiff for a suit he had written in advance and, in writing, said he would “be paid by The City of Clayton” is a sad and embarrassing commentary on the state of the legal profession.
         “I also believe the fact that his pleading is prefaced by the musical musings of Groucho Marx in a make-believe place is telling evidence of the merits of the case.
         “Clayton’s ordinance addresses litter and unhealthy conduct on property owned by the City. The legal basis for the ordinance is strong and straightforward and is not in any way beyond the City’s ability to protect its citizens and property.”

Transcript by MoGASP (1:39 min.):

Plaintiff Arthur Gallagher (left) with attorney, Beavis Schock (center), introducing his legal team, Hugh Eastwood (right) and pointing to Russell Anhalt, standing behind him but not in the frame

“All right, good afternoon. My name is Beavis Schock. I’m an attorney and with my legal team of Hugh Eastwood and (law clerk) Russell Anhalt, we have filed a lawsuit to challenge the outdoor smoking ban in Clayton parks.
         We have a coupla theories.
         One is that there’s no rational basis for any kinda 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.

Plaintiff Gallagher puffing on a cigar during the press conference

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

W. Bevis Schock, Attorney at Law
 (314) 726-2322
7777 Bonhomme Avenue, Suite 1300
St. Louis, Missouri  63105

13 responses to “2011/03/05 KSDK Ch 5: “The City of Clayton went smoke free last July, but a group of attorneys is challenging part of the ordinance.”

  1. Charley Gatton

    Mr. Hannegan is quick to claim that Mr. Schock is working for free. Doesn’t appear that is true – he has his eye on the treasury of the City of Clayton. Speaks volumes about the type of attorney he is, doesn’t it?

  2. From what I understand, BBQ (and fireplaces) do pollute the air to a great extent. As well, the cows and pigs and chickens cooked in the BBQ generate a good deal of pollution. Having said that, two wrongs don’t make a right. Smoke isn’t just a matter of harming others. It is about making it unpleasant for some to enjoy the park.

    mogasp comment: The things you mention do give rise to outdoor air pollution. To the extent possible, they should be reduced or eliminated. This leaves unanswered how great is the pollution they contribute, a question needing research.

  3. Horacio Prada

    GeorgeHarrison, the famous member of The Beatles died a premature death in 2001 form cancer induced by his nicotine addiction in the sixties, seventies and eighties. Records show that there’s been millions of victims of tobacco, this most “american” tradition the palintiffs refer to. Judging form overwhelming evidence, I, being of sound mind, would conclude that, beyond the shadow of a doubt, tobacco smoke is LETHAL. It really does kill.

    A park is a place where people go to enjoy nature and clean air so for that reason, I don’t beleive that anyone has a right to pollute it with toxic LETHAL fumes, or litter it with cigarette butts that surely contain toxic chemicals, just to satisfy their nicotine addiction. That’s NOT a constitutional right.

    Instead of fighting for the “right” to smoke, which is as fallacious as the right to smoke meth or crack, do yourself a favor and quit. I did 26 years ago and so can you. I’ll be willing to help you. It’ll require strong willpower because it IS an ADDICTIVE SUBSTANCE. But you can put the power and determination you’re using to fight for tobacco “rights” to quitting instead. You’ll be very happy you did. George Harrison would have, if the cancer had not already spread to his brain.

    mogasp: 1,236 characters which will be allowed on this occasion but please adhere to 1,000 character limit in future.

  4. Actually, while an argument can (weakly) be made in support of automobile smog (note: “weakly”) no such argument can be made in support of barbeque pits in the face of open air smoking bans existing, and no argument can be made in favor of continuing to allow restaurants to continue poisoning workers and customers by allowing non-microwave cooking in the same buildings with servers and patrons. All such restaurants should be immediately shut down while they make proper accommodations since the Antismokers have assured us that merely separating rooms and providing ventilation does not provide an answer to the problem.

    Meanwhile I’m sure people won’t mind eating nicely boiled burgers as long as they’re patted dry before being put on a bun.

    Michael J. McFadden
    Author of “Boiling Antismokers’ Brains”

  5. Also, in reference to this statement by the City’s Attoney, “Clayton’s ordinance addresses litter and unhealthy conduct on property owned by the City. The legal basis for the ordinance is strong and straightforward ”

    So is the Attorney formally claiming that the law does not make any claims or basis justifications based upon any risk from exposure to outdoor smoke? Or is he being misleading? If he *is* being deliberately misleading in a public statement affecting the well-being and freedoms of Clayton’s population (It’s hard to see how he could plead accidental.) would that be considered unethical conduct sufficient to bring up formally before whatever body would hear such charges?

    – MJM

  6. Kim, Regarding BBQs: my figures are a bit tentative, coming from an email I wrote to myself a year or so ago, but I believe a cigarette puts out about 1 mg of VOC pollution while just the lighter fluid burned in US BBQs (Well, lighter fluid in general, but it’s mainly used for BBQ isn’t it?) puts out 7,000,000 kg per year. That’s the equivalent of 7 TRILLION cigarettes or about 20x the pollution of US smokers, not even counting all the pollution from charcoal and meat fat burning (which produces at least 17 heterocyclic amines and an unknown number of VOCs.) Of course the meat burning will also occur in restaurants that insist on cooking burgers on the stove rather than boiling them over an electric range. You can visually see the result of that in a little video I took in Doylestown a couple of years ago at:


    (Apologies for three posts in a row! — Different point aspects.)

    – MJM

  7. Bill Hannegan

    Since he has just commented here, I would like to take this chance to apologize to Mr. Gatton as well as Mr. Pion for my rude outbursts on a previous post. I had no right to intrude that way on your celebration and do regret my comments.

    mogasp response: I can forgive your previous outburst.
    What I cannot forgive, though, is your attempt to intimidate me and my fellow MoGASP board members last year when you threatened us with lawsuits after MoGASP organized air quality tests in the Double D lounge, in response to your suggestion to do so, but without your prior knowledge or permission – as if that were needed. Frankly, that was unconscionable.

  8. Charles Gatton

    Mr. Hannegan, your apology is accepted.

  9. Thanks Mr. Gatton!

  10. Mr. Gatton, I noticed the tone of your comment about the lawyer hoping for money from the city. It seemed to be critical of him for not working for free. I would imagine that the most he could expect out of the case would be a few thousand dollars. Compare that to the hundreds of millions (collectively billions or tens of billions) that the “public spirited” lawyers who brought down the tobacco industry in the MSA settlement got.

    To take your own words, I’d have to say that “speaks volumes for the types of attorney(s)” they were, eh? Maybe the thousands, if they appear, should go back to Clayton, while the billions (already taken) should go back to the smokers they were taken from.

    – MJM

  11. Martin, I just noticed your response to Bill above, and felt I should say something as well. While Bill *did* suggest the testing, I believe a fundamental part of his suggestion was doing it openly and cooperatively: If I’m remembering the situation correctly he had some grounds for being upset at the way you went about it.

    Since you’ve brought up the DD Lounge again though, I believe I also remember that you asked us to wait for a little while to give you time to organize and analyze the results before presenting them. I may have missed it, but I don’t remember seeing them?


    mogasp reply: As regards Bill Hannegan, I had no confidence in the scientist he wanted to involve in the testing. I’m confident my results were not fudged or open to question in any way. Publication is on the back burner, however.
    As I just noted in a reply to Dave Kuneman, the only paper I’ve successfully submitted for peer-review so far proved to be immensely time-consuming and I can’t afford that presently. Maintaining this active blog is part of the reason!

  12. Also wanted to respond to HP’s post about George Harrison. If he smoked 25 a day for 35 years, that would be roughly 320,000 cigarettes. A person in a decently ventilated average restaurant/bar setting today would “smoke” roughly 1/1,000th of a cigarette per hour (derived/referenced in “Brains” — too long for here). If you found a smoker in a park and followed them around at a distance of about two feet for an hour every single day, your dose per hour would probably be about 1/10th of that (assuming a reasonable plume cone of 36 degrees) or 3,200,000,000 days, or a bit less than ten million years to get the “toxic LETHAL” (emph. in orig.) dose as Mr. Harrison.

    I point this out in order to show the fallacy of equating an individual’s smoking with a person’s exposure in the open air of a park. The meaning of the phrase “toxic LETHAL fumes” is, at best, a distortion of the language.

    (Feel free to check my seat of the pants math there…)

    – MJM

    mogasp reply: Sorry, but although I’m willing to alloy your comment, I don’t have time to research the information you present or your calculations.

  13. MoGASP, your blog efforts are appreciated (and I think valuable to the field in general although I’m sure some would disagree) and I also fully understand the publication thing: Dave and I ran into the same experience with the large scale Helena-type study we did several years ago. We eventually felt our results merited being shared rather than continue to have them delayed so we web-published them. You might want to do the same with the DDL results given the currency of the debate.

    Re my second post: I believe the info and calcs are accurate enough for the point being made. Heck, I could be off by several orders of magnitude and the point would still be valid! LOL!


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