Monthly Archives: March 2011

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”

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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.

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.”

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.

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.

http://www.ksdk.com/news/local/story.aspx?storyid=247293

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
http://schocklaw.com/
 (314) 726-2322
wbschock@schocklaw.com
7777 Bonhomme Avenue, Suite 1300
St. Louis, Missouri  63105

2011/03/03 KMOV: “Clayton resident files lawsuit against smoking ban”

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.

A retired Clayton resident and cigar smoker thinks it’s OK to pollute the outdoor air wherever he pleases, including city parks, and is venting his displeasure – as well as his cigar – on the City of Clayton for the modest first step it’s taken to curtail such pollution.

Clayton can take comfort from knowing that it’s not alone in trying to make it’s parks healthier places for the public. Americans for Nonsmokers Rights in Berkeley, Ca., lists no less than 478 other cities with such ordinances, two others in Missouri being Kahoka, county seat of Clark County, and Kirksville.

This is a frivolous lawsuit by a cigar smoker with more money than sense. And the attorneys he’s retained, W. Bevis Schock and Hugh A. Eastwood, assisted by Washington University law graduate Russell Anhalt, clearly aren’t ashamed to take his money: it keeps them off the dole.

Below is the text on the KMOV-TV Channel 4 website underneath the TV story, and following that a full transcript prepared by Missouri GASP.

Clayton resident files lawsuit against smoking ban

KMOV.com
Posted on March 3, 2011 at 3:51 PM
Updated yesterday at 11:08 PM

Plaintiff Arthur Gallagher (2nd from left in foreground) and attorneys during a press conference in Shaw Park, Clayton (image from KMOV web page)



(KMOV) – A lawsuit has been filed against the City of Clayton for an ordinance recently passed that bans smoking in its city parks and garages.  The lawsuit was filed by a Clayton resident.
Arthur Gallagher says the ban is unlawful and denies him his constitutional rights.  He is asking the court to declare invalid parts of the ordinance that ban outdoor smoking because they have no rational basis.
Penalties for the ordinance carry up to a $1000 fine and 90 days in jail.
The lawsuit is also filed against Clayton Mayor Linda Goldstein, City Manager Craig Owens, Parks Director Patty DeForrest and Police Chief Thomas J. Byrne, each in their official capacities only.

Transcript:

(KMOV) – Anchor Vickie Newton in studio: Well, it’s a case that’s pitting smokers against city government. A lawsuit filed today alleges that the smoking ban in Clayton goes to far. As News 4 Jasmine Huda tells us the big issue has to do with smoking in city parks.

KMOV-TV News Channel 4 reporter, Jasmine Huda

Jasmine Huda in the studio: That’s right, and this story is generating a heated discussion on our KMOV facebook page. The question is whether a smoking ban in city parks and other venues violates your rights. One man says that the answer is yes.

Jasmine Huda (off camera): By night, the streets of Clayton were quiet, but earlier today one man was making a lot of noise.

Cigar smoker Arthur Gallagher, during press conference near Shaw Park, Clayton

“Well, yes, I can smoke on the sidewalk but, you know, why not in the park?”

Reporter Jasmine Huda (off camera, with close up of cigar being held in hand): The answer is clear to this Clayton resident and the plaintiff in the lawsuit, Arthur Gallagher. Gallagher and his attorneys say that smokers should be able to light up in places like Shaw Park.
That’s something that a recently-passed city ordinance bans. (Close-up of ordinance.)

Arthur Gallagher: “There’s a term for that and it’s “a nanny state.” It’s really the nanny state run amok. When they get down to meddling as to where I can smoke a cigar outside; when there is no conceivable secondhand smoke risk to other people.”

Jasmine Huda: Well, the City of Clayton issued this statement criticizing the methods used by the plaintiff’s attorney, noting that the attorney placed an advertisement seeking residents to serve as plaintiffs in this case. But it adds, the main purpose of the ordinance is to protect people and property, an argument that even some smokers buy.

Jasmine Huda, interviewing a smoker: You smoke.

Smoker: “Yes.”

Jasmine Huda: What are your thoughts on smoking in city parks?

Smoker: “I don’t believe you should. There should never be cigarette butts all over the park.” (Showing cigarette butts on ground in park.) Of course, it’s public property but I wouldn’t want to see cigarette butts all over the park.”

Jasmine Huda (off camera): For now, anyone caught smoking in city parks, garages, or other outdoor spots can be fined up to $1,000 and 90 days in jail. Jasmine Huda, News 4.