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I didn’t notice this article until going through the newspaper today before recycling it, but this is good news for the City of Clayton and it’s smoke-free air efforts, led by progressive Mayor Linda Goldstein.The original lawsuit generated a lot of publicity when it was first filed by Clayton attorney Mr. Bevis Schock, who had sought a plaintiff.
He found a willing cigar smoker in Mr. Arthur Gallagher, who responded to an ad. Following is just one of the numerous stories posted on this blog featuring a clownish photo of the group deliberately violating the new law.
(See 2011/3/3 Mo Lawyers: “Clayton smoker lights up lawsuit against ban,” posted on March 9, 2011, accompanied by the photo at left.)
Early-bird Post-Dispatch reader Mr. Bill Hannegan kicked off the reader comments at 1:28 am on December 13, 2011 with this:
“How does Arthur Gallagher smoking a cigar on a Clayton park bench threaten public health? What rational basis does such a restriction have?”
Mr. Hannegan cannot see any problem with drifting cigar smoke in a public park. If Mr. Gallagher were to wear a fish bowl over his head while puffing on his cigar I’d agree.
The lawyer is reportedly planning to appeal. Since it’s his time and money, good luck with that.
Challenge to Clayton outdoor smoking ban rejected
BY Margaret Gillerman • firstname.lastname@example.org > 314-725-6758 | Posted: Tuesday, December 13, 2011 12:05 am | Comments (24 as of December 15, 2011, 2:33 am)
CLAYTON • A federal judge has dismissed a lawsuit against Clayton that sought to overturn the city’s ban on smoking on outdoor, city-owned property, including public parks.
“The city was confident that our ordinance was enacted properly and within the authority of municipal public health concerns,” said Mayor Linda Goldstein.
Attorneys W. Bevis Schock and Hugh Eastwood filed the suit on behalf of resident Arthur Gallagher, who enjoyed smoking cigars in city parks. The suit claimed that the ordinance violated Gallagher’s constitutional rights. Among the arguments, the suit said that ‘smoking is a fundamental right” and asserted that smokers are persecuted and members of a legally protected class.
Schock said Monday that his client would appeal.
“It really comes down to whether the federal courts are going to hold the line where there really isn’t any evidence of health benefits at all” for banning outdoor smoking, he said. “The question is whether they are going to let the members of the Board of Aldermen — who respond to fashion — infringe on our liberty.
“My client is eager to continue. He said, ‘Give it all you got.'”
In his 15-page opinion, U.S. District Judge Charles Shaw dismissed the federal constitutional claims.
“The Court finds that liberty and justice would exist if smoking in the city’s public parks was sacrificed,” he wrote in the decision filed Friday. “The Court finds that no fundamental right is at stake.”
Clayton banned smoking in most public buildings in July 2009, effective July 2010. At the urging of the parks commision and then-Alderman Alex Berger III, the city expanded the ban to include outdoor publicly owned spaces starting Jan. 1. The lawsuit was filed by Schock in March.
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.
“We thank the court for upholding the strong consensus among Clayton residents that smoking in public places is something they want in their history, not their future,” Goldstein said.