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New York's Indoor Smoking Ban Withstands First Legal Challenge

New York State's ban on smoking in most workplaces, including bars, restaurants, and company cars and vans, is still standing after a legal challenge by the Empire State Restaurant and Tavern Owners Association. Challenging the law on constitutional and preemption grounds, the association claimed the wording is too vague, and the federal Occupational Safety and Health Administration already regulates the air quality in indoor workplaces. However, the U. S. District Court for the Northern District of New York disagreed on both counts.

The statewide smoking ban was enacted March 26 and went into effect July 24, 2003.

The law contains a "waiver" provision allowing local authorities to waive specific provisions of the law to prevent "undue financial hardship," or if compliance would be "unreasonable" under the circumstances. Without a statewide criterion for evaluating waiver requests, local authorities have refused to issue them. Despite the law's provision, local authorities are reluctant to establish their own criteria, which the association claimed demonstrates that the statute is too vague.

However, the court said the fact that those entities "have publicly stated a blanket refusal to consider waiver applications" may be an indication of a neglect of duty rather than a flaw in the statute. The legislature "showed its intent to mitigate the potentially harsh effects of the law," the court said, and it is up to local enforcement officers and, in some instances, the state Department of Health to fulfill that intent. According to the court, "Their failure to do so is a problem of enforcement and not a problem with the statute itself." [Empire State Restaurant and Tavern Association v. New York State, ND NY, Oct. 21, 2003.]