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New York’s controversial new indoor-smoking ban withstood its first constitutional challenge Tuesday, when a federal judge suggested that if the tough law is overly burdensome, it is the fault and problem of local governments and perhaps the state Health Department, but not the state Legislature. Northern District Judge Lawrence E. Kahn said that the legislation enacted March 26 is not necessarily as Draconian as opponents claim, but that localities should assume the burden placed upon them and establish reasonable enforcement criteria. So far no locality has done that, and Senate Majority Leader Joseph R. Bruno, R-Rensselaer County, has come under intense criticism for championing the new law. On Monday Kahn suggested that criticism is misdirected. Empire State Restaurant and Tavern Association v. New York State tested the constitutionality of Chapter 13 of the Laws of 2003, which regulates smoking in bars, restaurants, workplaces and many other indoor locations, including bingo halls and company-owned cars and trucks. The challenge contended that the law was unconstitutionally vague and preempted by federal law. Judge Kahn rejected both arguments. The preemption argument relied on the claim that the federal Occupational Safety & Health Administration (OSHA) regulates environmental smoke in the workplace. Kahn disagreed. “While OSHA has established standards for the regulation of a number of toxic and hazardous substances, some of which are included in tobacco smoke, OSHA has not promulgated any standards or regulations pertaining to tobacco smoke as a whole,” he wrote. “Even more telling … the United States Secretary of Labor spent a number of years exploring the issue of whether to develop national workplace tobacco smoke standards and ultimately decided not to promulgate standards.” Additionally, the plaintiffs argued that Chapter 13 was unconstitutionally vague in that it fails to adequately distinguish a “food service establishment” from a “bar.” They also targeted the so-called “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. Kahn rejected both vagueness claims. The court said the statute directs state and local health departments to seriously consider waivers, and the fact that those entities “have publicly stated a blanket refusal to consider waiver applications” suggests a neglect of delegated duty rather than a flaw in the statute. Local authorities have refused to issue waivers because there is no statewide criteria, and they are reluctant to establish local criteria, despite the legislative mandate. That in itself, the plaintiffs claim, demonstrates vagueness. Kahn said the Legislature quite clearly “showed its intent to mitigate the potentially harsh effects of the law,” and it is up to local enforcement officers and, in some instances, the state Department of Health to fulfill that intent. “Their failure to do so is a problem of enforcement and not a problem with the statute itself,” Judge Kahn said. “Plaintiffs’ proper course, it follows, is to challenge this failure to enforce the statute rather than to challenge the statute itself.” Kevin T. Mulhearn of Rockland County and George H. Lowe of Bond, Schoeneck & King in Syracuse represent the plaintiffs. Assistant Attorney General Charles J. Quackenbush appeared for the state defendants. The indoor-smoking ban is widely viewed as one of the toughest in the nation as it bans smoking in virtually all public places. Although the bill was passed by both houses of the Legislature and signed into law by Governor George E. Pataki, Bruno has weathered the bulk of the criticism, much of it coming from his normal allies, like the state Conservative Party and business groups. In recent months, Bruno has been attacked relentlessly and is currently the target of a mocking ditty that is frequently played on talk radio. Bar and restaurant owners have mounted an intense lobbying effort to repeal or revise the law.

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