Opinion
No. CV 04-4000287
November 5, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' JULY 23, 2004 MOTION TO STRIKE
Pursuant to a July 23, 2004, motion and subsequent supporting memoranda, the defendants seek to strike the complaint in its entirety in this case.
The plaintiffs filed pleadings on July 9, 2004, seeking a declaratory judgment that Public Act 03-45 violates the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article 1, Section 20 of the Constitution of the State of Connecticut; seeking a temporary and permanent injunction prohibiting the enforcement of the smoking ban insofar as it applies to establishments holding liquor permits; and seeking attorneys fees under 42 U.S.C. Section 1983.
On July 23, 2004, defendants filed a Motion to Strike, seeking to strike the verified complaint in its entirety for failure to state a claim on which relief can be granted, and filed a Memorandum in Opposition to Request for Temporary Injunction. On August 20, the plaintiffs filed an Amended Verified Complaint and a Motion for Summary Judgment; on September 10, the State filed a Reply Memorandum in Support of Defendants' Motion to Strike Amended Verified Complaint. At oral argument on September 28, 2004, counsel for the plaintiffs withdrew his request for attorneys fees and stated that he had filed the Motion for Summary Judgment, to which the State has not yet replied, for procedural and technical reasons and that he was not advancing any new arguments in that motion. The Court has limited this decision to the Motion to Strike, the request for a declaratory judgment and the request for injunctive relief. The State has reserved the right to reply to the Motion for Summary Judgment if the court grants permission for it to do so. "In ruling on a motion to strike, the court is limited to the facts in the complaint." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, (1992) (Internal quotation marks omitted.) "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix, 224 Conn. 215.
If, on review of this decision, the parties wish the court to rule on the Motion for Summary Judgment, they may make such a request.
In light of previous proceedings in this case, it was agreed that oral argument would address the constitutional claims raised by plaintiffs and that the court would issue a final ruling on the merits of the plaintiffs' request for a declaratory judgment and for injunctive relief. Oral argument was held on September 28, 2004. Additional briefs were filed, at the request of the court, on October 12, 2004 and October 19, 2004. The court has reviewed the full record and all submissions.
Plaintiffs, the owner/operators of cafes and a restaurant licensed to serve alcoholic liquor, have filed an action pursuant to 42 U.S.C. Section 1983 contending that the smoking ban enacted pursuant to Public Act 03-45 violates their Equal Protection rights under the state and federal constitutions by exempting private clubs and casinos from the ban. The defendant J. Robert Galvin is the Commissioner of Public Health for the State of Connecticut. The defendant Richard Blumenthal, Esq., is the Attorney General of the State of Connecticut.
The defendants have argued that the plaintiffs have sued the wrong defendants and that the motion to strike should be granted for that reason. Defendants argue that local police authorities, not they, are responsible for enforcement of the law. Because both sides stated at oral argument on September 28, 2004, that they would like the Court to decide the substantive legal issues involved, in light of judicial economy, and to save the parties the time, expense and trouble of relitigating the case, the Court will not rule on this claim of the defendants but will address the substantive issues involved.
The defendants deny that Public Act 03-45 violates the plaintiffs' Equal Protection rights and claim that there is a rational basis for exempting certain private clubs and casinos. For the reasons stated below, the court concludes that the defendants' arguments are more persuasive, denies the plaintiffs' request for a declaratory judgment and injunctive relief, and grants the defendants' motion to strike.
Factual Background
On May 23, 2003, the General Assembly adopted 2003 Conn. Public Acts No. 03-45, "An Act Concerning Second Hand Smoke in Work Places" (the "Act"). The Act prohibits smoking in numerous public places, including state buildings, retail food stores, college dormitories, restaurants and most public establishments with alcoholic liquor permits. After passage, the Act was amended to prohibit smoking in the bar area of bowling alleys and in areas of a dog track or a facility equipped with screens for the simulcasting of off-track betting race programs or jai alai games.
The smoking ban does not affect private clubs that obtained their alcohol permits pursuant to Conn. Gen. Stat. Section 30-23 prior to May 1, 2003, but it does apply to private clubs that obtained their permit after that date. Restaurants became subject to the ban on October 1, 2003; cafes on April 1, 2004.
The purpose of the ban, as stated in Paragraph 9 of the Amended Verified Complaint of August 19, 2004, is "to protect employees of permit establishments from second hand smoke in workplaces."
Plaintiffs claim that as a consequence of the ban they have been deprived of substantial business while those businesses exempted from its reach — including private clubs and casinos — are not similarly harmed.
Plaintiffs have filed affidavits indicating that after the smoking ban, they have suffered substantial financial loss due to decreased business. See, e.g., June 28, 2004, Affidavit of Diane Batte, which states in part that "Since the imposition of the smoking ban on April 1, 2004, my daytime business has decreased 70-80% due to the loss of customers." American Cancer Society contests the claim that smoking bans cause a loss in business, claiming that "Plaintiff's assertion that their businesses were harmed and that employees lost their jobs is not consistent with national data since numerous studies demonstrate that no such harm to restaurant sales or job stability related to smoking bans exist and, in fact, data demonstrate that smoking bans decrease business-operating costs. Studies in New York City, Massachusetts, and North Carolina confirm that smoke-free laws do not harm restaurant sales." See American Cancer Society Brief at page 3. For the purpose of this ruling, the court accepts the allegations of the plaintiffs, as set out in their affidavits, as true. While it may seem logical to assume that the smoking ban has produced some loss of business, that the smoking ban caused the plaintiffs the financial losses claimed has not been proven. Nonetheless, for the purposes of deciding the pending motions only, the Court assumes that a direct causal relationship exists between the imposition of the smoking ban and losses claimed.
Plaintiffs claim that the legislature chose to exclude casinos solely because of the enormous economic strength and political power of the casinos, and that, consequently, the distinctions created in the Act are not rational.
Defendants respond that there are rational reasons for exempting private clubs and casinos from the ban. Defendants argue that if plaintiffs are disadvantaged by the Act, the proper place to seek redress is the legislature.
Legal Analysis Equal Protection
The central legal issue in this case is whether plaintiffs can establish that the smoking ban violates their Equal Protection rights under the state and federal constitutions. The burden is on the party attacking a statute's constitutionality to "negative every conceivable basis which might support it." Rayhall v. Akim Company, Inc., 263 Conn. 328, 341, 819 A.2d 803 (2003). Even if the ban puts them at a competitive disadvantage, the Court concludes that the plaintiffs cannot meet the heavy burden they carry in asking the court to enjoin the operation of a law designed to protect the health of a large number of employees, and citizens, throughout the state.
It is a fundamental proposition that proper respect for the legislature requires the courts to tread lightly when considering the constitutionality of a validly enacted statute. When a statute's constitutionality is questioned, "courts must approach it with care, and sustain the legislation unless its invalidity is clear." State v. McCahill, 261 Conn. 492, 504 (2002), rev'd, 265 Conn. 437 (2003). A validly enacted statute carries with it "a strong presumption of constitutionality [and] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt." Fleming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994). "The burden of proving unconstitutionality is especially heavy when . . . a statute is challenged as being unconstitutional on its face." State v. Higgins, 265 Conn. 35, 62, 826 A.2d 1126 (2003). Moreover, the statute being challenged here was passed with the objective of protecting and promoting the public health.
The parties in this case agree that the law in question should be subjected to "rational basis" analysis under both the federal and the state constitutions.
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution states that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Article 1, Section 20 of the Connecticut Constitution states: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability." Our Supreme Court has held that the state provision provides the same degree of protection as the federal provision. The parties agree that there is no "fundamental right" to smoke and that smokers are not a "suspect class," see Fagan v. Axelrod, 550 N.Y.S.2d 552, 559 (1990).
As defendants point out, under "rational basis" analysis, the test "is whether [a] court can conceive of a rational basis for sustaining the legislation; [it] need not have evidence that the legislature actually acted upon that basis." Donahue v. Southington, 259 Conn. 783, 796, 792 A.2d 76 (2002) (Emphasis in original.) Our Supreme Court, stressing the narrow parameters of the "rational basis" test, has stated that Equal Protection analysis "is not a license for courts to judge the wisdom, fairness or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Florestal v. Government Employees Insurance Co., 236 Conn. 299, 316, 673 A.2d 474 (1996) quoting D.A. Pincus Co. v. Meehan, 235 Conn. 865, 879, 670 A.2d 1278 (1996), and Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Consequently, the arguments raised in plaintiffs' October 18, 2004, Reply Brief to Defendants' Supplemental Brief, to the effect that defendants' concerns about enforceability are not warranted, are unpersuasive.
It is uncontested that second hand smoke, also referred to as Environmental Tobacco Smoke (ETS), presents serious health risks to those exposed to it. Clearly, there is a rational basis for the state to protect the health of its citizens — more particularly, employees — who run the risk of exposure to ETS.
The amicus brief of the American Cancer Society states as follows:
The State of Connecticut correctly assessed the hazards associated with exposure to ETS when it enacted Public Law 03-45. ETS causes lung cancer, other respiratory diseases, cardiovascular disease, and is causally linked to childhood asthma. See National Cancer Institute, Health Effects of Exposure to Environmental Tobacco Smoke: The Report of the California Environmental Protection Agency (1999), U.S. Department of Health and Human Services, Report of the Surgeon General: The Health Consequences of Involuntary Smoking (1986). Research in 1986 and two earlier Surgeon General reports note the adverse respiratory and cardiovascular effects from involuntary exposure to secondhand smoke. The 1986 and 1982 reports specifically state that involuntary smoking is a cause of disease including lung cancer in healthy non-smokers . . . In fact, exposure to ETS and active smoking is within the top three leading preventable causes of death in the United States. See S.A. Glantz, Passive Smoking and Heart Disease, Circulation 83(1): 1-12 (1991).
Representative Feltman stated as follows:
The fact is, that when a cigarette burns, only half the smoke enters the lungs of the person smoking, half goes into the air and more than that, when the smoker exhales. What goes into the air and is inhaled by those in proximity has the same sixty known carcinogens, nicotine, formaldehyde, carbon monoxide, arsenic, sulfur dioxide as that which the smoker ingests . . . Non-smoking workers in smoking workplaces ingest the equivalent of three-quarters of a pack a day. In other words, as if they, themselves, were smoking fifteen cigarettes even if a cigarette never touches their lips. That's why waiters and waitresses face twice the risk of developing lung cancer and much higher mortality rates, as if they smoked a pack a day . . . [I]nvoluntary smoking is the third leading cause of death in the United States, directly responsible for 37,000 heart disease deaths, 3,700 cases of lung cancer, and 12,000 other cancer deaths. More people die from secondhand smoke each years than die from accidents, AIDS, homicides or narcotics. In fact, it's the number one environmental cause of cancer. It's in our power to stop it and save some of the 1.25 billion we spend in Connecticut on medical costs and $870 million in lost work or productivity because of heart disease and lung cancer caused by smoking, a total of $2.1 billion of economic losses our state suffers.
46 Conn. H.R. Proc., pt. 8, 2003 Sess. (May 7, 2003) (comments of Rep. Feltman).
Numerous court decisions have upheld smoking bans that drew distinctions as to where smoking could and could not occur, acknowledging that "[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949). See also Federal Communication Commission v. Beach Communications, Inc., 508 U.S. 307, 316 (1993) ("Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others.") See also, NYC C.L.A.S.H. v. New York (S.D.N.Y. 2004) ("While it is true that the Smoking Bans do single out a particular class of persons and place some greater burden on their activities, this circumstance alone is insufficient to render the governmental action violative of the Equal Protection Clause); Justiana v. Niagara County Dept of Health, 45 F.Sup.2d 236, 242-43 (W.D.N.Y. 1999) ("Legislative classifications do not have to be a `perfect fit' for the problem they are intended to address in order to survive rational basis review. Accordingly, a legislature can address a perceived problem incrementally if in its judgment that is the best way to address the problem . . . [T]he board does not act irrationally by addressing the problems presented by ETS one step at a time — that is, by restricting smoking in some public places rather than others."); Rossie v. State Rev. Dept., 133 Wis.2d 341, 353, 395 N.W.2d 801 (Ct.App. 1986) (" The basic test is not whether some inequality results from the classification, but whether there exists any reasonable basis to justify this classification.") (Emphasis in original).
The plaintiffs cite only one case that directly supports their argument, Anchor Seafood Restaurant et al. v. Montgomery County Council et al., (Civil No. 199692, Circuit Court for Montgomery County, Maryland.) Other cases cited by plaintiffs, striking down smoking bans, were based on a separation of powers, not an Equal Protection, analysis, and therefore do not advance plaintiffs' arguments. See, e.g., Duchess/Putnam Restaurant Tavern Assn., Inc. v. Putnam County Dept. of Health, 178 F.Sup.2d 396 (S.D.N.Y. 2001); Leonard v. Dutchess County Dept. of Health, 105 F.Sup.2d 258 (S.D.N.Y. 2000).
In Anchor Seafood, Judge Harrington of the Circuit Court for Montgomery County, Maryland, concluded that a smoking ban that excluded "clubs" — by definition under Maryland law entities not operated for profit — was "arbitrary and capricious." All persons, whether at a not for profit club or a public eating establishment, are "equally vulnerable to the hazards of ETS," she concluded. "A distinction in a health regulation that fails to recognize this is arbitrary and capricious." Id. at 12.
I agree with Judge Barrington's conclusion that persons at private and public eating establishments are all exposed to the hazards of ETS, but I disagree with the conclusion she has drawn. The determinative legal issue remains whether it was arbitrary and capricious for the legislature to draw a distinction between public establishments and private ones. I conclude that Anchor Seafood was wrongfully decided.
Private Clubs
The fact that private clubs are by definition private provides a rational basis to treat them differently under the law.
As stated by Representative Art Feltman, the House sponsor of the smoking ban:
We consider these establishments to be the extension of the people's private homes. They're membership organizations, people have to pay dues to belong to them, they have fixed memberships, and its as if these people were gathering in their living rooms. And so that's why we consider this part of the private domain, not the public domain. They are not open to the public . . . The existing private clubs are not included in this bill. We consider them to be part of the private domain and what we're trying to regulate here is the public domain.
46 Conn. H.R. Proc., Pt. 8, 2003 Sess. (May 7, 2003) at 2409, 2423 (comments of Rep. Feltman); see also 46 Conn. S. Proc., Pt. 6, 2003 Sess. (April 30, 2003) at 001582-001587 (comments of Sen. Murphy).
Private clubs and associations are frequently subject to different laws and legal requirements than public locations. The law recognizes that they can be regulated differently. The legislature's decision to exempt certain private clubs from the ban is a manifestation of this.
Casinos
The fact that the State has concerns over its ability to enforce the smoking ban at the casinos provides a rational basis to exempt the casinos from the ban. That the casinos have considerable political and economic influence does not alter the required legal analysis.
The defendants note that the legislative history of Public Act 03-45 indicates that legislators had concerns over the state's ability to regulate smoking on casino property due to the legal status of the property on which the casinos are located. As stated by Rep. Feltman, casinos are "considered to be on sovereign nation status and they are not subject to the same laws as the rest of Connecticut. They're only affected by their own regulations." 46 Conn. H.R. Proc., pt. 8, 2003 Sess. (May 17, 2003) at 2440 (comments of Rep. Feltman).
The legislature had a rational basis to conclude that the State might have difficulty enforcing the smoking ban at the state's casinos. As the defendants contend in their October 12, 2004, Supplemental Brief in Support of Motion to Strike, two legitimate, interrelated concerns exist: first, that the State might lack the legal authority to apply state law to tribal members or tribal land; and second, that even if it has the authority, it might lack the means to enforce the ban.
Defendants' brief notes that "there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2587, 65 L.Ed.2d 665 (1980), cert. denied, 479 U.S. 1060, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987), and that as a consequence, "[g]eneralizations on this subject have become . . . treacherous." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). Because Indian tribes exercise inherent sovereign authority over "their members and territories," Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), they possess the power to regulate their internal and social relations. United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). Whether a state law may be applied to a tribal entity, as defendants argue, requires "a particularized inquiry into the nature of the state, federal, and tribal interests at stake." White Mountain Apache Tribe v. Bracker, supra, 448 U.S. (1980). The fact that Special Revenue agents, Liquor Control agents and state police officers have been stationed at the casinos, as noted by plaintiffs in their October 18 reply brief, does not undercut the analysis.
Assuming that the State has the legal authority to apply the smoking ban to tribal land, a separate and independent rational basis for the legislature's concern is the potential difficulties in enforcing the ban. The defendants note that a first obstacle to enforcement of the ban is the State's lack of a local presence on tribal land. New York Assn. of Convenience Stores v. Urbach, 275 App.Div.2d 520, 712 N.Y.S.2d 220 (App.Div. 2000), cert. denied, 534 U.S. 1056 (2001). A second obstacle is tribal sovereign immunity. Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). A third possible obstacle is possible federal preemption of the field. New York State Assn. of Convenience Stores v. Urbach, supra, 275 A.D., 2d 520.
For both legal reasons, and practical reasons, I conclude that there are multiple rational bases for exempting casinos from the smoking ban.
Injunctive Relief and Request for Declaratory Judgment
Plaintiffs seek an injunction preventing the Act from continuing to be in effect, and a declaratory judgment that the Act is unconstitutional. Both requests are denied.
Injunctions are extraordinary and harsh remedies which should be issued with great caution. Jones v. Foote, 165 Conn. 516, 521, 338 A.2d 467 (1973). The granting of injunctive relief is discretionary, even where danger or irreparable injury is demonstrated. Hartford v. American Arbitration Assn., 174 Conn. 472, 477, 391 A.2d 137 (1978). A party seeking an injunction must demonstrate, among other things, that there is no adequate remedy at law and that plaintiff will be subjected to imminent and irreparable harm if an injunction is not issued. Pet v. Department of Health Services, 207 Conn. 346, 370, 542 A.2d 672 (1988), rev'd, 228 Conn. 651, 638 A.2d 6 (1994). A declaratory judgment may be filed to determine the validity of a statute. Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979). In light of the court's conclusion that the plaintiffs' Equal Protection claims are without merit, the request for a declaratory judgment is denied.
Conclusion
For the above-stated reasons, the Court hereby grants the defendants' motion to strike; denies the plaintiffs' request for a declaratory judgment; and denies the plaintiffs' request for injunctive relief. The Court concludes that there are rational bases for the exemptions on private clubs and casinos. The plaintiffs ask this Court to exercise its discretion in an extraordinary way: to prevent the application of a validly enacted law whose goal is to protect employees from the effects of second hand smoke. It may indeed be that Public Act 03-45 has put the plaintiffs, and others like them, at a distinct competitive disadvantage when compared to certain private clubs and casinos. Under governing legal principles, however, if the law is unfair, it is the legislature, not this Court, which must set things right.
BY THE COURT
Douglas S. Lavine, J.