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HomeMy WebLinkAboutSS4 - Smoking on Beaches and PiersCITY OF NEWPORT BEACH . CITY COUNCIL STAFF REPORT • Study Session Agenda Item No. ss4 May 25, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Office of the City Attorney Daniel K. Ohl, Deputy City Attorney, (949) 644 -3131 dohl city.newport- beach.ca.us SUBJECT: Smoking on Beaches and Piers Staff seeks direction from City Council from the following alternatives: Prepare an ordinance to prohibit smoking on City beaches and /or piers, with either passive or aggressive enforcement; or 2. Refer the issue to the Parks, Beaches and Recreation Commission for further study and public input; or • 3. Gather additional information from other jurisdictions and report back at a later date. INTRODUCTION Staff has been asked to present a report on the implications of prohibiting smoking on public beaches and /or piers. The report reviews possible benefits and implications of implementing a smoking ban, including a review of what other cities have experienced. The report also addresses input received from the Police Department and General Services Department on enforcement issues, signage and public education requirements, and estimated cost to implement such a ban. BACKGROUND At a November 2003 City Council meeting, Earth Resource members carried a plastic bag containing an estimated 10,000 discarded cigarette butts which they claimed had been collected during a cleanup at the Newport Pier. In April of 2004, high school students also appeared at Council Chambers with discarded cigarette butts they had collected. Various organizations, including Earth Resource Foundation, Stop Tobacco Abuse from Minors Pronto (STAMP), Orange County Tobacco Use Prevention Coalition have • participated in efforts to ban smoking in other jurisdictions. According the Earth Resource Foundation, more than 450,000 people in the United States die each year from tobacco related disease and more than 50,000 people in the United States die from second hand smoke. In addition, litter from cigarette butts creates debris on the beaches and is one of the commonly left litter items. Smoking on Beaches May 25, 2004 Page 2 According to the Office of the Governor of California, as of April 4, 2003, 16.6% of adults • in California smoke, while estimates from the Orange County Health Agency for smoking in Orange County are lower at 11 %. It is estimated that approximately 8 million visitors come to Newport's beaches and piers each year, and, estimating that 30% of the population are adults, an estimated, 264,000 people smoke each year on City beaches and piers (8 million, x 30 %, x 11 %). The number of cigarettes smoked on City beaches and piers creates a litter problem, in addition to the health and environmental problems created by smoking and second hand smoke. For example, on November 15, 2003, the Earth Resource Foundation claims they picked up 10,000 cigarette butts with a 165 people the day after the beach had been mechanically cleaned. This figure was significantly higher than what was recovered in Huntington Beach (4,000), San Clemente (6,000),. Laguna Beach (3,000) or Dana Point (1,000). SIMILAR BANS ON BEACHES OR PIERS Solana Beach: On October 7, 2003 the Solana Beach City Council approved an ordinance to ban smoking on their beaches and in their parks. Since this is a relatively new ordinance, there has been insufficient time to evaluate the effectiveness of the ordinance or enforcement issues. Enforcement was anticipated to be minimal or non- existence, with a goal of obtaining compliance by a public education and signage. • Seal Beach: Seal Beach has a ban on smoking on the municipal pier. The impetus for the ordinance was to prevent fires on the pier. Enforcement is done by the police department with supplemental enforcement by lifeguards. According to the Marine Safety Chief, voluntary compliance has been high with signage on the piers stating that smoking is prohibited. Hanauma Bay, Hawaii: Hanauma Bay, a well known snorkel location on Oahu in Hawaii, has instituted a smoke free beach program to protect sea turtles from ingesting cigarette butts. San Clemente: San Clemente has recently banned smoking on beaches and piers. Santa Monica: Santa Monica has recently outlawed smoking at the beach. Los Angeles: The City of Los Angeles is considering a proposal to prohibit smoking at Venice, Cabrillo, Dockweiller and Will Rogers' beaches. Huntington Beach: Huntington Beach is considering a ban on smoking. Manhattan Beach: Manhattan Beach is considering smoke free beaches. Laguna Beach: Laguna Beach is considering a ban as well. Encinitas: Encinitas voted against banning smoking on the beach. • Smoking on Beaches May 25, 2004 Page 3 • According to Narsis Kabid of the County of Orange Tobacco Use Prevention Program, the following cities in California have smoking bans in parks and recreational areas: Santa Monica (no smoking permitted in parks or beaches) Beverly Hills (no smoking permitted in parks) San Fernando (no smoking permitted in parks and recreation center) Pasadena (no smoking permitted in parks, including golf course) El Cajon (no smoking permitted in parks and recreational areas) La Puente (no smoking permitted in public places) Santa Cruz (beach, boardwalk is a non - smoking facility, considering banning on beaches) IMPLICATIONS OF BANNING SMOKING Positive: May help promote a healthy, tobacco free lifestyle by public showing support and general opposition to smoking. 2. May help reduce litter from cigarette butts on the beach, creating a more aesthetically pleasing beach. Negative • 1. May create enforcement expectations that staff, whether police, lifeguards or code enforcements, cannot manage, given their current responsibilities and staffing levels. The public may expect City staff personnel to actively enforce violations by warnings or citations, and such expectations may not be met. Either additional personnel will be needed or enforcement personnel will be diverted from other activities. The need for additional personnel may be mitigated, to some extent, by adopting a policy of limited enforcement. May have unintended consequences by displacing smokers to other public areas such as sidewalks, street ends and parking lots. Doing so may create additional problems at locations closer to storm drain openings. MUNICIPAL AND STATE CODES REGARDING SMOKING AND LITTERING Newport Beach Municipal Code Section 11.08.050 provides that no person shall throw, place, bury or otherwise dispose of non - combustible waste matter on any beach except in trashcans. A fine of $100.00 is imposed for a first violation. Newport Beach Municipal Code Section 6.25.020 prohibits smoking in public restrooms. A fine of $100.00 is imposed for violation. Smoking within 25 feet of a playground or a tot lot sandbox is prohibited by Health & • Safety Code 104495, with a fine of $250.00 for its violation. As of January 1, 2004, State law prohibits smoking inside an occupied public building, and within 20 feet of a main exit, entrance or operable window of an occupied public building. Smoking on Beaches May 25, 2004 Page 4 RIGHT TO SMOKE A question of whether or not this ban would be an infringement of a person's "right to smoke" may be raised. However, smoking is not a protected right under the Federal or State Constitution. The authority to ban smoking is expressly given in California Assembly Bill 846 and Health and Safety Code Section 104495 which authorizes cities and counties to implement smoking bans more stringent than what the state has imposed. PUBLIC EDUCATION If a smoking ban is implemented, an aggressive public education and signage program will be necessary. Press Releases, notification to renters and property owners, and the Chamber of Commerce may all assist with this. The General Services Department has estimated the cost of additional signs on the beach at $15,000 to $25,000. It may also be necessary to install cigarette butt receptacles at beach entrances, parking lots, bay beaches and street ends. The estimated cost for such receptacles is unknown at present, but estimated to be in excess of $10,000.00. Such receptacles will also have to be cleaned periodically, most likely by hand, at additional costs. BEACH CLEANING • Currently, the beaches are cleaned mechanically five times a week. During a three • month period during the summer, mid June to the end of September, mechanical beach cleaning occurs seven days a week. Some areas are very difficult to clean mechanically due to their proximity to other items such as seawalls, sidewalks, and patios. In addition, the adjoining areas are subject to street sweeping seven days a week, and litter picking and hand sweeping seven days a week as well. Bay beaches and street ends are cleaned by hand. PARTNERSHIPS To assist with the implementation of a smoking ban, partnerships with local organizations such as the Surf rider Foundation, Earth Resource Foundation and /or other local groups may be considered. Prepared & Sub itte b Daniel K. 0111, Deputy City Attorney F:\ users\ cat\ shared\ da\ CCstaffReports \SmokingOnBeach.doc • x Smoke -Free Beaches Cleaner Beaches are Safer, for their Future. S 5�1 z Why the need for a Smoke -Free Policy? Environmental Damage • Cigarettes that are not thrown onto the Pier, are usually thrown over the side of the Pier. • Cigarettes are the number one source of beach litter, and the butts are not biodegradable. (2002, Ocean Conservancy) • Marine animals and seabirds commonly swallow discarded cigarette butts, which causes starvation or malnutrition if the cigarette butts block the intestinal tract. Ingested items may also block air passage, thereby causing death. • This has affected 177 species of marine animals and 111 different species of seabirds in 2002. (2003 UN International Maritime Organization) • Tobacco litter can also leach toxic substances into water and sediment, contaminating the food supply or directly killing small animals. (2003 UN International Maritime Organization) Newport Beach Water Quality • By adopting a smoke -free policy, it could help the success of the water quality. • Storm Water & Urban Runoff Pollution (SWURP) may have a serious impact on water quality in Orange County. • The mission of the Newport Beach Urban Runoff Management / Water Quality Program is to protect and preserve the community public health and the environment through implementation of activities to reduce and eliminate urban runoff pollution from industrial, commercial, new development / construction, and residential areas that may enter the storm drainage system. • One of the goals is to provide continuous pollution prevention, public education and outreach to develop community awareness and environmental stewardship. • Pollutants from the storm drain system can harm marine life as well as coastal and wetland habitats. It can also degrade recreation areas such as beaches, harbors and bays. • The city has to follow state and federal regulations to keep storm water drains clean. (National Pollutant Discharge Elimination System) Public Policy is moving in a positive direction • AB 846: The new law, California Government Code, Sections 7596 -7598 prohibits smoking within 20 feet of a main entrance, exit and operable window of all public buildings in California, including state, county and city buildings as well as buildings on the campuses of the University of California, California State University and California Community Colleges, effective January 1, 2004. • AB 188/1867: Health and Safety code section 104495, statewide smoke -free playgrounds law that prohibits smoking and disposing of cigarettes, cigar or other tobacco - related products within 25 feet of a playground or tot lot sandbox area. (A designated play area for children.) Secondhand Smoke • Group A Carcinogen - No safe level of exposure (EPA) • Especially dangerous to children and people with respiratory ailments (e.g. asthma) • Harmful outdoors, especially in crowded settings. Secondhand smoke is heavier than air, therefore the smoke swirls and the particles fall down, they don't disintegrate. • Secondhand smoke increases the risk of heart attack in people at risk of heart disease. As little as 30- minutes exposure can have a serious and lethal effect. (CDC) Fire Risk • In the last year, the city of Santa Monica's Harbor Patrol responded to 450 cigarette related fires on the pier, with 15 of them considered substantial fires, or fires that have caused physical damage to the pier. • There have been over 125 burn holes on the Santa Monica Pier caused by smoldering cigarettes that have been discarded by the piers visitors. (05/01/03) SMPRC Staff Report) • This could be a liability to the city. It is also the reason why Seal Beach and San Clemente pier have chosen to be smoke -free. • Santa Barbara Smoking- related fires on Steams Wharf led to restricted smoking policy, may move to total ban in near future • Venice Beach Pier is completely smoke -free • Redondo Beach Pier, 1988 a fire destroyed 34,000sq.ft. of the Pier. Fifteen businesses, representing 30% of the pier's total commercial activity were destroyed. Damage to the Pier totaled over $7 million. The lost rent and sales tax revenue to the City since the Pier was destroyed in 1988 are estimated at $200,000 4250,000 annually. • Pier reconstruction was expected to be complete by fall 1994 /winter 1995. The Pier will be constructed from high strength concrete with chemically based anti - corrosion agents and specially coated reinforcing steel. • Lighting a cigarette or cigar would be an incendiary device. When someone takes a puff the heat rises to about 1100 degrees, normal burning would be above 300 degrees. With these temperatures class A fires can result from a burning cigarette. • The dried plants could catch fire from a discarded cigarette, which is an ignition source. • The trash and debris build -up contributes to the spread of an uncontrollable fire. • People do not discard of their cigarettes properly. • Number one cause of residential fires is smoking in bed. Other Cities are taking action Seal Beach (smoke -free pier) San Clemente (Beach and Pier) Solona Beach (First smoke -free beach in California) Los Angeles (unanimously approved smoke -free beaches, include: Dockweiller, Cabrillo, Will Rogers, and Venice) Venice also has smoke -free parks and pier Santa Barbara (restricted smoking policy on pier) Santa Monica (no smoking permitted in parks, pier and beaches in progress) Beverly Hills (no smoking permitted in parks) San Fernando (no smoking permitted in parks and recreation centers) Pasadena (no smoking permitted in parks) El Cajon (no smoking permitted in parks and recreational areas) El Monte (no smoking permitted in playgrounds and Tot Lots) La Puente (no smoking permitted in public places) Santa Cruz (Beach Boardwalk is a non - smoking and considering smoke -free beaches) The cities are considering smoking bans in parks and recreational areas: Hermosa Beach (Considering smoke -free beaches) Redondo Beach (Considering smoke -free beaches) Manhattan Beach (Considering smoke -free beaches) Laguna Beach (Considering smoke -free beaches) Other Outdoor Smoke -free Venues Disneyland Hollywood Bowl Los Angeles Zoo Dodger Stadium The Rose Bowl Edison Field Nonsmokers Rights According to the Centers for Disease Control (CDC), 87% of the population in Orange County does not smoke. These people have the right to clean, healthy air and safety when enjoying their beach, pier and park experience. Public Support for Smoke -Free Policy • Surveys conducted in Newport Beach at the beach clean -up show that 57% would be in favor of smoke -free outdoors. N =70 • Surveys conducted at the beach and pier show 74% would be in favor of smoke -free outdoors. N =50 Bars, Restaurants & Tourism • Studies have shown that restaurant and bar business has actually increased since smoke -free policies went into effect in California. • Sales taxes from restaurants and bars in California rose to $35 million in 2000, up from $25 million in 1995. (2002 CA DHS report) • After bars and restaurants went smoke -free, 1996 was a banner year for tourism in California. (1996 CA Trade and Commerce Agency) ■ 96% of diners are eating out the same amount or more often as a result of New York's smoke -free restaurant law. Cost • Cities such as Solana Beach, Santa Monica, Seal Beach, Venice Beach, Pasadena and Beverly Hills have found there to be no cost involved with implementing smoke -free ordinances aside from signage and installation. • Proper signage and wording has historically been followed in implementing an ordinance. Since people are familiar with California's smoking laws, enforcement has not been an issue. • The new playground law AB 188 allows violators to be subject to a fine of $250 for each violation of smoking. This would be revenue for the City of Newport Beach. • The total cost of smoking in California for 1999 (including both direct and indirect costs) is estimated to be $15.8 billion, which means $475 per California resident, or $3,333 per smoker. (The cost of smoking in California, 1999, Sacramento, CA: California Department of Health Services, 2002.) Enforcement • Any peace officer, including park rangers, police officers and code enforcement can enforce this policy and give warnings or citations. Violators can be subject to a fine of $250 for each violation of smoking • Proper signage, public education and wording have historically been to in implementing an ordinance. Since people are familiar with California's smoking laws, enforcement has not been an issue. With several outdoor recreational venues being smoke -free community members and visitors often know they are not allowed to smoke. • Cities such as Santa Monica, Beverly Hills, Pasadena and Solana Beach have an enforced policy in which violators are subject to a fine of $250 for each violation of smoking Public Education • Earth Resource Foundation and Stop Tobacco Abuse from Minors Pronto (STAMP) in collaboration with the County of Orange, Tobacco Use Prevention Program is available to provide FREE tobacco and environmental education to the city of Newport Beach. • The County of Orange, Tobacco Use Prevention Program provides FREE smoking cessation classes for adult and youth throughout the County for those wanted to quit smoking. • All Smoke -free signs posted in the city will have the smoking cession/quit smoking number 1- 866 - New -Lung. • Direct mail pieces can be mailed out to the community. Education efforts can be through local/community paper. Why Should Parks be Smoke -Free? For Kids Sake!! • Children model adult behavior • Children of parents who smoke have more colds, flus, ear infections and asthma. • Cigarette smoke has more than 4,000 chemicals in it • Cigarette butts are hazardous • Citing smokers in parks is a potential revenue to the city • It will give probable cause to officers to stop and question persons Prevention: • Cigarettes are the gateway drug (patients in rehabilitation facilities often say it is easier to quit drugs like heroin and methanphetamines than giving up cigarettes.) • Nicotine is a drug that is as addictive as cocaine and heroin. If you don't start as a teen, chances are you'll never smoke. More people die from tobacco - related illness than from AIDS, car accidents, illegal drugs, murders and suicides combined. Benefits of Smokefree Beaches Benefits of Smoking on Beaches "YES TO THE BAN" "NO TO THE BAN" 1. Reduces the number one source of litter — Cigarette butts, which are not biodegradable 2. Diminishes the number of toxins that leach into water and sediment, contaminating the food supply 3. Promotes citizen's rights to clean and healthy air and water and safety when enjoying the beach 4. Prevents animals and birds from swallowing butts which can cause death 5. Supports the youth of Newport Beach who want Smoke -free Beaches 6. Sets a good example for our children (no smoking) — 3,000 young people start smoking every day 7. Supports nonsmoking areas — over 8070 of smokers want to quit 8. People come to the beach to have fun - not to be exposed to cigarettes 9. Smoke -free beaches has strong public support - public policy should support the citizens voices 10. Adheres to state no smoking laws already in place (AB 846, AB 188/1867) 11. Assists in adherence of safe level of exposure to cigarettes, they are considered a Group A Carcinogen 12. More than 4,000 chemicals — 43 of which cause cancer — are in tobacco smoke 13. Reduces the health dangers to children and people with respiratory ailments 14. Makes it easy on your staff & economical on your budget 15. Makes for a healthier park experience allowing more people to go to the beach (asthmatics) 16. Smoke -free beaches put the city in a forwartl moving, proactive leadership position 17. Reduces the number of cigarette related fires and bum holes on the beach 18. Join other cities that are taking action 19. Support the 87% of Orange County adult residents who do not smoke 20. Respiratory aliments caused by secondhand smoke result in up to 15,000 young people ^ and children being hospitalized each year ' 21. Cost is minimal — signage and installation //■ 22. Enforcement not an issue with proper signage, wording, and education — smokers easily comply with regulations 23. Tobacco and environmental education is available for free 24. Free smoking cessation classes available 25. Smoking costs Orange County over one - half billion dollars annually ($475 per resident) 26. 3,000 deaths attributable to smoking occur yearly in Orange County (20% of all deaths) Maybe NONE ? ?? Y 27. There is NO SAFE CIGARETTE PUBLIC OHEALTH INSTITUTE Technical Assistance Legal Center There Is No Constitutional Right to Smoke' February 2004 I. INTRODUCTION Laws that limit how and where people may smoke should survive a legal challenge claiming that smoking is protected by the state or federal constitution. Smoking is not mentioned anywhere in either constitution. Nevertheless, some people may claim that there is a fundamental "right to smoke. "2 These claims are usually made in one of two ways: (1) that the fundamental right to privacy in the state or federal constitution includes the right to smoke, or (2) that clauses in the state and federal constitutions granting "equal protection" provide special protection for smokers. Neither of these claims has any legal basis. Therefore, a state or local law limiting smoking usually will be judged only on whether the law is rational, or even plausibly justified, rather than the higher legal standard applied to laws that limit special constitutionally protected rights. II. THERE IS NO FUNDAMENTAL RIGHT TO SMOKE The argument that someone has a fundamental right to smoke fails because only certain rights are protected by the constitution as fundamental, and smoking is not one of them. The U.S. Supreme Court has held that `only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty' are included in the guarantee of personal liberty." 3 These rights are related to an individual's bodily privacy and autonomy within the home. Proponents of smokers' rights often claim that smoking falls within the fundamental right to privacy, by arguing that the act of smoking is an individual and private act that government cannot invade. Courts consistently reject this argument. The privacy interest protected by the U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children 4 Very few private acts by individuals qualify as fundamental privacy interests, and smoking is not one of them.5 ' This material was made possible by funds received from the California Department of Health Services, under contract # 99- 85069. This fact sheet was created to provide general information only and is not offered or intended as legal advice. z Common usage of the term "rights" conflates two distinct legal meanings: those rights that are specially provided for or protected by law (e.g., free speech); and those rights that exist simply because no law has been passed restricting them (e.g., the right to use a cell phone while driving). The latter type of right is always subject to potential regulation. Therefore, this memo addresses only those rights provided for or protected by law. This memo also does not address whether an employer may refuse to employ someone who smokes. While prohibiting smoking at work is permissible, Cal. Labor Code §96(k) protects employees from discrimination based on off -work conduct, though one court held that this statute does not create new rights for employees but allows the state to assert an employee's independently recognized rights. Barbee v. Household Auto. Finance Corp., 113 Cal. App. 4th 525 (2003). s Roe v. Wade, 410 U.S. 113, 152 (1973). ° See, for example, Griswold v. Connecticut, 381 U.S. 479, 484 (1964) (recognizing the right of married couples to use contraceptives); Meyers v. Nebraska, 262 U.S. 390 (1923) (recognizing the right of parents to educate children 505 14" Street, Suite 810, Oakland, CA 94612 • (510) 444 -8252 • (510) 444 -8253 (fax) • talc @phi.org • http :/ /talc @phi.org Example: A firefighter trainee challenged a city fire department requirement that trainees must refrain from cigarette smoking at all times, by arguing that "although there is no specific constitutional right to smoke, [there is an] implicit ... right of liberty or privacy in the conduct of (] private life, a right to be let alone, which includes the right to smoke." b The court, however, disagreed and distinguished smoking from the recognized fundamental privacy rights.' The court went on to find that the city regulation met the fairly low standard for regulating non - fundamental rights because there was a perfectly rational reason for the regulation, namely the need for a healthy firefighting force. III. SMOKERS ARE NOT A PROTECTED GROUP OF PERSONS The second common constitutional claim made by proponents of smokers' rights is that laws regulating smoking discriminate against smokers as a particular group and thus violate the equal protection clause of the U.S. or the California constitutions. No court has been persuaded by these claims. The equal protection clauses of the United States and California constitutions, similar in scope and effect,$ guarantee that the government will not treat similar groups of people differently without a good reason.9 Certain groups of people — such as groups based on race, national origin and gender — receive greater protection against discriminatory government acts under the U.S. and California constitutions than do other groups of people.10 Smokers have never been identified as one of these protected groups." Generally, the Supreme Court requires a protected group to have "an immutable characteristic determined solely by the accident of birth. "" Smoking is not an "immutable characteristic" because people are not bom as smokers and smoking is a behavior that people can stop. Because smokers are not a protected group, laws limiting smoking must only be rationally related to a legitimate government purpose.} as they see fit); and Moore v. East Cleveland, 431 U.S. 494 (1977) (protecting the sanctity of family relationships). s City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla. 1995) (city requirement thatjob applicants affirm that they had not used tobacco in preceding year upheld because "the `right to smoke' is not included within the penumbra of fundamental rights protected under [the federal constitution's privacy provisions] "). e Grusendorfv. City of Oklahoma City, 816 F 2d 539, 541 (10th Cit. 1987). Id. The court relied heavily on the U.S. Supreme Court decision Kelley v. Johnson, 425 U.S. 238 (1976). In Kelley, the Court held that a regulation governing hair grooming for male police officers did not violate rights guaranteed under the Due Process Clause even assuming there was a liberty interest in personal appearance. s U.S. Const. amend. XIV, Cal. Const. art.1 §7. See Serrano v. Priest, 5 Cal. 3d 584, 597 n.I 1 (197 1) (plaintiffs equal protection claims under Article 1 § 1 1 and §21 of state constitution are "substantially equivalent" to claims under equal protection clause of Fourteenth Amendment of U.S. Constitution, and so the legal analysis of federal claim applies to state claim). 9 Equal protection provisions generally permit legislation that singles out a class for distinctive treatment "if such classification bears a rational relation to the purposes of the legislation." Brown v. Merlo, 8 Cal. 3d 855, 861 (1973). " See, for example, Brown v. Board of Education, 347 U.S. 483 (1954) (race); Sugarman v. Dougall, 413 U.S. 634 (1973) (exclusion of aliens from a state's competitive civil service violated equal protection clause); Craig v. Boran, 429 U.S. 190 (1976) (classifications by gender must serve important governmental objectives and must be substantially related to the achievement). " Even some potentially damaging classifications, such as those based upon age, mental disability and wealth, do not receive any special protections. See, for example, City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (mentally disabled adults are not protected under Equal Protection Clause); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973) (education and income classifications are not protected). 2 Fronliero v. Richardson, 411 U.S. 677, 686 (1973). 3 Fagan v. Axelrod, 550 N.Y.S. 2d 552, 560 (1990) (rejecting the argument that a state statute regulating tobacco smoking in public areas discriminated against members of a subordinate class of smokers on the basis of nicotine The equal protection clause not only protects certain groups of people, the clause also prohibits discrimination against certain fundamental "interests" that inherently require equal treatment. The fundamental interests protected by the equal protection clause include the right to vote, the right to be a political candidate, the right to have access to the courts for certain kinds of proceedings, and the right to migrate interstate. 10. Smoking is not one of these recognized rights. Example: In upholding a high school campus ban on smoking, a North Carolina court stated that "[t]he right to smoke in public places is not a protected right, even for adults. "15 The court upheld a school regulation that permitted smoking by teachers in the teachers' lounge but prohibited students from smoking. The smoking students claimed they were a discrete group suffering from discrimination (since teachers, another group, could smoke under the ban but students could not). The court found that the Wile did not violate equal protection principles because of rational, reasonable differences in 2rolubiting smoking by minors and not by adults. If a government classification affects an individual right that is not constitutionally protected, the classification will be upheld if there is any reasonably conceivable set of facts that could provide a rational basis for it. 16 So long as secondhand smoke regulations are enacted to farther the government goal of protecting the public's health from the dangers of tobacco smoke, the regulation should withstand judicial scrutiny if challenged. 17 IV. CONCLUSION There is no constitutional right to smoke. Claims to the contrary have no legal basis. The U.S. and California constitutions guarantee certain fundamental rights and protect certain classes of persons from all but the most compelling government regulation. However, no court has ever recognized smoking as a protected fundamental right nor has any court ever found smokers to be a protected class. To the contrary, every court that has considered the issue has declared that no fundamental "right to smoke" exists. So long as a smoking regulation is rationally related to a legitimate government objective such as protecting public health or the environment, the regulation will be upheld as constitutional. addiction by holding that "the equal protection clause does not prevent state legislatures from drawing lines that treat one class of individuals or entities differently from others, unless the difference in treatment is `palpably arbitrary' "). Note, too, that nonsmokers also are not recognized as a protected class, so equal protection claims brought by nonsmokers exposed to smoke in a place where smoking is permitted by law are unlikely to succeed. " See, for example, Baker v. Carr, 369 U.S. 186 (1962) (improper congressional redistricting violates voters' rights under equal protection); Turner v. Fouche, 396 U.S. 346 (1970) (all persons have a constitutional right to be considered for public service); Shapiro v. Thompson, 394 U.S. 618 (1969) (residency requirement for receipt of state benefits violates equal protection). SCraig v. Buncombe County Bd. ofEduc., 80 N.C.App. 683, 685 (1986). s People v. Leung, 5 Cal. App. 4th 482, 494 (1992). 17 Dutchess /Putnam Restaurant & Tavern Assn, Inc. v. Putnam County Dep't of Health, 178 F. Supp. 2d 396, 405 (N.Y. 200 1) (holding that County code regulating smoking in public places does not violate equal protection rights); City ofTuscon v. Grezajfl, 23 P.3d 675 (200 1) (upholding ordinance prohibiting smoking in bars but not in bowling alleys because it is rationally related to legitimate government interest); Operation Badlaw v. Licking County Gen. Health Dist. Bd. of Health, 866 F.Supp. 1059, 1064 -5 (Ohio 1992) (upholding ordinance prohibiting smoking except in bars and pool halls); Rossie v. State, 395 N.W.2d 801, 807 (Wis. 1986) (rejecting equal protection challenge to statute that banned smoking in government buildings but allowed it in certain restaurants). 3 Big Tobacco Sucks.. . nrmal Cruelty— Big Tobacco kills or harms thousands of animals (including dogs, cats, mice, frogs, monkeys, and rats) every year in cruel xperiments to test its products. i iId Labor — Due to Big Tobacco's refusal to pay farmers a living wage, tobacco growers rely on their children for a cheap labor source. Child bor is widespread in all major tobacco producing countries including Argentina, Brazil, China, India, Indonesia, Malawi, USA, and Zimbabwe. ii Corporate Globalization —As smoking rates in high - income countries are declining, tobacco companies have shifted their focus to markets in Ole Global South where they face fewer health and advertising regulations. The World Bank predicts that by the year 2020, 70% of those killed by %Onoking will live in developing countries. iii ological Destruction — Almost a half million acres of forest are lost to tobacco farming each year, mainly in developing countries.(il Heavy sticide use in tobacco farming poisons ground water supplies, depletes soil fertility, and harms the health of tobacco farmers.iv netic Engineering - In an effort to addict more smokers, Brown & Williamson used tobacco that had been genetically engineered to contain ce the normal level of nicotine in five of their cigarette brands. v dublic Health Epidemic — Tobacco kills 4,000,000 people every year, a statistic projected to climb to 10,000,000 by 2030, making it the leading use of death worldwide. Tobacco currently kills more people than HIV /AIDS, alcohol, drug abuse, car crashes, murders, suicides, and fires mbined. vi cial Profiling — The tobacco industry targets specific racial populations with advertising and promotions. It does this by appropriating mportant cultural movements as well as by saturating advertising markets dominated by people of color. exist Marketing — The tobacco industry exploits themes of women's liberation in order to market cigarettes to women. Today, women account for % of smoking related deaths — a proportion that has more than doubled since 1965, when the first majorwomen- targeted ad campaign egan. vii argeting GLBT Communities— In the early 1990's, R.J. Reynolds launched Project SCUM (Subculture Urban Marketing), a marketing campaign med at increasing cigarette consumption among gay people in the Castro district of San Francisco. viii Worker Exploitation — Contrary to popular belief, tobacco farming, not cotton farming, was the driving force behind the slave economy in the llid States.[il Today, three tobacco -leaf monopolies control the global market, and trap tobacco growers in a cycle of debt slavery where they e minimal profit on their crops, if any.ix www.bigtobaccosucks. org PLAJr firplb m. U,,, Vd-,: 'il nena, 'eaC':0',o'.'CW_i1.'U'<tiv:fau'n ceL=- :Mmeu'p•!eaei 95e.9ir as¢[v1SS:':�b • � 13YS o:: S:.VI. c,:J:i'nNV:.ilrta nl'�4i::4::r E>'