De procedure in een rechtszaak tegen het rookverbod in de staat New York bereikte vorige week het federale gerechtshof. De zaak is aangespannen door de Empire State Restaurant and Tavern Association in een poging de doorlopende faillissementen in de sector te stoppen.
Veel bars en restaurants krijgen ‘waivers’ (ontheffingen) beweert de advocaat, maar die worden nogal selectief uitgedeeld. Mogen sommige bars wél failliet gaan en andere niet? Gebruiken de lokale overheden het soms om onwelgevallige bars weg te saneren?
The Empire State Restaurant and Tavern Association argued last week the ban is unconstitutional and should be overturned because the state does not give counties clear enough guidelines to grant waivers and claims the ban is duplicative because clean air standards are already set by federal law.
The state gave county health departments the power to grant waivers if business owners could prove the smoking ban caused them an undue financial hardship.
The restaurant association claims the loose state guidelines are open to different interpretations by the individual county departments, and businesses with identical financial situations could receive different treatment because they are located in different counties, which the association claims is unconstitutional.
“The first bar will likely survive; the second undoubtedly will not,” said Kevin Mulhearn on behalf of the association and Dodester’s Tavern in Onondaga County. “Can this scenario, which is really not far-fetched, have possibly been intended by the Legislature?”
“Such differences do not compel a conclusion that the statute is vague, rather, they are a consequence of a statutory scheme in which numerous state and local officials serve as law enforcement officers,” countered Assistant Attorney General Charles Quackenbush, on behalf of the state.
U.S. District Court Judge Lawrence Kahn could rule within the next two weeks.
In the 21 (out of 62) counties that do not have a health department, the state Department of Health enforces the law and is in charge of granting waivers.
According to Mulhearn’s legal papers, as of Nov. 15, the state received 111 applications and issued 34 waivers while city and county enforcement offices received 369 waiver applications and issued 131.
“So both the state and city and county enforcement officers have granted approximately one third of their waiver applications,” Mulhearn writes. “One cannot help but conclude, therefore, that the departments of health, which categorically deny all waiver applications have trampled upon the Legislature’s intent to mitigate potentially harsh effects (of the ban).”