Juneau's smoking ban stands in private clubs

Jessica M. Karmasek Jul. 13, 2011, 12:12pm


JUNEAU, Alaska (Legal Newsline) - The Alaska Supreme Court, in a ruling last month, said a citywide smoking ban does not violate a fraternal organization's First Amendment or privacy rights.

The City and Borough of Juneau has an ordinance that prohibits smoking in certain places. In March 2008, the City Assembly amended that ordinance to prohibit smoking in "private clubs" that offer food or alcoholic beverages for sale.

The Fraternal Order of Eagles, Juneau-Douglas Aerie 4200, and three of its members challenged the ban on smoking in private clubs both on its face and as applied to their facility.

The Eagles argued that the prohibition on smoking in private clubs violated both their First Amendment rights under the U.S. Constitution and their privacy rights under the Alaska Constitution.

The state's high court, in its July 1 opinion, did not agree.

Justice Dana Fabe, who authored the Court's opinion, wrote that the ban is a "regulation of conduct" that does not implicate the freedom of association under the First Amendment, and that the ban does not violate the Eagles' right to privacy under Article I, Section 22 of the Alaska Constitution.

The First Amendment, the Court noted, protects the ability to choose one's intimate associates freely, not the ability to engage in any conduct in any place so long as one is interacting with his or her intimate associates.

"Even assuming the Eagles' relationships are of the highly personal type that receive heightened constitutional protection, the ordinance does not regulate or interfere with the members' 'choices to enter into and maintain' those relationships," the Court wrote. "The ordinance does not regulate the membership of Aerie 4200 or who may associate with whom; it only regulates the conduct of members in certain places."

The Court said there is not a fundamental right of personal autonomy under the state constitution to ingest tobacco.

The smoking ban, it said, also does not violate the fundamental right to privacy in the home.

"The Eagles' arguments that the Aerie facility is 'an extension' of the members' homes and 'has many attributes of a home' are not persuasive. A home is a private residence. Private clubs, including the Aerie facility, are not homes," the Court wrote.

Further, the city's decision to ban smoking in any enclosed place that offers food or alcohol for sale, including private clubs, bears a close and substantial relationship to the public health, the Court said.

"All of Aerie 4200's members, including the smokers and the non-smokers, are harmed by exposure to second-hand smoke in the enclosed space of the Aerie facility. Their consent does not change the analysis of the city's interest in protecting their health," it wrote.

"The city has a legitimate interest in protecting the public, non-smokers and smokers alike, from the well-established dangers of second-hand tobacco smoke."

The Court affirmed a superior court order granting the City and Borough of Juneau's motion for summary judgment.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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