Regulating second hand smoke using zoning

Some while back I was the “Tobacco Tzar” for King County. I was the manager of a program charged with enforcing Washington State’s smoking ban. But before that passed, we had to figure out how to make a dent in the problem of second hand smoke without the benefit of a ban. I always felt we could have tried using zoning. Before the ban passed legislators and public health folks had been outsmarted by the tobacco industry when they succeeded in preempting local governments from passing laws against smoking in public or elsewhere. I think such laws could be upended through zoning. The legal advisor who I wrote this with disagreed. So I’m not sure this entirely makes my point, and ultimately such a proposition would need testing in court. I haven’t made any edits to this in 5 years. The original was written an even longer time ago. This paper still needs work and so does the idea. But as we push for density and see an erosion of smoking bans, this approach to addressing health and safety issues is worth exploring. In any event, here it is, an artifact that might come in handy someday.

Use of Zoning Ordinances to Control Secondhand Smoke – Lori Buchsbaum and Roger Valdez

Health and safety are areas in which law making has traditionally been left to local governments.[1] Typically, local health departments have promulgated local tobacco control laws, not local zoning boards. Local laws controlling tobacco use, and in particular secondhand smoke, have been upheld in most states.[2] In other states, they have been successfully challenged on the basis of preemption when a court has found that the local government could not pass a more restrictive law than the state government.[3]

Zoning ordinances are examples of laws passed by local governments to protect the health and safety of their citizens. Since tobacco use is a health and safety concern, it can be argued that local governments should have the power to pass zoning ordinances to control the infiltration of secondhand smoke from tobacco use.

One of the most serious issues facing tobacco control is the question of how to extend the protection afforded to public places to multifamily housing. Most often these settings place smokers in close proximity to non smokers resulting in exposure to second hand smoke.

Zoning could be a unique and effective way to include prevention of harm caused by secondhand smoke in the regulation and management of local development. Building design, regulation and land use are inherently local issues and he courts have supported regulation of use by local governments. Zoning ordinances are subject to the same challenges as any local laws. Of particular relevance to tobacco prevention are legal challenges based on constitutionality or preemption. Finally, is it a violation of people’s rights to limit their behavior our use in their private residence? This last question is has both legal and cultural implications.

Constitutional Challenges

Smoking is not a constitutional right.[4] Therefore the last question is the easiest one to answer. Limiting private behavior, especially smoking, can be legal especially with regard to employment^x. Based on this argument, any law controlling the right to smoke is beyond constitutional challenge as long as it is rationally related to a legitimate government interest. This is true for local, as well as state and federal laws. Protecting residents of multifamily housing from passive smoke could easily be argued to be a rational government interest. Further, since smoking is legal but not a right limiting it in a private setting would withstand any challenge based on either an argument based on rights or the regulation of private property.

Zoning ordinances have been challenged constitutionally on First Amendment[5] and Fourteenth Amendment violations.[6] Depending on the constitutional protection in question, ordinances have been upheld if they meet one of the following tests: strict scrutiny (narrowly tailored to meet a compelling government interest),[7] intermediate scrutiny (narrowly tailored to meet a substantial government interest)[8] or rational basis (rationally related to a legitimate government interest).[9] In some cases, only the parts of an ordinance that violate a constitutional right are struck down, while the rest of the ordinance is upheld.[10]

Zoning ordinances regarding economic and social restrictions that do not involve fundamental rights have been held to be constitutional if they bear a “rational relationship to permissible state objectives,”[11] but have been held to be unconstitutional if they violate constitutional protections, are “arbitrary and unreasonable.”[13]

Preemption by State or Federal Law

The principle of preemption was originally derived from the U.S. Constitution and referred to a federal law superseding an inconsistent state law or regulation.[14] Today preemption also refers to the principle that state and/or federal laws can supersede inconsistent local laws and regulations. State preemption acts to limit “home rule,” which exists in many states. Home rule provisions grant authority to local governments to pass a broad range of local legislation, but preserve the authority of the state to legislate in areas of statewide concern.[15]

Preemption can be explicit or implicit. Explicit federal preemption occurs where Congress expressly states that the legislation being passed preempts similar legislation by a state or local government. Explicit state preemption occurs where a state legislature expressly states that the legislation being passed preempts similar legislation by a local government. Preemption is implicit under two circumstances: 1) when legislation passed by a higher branch of government completely occupies the field of regulation in question, or 2) where the local law is so inconsistent with state or federal law that is it determined to be constitutionally and statutorily invalid.[16]

Preemptive state laws were given an inadvertent boost in 1992 with the passage of the Synar Amendment, a federal law requiring states to enact and enforce youth access to tobacco laws in order to receive federal funding.[17] Preemptive state laws have been supported by tobacco companies who are worried about more stringent local regulations and have the lobbying power to impose their will at the state and federal level, thus preempting local action.[18]

To date, state laws have been held to preempt some local tobacco-related ordinances,[19] and not others.[20] The outcome of state preemption is also mixed in other areas concerning ordinances related to health and safety. Some state laws have preempted local ordinances such as building codes[21] and regulation of sales of goods related to drug use,[22] among others. In areas such as licensing of beauty shops and schools[23] and regulating the large concentrated animal feeding operations,[24] some state laws have been held not to preempt local ordinances.

Cases involving federal preemption have also had mixed outcomes. In tobacco-related cases, some local laws have been totally preempted by federal law,[25] some have been partially preempted,[26] and others have not been preempted.[27]

Conclusion

Zoning ordinances are a type of local law, and like other local laws are subject to constitutional challenges and/or challenges based on state or federal preemption. The fact that zoning is an inherently local law making power does not protect it from these challenges. As seen in the previous discussion, there is no trend in the case law to suggest that zoning ordinances will survive such challenges at a higher rate than other local laws.

However, this should not preclude the use of zoning as a mechanism to control secondhand smoke especially in multifamily housing in jurisdictions in which preemption has been removed or is not in effect. In states with tobacco-related preemption laws in place, preemption will continue to be an important consideration in, and often an impediment for, designing local zoning ordinances. Ordinances should also take into account the preemptive effect of federal tobacco laws. As with all laws, local zoning ordinances should be designed in such a way that they do not violate the constitutional rights of any affected groups or individuals. And since smoking is not a right protected implicitly or explicitly by federal or state law anywhere there does appear to be a good possibility of laws limiting smoking in private residences in which smoking harms others in the same way it does in public spaces.

Zoning ordinances have also been considered as tools for positively impacting health in areas such as obesity, nutrition and physical activity. While frequently preempted by state and federal law, tobacco prevention efforts could be advanced by careful consideration of zoning as tool to protect people from the hazards of second hand smoke in dense multifamily settings.

Endnotes

^X City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995).

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[1] Jacobsen v. Massachusetts, 197 U.S. 1 (1905); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[2] Michael B. Cabral, Smoked Out: Massachusetts Bans Smoking in Restaurants and Bars, 31 N.E. J. on Crim. & Civ. Con., 2005; Matthew A. Stinnett, A Breath of Fresh Air: A Smoking Ban’s Legal Invasion of Property Rights in Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov’t, 32 N. Ky. L. Rev. 239 (2005); City of Tucson v. Grezaffi, 23 P.3d 675 (2001); Amico’s Inc. v. Mattos, 789 A.2d 899 (2002).

[3] Alan E. Scott, The Continuing Tobacco War: State and Local Tobacco Control in Washington, 23 Seattle Univ. L. R. 1097 (2000). Also cite Pierce County case.

[4] Samantha K. Graff, There is No Constitutional Right to Smoke, Tobacco Control Legal Consortium (2005).

[5] Hill v. Colorado, 530 U.S. 703 (2000), Centerfolds, Inc. v. Town of Berlin, 352 F. Supp. 2d 183 (2004).

[6] 352 F. Supp. 2d 183, Heavy Machines Co., Inc. v. City of Roswell, 363 S.E.2d 539 (1988), Essence, Inc. v. City of Federal Heights, 285 F.3d 1272 (2002).

[7] 352 F. Supp. 2d at 190 (citing United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000)).

[8] Id. (citing Ward v. Rock Against Racism, 491 U.S. 781, 798, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989)).

[9] Bloomsburg Landlords Ass’n, Inc. v. Town of Bloomsburg, 912 F. Supp. 790, 804 (1995).

[10] 352 F. Supp. 2d 183; 285 F.3d 1272.

[11] Moore v. City of East Cleveland, 431 U.S. 494, 498-499 (1977). You may also want to look at Village of Belle Terre v. Boraas, 416 U.S. 1, 1 (1974).

[12] Id.

[13] 272 U.S. at 395.

[14] Black’s Law Dictionary, Seventh Edition (1999)

[15] Yuri Rozenfeld, Sixth Annual Issue on State Constitutional Law: Developments in State Constitutional Law: 1993, 25 Rutgers L. J. 1240 (1994).

[16] Jill Welch, Developments in State Constitutional Law: 1998: Local Government, 30 Rutgers L. J. 1548, 1554 (1999).

[17] 23 Seattle Univ. L. R. at 1106.

[18] Id. at 1105; Rosemary Henson, Larry Medina, Steve St. Clair, Doug Blanke, Larry Downs & Jerelyn Jordan, Building Healthy Communities: Clean Indoor Air: Where, Why, and How, 30 J.L. Med. & Ethics 75 (2002).

[19] E.g., Mich. Rest. Assoc. v. City of Marquette, 626 N.W.2d 418 (2001).

[20] E.g., C.I.C. Corp. v. Township of East Brunswick, 638 A.2d 812 (1994), 789 A.2d 899; Bd. of Edud. v. Cohalan, 515 N.Y.S.2d 691 (1987).

[21] Danville Fire Prot. Dist. v. Duffel Fin. & Constr. Co., 58 Cal. App. 3d 241 (1976).

[22] A & B Cattle Co. v. City of Escondido, 192 Cal. App. 3d 1032 (1987).

[23] Dep’t of Licenses and Inspections v. Weber, 147 A.2d 326 (1959).

[24] Borron v. Farrenkopf, 5 S.W.3d 618 (1999).

[25] E.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

[26] E.g., Greater N.Y. Metro. Food Council v. Giuliani, 195 F.3d 100 (1999), Jones v. Vilsack, 272 F.3d 1030 (2001).

[27] E.g., Philip Morris Inc. v. Harshbarger, 122 F.3d 58 (1997).

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