Tobacco Documents Online

FROM COUINGTON & BURLING 08.08.1994 18:06 COVINGTON & BURLiNG 1201 PENNSYLVANIA AVENUE. N, W. P.O, BOX 7S66 WASH{NGTON. D.C. 200ad•7566 c2o21 662-60oo DAVID M. RtNfES DIREGT Df.L NLMbCft lLOi7 06=-3Zf;' TELCf.xa1802t56e•Ba91 re6cx1 s9-!3ss [COVLlN6 waKi eABLE: COVLiNG August 8, 1994 Richard M. Weinberg, Esquire Director and General Counsel New York City Council 75 Park Place New York, N.Y. 10007 Dear Richard r.nc LCCOMVIELD nOUiE CURZON STRELT LO.1DOti NlT d.1 LNaunD TCLE.WOtdCi O7tJ1F-nss7 Tfl,(r.R, O71.aAO•7101 nnuiiLL6 COI1Rt3ronDENT oss'ICC e~ wExut DCS aRT€ L^66LL! 1os0 /CI:.IUM TCLEPriOwC6 3s•L-512•IifD TELEPar. 72•a./O.'.. ~lsi Thanks again for meeting with us last month to discuss the Smoke-Free Air Act (Intro No. 232). Since our meeting, we have given further thought to whether the Act, in its current form, is preempted by state law. We continue to believe that the Act would not be deemed to be preempted by Article 13-E of the Public Health Law, in view of Section 1399r.3. However, additional research suggests that the provisions of the Act governing smoking in places of employment (43 17•503(6) & 504) might well be viewed as preempted by the New York State Labor Law, under the reasoning of recent court decisions invalidating local ordinances regulating vicual display terminals (VDTs) in private places of employm.cnt. Thus, in ILC Data Device Corn v. County of Suffolk , 182 App. Div. 293, 588 N.Y. S. 2d 845 (2d Dep't 1992), the Appellate Division held that Suffolk County lacked authority to regulate the use of video display terminals in places of employment because the Labor Law "preempts the field of workplace safety." jd_. at 852. Citing "the enact(ment] of the comprehensive regulatory scheme embodied in the Labor Law and the vesting of broad rule-making and enforcement authority in the Commissioner of Labor," the court ruled that "the State Legislature intended to preclude local regulation in the field of employee safety in thelworkplace." Id. at 850. The court stated ': "[T]he State Legislature intended the fiel'd of workplace safety to be exclusively occupied by the Labor Law to the extent that it is not already regulated by the Federal Occupational Safety and Health Act. In effect, the regulatory scheme set up by the Labor Law with regard to the I co IU j 0 W 0 N 0 i

FROM COUIHGiOH & BURLING 08.08.1994 18:07 CoviNGTOw & BURLINa Richard M. Weinberg, Esquire August 8, 1994 Page 2 subject of employee health and safety is so comprehensive and detailed as to render [the Suffolk County ordinance] `inconsistent' with'State law under the New York Constitution, article IX, § 2(c)(ii) and Municipal Home Rule Law S 10t1)(ii)." 588 N.Y.S.2d at 851 (citations omitted). The court added that preemption would be found even though federal and state law were silent on the precise subject addressed by the local law: "[W]here the State law preempts a particular field, such as the field of employment safety in this case, `a local law regulating the same subject matter is deemed inconsistent with the State's overriding interests because it'¢ * * prohibits conduct which the State law, although perhaps not expressly speaking to, considers acceptable or at least does not ' proscribe."' Id at 852 (quoting j.a,ny_n Mfg. Corp. v. CouM pf f olk, 524 N.Y.S. 2d 8, 10 (N.Y. 1987)). A California appellate court recently invalidated a San Francisco ordinance regulating VDTs in places of employment on similar grounds. Set C & T Manage- ment Services, Inc. v. CitX and Countv_ of San Francisco, Docket No. A057554, 16 OSHC 1329 (Cal. Ct. App. Aug. 5, 1993) (copy of decision endosed). Construing a state statute analogous to the New York State Labor Law, the court concluded that the legislature intended "to give all authority over worker health and safety to the [California Occupational Health and Safety] Board." Id_. at 1330. Philip Morris and others earlier this year filed suit challenging a San Francisco smoking-restriction ordinance on similar grounds. Philip Mmis,,lac., et al, v. City and Coun , of San Franciscn. No. 959243 (Cal. Super. Ct.) (complaint filed March 1994). Section 1399r.3 of the Public Health Law does not save the place-of-employment provisions of the Smoke-Free Air Act from preemption under the Labor Law. Section 1399r.3 provides: "Smoking may not be permitted where prohibited by any other law, rule, or regulation of any state agency or any political subdivision of the state. Nothing herein shall be construed to restrict the power of any county, city, town, or village to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this artide." It is important to note what Section 1399r.3 does and does not say. The first sentence appears to signify that smoking may not be permitted, pursuant to Article 13- E, in any place where it is prohibited by some ,Q,ther law, ordinance or regulation.

FROM COUIHGTON & BURLING 08.08.1994 18:87 COVINGTON & BURLING Richard M. Weinberg, Esquire August 8, 1994 Page 3 That is, the fact that Article 13-E might allow smoking to be permitted in a particular place does not operate to override a prohibition against smoking in that place imposed by another state or local law, ordinance or regulation. Obviously, however, to be effective, any such other law, ordinance or regulation prohibiting smoking must itself be valid. The second sentence merely specifies that "nothing herein" -- '. .t., ot ' ' Article 13-E -- shall be construed to prevent localities from adopting more stringent smoking restrictions than those imposed by Artide 13-E. The second sentence does not u o i~ localities to regulate smoking, and it does not affirm local authority to regulate smoking in the teeth of 91ba state laws that may forbid such local action. The second sentence, in short, merely clarifies that Article 13 E itself does not preempt more restrictive local smoking regulation. In sum, the provisions of the Smoke-Free Air Act purporting to regulate smoking in places of employment in New York City appear vulnerable to preemption challenge under the New York State Labor Law. We hope you will find this analysis useful as you refine the bill. Best regards. Sincerely, ~W //. RZO~ David H. Remes - Endosure cc: Mary Mastropaolo, Esquire bcc : Ms. Keane Mr. O'Connor Ms. Portnoy Ms. Simeonidis Ms. Yoe r.n4