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The legality of the Juneau smoking ordinance is less hazy after Superior Court Judge Philip Pallenberg shot down a private association's assertion that it was not subject to the city smoking ban.
In its lawsuit, the Fraternal Order of Eagles claimed that the ordinance infringed on its freedom of association under the United States and Alaska constitutions, its right to privacy and claimed illegal "intrusion" by the Juneau Police Department into its private establishment in the Mendenhall Valley to enforce the ordinance. The Eagles are the only group to have challenged the ordinance in court. . . .
The 19-page decision was filed Oct. 14. Pallenberg wrote in the summary judgment that other courts have uniformly rejected claims that smoking ordinances infringe on the freedom of association under the U.S. Constitution's First Amendment.
"One could not seriously argue that application of other penal laws, such as the laws against drug possession, theft, sexual contact with minors, or prostitution, to the conduct of members within the confines of a private club infringes upon the members' freedom of association," Pallenberg wrote. "All such laws regulate the actions of the members, not their choice of the people with whom they associate. In terms of its impact on freedom of association, regulation of smoking as an activity is not different in kind from regulation of these other activities."
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Beginning Jan. 1, the tax on cigarettes will increase to $1 a pack from 30 cents. Other tobacco products will see an increase to 45 percent from 12 percent, following voters' overwhelming passage of Proposition 2 in Tuesday's municipal elections.
"I think we had a lot of smokers who voted for it. A majority of smokers want to quit. A majority of smokers don't want to smoke at any price," said Matt Felix, director of Juneau's office of the National Council on Alcohol and Drug Dependence. . . .
The unofficial vote tally was 3,366 to 2,156.
Felix's agency was the impetus for the tax hike. In July, it asked the Juneau Assembly to raise taxes on cigarettes and tobacco products to bring the city in line with tobacco taxes elsewhere in the state. The hike is expected to make a particularly acute impact on youth smokers and potential youth smokers, which voter Tom Rutecki said got him behind the tax bump.
The question of the preemption of state law by federal tobacco legislation has been addressed numerous times. Today, we address the preemption issue in the context of the doctrine of fraudulent joinder, which is invoked to achieve diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffs-appellants’ state law claims were preempted and constituted fraudulent joinder. Because the district court should have remanded the action to state court, we vacate the judgment and remand with instructions to remand the action to state court. . . .
In sum, the Altria defendants have failed to overcome the presumption against removal because Hunter’s complaint does not indicate that she has obviously failed to state a claim against ACC. Accordingly, the district court erred in concluding that ACC was fraudulently joined. The Altria defendants further have failed to establish a clear conflict between Hunter’s claim and federal law. Implied preemption therefore does not apply. Because ACC was not fraudulently joined, there was no complete diversity of citizenship, and the case should have been remanded to the state court. Appellants shall recover their costs on appeal from Appellees.
9th Circuit reinstated an Alaska widow's lawsuit against Altria Group's Philip Morris USA on behalf of her smoker-husband who died of lung cancer because her state product liability claims were not preempted by federal law.
Dolores Hunter sued on behalf of her deceased common-law husband, Benjamin Francis, but Altria and Philip Morris argued that the state claims against them and retailer Alaska Commercial could not go forward because a victory would result in the ban of sales of cigarettes in Alaska. . . .
the circuit found that Altria, failed to show a "clear conflict between Hunter's claim and federal law," and that U.S. laws "do not provide strong evidence of a federal policy against more stringent state regulation."
The three-judge panel in Anchorage sent the lawsuit back to the Alaska state court.
Joe Camel claimed victory Wednesday night as the second central Kenai Peninsula city in as many weeks failed to introduce its own proposed ban on smoking cigarettes in all public places including saloons.
Almost as if scripted, Soldotna City Council members -- including Shane Horan, who initiated the proposal -- sat mute after the ordinance was moved for introduction by Councilman Scott McLane. Failing to be seconded by any council member, the ordinance died.
Mayor Peter Micciche later told about 40 residents who came to testify for and against the ordinance that under Robert's Rules of Order, parliamentary procedure dictates that an ordinance fails if it is introduced and does not receive a second.
The proposal would have expanded Soldotna's ban on smoking in restaurants to include all workplaces and all public places, including saloons and bars in private clubs.
A week ago, the Kenai City Council failed to introduce a similar ordinance.
More than a year after the city's clean air ordinance went into effect, people on different sides of the debate continue to disagree about the success of the law that required Juneau's bars to go smoke free.
After years of debate in front of the Assembly, on Jan. 2 of last year all bars were required to ban smoking from their establishments, ushering in a fresh new era of nightlife in the capital.
Marlintini's Lounge owner Ethan Billings, a longtime opponent of the ordinance and member of the Juneau-Lynn Canal Cabaret, Hotel, Restaurant & Retailer's Association, said the smoking ban had a negative impact on his business and those of his peers'.
"Sales are down because of it," he said. "I think if you asked any bar owner that would be true."
A number of other issues came to light because of the ordinance, Billings said.
"If anybody has walked around or been in bars lately, the can see there's people outside of every bar in town, whether there is cigarette butts on the ground, loitering, causing disturbances, whatever, it's basically taking customers out of the establishments and into the sidewalks and streets. And that in turn has affected sales negatively."
Ann House, president of the Downtown Business Association, said the ordinance resulted in a number of concerning issues in the downtown business sector.
Smoking may be the main reason why heart disease is on the rise among Alaskan Inuit, according to a scientific article published in the U.S. this month.
In an article published July 10 in the online version of the journal Stroke, researchers say a recent increase in cardiovascular disease in Alaskan Inuit is "possibly attributable to higher rates of smoking."
Led by Dr. Mary Roman, a professor of medicine at Cornell University, the study team looked at arteries on each side of the neck that transport blood up to the brain.
It's been six months since the city implemented the final stages of an ordinance that required all bars to become smoke free, and a cloud of mixed feelings still lingers over the community half a year later.
Some smokers are indifferent to the change and have embraced the new clean air regulations, some nonsmokers continue to disagree with the local government's clamp-down on personal freedoms, while others have concerns about the congregations of people clogging up the sidewalks and the mosaic of cigarette butts discarded in the gutters.
While smoking a cigarette outside the Imperial Billiard & Saloon recently, Nick Fargnoli said he enjoys the bar atmosphere more since the clean air ordinance went into effect.
Flint is a wildlife biologist with the U. S. Fish and Wildlife Service. One seabird she studies is the Laysan albatross, which, thanks to a recent Greenpeace ad campaign, has become plastic pollution’s most famous victim — its poster bird, if you will. The ad shows a photograph in which a slimy casserole of bottle caps, cigarette lighters and unidentifiable plastic shards spills from the downy belly of a necropsied Laysan albatross chick. “How to starve to death on a full stomach,” the caption reads. . . .
Fleischli would have us tax the most pervasive and noxious plastic pollutants — shopping bags, plastic-foam containers, cigarette butts, plastic utensils — and put the proceeds toward cleanup and prevention measures. “We already use a portion of the gasoline tax to pay for oil spills,” Fleischli says. Such levies shouldn’t be seen as criminalizing the makers and sellers of plastic disposables, he argues; they merely force those businesses to “internalize” previously hidden costs, what economists call “externalities.” This market-based approach to environmental regulation, known as extended producer responsibility, is increasingly popular with environmental groups. By sticking others with the ecological cleaning bill, the thinking goes, businesses have been able to keep the price of disposable plastics artificially low. And as Pallister learned at Gore Point, the cleaning bill may be greater than we can afford.
Alaska’s air is less smoky than it was last decade with cigarette smoking down 20 percent from 1996 state levels.
Roughly 21 percent of Alaskans reported smoking in a new behavioral survey by the Alaska Department of Health and Social Services based on 2007 data. This number is about 27,000 people lower than 12 years ago. Fairbanks weighs in a hair above the state average with a 22 percent smoking rate, down from 26 percent a decade ago.
Smoking statewide declined most steeply among women and adults, and smoking by Alaska Native youths was chopped almost in half. Yet rates are still spiking in rural areas, among Alaska Native adults and among low-income non-Native adults. Progress varied depending on factors such as region, age, race and ethnicity and income level.
JUNEAU — Students will have to abide by new rules regarding drug, alcohol and tobacco use if they want to participate in sports and other extracurricular activities next fall.
Schools had been developing their own guidelines until now, but the Alaska School Activities Association board of directors this week adopted a statewide policy that includes penalties that are cumulative and grow progressively harsher with each violation.
More than 70 percent of the 40,000 students in Alaska participate in some kind of extracurricular activity, said Gary Matthews, ASAA executive director.
“We have something that kids want to do and that’s to be able to play. In order to be able to play we hold them to higher standards now,” . . .
The penalties range from a 10-day suspension from activities for a first offense . . . If a student is caught using tobacco during the suspension, the clock starts over. The student must complete the 10 days no matter how many times the suspension is restarted.
Smoking in a Juneau bar is now illegal. Beginning today, both smokers and bar owners could be fined for violating the ordinance that extends Juneau’s smoking ban to bars.
Life in Anchorage is going to be miserable "from now until May," said Mr. Duggan as he sat morosely on a wooden bench outside the bar one recent evening when the temperature was in the 20s. Shivering in a T-shirt as he puffed on a Camel Ultra Light, Mr. Duggan noted that at least his seat inside was safe. He had put a bar-issued placeholder with a puffin bird's image on it that read "Gone Puffin" next to his bar stool.
As Anchorage settles in for its first winter with smoke-free bars, smokers across the state's biggest city are scrambling to deal with having to light up outside. Some sneak out in their indoor clothes. Others bundle themselves up repeatedly throughout the night. Some are doing what was once unthinkable: cutting back on their habit. And Anchorage's taverns and bingo parlors are rushing to erect makeshift outdoor smoking tents, shacks and other shelters.
At the Pioneer Bar downtown, workers a few weeks ago put up a plywood shack atop cinder blocks in an adjacent parking lot. The unheated, 200-square-foot shelter has plastic strips serving as a door. . . .
More than 30 states and hundreds of cities nationwide have passed indoor-smoking bans in recent years. But the issue is particularly heated in Alaska, which has the fifth-highest smoking rate in the country -- not to mention the coldest winters. According to a 2006 survey by the Centers for Disease Control, 24% of adults in Alaska smoke, compared with a national average of 21%.
For the above reasons, negligence on the part of a clerk is, in my view, an issue of central importance in licensee sanction proceedings and a licensee is entitled to a meaningful hearing on this issue. It follows that, to the extent that AS 43.70.075(m)(1) bars such a hearing, it violates a licensee's due process rights.
The Alaska Health and Social Services Behavioral Health Director has praised the recent Alaska Supreme Court decision affirming that businesses are responsible for harm that may result from the products - in this case tobacco - they sell.
"This decision clarifies responsibilities for stakeholders in our mutual efforts to keep minors tobacco-free," Behavioral Health Director Melissa Stone said. "The decision strongly supports the Health and Social Services mission 'to promote and protect the health and well-being of Alaskans.'"
The court issued a decision on Nov. 23, 2007, upholding Alaska Statute 43.70.075 in a case involving cigarette sales to minors. The court determined that a business owner can be held . . .
The court concluded that "when an industry engages in commercial activity that routinely exposes the public to significant harm, the legislature has a legitimate interest in holding the industry's licensed participants accountable for all conduct in exercising the license, not just for the licensee's personal negligence or fault."