I saw a mailer that was sent out by Philip Morris the other day - they want to get smokers to write their legislators and protest the upcoming TAX increase. I suggest all smokers register here immediately:
http://stopthefetincrease.com

Congress is proposing yet another tax on adult smokers. This time, it would raise the cost of cigarettes by $0.61 per pack.

Tell Congress enough is enough! Take action now. Fill out the registration form here to send your email to Congress today! Or call toll-free (866) 527-4494 to speak with your legislators.

Injunction granted to end smoking at bars owned by foe of ban
The Arizona Republic
Jun. 15, 2007 05:53 PM

The smoke will finally clear from four Phoenix bars where the owner was fighting the statewide smoking ban on a technicality.

Maricopa County Superior Court Judge Pendleton Gaines on Friday granted the state's request for a preliminary injunction to stop smoking at the bars owned by Alfonso Larriva.

Larriva, the first business owner to run afoul of the smoking ban that went into effect May 1, argued that windows converted into vents with louvered slats meant his bars were not technically "enclosed areas" and therefore smoking was allowed.

Gaines was not persuaded by the semantical argument, which focused primarily on the definition of "window" and "enclosed."

"It is an effort to defend the indefensible and explain the inexplicable," he said. "I don't think you can take the glass out of a window and make it something else."

In granting the injunction, Gaines said the state has a strong likelihood of winning further arguments if the case goes to trial. The state is seeking more than $100,000 in fines for dozens of smoking violations at Larriva's four bars - Metro Sportz Bar, Boomerang, Maverick Saloon and River City Pockets.

The state argued that every day that smoking continues at those bars, Larriva's competitors could lose business and the state loses credibility.

"We are losing confidence with the public that we have the ability and are effective and can get folks subject to the law complying with the law," said Will Humble, deputy assistant director of the Arizona Department of Health Services. Humble pointed out that Larriva had sent a letter to other bar owners suggesting ways that they, too, could get around the law.

Gaines, a smoker himself, said he agreed that there was a strong public interest in stopping smoking at the bars. Voters passed the law in November, he noted, and it doesn't really matter if everyone likes it or not.

"It may be that a lot of people think it is a dumb law," Gaines said, noting that there is a price to living in a democracy.

"You either believe in a democracy or you don't believe in a democracy, but the people have spoken," he said.

In defending himself, Larriva and his attorney, Douglas Erickson, offered engineering definitions of enclosed spaces and dwelled on how the slats on the openings meant they were no longer windows but vents. Larriva also testified that other state employees with the liquor department and gaming department agreed with him that the law was stupid and that he had found a loophole.

Larriva is the only business owner that has been cited since the law went into effect, though officials have received nearly 1,500 complaints about smoking violations. Humble said that the health department has received more than 50 complaints about Larriva's businesses.

After the hearing, Larriva said that he is weighing an appeal. He is also considering how he can further modify his bars to comply with the law, such as by putting in a large door that could open up a full wall of the building.

The injunction goes into effect when signed by the judge, which is expected within the next 10 days. In the meantime, Humble said health officials will continue to visit Larriva's bars to see if they are coming into compliance and continue to issue citations.

Proposed Judicial Review in relation to the Health Act 2006 (“the HA”) and the Smoke-free (Exemptions and Vehicles) Regulations 2007 (“the Regulations”).

Freedom 2 Choose is an unfunded volunteer group of licensees and members of the public operating on donations. It is important to understand that their campaign is not about the promotion of smoking; many of the members are not and have never been smokers. Fundamentally, F2C are about fighting against injustice and erosion of freedom and personal liberties. Freedom 2 Choose has a petition of 16,500 signatures and is still growing in number with online support from public hitting about 35,000 approximately.

A pre-claim letter before action was sent on 12th June 2007 by the solicitor on behalf of Freedom2choose to The Attorney General and The Secretary of State for Health referring to a proposed judicial review of the compatibility of certain Convention rights guaranteed by the Human Rights Act 1998 (“HRA”), namely:

a) Article 1 of the First Protocol as they involve a restriction on the peaceful enjoyment of possessions. The provisions amount to a control on the use of property. Those restrictions are disproportionate.

b) Article 8 by a failure to respect the right to privacy of all those individuals who wish to make use of the facilities of public houses and social and members clubs and to smoke there and constitutes an infringement of their rights under Article 8(1) ECHR and that restriction is not justifiable. Here we rely on the decision of the Court of Appeal in R (Countryside Alliance) v Attorney General [2006] (legal challenge against fox hunting), which raises identical human rights issues. This case is currently awaiting to be heard by the House of Lords.
In simple terms, our various client groups which Freedom2Choose represent, wish to live their personal lives as they choose without interference from the State.


c) The interpretation or validity of regulation 11 of the Regulations prohibiting smoking in taxis for hire to the public. It is argued that the Regulations are unclear, ambiguous and contrary to the intention of Parliament and therefore must:
either be interpreted so that it does not prohibit the driver of the vehicle from smoking at a time when the vehicle is not, in fact, carrying members of the public or: ,if it is not capable of being so interpreted, then the Regulation is incompatible with Article 8 ECHR and Article 1 of the First Protocol.

Time Frame for Government Response to Letter before Action

We have requested a response with 14 days. In the absence of an adequate response, we shall proceed with a full legal challenge in the High Court on grounds of fundament infringement of these rights prior to 1st July 2007. This will be a legal test case with significant wider public interest.

For further information, please contact:

Jaswinder Gill
Human Rights Lawyer (0208 774 9570) Jaswinder.Gill@ormerods.co.uk
Partner
Ormerods Solicitors
15.06.07