It’s not about smoking, it’s about constitutional guarantees!

42 tyrants and a ring leader named Bloomberg

It is saddening to see the people of one of our nation’s 13 original states, whose founding fathers were among those who pledged their “…lives, fortunes and sacred honor…” in order to secure the blessings of liberty and establish protection of individual rights associated with property, allowing 42 tyrants and a ring leader named Bloomberg, to trample upon and disregard these fundamental protections written into our constitutions, state and federal.

It is equally saddening to observe two factious groups in New York City [smokers and non-smokers] fighting amongst themselves for control over a third parties property___ one group, the anti-smoking crowd, arrogantly alleging an authoritarian power to impose regulations upon said property to suit their own personal use and enjoyment, to the exclusion of their rivals, and, with a total disregard of the owner’s inherent rights in the use of said property.

But, as I will proceed to show, neither Bloomberg or his accomplices, who violated their oath of office and conspired to support the arrogant above mentioned group, has the constitutional authority to impose the kind of regulation they have approved___ regulations which subjugate inherent individual rights associated with the ownership of the property and businesses involved.

The unconstitutional legislation reads as follows: INTRO 256-A of 2002

What is immediately apparent after reading the legislation is its discriminatory character. The legislation has been asserted to be necessary to protect the “public health“ from a hazardous substance. But in its operation, it imposes a prohibition restricting the use of privately owned businesses and property, and is not a prohibition on the asserted hazardous substance itself as was once done with another alleged injurious substance in our nations’ history [intoxicating liquors] via the 18th Amendment to the U.S. Constitution. If a similar prohibition were adopted by Bloomberg and the City Council, with regard to tobacco, as was done with intoxicating liquors, then such a ban would more fully represent the claim of protecting the “general” public health of the People of New York City.

Because of its discriminatory nature, (being directed at privately owned property and businesses), individual rights, and those rights inherent with the ownership of property, are immediately called into question. Had the legislation been limited to publicly owned buildings and property, individual rights, and those rights inherent with the ownership of private property, would not be at issue. But this is not the case, and the legislation intentionally focuses its reach beyond publicly owned buildings and property, to forbid an otherwise legal activity by individuals while on privately owned property open to the public. And so, constitutionally protected rights are legitimately raised and is the subject of this writing.

In view of the legislation not being a total prohibition of the asserted hazardous substance, the question must be asked, why is it in the public interest to prohibit smoking, as a general public health concern, in privately owned restaurants, bars, bowling establishments, pool halls, etc. , while the general public, if it so choose, is free to smoke while on public streets, in public parks, in their homes, in their cars and at countless other places? Are these people not part of the “public” and entitled to the same “health” protection from said substance?

If smoking in a privately owned restaurant filled with fifty people, patrons and employees combined (all being there at their own choice), is a danger to the “public health”, is it not likewise just as dangerous to the “public health” if the same individuals, upon leaving the protected smoke free restaurant, smoke within the confines of their privately own motor vehicles while on their way to and from work? Is their some unknown magic in the Bloomberg smoking ban by which the public health is protected and served when applied in the first instance and not in the latter, and thereby advances and protects the ‘general’ public health?

The truth is, the Bloomberg smoking ban has little to do with protecting the “general public’s health” as a priority, and concerns itself more with gaining access to and controlling privately owned businesses and property for the benefit of some, an intolerant mob, to the exclusion of others, the lovers of liberty, and in this sense the legislation is not only discriminatory, but infringes upon the rights inherent with the ownership of property which are guaranteed by the United States Constitution, and the Constitution of the State of New York.

It is said that employees working in restaurants should not have to choose between unhealthy air and earning a wage. Indeed, in a free society, it is a blessing from God for people to have the liberty to make such a choice on their own, and contract out their labor as each shall see fit, absent of government force!

The truth is, no one, not even those who are responsible for this smoking ban can honestly argue the smoking ban does not involve individual liberty and inherent rights associated with the ownership of property. What is argued by its advocates is: although the partial smoking ban involves individual rights including those associate with the ownership of property, which are admittedly protected by New York’s written Constitution, a health concern is also involved, with an alleged magnitude so great, that a clear and present danger to the health and safety of the people of New York City is at stake, and therefore, the heavy hand of government must intervene and both property rights and unalienable rights must yield to protect the “health and safety of the people of New York City”.

But this argument does not even come near the logic or merit under which ‘reasonable’ public safety laws are made. It should first be noted that ‘reasonable’ is a legal requirement for regulations which affect private property and individual rights. Such regulations may include Fire Code regulations, Building Code Regulations, Food Inspection regulations, etc., each being enacted because of an ‘imminent’ public danger___ ‘imminent’ public danger being a second factor necessary to justify ‘reasonable’ regulations.

The New York State Legislature and Legislatures of other states, have indeed enacted numerous regulations thought reasonable when an imminent public danger has been perceived. The following Florida Attorney General's opinion addresses the issue of government regulation of private property and privately owned businesses, for the "health and safety " of the people, and answers some of the important questions regarding their ‘reasonableness’ and the constitutional issues which are here involved.

Just as New York’s Legislature adopted a Clean Indoor Air Act, so have other States adopted similar laws, e.g., see the Florida Clean Indoor Air Act But unlike the Bloomberg smoking ban, Florida’s Clean Indoor Air Act was adopted with a careful eye on a perceived danger and also observed individual constitutional guarantees, and then attempted to strike that important and required balance between the two in a ‘reasonable’ fashion when a public interest collided with unalienable rights and constitutional guarantees of Citizens.

But the proponents of New York Cities’ smoking ban, an intolerant mob, were not happy with New York State’s Clean Indoor Air Act. They chose to subvert it by conspiring with the folks in New York City’s government, in order to attack a forbidden subject matter [ individual unalienable rights and rights associated with property ownership]. And now, having accomplished their goal, they plan, under color of law, to take control over privately owned businesses and property to suit their own personal use and enjoyment, and to the exclusion of the lawful owner’s inherent rights in the use of said property. In this respect, this intolerant mob has not only promoted a subversive law, but is a disgrace to what America stands for as articulated in her Constitutions, state and federal, and her birth certificate titled the Declaration of Independence

As reported in “New York Mayor Proposes Citywide Smoking Ban“ it has been publicly stated by one of Bloomberg’s accomplices [city Health Commissioner Thomas Frieden] that "Secondhand smoke kills approximately 1,000 New York City residents every year. That is why we must act now." In addition, Bloomberg himself has alleged : "Working one 8 hour shift in a smoky bar exposes one to the same amount of carcinogens as smoking half a pack of cigarettes a day,"

Reasonable people would not argue against the above assertion if that “smoky bar” were the size of a 4’ x 4’ x 8’ non-vented closet, with a smoker smoking one or two cigarettes an hour. But the result upon a wage earner working in a restaurant with a well ventilated air system and smoking and non-smoking sections, and an option to not work in the smoking section itself, is a far different matter than stated as fact by the above mentioned accomplice.

The claims of death and health impairment made by Bloomberg and his partner, Mr. Frieden, concerning passive smoke, being applied to an average restaurant are not only unsubstantiated [verification being required when enacting such legislation], but appear from a preponderance of the available evidence to be knowingly and grossly exaggerated, and done so with a willful intent to create a false illusion concerning public health as related to the activities on private property, in order to justify government control over said property without regard to the owner’s constitutionally protected rights, especially those concerning privately owned property and businesses.

It is interesting to note the essential elements which define criminality under U.S.C. Title 18: Conspiracy against rights , and, Deprivation of rights under color of law ! are quite apparent in the documented activity of the above mentioned 42 tyrants and their ring leader named Bloomberg.

As to the alleged health hazard of 2nd hand smoke, with regard to privately owned property and the liberty of individuals to contract out their labor, these issues were somewhat addressed by the court in Lochner v. New York 198 U.S. 45 (1905), in which the Court stated the following:

“It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty.” Also see HOLDEN v. HARDY, 169 U.S. 366 (1898) in which the Court stated in its conclusion:

“The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class.”

In the instant case, no substantial evidence has been documented to warrant the intrusive Bloomberg legislation which interferes with a wage earners constitutionally protected right to contract and an employer’s right to hire as discussed in the Lochner case. To be more exact, no sufficient evidence has been produced with reference to restaurants, bars, bowling establishments, pool halls and other listed places of employment, as the actual conditions therein exist, to show the legislation approved by 42 tyrants and a ring leader named Bloomberg, is warranted. On the other hand, the following documentation contradicts the fraudulent allegations made by Bloomberg and his accomplices, including city Health Commissioner Thomas Frieden:


The New England Journal of Medicine -- March 25, 1999 -- Vol. 340, No. 12

"Therefore, I regretfully conclude that we still do not know, with accuracy, how much or even whether exposure to environmental tobacco smoke increases the risk of coronary heart disease."
John C. Bailar III,
M.D., Ph.D.
University of Chicago

Exposures to second-hand smoke lower than believed, ORNL study finds

“OAK RIDGE, Tenn., Feb. 2, 2000 - Exposures to environmental tobacco smoke may be lower than earlier studies indicated for bartenders, waiters and waitresses, according to a study conducted by researchers at the Department of Energy's Oak Ridge National Laboratory (ORNL).”

The Big Lie of secondhand smoke

“The Big Lie, to be fair, didn't originate in San Francisco. It opened in Washington in the first year of the Clinton administration, 1993, with an Environmental Protection Agency report that began the civil war in saloons and restaurants. Denounced eventually in Federal Court as "corrupt science," the EPA gave the number of dead each year of lung cancer due to passive smoke as 3,000. So now it wasn't a question of choosing your own poison, you were poisoning me.

Two years later, the Congressional Research Service, an independent arm of Congress, found that there was no scientific basis for the notion that secondhand smoke endangers health. This study was demanded by Rep. Henry Waxman ,D-L.A., the leading anti-smoking advocate in Congress. When it came out the way he didn't want it to come out, he stuffed it -- and the media censored it.”

In March 1998, the World Health Organization found that “…no statistically significant risk existed for non-smokers who either lived or worked with smokers.

Asthma is not caused by smoking

In closing, I miss the city I grew up in even though I have many undesirable memories while living there. But my instinct, as a fellow New Yorker, calls upon me to help defend the liberty New York offered me, even though I may have abused it at times and paid the price. And so, this is my small contribution to all those who are now willing to place their “…lives, fortunes and sacred honor…” in harms way in order to protect the unalienable rights, freedom and liberties I remember and was blessed with as a child while growing up in in New York City.

In making your decision, please keep the following in mind :

"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."--Miranda vs Arizona [384 US 436 p. 491]

"An unconstitutional act is not law; it confers no right; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."--Norton vs Shelby County [118 US 425 p. 442]

"No one is bound to obey an unconstitutional law and no courts are bound to enforce it."-- 16 Am. Jur. Sec. 177 late 2d, Sec 256

"All laws which are repugnant to the Constitution are null and void."--Marbury vs Madison [5 US (2 Cranch) 137, 174, 176, (1803)]

Also see the rule that a Legislature “….cannot do indirectly what the Constitution prohibits directly…”Dred Scott v. Sandford

And, to those useful idiots who promoted the Bloomberg smoking ban as a “health issue”, take note of what Benjamin Franklin warned: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

John William Kurowski, Founder

American Constitutional Research Service

Seminole, Fl

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]