[Audrey Silk]

...(continued)

3. Native Americans File Suit Against NYS re Tax Collection

To recap, on August 8, 2008, the entire NYS Legislature passed a bill to collect cigarettes taxes from Indian reservations by requiring tobacco wholesalers to certify — under penalty of perjury — that they won’t supply cigarettes to retailers unless the packs have a legal New York state tax stamp. Wholesalers wouldn’t be able to buy from manufacturers unless they provide tax certification. Last we reported, it was still awaiting the governor's signature. That took place on December 15th. The following actions ensued:

New York judge blocks cigarette tax on Indian reservations

Legal Newsline - December 26, 2008

LegalNewsline | New York judge blocks cigarette tax on Indian reservations

A New York state judge has blocked the state's plan to collect sales tax on cigarettes sold by Indian reservations to non-tribal members. State Supreme Court Justice Rose Sconiers on Wednesday issued the temporary restraining order pending a Jan. 27 hearing.

The ruling bars state Attorney General Andrew Cuomo's office and the Department of Tax and Finance from enforcing the law "in a manner that would restrict the sale of unstamped cigarettes from being sold at wholesale to reservation cigarette sellers."

The Seneca Nation filed a lawsuit challenging the law due to take effect in February. The judge's ruling applies to all tribes in the state.

Judge issues new injunction against cigarette tax law
Indian Country Today - January 30, 2009
Judge issues new injunction against cigarette tax law | Indian Country Today | National & World News

A New York judge has extended a ban against a cigarette tax bill aimed at forcing reservation smoke shops to collect taxes for the state. The new ban extends the preliminary injunction Sconiers imposed to Dec. 24, 2009.

At a hearing Jan. 27, State Supreme Court Justice Rose Sconiers granted a new preliminary injunction that stops the state, and anyone charged with enforcing the state’s tax laws, from restricting state stamping agents from selling unstamped cigarettes to reservation cigarette sellers, or restricting reservation retailers from selling unstamped cigarettes to tribal and non-tribal members until the state Department of Taxation and Finance comes up with a viable system to distribute tax exempt coupons for sales to tribal members.

Assistant Attorney General Darren Long, who argued the state’s case, told the Associated Press the state would likely appeal the preliminary injunction. The state has until Feb. 26 to file a notice of appeal. If an appeal is brought forward, there will be oral arguments in front of a five-judge panel of the appellate court, which usually rules within 30 days.

4. Lawsuits Challenging Ban on Cigarette Sales in Pharmacies in CA - Update

To recap: San Francisco banned large chain pharmacies from selling cigarettes, effective Oct. 1, 2008. Both Walgreens and Philip Morris sued, asking for a preliminary injunction. Both motions were denied. Both appealed, each party stating it will continue its challenge on discriminatory (Walgreens) and free speech (PM) grounds. This is the latest action on both suits:

Judge upholds ban on drugstore tobacco sales

San Francisco Chronicle - December 6, 2008

Judge upholds ban on drugstore tobacco sales

San Francisco's ban on tobacco sales in drugstores doesn't violate a cigarette company's constitutional right to advertise its products, a federal judge ruled Friday in rejecting Philip Morris' attempt to halt enforcement of the ordinance.

The ordinance "prohibits conduct, tobacco sales, not speech about tobacco," said U.S. District Judge Claudia Wilken of Oakland. Her ruling spelled out her reasons for her decision at a Nov. 6 hearing to deny an injunction against the ban, which took effect Oct. 1.

Philip Morris will *appeal the ruling, said Hojoon Hwang, a lawyer for the company. He declined further comment.


*Within hours of losing its case before a federal trial judge, the nation's largest tobacco company began an appeal Friday on its challenge to the city of San Francisco's ban on tobacco sales by pharmacies. Lawyers for Richmond, Va.-based Philip Morris USA Inc. filed a notice of appeal with the 9th U.S. Circuit Court of Appeals in San Francisco Friday afternoon. The appeal before the 9th Circuit could take months to resolve. -- Philip Morris Appeals SF Tobacco Ban Ruling - cbs5.com

Walgreens Suit Against SF Tobacco Ban Tossed Out

CBS 5 - December 19, 2008

Walgreens Suit Against SF Tobacco Ban Tossed Out - cbs5.com

A San Francisco Superior Court judge Friday threw out a Walgreens lawsuit attempting to stop the city's ordinance banning tobacco sales by pharmacies.

Judge Peter Busch, who in late September also refused to allow a preliminary injunction on the ban sought by attorneys for Walgreen Co., Friday dismissed [as filed by the city in a separate Request for Dismissal] the company's lawsuit challenging the ban altogether , according to Matt Dorsey, a spokesman for the city attorney's office.

Dorsey said the decision Friday also renders Walgreens' appeal of Busch's preliminary injunction decision, currently before a state appeals court, moot. The company would now have to file a new appeal in order to continue to challenge the ordinance, he said.

"We still have appeal options that we can explore," Walgreen Co. spokeswoman Tiffani Bruce agreed.

5. New York Governor's "Soda Tax" Idea

From Freedom Works FreedomWorks | Lower Taxes, Less Government, More Freedom

"New York Governor David Paterson is proposing a budget with huge new tax increases on New Yorkers. With the economy facing difficult times, the last thing we can afford is new taxes on everything from hospitals, insurance policies, clothes and license plates – to “non diet” sodas, gross receipts and gasoline. When times were good, the politicians in Albany overspent and over promised. Now that times are not so good, they want to make you, the taxpayer, pay for their mistakes.

"Enough is enough! TAKE ACTION to send a letter to the Governor and your legislators in Albany. It’s time for the state government to live within its means, just like New York families have to do.

"Gov. Paterson’s 'obesity tax' especially offends me as someone who believes in individual liberty. According to his plan, if New Yorkers want to drink a regular soda, they will have to pay extra, regardless of whether they are “obese.” But if they want to drink a diet soda, they won’t have to pay the new tax. Who is Gov. Paterson to make moral judgments about what New Yorkers drink, and whether they should be punished by having to pay a tax? This $400 million new tax hike on regular sodas is especially ridiculous, and all New Yorkers should oppose it."



Lastly, outspoken smokers' rights advocate and assistant professor of history at a Georgia college, Jeremy Richards, has compiled what he calls a "careful examination of the developments of 2008 that paint a much more complex picture and show that things are not so bleak for our side after all."

India passed a countrywide smoking ban that is falling apart almost from the get go. It is widely ignored.
Shrugging Off Smoking Ban - washingtonpost.com

German states have recently passed smoking bans. Now we hear of much outright resistance in Germany, and the court system there has ruled against the bans.
Germans win right to light up after court ruling on smoking

The Netherlands got stuck with a smoking ban in 2008, yet it is collapsing as cafe and pub owners openly revolt. The Smokers Club, Inc. - Netherlands Een Kruisvaart tegen het Rookverbod

Loma Linda, CA's strict outdoor smoking ban is failing as the cops there will not even issue citations. This lack of enforcement appears to be common with outside bans.
The Smokers Club, Inc. - CA Loma Linda

Another report on the increasingly flouted New York City smoking ban. It seems that it is very popular to break the law in trendy spots as well as not-so-trendy places. Inside NYC's Smoking Speakeasies | Page Six Magazine | The New York Post



No Retreat, No Surrender

Audrey Silk
NYC Citizens Lobbying Against Smoker Harassment
(NYC C.L.A.S.H.)
NYC C.L.A.S.H.