RUSSEL H. BEATIE, JR.,
Plaintiff,

-against-

NEW YORK CITY, RUDOLPH GUILIANI,
as Mayor of the City of New York,
and the COUNCIL OF THE CITY OF NEW YORK,
Defendants.

COMPLAINT

Plaintiff Russel H. Beatie, Jr., acting as his own counsel in this action, for his complaint in this action alleges as follows:

1. This is a suit for declaratory judgment pursuant to the provisions of 28 United State Code 2201 and 2202.

2. Jurisdiction of this Court is founded on the presence of a federal constitutional question under the 5th and 14th Amendments to the United States Constitution and 28 United States Code 1331.

3. The jurisdiction of this Court is proper and has not been achieved by collusion in order to confer jurisdiction when it would not otherwise exist.

4. Plaintiff is a resident of the City, County, and State of New York, is a taxpayer of the City and State of New York, is a registered voter in the City and State of New York, and is aggrieved by an ordinance of the City of New York. Venue is appropriate pursuant to 28 U.S. Code 1391.

5. Defendant New York City is a municipal corporation organized and existing under the laws of the State of New York.

6. Defendant Rudolph Guiliani is an individual, is the duly elected Mayor of the City of New York, and as part of his duties and responsibilities, from time to time approves ordinances submitted to him by The Council of the City of New York.

7. Defendant The Council of the City of New York ("City Council") is the duly elected representative body of the citizens of the City and County of New York and, from time to time, passes various ordinances for submission to defendant Mayor for approval.

8. Prior to January 1, 1995, various commercial and public establishments and facilities in the City and County of New York had published and enforced their own policies on smoking and, depending on the decisions of the owners or managers, permitted, limited, or prohibited smoking in their establishments.

9. Prior to January 1, 1995, for example, facilities like Madison Square Garden, Philharmonic Hall, the Metropolitan Opera House, and a majority of restaurants had banned or restricted smoking in their main seating areas.

10. Prior to January 1, 1995, various restaurants and other dining establishments had prohibited all smoking in their dining area.

11. On information and belief, a number of potential customers of dining establishments refused to patronize restaurants which permitted cigar smoking or made public scenes in "cigar friendly" restaurants when the male patrons smoked cigars.

12. On information and belief, the management or owners of restaurants taking these matters into account, defined their smoking policies, particularly their cigar policies, as a business decision.

13. On information and belief, very few restaurants in New York City were "cigar friendly," permitted the smoking of cigars in the dining areas, or permitted cigar smoking in the bar and lounge areas.

14. Prior to January 1, 1995, a few restaurants in the City and County of New York, e.g., The Post House, The 21 Club, and Smith & Wollensky, allowed cigar smoking in any part of their establishment; and other restaurants permitted cigar smoking in their bar and lounge areas.

15. The publication Cigar Aficionado, at the beginning of the calendar year 1995, published a "Guide to Cigar Friendly Restaurants," which listed, among other things, those restaurants in the City of New York that permitted cigar smoking in one or more areas.

16. In the 1995 Edition, the "Guide" listed a total of 94 restaurants that allowed cigar smoking in any area and the far smaller number of those restaurants that permitted cigar smoking in their dining areas.

17. Prior to January 1, 1995, various right-thinking gentlemen believed that a good cigar with their meals enhanced the quality of the meal, the companionship of their fellow diners, and the overall enjoyment of restaurant dining.

18. Prior to January 1, 1995, a number of desirable women enjoyed the company of their cigar smoking male companions and understood the enhancing qualities of maleness.

19. In or about December of 1994, defendant City of New York, by defendant City Council, passed The Smoke-Free Air Act.

20. In or about January of 1995, defendant Rudolph Guiliani, as Mayor of the City of New York, approved The Smoke- Free Air Act, which, on its effective date, became an enforceable ordinance of the City of New York.

21. The Smoke-Free Air Act bans cigar smoking in, among other things, all restaurants except those with small seating capacity or secluded areas whether or not the management and owners were willing to be "cigar friendly" or permit cigar smoking in their premises.

22. In effect, the Smoke-Free Air Act denies restaurant owners and managers and others the right to make the business decision to attract cigar smokers and denies cigar smokers the right to smoke in public places.

23. The Smoke-Free Air Act contains financial penal- ties for smokers and for owners or managers of restaurants that permit cigar smoking.

24. On information and belief, The Smoke-Free Air Act was passed on the assumption that secondary cigar smoke represented a hazard to the health of the non-smoker who inhaled it.

25. On information and belief, The Smoke-Free Air Act was passed by defendant City Council and approved by defendant Mayor on the assumption that it was a reasonable exercise of the police power because it would provide for or enhance public health.

26. The Smoke-Free Air Act, as applied to cigars, is an improper exercise of the police power, violates the equal protection and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and is, therefore, unconstitutional.

27. No reasonable, rational, or reliably executed epidemiologic or scientific study has demonstrated that second- hand cigar smoke presents a health hazard to non-smokers who inhale the smoke.

28. Epidemiologic and scientific information and conclusions about the health effects of second-hand cigarette smoke do not apply to cigars because cigar smoke is chemically different and distinct from cigarette smoke.

29. Any determination that second-hand cigar smoke presents a health risk to non-smokers has no basis in science or fact.

30. The Smoke-Free Air Act, as applied to cigars, is an improper exercise of the police power, bears no rational relationship to any legitimate government interest, and is unconstitutional.

31. Plaintiff, having begun to smoke cigars in college and having smoked them over the years since then is a long-time cigar smoker, has been a self-styled connoisseur of cigars for many years, and is injured by The Smoke-Free Air Act because he is unconstitutionally prevented from smoking cigars in public restaurants that are willing to be "cigar friendly."

WHEREFORE, plaintiff respectfully demands judgment declaring The Smoke-Free Air Act, as applied to cigar smoking in restaurants, to be invalid and unenforceable; declaring that restaurants, other public places, and offices shall continue to have the power, exercised in the past, to regulate cigar smoking on their premises; awarding plaintiff the cost and disbursements of this action; and granting any other relief this Court deems proper under the circumstances.

Dated: New York, New York

May 11, 1995

By: /s/Russel H. Beatie, Jr
(RHB-4439)
599 Lexington Avenue
Suite 1300
New York, New York 10022
(212) 546-0102