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Clayton faces lawsuit over outdoor smoking ban

(Rachel Lippmann/St. Louis Public Radio)
Clayton resident Arthur Gallagher (L) and his attorney Bevis Schock smoke cigars on the sidewalk near Shaw Park in Clayton. Gallagher is challenging the constitutionality of Clayton's ban on smoking in public parks.

Updated with details from press conference, comments from city officials.

Calling smoking a fundamental right in America, attorneys have filed a federal legal challenge to Clayton's ban on smoking in outdoor  public places.

"Under the law, certain things are so important in American culture and history that they become a fundamental right, and we think smoking is in that class," says attorney Bevis Schock, who filed the suit last night on behalf of Arthur Gallagher, a Clayton resident.

The law, Gallagher says, infringes on his right to enjoy a cup of coffee and a cigar in Concordia Park, near the Fontbonne University campus.

"This is the nanny state run amuck," says Gallagher. "Basically my feeling is, it’s up to me to live my life. And it’s up to me to make my decisions as to what lawful activities I engage in, where I engage in them. I really just want to be left alone by the government."

Schock says he and Gallagher attend church together (in Clayton, the attorney added), but Clayton city attorney Kevin O'Keefe says Schock advertised for a plaintiff.

"I hope Mr. Schock enjoys the publicity he so avidly seeks," O'Keefe says in a statement. "Clayton's ordinance addresses litter and unhealthy conduct on property owned by the City. The legal basis for the ordinance is strong and straightforward and is not in any way beyond the City's ability to protect its citizens and property."

Schock dismisses any health benefits.

"We have barbeque pits," he says. "The baseball fields over in Shaw Park here are right next to an intersection of Forest Park Expressway and Interstate 170 with all kinds of smog. To ban smoking is an improper infringement on liberty."

Clayton was one of the first municipalities in the region to pass a smoking ban, which took effect July 1, 2010. Less than two months later, the City Council voted to extend the ban to outdoor public places like parks. That provision took effect Jan. 1 of this year, and violations can be punished by a fine of up to $1,000 and 90 days in jail.

Rachel is the justice correspondent at St. Louis Public Radio.

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