UPDATE: Clayton Mayor and City Attorney React to Legal Challenge Over Smoking in Parks

The lawsuit was filed Wednesday.

Clayton resident Arthur Gallagher is seeking to have a federal judge overturn a portion of the city's ordinances that bans smoking in parks, an attorney representing him said today.

One message the lawsuit intends to convey: "Leave the people of Clayton alone," attorney Hugh Eastwood said during a news conference Thursday in Shaw Park. He and Bevis Schock are representing Gallagher, who lives in the DeMun neighborhood. Participants lit up cigars and joked openly about the stipulations of the ordinance.

The challenge was filed Wednesday in the U.S. District Court for the Eastern District of Missouri. It names the city of Clayton along with Mayor Linda Goldstein, City Manager Craig Owens, parks and recreation director Patty DeForrest and Chief Tom Byrne of the .

In a statement, Goldstein said Clayton was following the actions of hundreds of other communities when it enacted its smoking ordinance.

“The city heard ample testimony and deliberated on this issue using the precedent of many other communities that have banned smoking in public parks," Goldstein stated. "More than 478 communities have banned outdoor smoking in public parks and other public areas across the U.S. There is a widespread national trend for the effectiveness of these ordinances and for the community’s ability to protect the health of our families.”

Gallagher said he enjoys his neighborhood and wants to be left alone by the government.

"This is really the nanny state run amok," Gallagher said. He and Schock attend church together and began discussing possible action against the city about two months ago, he said.

The suit is aimed at Section 215.681 of the city's code, which states in part: "The possession of lighted or heated smoking materials in any form, including, but not limited to, the possession of lighted or heated cigarettes, cigars, pipes or other tobacco products, is prohibited in or on any property or premises owned or leased for use by the city of Clayton, including buildings, grounds, parks, playgrounds, sports arenas and facilities, playing fields, parking lots and parking structures."

The law does provide an exemption for areas "of park property designated by the city manager for smoking purposes in association with special events, if requested by the sponsor thereof."

Eastwood stressed that the suit seeks to topple the provision about smoking in parks, a section enacted after the overarching ban received approval. of its own.

Clayton-Richmond Heights Patch initially reported that the plaintiff was seeking $1,000 according to court records posted to the Web site PACER, which houses court documents. A copy of the claim provided by the attorneys in the case states that Gallagher is seeking $100.

The city's smoking ban has been discussed in recent weeks in connection with to .

Schock said there are no health risks associated with being in a park in which someone is smoking.

"To ban smoking is an improper infringement on liberty," Schock said. While many Clayton residents have expressed approval of a smoking ban, he said, the question is how far government can go.

Among the more colorful aspects of the suit: Excerpts from the Marx Brothers film Duck Soup, references to hippies gathering in parks to smoke and protest the war in Vietnam and a statement that reads "smoking outdoors is as American as apple pie and ice cream."

In a statement issued shortly after Goldstein's, City Attorney Kevin O'Keefe claims Schock took out an ad in the West End Word advertising for plaintiffs in a complaint that had already been drafted against the city. A copy of the ad, provided by O'Keefe, is attached to this article file.

"I hope Mr. Schock enjoys the publicity he so avidly seeks," O'Keefe stated. "The fact that Mr. Schock paid to advertise for a volunteer plaintiff for a suit he had written in advance and, in writing, said he would 'be paid by The City of Clayton' is a sad and embarrassing commentary on the state of the legal profession. I also believe the fact that his pleading is prefaced by the musical musings of Groucho Marx in a make-believe place is telling evidence of the merits of the case.

"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," O'Keefe stated.

Clayton-Richmond Heights Patch confirmed that the article pictured alongside the ad in the attachment was published by the West End Word. Schock also told the Riverfront Times in February that he intended to file such a lawsuit.


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