GUAM COURT UPHOLDS SMOKING BAN IN RESTAURANTS

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By Gina Tabonares

HAttorney GeneralATNA, Guam (Marianas Variety, Feb. 6) – A smoking ban in all dining establishments on Guam is now fully in effect after the Supreme Court of Guam dismissed the appeal of former attorney general Douglas Moylan and affirmed the constitutionality of the Natasha Protection Act.

Affirming an earlier decision of the trial court, the Supreme Court said that the Natasha Protection Act is enforceable and not unconstitutional as earlier argued by the former Attorney General.

With this development, Atty. Mike Phillips said smoking is now prohibited 24 hours in all restaurants. Bars that exclusively serve alcohol are not covered by the smoking ban while the regulation does apply to bars that double as restaurants.

Smoking would be allowed in such establishments between 10 p.m. and 4 a.m., provided they "employ an appropriate smoke ventilation device."

Establishments to be found violating the Natasha Act will be cited by law enforcers.

Moylan argued that a statute that requires public places and facilities to employ an appropriate smoke ventilation device does not conform to any local law.

He earlier said, "Since no devices can be used to meet the intent of the Natasha Protection Act, the law cannot be enforced."

The Natasha Protection Act was named after the teenage cancer patient Natasha Perez who died last year.

Atty. Phillips said that Natasha who is responsible for saving many lives and improving the quality of life for generations to come finally won her fight when the higher court validated the law.

"Natasha is definitely one of my heroes and will remain an inspiration in my personal life and legal career. I wish she had lived long enough to see the implementation of the Act. We owe her and her family great appreciation for this historic accomplishment," Phillips added.

Prior to the court’s decision, newly installed Attorney General Alicia Limtiaco dismissed the appeal that was filed by her predecessor.

Three days before the implementation of the smoking ban last year, Moylan filed his complaint for declaratory judgment and asked the court to review the legality of the Natasha Protection Act citing the law as ambiguous.

He questioned a portion of the Natasha Protection Act that cannot be enforced because it requires all establishments which permit smoking to employ an appropriate smoke ventilation device.

Arguing that there is no standard or law that could conform to the air purification devices, Moylan said the no smoking law would result in irreparable injury to Guam residents and the Government of Guam.

On May 8, 2006, a temporary restraining order was issued by Judge Anita Sukola. Subesquently, the court extended the TRO until May 22.

On May 31, the Attorney General filed a motion for preliminary injunction.

Atty. Phillips who acted as case intervenor, filed his opposition on June 5, 2006 and four days after Judge Unpingco issued a decision in his favor.

In dismissing Moylan’s motion, the court earlier ruled that the problem of the smoking device could have been settled by a simple, reasonable interpretation of the statute internally by the Department of Public Health and Social Services and Guam Environmental Protection Agency.

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