Arizona Can’t Roll Its Own Constitution

     PHOENIX (CN) – Arizona enacted an unconstitutional law that prohibits commercial use of “roll-your-own” tobacco machines, two nonprofit social clubs claim in Federal Court.
     The NFP Organization of Phoenix and the RYO Club of North Phoenix sued Gov. Jan Brewer, Attorney General Tom Horne and the state’s tax director to stop enforcement of Senate Bill 1312, which Brewer signed into law in June.
     The social clubs claim they were created so smokers can roll cigarettes that “contain only tobacco, and contain none of the at least 599 additives which large, commercial cigarette manufacturers add to the tobacco.”
     The clubs claim they actually protect smokers’ health.
     “The additives which large commercial manufacturers add to the tobacco in their cigarettes are, at least in part, designed to make cigarettes more addictive and to make it more difficult to quit smoking,” the lawsuits states.
     “The additives which large commercial manufacturers add to the tobacco in their cigarettes are, at least in part, designed to reduce, mask or prevent smokers’ awareness of symptoms of illness and cause them to continue to smoke even after the cigarettes have made them ill.
     “The additives which large commercial manufacturers add to the tobacco in their cigarettes result in an increase in the risk for and rate of lung cancer in smokers.”
     The clubs charge monthly fees, for which members can use their facilities, which include, “among many other things, roll-your-own machines.”
     Members insert 8 ounces of tobacco and 200 tubes into the machine, and it ejects 200 cigarettes.
     Before the enactment of SB 131, “it was much less expensive to buy 8 ounces of tobacco and a box of 200 tubes and roll them in plaintiff’s RYO machines, than it was to buy a carton of commercially produced cigarettes that contains 200 cigarettes,” the complaint states.
     The first section of SB 1312 makes it “unlawful to possess, use or make available for commercial purposes a tobacco product rolling vending machine.”
     The clubs claim the phrase “for commercial purposes” is unconstitutional vague.
     They claim the defendant attorney general “has made it clear, in no uncertain terms, and on many occasions, that if a noncommercial entity, such as plaintiffs, locates itself in a premises that is ‘commercial;’ (presumably zoned commercial), and operates an RYO machine there, such operators will be criminally prosecuted.” (Parentheses in complaint.)
     However, citing the language of the bill, the clubs say: “This subsection does not apply … if the machine is not located on a retail or other business premises.” (Ellipsis in complaint.)
     The exception makes it difficult to determine “whether the term ‘commercial purposes’ in the beginning of the statute and the term ‘a retail or other business premises’ in the exception refers to a) the manner in which an RYO machine is used, b) the nature of the entity that owns and runs the machines or c) the place where an RYO machine is used,” the clubs say.
     They also challenge three other sections of the bill as arbitrary and capricious, “because, in demanding a contribution from RYO machines to the health care costs of Arizona, it calculates the reimbursement required from RYO machine owners using a calculation developed for other items, i.e., retail commercial cigarettes, which have at least 599 additives other than tobacco and are clearly more harmful than the cigarettes that members make in RYO machines like those owned by plaintiffs.”
     State Sen. Steve Yarbrough, R-Chandler, said he sponsored the bill on behalf of the Arizona Attorney General’s Office.
     “The part that apparently is being challenged by these folks was presented to me by the Arizona Attorney’s Office as legislation to bring Arizona law in compliance with federal law,” Yarbrough said in an interview. “The folks that have these machines, I don’t remember them ever showing up down at the Legislature to oppose this bill.”
     State Sen. Bob Worsley, R-Mesa, who co-sponsored the bill, did not respond to requests for an interview.
     The bill passed the Senate by 28-1 vote, with one abstention.
     A federal law passed in July 2012 requires stores with rolling machines to get tobacco manufacturing permits, and classify their tobacco as pipe tobacco – which is taxed at a lower rate than cigarette tobacco.
     The plaintiffs want SB 1312 enjoined as a violation of due process.
     They are represented by David Finkelstein of Sarasota, Fla. and Andrew Ellis of Phoenix.

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