Christmas!

The Swiss National Tourist Office (CNTUR) filed in the Supreme Court (STF), the Direct Action Unconstitutional (ADI) 4249, requiring, on a preliminary basis, the temporary suspension of the effectiveness of the applicability of state law No. 13541/2009, the state of Sao Paulo, which prohibits the consumption of cigarettes and tobacco products in general environments for collective use, public or private, in that state. In substance, for a declaration of unconstitutionality of that law.

The contested law, published in the Official Gazette of the State of Sao Paulo in May 8th month and expected to take effect within 90 days, specifies in paragraph 2 of Article 2, the words "grounds for collective use", without admitting special areas for smokers.

According to the standard attack, the words "grounds for collective use" includes, among others, the work environment, development, culture, religion, leisure, sport or entertainment, common areas of condominiums, homes , theaters cinemas, bars, restaurants, nightclubs, restaurants, food courts, hotels, hostels, shopping centers, banks and the like and a number of other establishments.

Unconstitutional

The CNTUR claims that the law offends the Articles 1, IV; 5, sections I, II, XXXVI, 24, paragraphs 1, 3 and 4, sections V, VIII and XII, and also Article 170, caput and item VIII , all of the Federal Constitution. She said "it is a legislative provision, a clear usurpation of power of death and wounding principles enshrined in our democratic rule of law - such as freedom, free enterprise and proportionality, among many others - creates cogent rule forbidding that has the power to, well beyond what further (which would be lawful), to waive a federal law. "

He also argues that the severe punishment imposed by the law will directly to all categories of its affiliates (hotels, bars, restaurants and others), which constitute not only points of sale of cigarettes and other tobacco products, but also especially local which makes extensive use of these substances. According to CNTUR, the maximum penalty of closing the establishment by the offender within 30 days "means, inevitably, the closure of their activities forever."

Federal legislation

The CNTUR argues that the use of cigarettes and the like is regulated by Federal Law 9294/1996, which, however, allows "an area designed exclusively for that purpose, properly insulated and with appropriate ventilation." Moreover, she said, the aforementioned law is regulated by Decree 2018/96, which specifies a characteristic of isolated areas for smokers. Paulista already the law by not providing such areas, conflicts with federal law and Article 24 of the Federal Constitution (FC), which allows the state or municipal law differ from federal law in a matter on which to legislate concurrently.

The organization cites several precedents of the Supreme Court in support of its claim. Among them are ADIs 3645, reported by Ellen Gracie, involving a law of Parana on genetically modified organisms, and 2667, reported by the Minister Celso de Mello, involving the law of the Federal District in education.

SOURCE: FTS