Respondent. PETITIONERS Vickers, UCE, Ready

SUPREME COURT DAVID VICKERS as PRESIDENT OF UPSTATE CITIZENS FOR EQUALITY, INC.; DOUG READY Petitioners, COUNTY OF ONEIDA STATE OF NEW YORK NOTICE OF PETITION Pursuant to Article 78 of NY CPLR -vs- Index No.: SUSAN BATSON or ONEIDA COUNTY S DESIGNATED ENFORCEMENT OFFICER as defined by NY PUBLIC HEALTH LAW 1399-t Respondent. MOTION BY: PETITIONERS Vickers, UCE, Ready MOTION RETURNABLE: SUPPORTING PAPERS: RELIEF REQUESTED: Verified PETITION, Affirmation of PETITIONER David Vickers, Affirmation of PETITIONER Doug Ready, MEMO OF LAW In the nature of mandamus, an ORDER to compel Oneida County s Health Department to comply with the provisions of NY Public Health Law 1399-n through 1399-x, inclusive. Oneida County is the venue of this proceeding on the basis of the location of the complained of breach of duty pursuant to CPLR 506 (b) DATED: David B. Vickers, Esq. TO: Oneida County Health Dep t. Attorney for PETITIONER and PETITIONER Respondent 244 Salt Spring Street 800 Park Avenue Fayetteville, New York 13066 Utica, New York 13501 (315)-637-5130 (315)-798-6400

SUPREME COURT COUNTY OF ONEIDA STATE OF NEW YORK DAVID VICKERS as PRESIDENT OF UPSTATE CITIZENS FOR EQUALITY, INC.; DOUG READY Petitioners, VERIFIED PETITION Pursuant to Article 78 of NY CPLR -vs- Index No.: SUSAN BATSON or ONEIDA COUNTY S DESIGNATED ENFORCEMENT OFFICER as defined by NY PUBLIC HEALTH LAW 1399-t Respondent. David B. Vickers, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalty of perjury: 1.) I am acting as the attorney for the PETITIONER Citizens group, Upstate Citizens for Equality, Inc., (UCE) a duly organized 501 c-4 organization with many thousands of members residing in Oneida County and neighboring Madison County. 2.) As President of UCE, I have standing to petition the Court because the many thousands of members of UCE who reside in Oneida County have a cognizable interest in seeing that the law is applied uniformly to all subject entities and because these same citizens have suffered and will continue to suffer harm as a result of the selective enforcement of New York State law and because there is no legislative intent to negate standing to sue an enforcement officer when that enforcement officer has failed to abide by the provisions of Article 13-E of New York s Public Health Law. 3.) The other named PETITIONER, Doug Ready, is a resident of Oneida County and asserts the same harm as outlined in Paragraph two (2) above with particularity; this PETITIONER also has standing to bring this PETITION in the nature of mandamus as his address is 3870 Sconondoa Road, Oneida, NY 13421 (Oneida County). 4.) Article 13-E (a.k.a. the smoking ban legislation) prohibits smoking in all places of employment, in all commercial establishments used for the purpose of carrying

on or exercising any trade, profession, vocation or charitable activity, and in all bingo facilities. 5.) The Turning Stone Casino Resort (TSCR) is a place of employment; the TSCR is a commercial establishment that is carrying on trade; the TSCR includes several venues to play bingo. 6.) The TSCR is subject to the provisions of New York s smoking ban legislation because the TSCR is not located on an Indian reservation and is not located on property that is otherwise designated as Indian Country pursuant to 18 USC 1151. 7.) It is unlawful for employers to fail to comply with the ban on smoking in places of employment. 8.) The TSCR is owned an operated by the Oneida Indian Nation of New York, which is the employer of approximately 4200 people at the TSCR; the Oneida Indian Nation of New York is failing to comply with Section 1399-o of the smoking ban legislation. 9.) Section 1399-t empowers each of New York State s Counties as the enforcement officers of the smoking ban legislation; each enforcement officer shall have sole jurisdiction to enforce the provisions of the smoking ban legislation. 10.) Oneida County has an enforcement officer designated to enforce the provisions of the smoking ban legislation. 11.) Susan Batson is Oneida County s enforcement officer regarding the enforcement of the smoking ban. 12.) Any person may register a complaint of a violation of the smoking ban by notifying the appropriate County enforcement officer. 13.) David Vickers notified Susan Batson via a telephone conversation and a letter that there were recurring violations of the smoking ban taking place in and throughout the TSCR; these notifications were issued throughout the months of April and May of 2005. 14.) Neither Susan Batson nor the Oneida County Department of Health has taken any action to respond to these notifications; the complainant has been ignored and there has been no hearing scheduled to determine if violations of the smoking ban have occurred at the TSCR. 15.) A hearing shall be conducted when a complaint about the violation of the smoking ban is registered. 16.) Hearings concerning the violation of the smoking ban have been conducted in Oneida County prior to April of 2005. 17.) The TSCR has not applied to Oneida County s Health Department for a waiver pursuant to Section 1399-u of the smoking ban legislation. 18.) Oneida County s Department of Health has not issued a waiver to the TSCR pursuant to Section 1399-u of the smoking ban legislation.

19.) Oneida County s Department of Health is failing to perform an official duty as required of it to perform pursuant to Article 13-E of New York State s Public Health Law. 20.) The TSCR is in violation of Article 13-E of New York State s Public Health Law and is subject to it s provisions. 21.) New York s CPLR Article 78 (7803 sub 1 and sub 3) allow the PETITIONERS to seek a Court ORDER in the nature of mandamus because Oneida County s designated enforcement officer, which the County is required to have under Section 1399-t, is not performing a clear duty imposed upon that officer and because previous decisions to hold hearings against alleged violators of the smoking ban constitute arbitrary and capricious applications of New York State law when juxtaposed to the enforcement officer s refusal to hold hearings that involve the alleged violations occurring at the TSCR. 22.) Section 1399-t sub 5 allows any person aggrieved of any relevant decision to use Article 78 of the CPLR to seek remedy. WHEREFORE, PETITIONERS request an order to compel the Oneida County Health Department to enforce the provisions of Article 13-E of New York s Public Health Law equally as against all alleged violators, which could come in the form of a statement that the County of Oneida will cease to enforce the ban on any place of employment. PETITIONERS also seek reimbursement from Oneida County to cover the associated costs and disbursements of this proceeding together with such other and further relief as the Court deems proper. DATED: David B. Vickers, Esq. Attorney for PETITIONERS 244 Salt Spring Street Fayetteville, NY 13066 (315)-637-5130

VERIFICATION I,, being duly sworn, depose and say: I am a PETITIONER in this Article 78 proceeding and I have read this PETITION and know the content thereof; the same is true to the best of my knowledge, except as to those matters stated to be upon information and belief, and as to those matters deponent believes them to be true. I further affirm, under penalty of perjury, that all information contained in that document (the PETITION) is true and accurate in all respects to the best of my knowledge and understanding. (signed) (print name here) PETITIONER Sworn to before me this day of May, 2005. Notary Public State of New York

SUPREME COURT DAVID VICKERS as PRESIDENT OF UPSTATE CITIZENS FOR EQUALITY, INC.; DOUG READY Petitioners, COUNTY OF ONEIDA STATE OF NEW YORK MEMORANDUM OF LAW IN SUPPORT OF PETITION -vs- Index No.: SUSAN BATSON or ONEIDA COUNTY S DESIGNATED ENFORCEMENT OFFICER as defined by NY PUBLIC HEALTH LAW 1399-t Respondent. QUESTION PRESENTED MEMORANDUM OF LAW Can the Court issue a Court ORDER in the nature of mandamus to compel Oneida County s designated enforcement officer (as that term is defined by Section 1399-t of Article 13-E of New York State s Public Health Law hereinafter the smoking ban ) to enforce the provisions of the smoking ban in a consistent manner? BRIEF ANSWER Yes. ISSUES A. Upstate Citizens for Equality, Inc. (UCE) has standing to bring this petition and David Vickers in his capacity as President of UCE has standing to bring this petition. B. Doug Ready as a resident of Oneida County has standing to bring this petition. C. The Turning Stone Casino Resort (TSCR) is subject to the provisions of the smoking ban.

LAW a. The TSCR is a place of employment b. The TSCR is located in Oneida County, New York State and is not located in Indian Country. D. Oneida County has an affirmative and positive duty to enforce the provisions of the smoking ban at all places of employment in Oneida County through its designated enforcement officer. E. Oneida County s smoking ban enforcement officer may not act arbitrarily or capriciously in carrying out the duty to enforce the provisions of the smoking ban. F. When Oneida County s smoking ban enforcement officer has previously acted upon the complaints of aggrieved parties by holding hearings and will not act upon the complaints alleged against the TSCR, Oneida County s smoking ban enforcement officer is acting arbitrarily and capriciously. STANDING OF PETITIONERS The issue of standing is resolved very easily in favor of PETITIONER David Vickers, PETITIONER UCE, and PETITIONER Doug Ready Petitioners must show that they have a private interest in obtaining the relief sought. Dunne v. Hartnett, 92 Misc. 2d 48, 399 N.Y.S.2d 562 (Sup. Ct. 1977), judgment affirmed on other grounds, 59 A.D.2d 1065, 399 N.Y.S.2d 552 (1 st Dep t. 1977). Here, PETITIONERS Vickers and UCE have a very legitimate private interest to pursue: the equal application of the law in New York State regardless of race or tribal affiliation. If tribal affiliation is rewarded by being treated more leniently than non-tribal affiliation, New York State has created a two-tiered legal system that is absolutely contrary to New York s own Constitution and the Constitution of the US. PETITIONER Vickers is the President of UCE, which is a civil rights organization dedicated to making sure that laws are applied equally to all residents and corporations in the various counties from which UCE draws its membership. Oneida County is the home of several thousand UCE members. The PETITIONER Doug Ready as a resident of Oneida County has a more particularized private interest in making sure that the laws of New York State are executed in an equal and fair way in Oneida County, the county of his residence. Generally, a zone of interests test is applied to determine standing in Article 78 proceedings. LaSalle Ambulance Inc. v.new York State Department of Health, 245 A.D.2d 724, 665 N.Y.S.2d 747 (3 rd Dep t. 1997). Since selective enforcement is one of the most corrosive factors in public life, it would be hard to imagine any opposition to granting standing to the PETITIONERS here as all they seek is equal application of a law that has already been applied in Oneida County. APPLICATION OF THE SMOKING BAN TO TSCR

The TSCR is located in Oneida County, New York State. The TSCR is owned and operated by the Oneida Indian Nation of New York. The TSCR employs many thousands of people. (Judicial Notice is asked for here). In order for NewYork State law to be deemed inapplicable to Indian owned businesses, those businesses must be located on Indian Country as that term is defined in 18 USC 1151. This is an aspect of federal Indian law that has been unsuccessfully challenged at least since the passage of the Indian Gaming and Regulatory Act of 1988 (See 25 USC 2701-2721 ), but it was not always the case. There are entire lines of cases in many States that clearly establish the legal principle that State Indian reservations located entirely within the ordinary jurisdiction of States are regulated by State law both criminal and civil (See State v. George Tassels, 1 Dud. 229 (1830); see also Nationals Without a Nation: The New York State Tribal Indians, Columbia Law Review 22 (1924), p. 98-99, Chief Justice Cuthbert Pound, New York State Court of Appeals; see also Report No. 319, 21 st Congress, 1 st Session, March 19, 1830). Since the TSCR is not located on an Indian reservation (either State or federal) and since the TSCR is not located on land that is otherwise defined as Indian Country, it must be located on sovereign New York State land. As such, it is subject to the same jurisdictional and regulatory provisions as is any other land that constitutes the sovereign land of New York State. The fact that the Oneida Indian Nation of New York is currently seeking to have this land put into federal trust is further evidence that it is not currently anything other than sovereign New York State land. Governor Pataki has recently asked the Bureau of Indian Affairs (BIA) to clarify the status of the land in question (See Syracuse Post-Statndard, Madison Edition Saturday, May 15, 2005.p. 1). The Governor is apparently confused by a land status question that the Supreme Court answered with abundant clarity: The land upon which the TSCR sits is not Indian Country. (City of Sherrill v. Oneida Indian Nation, Case No. 03-855 slip opinion at 6.) The Governor s confusion is irrelevant to the legal system and to Courts who long ago must have recognized that politicians are often unaware of the law and of the holdings of high Courts. ONEIDA COUNTY MUST TREAT ALL RESIDENTS AND ALL BUSINESSES EQUALLY UNDER THE LAW; TO DO LESS IS TO BE ARBITRARY AND CAPRICIOUS The language of New York s smoking ban is very clear. All places of employment in New York State must prohibit smoking. (See NY Public Health Law 1399-o). Each County must designate an enforcement officer. (Id. 1399-t) and that enforcement officer will have sole jurisdiction to issue waivers or issue civil penalties (Id.). As soon as complaints are issued by any person (Id.), the language of the law requires a hearing (Id.). Here, a complaint of a violation was sent to the enforcement officer (See Exhibit A attached to this Memo). Since that time, no action has taken place. The sole

enforcement officer may not hide behind the expected political cover that comes from passing the buck to either the County Executive or any State-wide agency. The law was written in such a way as to prevent local buck-passing (See 1399-t). The only way that Oneida County can avoid a Court ORDER to enforce the provisions of the smoking ban against alleged violations at the TSCR is to assert that the County Health Department has adopted a policy to refrain from issuing civil penalties to any alleged violator (Reference Chenango County s decision to refrain from enforcing the ban against any employers). The only discretion that the smoking ban allows for is the discretion as to what sort of civil penalty is actually imposed: Any enforcement officer may impose a civil penalty for a violation of this article in an amount not to exceed that set forth in paragraph f of subdivision one of section three hundred nine of this chapter. ( 1399-v emphasis added). It readily appears that the legislature required County Health Departments to hold hearings when allegations of violations are made, but that those hearings may result in no actual fine. What the legislature enacted was a toothless bureaucratic procedure with no mandatory minimum civil penalty. Indeed, this fact may have motivated Chenango County s Department of Health to adopt its smoking ban policy. CONCLUSION Oneida County must treat all alleged violators of the smoking ban equally. If different standards are adopted for businesses that are owned and operated by Indians when compared to standards that are in place for non-indian owned businesses, a clear case presents itself for arbitrary and capricious behavior. There are only two options open to Oneida County s Health Department: 1.) Enforce the smoking ban equally for all places of employment or 2.) Adopt a policy that after holding the required hearing, no civil penalty will be issued to any alleged violator. Given this scenario, the PETITIONERS ask the Court to issue an ORDER to Oneida County s Health Department to choose one of the only two legally appropriate options.