Seneca Cigarette Seller Skirts PACT Act

BUFFALO, N.Y. -- A federal judge granted a temporary restraining allowing Red Earth dba Seneca Smokeshop, a Seneca Nation mail-order cigarette retailer, to ship tobacco products across the country to consumers without having to meet the requirements of the newly enacted Prevent All Cigarette Trafficking Act (PACT Act), reported.

District Judge Richard J. Arcara granted the motion as part of the retailer's lawsuit against the U.S. government. In its case, the retailer asked the court to declare the PACT Act unconstitutional. Arcara's order is limited, restraining the federal government from enforcing the law only against the Seneca Smokeshop and Pierce.

Seneca Smokeshop, a 10-year-old business that sells cigarettes in 46 states, is owned by Aaron J. Pierce, a member of the Seneca Nation of Indians. As part of the PACT Act, the U.S. Postal Service is banned from shipping cigarettes, while requiring remote cigarette sellers to pay all federal, state, local or tribal tobacco taxes. Retailers also have to register with the state where they are based, and make reports to state tax collection officials, the Web site reported. In addition, sellers also must verify the age and identities of customers when tobacco products are purchased and delivered.

Without the restraining order, the law would have immediately crippled the business, Lisa A. Coppola, the retailer's lawyer, said in the report.

"It's no small thing for him to lose his business entirely," Coppola told the judge during a hearing Monday afternoon in federal court, according to the report. "If this law goes in effect at midnight, it essentially closes down our client. This product my client is selling is a legal product, and that should count for something."

The restraining order was issued for 14 days, unless the court rules earlier on a motion to keep the federal government from enforcing the new law throughout duration of the lawsuit. The judge ordered both sides to return to court July 7 for a hearing on the motion, reported.

The judge found the smoke shop demonstrated it would have suffered irreparable injury without the restraining order, and ruled the retailer demonstrated a likelihood of success on the merits of its claim that the PACT Act violates various provisions of the Constitution, including the commerce clause, the 10th amendment, the due-process clause and the equal protection clause, the report stated.

In addition, Pierce's lawyers also claimed the PACT Act violates four different treaties, all signed between 1784 and 1842, granting sovereignty to the Senecas and other tribes.

"The act is overbroad, unduly burdensome and impermissibly vague," Coppola said in court papers. "Among other things, it requires out-of-state retailers [even those without a physical presence in the state] to collect the sales and use taxes of states and localities in which they have no presence."

In his written order, Arcara said he acted "in the public interest because the public favors restraining enforcement of statutes that appear to violate provisions of the Constitution."

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