CLAYTON • A federal judge has dismissed a lawsuit against Clayton that sought to overturn the city's ban on smoking on outdoor, city-owned property, including public parks.

"The city was confident that our ordinance was enacted properly and within the authority of municipal public health concerns," said Mayor Linda Goldstein.

Attorneys W. Bevis Schock and Hugh Eastwood filed the suit on behalf of resident Arthur Gallagher, who enjoyed smoking cigars in city parks. The suit claimed that the ordinance violated Gallagher's constitutional rights. Among the arguments, the suit said that 'smoking is a fundamental right" and asserted that smokers are persecuted and members of a legally protected class.

Schock said Monday that his client would appeal.

"It really comes down to whether the federal courts are going to hold the line where there really isn't any evidence of health benefits at all" for banning outdoor smoking, he said. "The question is whether they are going to let the members of the Board of Aldermen — who respond to fashion — infringe on our liberty.

"My client is eager to continue. He said, 'Give it all you got.'"

In his 15-page opinion, U.S. District Judge Charles Shaw dismissed the federal constitutional claims.

"The Court finds that liberty and justice would exist if smoking in the city's public parks was sacrificed," he wrote in the decision filed Friday. "The Court finds that no fundamental right is at stake."

Clayton banned smoking in most public buildings in July 2009, effective July 2010. At the urging of the parks commision and then-Alderman Alex Berger III, the city expanded the ban to include outdoor publicly owned spaces starting Jan. 1. The lawsuit was filed by Schock in March.

The outdoor ordinance bars lighting up in parks, on playgrounds and all other city-owned or leased facilities. That includes city-owned parking garages and lots. The law allows smoking on sidewalks, streets and alleys. Penalties are up to a $1,000 fine and 90 days in jail.

"We thank the court for upholding the strong consensus among Clayton residents that smoking in public places is something they want in their history, not their future," Goldstein said.