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Archive for December 18th, 2009

A few days ago, a friend of mine (we’ll call him T) posted this comment on his status:

YAY!! Michigan might (finally) become the 39th State in which you can go to a bar or restaurant and NOT smell like an ash tray when you leave. Sign the damn bill, Jenny!!

Several people commented, most in favor, a few against for various reasons, which prompted me to say:

Not to mention the fact that the EPA “study”on second hand smoke used to rationalize the ban in states like Washingtonistan has already been debunked as very bad science…
 
My friend replied:
 
All fictitious gov’t sponsored studies aside…If filling the air I breathe with a foreign substance is a freedom, then peeing on those that smoke is my freedom to extinguish their flames. Sounds fair, eh? It’s the by-product of my relaxing, smooth pleasure or drinking a beer, so what’s wrong with that?
I’m not sure the Founders of this great Country figured smoking as a right or a freedom. It is simply a privilege, similar to a driver’s license, but not a right or a freedom. When a non-addicted human being wants to go to a bar and enjoy his favorite local band, or maybe a soda or two with friends at the local pub, that person should have to refrain from doing so because it’s America and commerce rules over common decency?
No. Freedom infringement happens each and every time a smoker lights up and makes everyone within a given distance from them light up, too. Is that America, nah, that isn’t even Mexico (Homer Simpson). :) Nothing like forcing your lifestyle onto others around you. By the way, if smoking is so damned enjoyable, why do the smokers always squint their eyes when they take a ‘pull’? Why do they always hold the cigarette as far away from them as possible? Because it is disgusting and shouldn’t be done around others, especially those that have enough common and economic sense to not smoke.
Smoke all you want in your home, you own it. Smoke all you want in your car, you own it. No one has the right or the freedom to tell you what to do in either of those places. But, once you enter the public domain, my health and how I feel after the addicted folks cave to their habit, prevails.
That is my freedom and on May 1st, the State of Michigan will finally recognize it.
 
Another commentor started asking about her rights as a nonsmoker, and T said:
 
IT IS NOT A RIGHT!!! It never was. It may be a ‘privilege’ to deprive your own brain of oxygen but it is NOT your right to deprive mine.
Tell you what, my buddy Rach and other smokers, buy a plastic bag big enough to fit over your head. Next, light up as many cigarettes as you like, just don’t remove that bag from your head. Now, you’ll know … See Morewhat it’s like for those of us that have enough sense and will power NOT to smoke. The smooth, rich taste of tar filling your bloodstream, nose and lungs. MMMM, I’m feeling all righteous just thinking about it.
So, what about your supposed ‘rights’ as a smoker? What about the rights of every pedophile, serial murderer, drunk driver and arsonist? Why stop with smokers, let EVERYONE do whatever they please and call it their ‘right’ and their freedom to alter others’ lives as a result. I know, it sounds silly to me, too.
By the way, since smoking has no ill health effects, why the 18-year old age limit to buy cigs? Since the economy rules, why not sell to every 5 and 6 year old that is trying to emulate his/her hoarse speaking parents? All that tax revenue and no one gets hurt? Sounds like a win/win to me!!
 
Being outside counsel to roughly 50 or so businesses, it seemed to me that there was a problem here.
 
Not to be provocative or anything (I haven’t even had a cigar in 3 years), but what about the right of a business to cater to a certain clientele?

Considering that the smoking bone is often connected to the drinking bone, you have just told a private business owner that they cannot cater to one group of potential customers. So what do you do when their business takes a hit (and make no mistake, it will)? Are the bar owners too big to fail? Or will you simply shrug your shoulders at the demise of yet another business at the hands of an intrusive government regulation? Save your flamethrowers, I’m just sitting in a state that did it several years ago, and asking where the line gets drawn. Maybe when the government starts telling you that you can’t serve a certain segment of your business base anymore?

My friend replied:

[BiW],   you’ll be happy to know that the Michigan bill allows Cigar bars to let people pollute their own lungs. The whole bill was based on the employees’ rights to breathe clean air, not the customers. And, in the 38 States that already prohibit people from toxifying the indoor public venues with smoke, businesses have increased or at least maintained their revenues.
The smoking bone is then connected to the self-entitled, neo-lib, everyone must conform to the minority group and the “IT”S MY RIGHT TO CONTAMINATE EVERYONE ELESE”S AIR!!” bone, and there in lies the problem. It’s not, and never was, a right or a freedom. A privilege should not impose on another’s ability to breathe uncontaminated air. And, until non-smoking drinkers can legally expel their liquid waste onto those that do smoke, the non-smoking law seems to even the playing field.
 
I didn’t see it his way:
 
>The whole bill was based on the employees’ rights to breathe clean air, not the customers.<

I see. So an employee has the right to impose restrictions on the behavior of their employer’s customers? Where does that line end? I mean, hybrid cars have all sorts of toxic chemicals in them that regular cars don’t have. Should employees in repair shops and oil change places have the right to legislation that prevents them from being exposed to those vehicles and the chemicals in them?

If that was truly the rationale, T, its ass-backwards.
1. The Science on second hand smoke is about as reliable as the globull warmening studies…and the EPA has even admitted it.
2. This isn’t a safety condition created by the employer directly, this is a condition that exists before the employee comes to work there, that the employee is aware of. Its like a bakery worker saying “Oh my God! I shouldn’t have to be exposed to all this enriched flour and sugar, and neither should the customer! Let’s pass a law to ban its use in bakeries!

He wasn’t ready to let go yet.
 
[BiW], do you cover your mouth when you sneeze or cough around others? Of course you do. You are a decent, well-educated person. Well, at least educated. :)
Unfortunately, society has allowed smokers to not cover their mouths for all these years, and finally, Michigan will be the 39th State to make them.
All of the arguments have valid points, and I do agree with a lot of them. The bottom line is that smoking around others is inconsiderate and infringes on a non-smoker’s ability to enjoy themselves without having to smell like and ash tray and to have headaches and sometimes nose bleeds (I’m a real puss when it comes to smoke) as a result.
You, of all people, can appreciate how ridiculous it is for a 25% minority to rule the 75% majority. That is no different than that one entitled, confused kid that doesn’t recognize God, so he and the ACLU won’t allow anyone in his school to recite our Nation’s Pledge. Let the majority rule, dammit. Say the pledge with pride and let the air in BJ’s Bar be smoke free. :)
May 1st will not get here quick enough!!
Heck, I’m thinking about developing a serious drinking problem just to show my support. :)
I decided to appeal to his conservatism.
 
T, I’m not doubting that the net effect is pleasant for many people. As I have indicated, I myself am not a smoker, so I’m not personally invested in this as one who is directly affected.
I am asking the “Elephant Man” to put on his big floppy ears and think hard about this for a minute. You equate smoking with sneezing. The thing is, most …
See Morepeople recognize that sneezing is involuntary. Covering our mouths is indeed a matter of courtesy, and unless they were sneezing when we walked into to Moe’s, we didn’t know what we were exposing ourselves to. The same isn’t true for smoking. When I open the door, and see little grey spirals rising, or a cloud rushes out with the swing of the door, and I decide that by God, I’m still going to walk in because I like paying 3 times more for a beer here than I do at home, I make a choice, and I do not have a “right” to be protected from my choice. The same is true from the employee angle. Especially when the basis for the “health and safety” portion of the justification for the law is scientifically untenable.
Further, if you allow it on these justifications, or worse yet “what the majority wants”, it got that much harder to say “NO!” next time. This is why government keeps growing, and we have reached a point where Congress seriously deliberates a so called Health Care Reform Bill when the authority to legislate such matters is clearly beyond the scope of its power.
 
Nope.  Just not buying it.
 
‘When I open the door, and see little grey spirals rising, or a cloud rushes out with the swing of the door’
On May 1st, you won’t have to worry about it anymore. The majority rules. Smarter is better than ‘just because we have done it this way for so long’.
I like the idea of people making a choice when it comes to whether or not they want to … See Moreenter an establishment. I am silly with excitement that it will now be the smokers that have to make the choice, and not those that prefer fresher air to that of a dependency-stricken environment. The smoker will now have to make that choice. Since, after all, it IS their right to make it. :)
Re: The bakery needs the flower to make its goods, a bar does not need smokers to serve drinks. The oil change shop does not operate without cars to change the oil from. Chemicals or not, that is what they are in business to do. Bars and restaurants are NOT in business to have people smoke. They may allow it, but it is not their main source or income. And, as the other 38 states have found, business increases when the non smokers, aka 75% of the populous, are able to enjoy themselves without breathing the crappy chemicals emitted by smokers and by not returning home after dinner and smelling like an ash tray.
Sign the darned bill, Jenny!
 
Of course, I wasn’t giving up, either.
 
>They may allow it, but it is not their main source or income.<

Well, no. They may not, because nanny government made that decision for them. Government just decided for them who they can and cannot cater to. That’s my point.

This isn’t like a law that prohibits smoking in a grocery store…everyone has to use the grocery store. Not everyone has to use the corner bar. And while government can regulate conduct based on health safety and welfare considerations, when it does so on a pretext rooted in bad science, it sets a bad precedent and empowers government to continue to make other decisions based on what it feels is good for us. And when it does so in the name of “protecting” employees who are free to choose other labor, it is more onerous, because there is no rationale that will prevent government from making more intrusive laws on such a pretext.

>And, as the other 38 states have found, business increases when the non smokers, aka 75% of the populous, are able to enjoy themselves without breathing the crappy chemicals emitted by smokers and by not returning home after dinner and smelling like an ash tray.<

Figures don’t lie, but liars can figure. Any statistic used by government to justify its expansion of power should be suspect. We went through this debate here a few years ago before it was signed into law here. And then I watched bars and restaurants close.

Of course, if you don’t own your own business, and never plan to, then I can see where you just might not care about this expansion of government power. Fair enough. As I said, I don’t have a dog in this hunt. If you don’t want to consider the implications, that’s your choice. I hope you are as untroubled by the rest of government’s “mission creep”.

Still.Not.Buying.It. 

1. They will now cater to the majority, not the minority.
2. Not everyone HAS to use the grocery store. They can grow their own sources of nutrition. Should we then allow smoking in the grocery store too? How about the gas station, is it really that unsafe to smoke there?
3. All political and bad science aside, I do not know anyone that does not feel affected by smoking and establishments that do not have adequate means to ventilate that smoke. I distrust the gov’t every bit as much as you do, I’m using my own experiences on this one.
4.The voters in this State have long pushed for a statewide smoking ban. That is why the votes were so even among both parties. This is not the neo-libs health care debacle, Cap & Tax or even Gore’s Globull Warming hoax. This is not a simple matter of gov’t impeding on businesses just “because I could” (WJ Clinton regarding perjuring himself and not being impeached).
5. I have friends that live on the left coast, California mostly, and they tell me the lines for the bars/clubs are just as long now as before the ban. I trust them more than any gov’t figure…. See More
6. As long as we’re talking about choices…Why is it that only the employees have to choose where they can work? Let’s stretch those choices to the bar owners. Let them decide if they really want to own a bar. Let them go into other careers if it is simply that easy. Fair is fair, right? I owned my own business. I was taxed through the teeth and was forced to abide by the same safety standards as every other electrical contractor in Michigan. I was fine with the latter. Do you want to go back to the GM plants pre 1932 and the safety conditions those workers had, just to keep the gov’t from telling a business owner what they can and can’t allow inside their doors? How far should a business owner be allowed to govern himself? As long as there’s a niche and a dollar to be made, let anything/everything go! Strip bars, dog fighting, etc. should all be legal in order to not let the gov’t have a say in what is moral and safe? Where does the line get drawn in that direction?
7. I’m not sure how the economy is in the great northwest, but did the economy have anything to do with those establishments closing? We have a lot of empty buildings that used to house smokers and drinkers. And they allowed smoking. So, smoking is not the end all answer, either.
8. Just because it was allowed for so many years, does not make it justifiable. I would love to see Roe v. Wade over turned, Social Security overhauled, Welfare re-revamped. Three more examples of situations of the status quo being status crap.
9. If smoking is not healthy enough to be allowed in commercial planes, schools, hospitals, grocery stores, it certainly not healthy enough to be allowed in a bar or restaurant. Those other business didn’t fold up the minute smoking was banned in them. Neither have/will the bars and restaurants.
10. I love debating with someone who has more than emotions to bring to the debate. Thank you, [BiW]. This is fun!! :)
 
I’m not stopping yet.  There is still too much to work with.
 
>Why is it that only the employees have to choose where they can work? Let’s stretch those choices to the bar owners. Let them decide if they really want to own a bar. Let them go into other careers if it is simply that easy<

Not the same thing. Government is telling an existing business that it can no longer serve a group of people that it already does. A group of people who are part of its current business model. Business owners have a lot more invested into this than the employees. Their own capital contributions for a physical plant, inventory, fixtures, advertising; they face very different consequences than the employee if they tail with the new business model imposed upon them. Employees’ contribution is labor. It is far more portable, and while if the bar closes tomorrow, they lose income, they are far less likely to lose everything because they do not have the same investment. They can go to work tomorrow elsewhere without the burden of a non-productive investment.
At its core, this is nothing less than government taking the bar owners’ private property. There is plenty of case-law on the subject of takings to support this idea, and if someone spends the money to challenge it, it will likely be framed as “an illegal government taking vs. an exercise of the government’s health, safety and welfare powers”. I’ve seen enough to not prognosticate the end result.

> Do you want to go back to the GM plants pre 1932 and the safety conditions those workers had, just to keep the gov’t from telling a business owner what they can and can’t allow inside their doors?

Whoa! Did you hurt yourself with that wild-assed leap? There is a big difference between someone choosing to work in an environment where the patrons smoke, and someone who may or may not know that they are being exposed to an inherently unsafe condition that is not part-and-parcel of the employer’s service to its customers. The main factor at play being risk and the employee’s willingness to assume it. The guy working on the line cleaning parts in a pre-OSHA enviroment may not know that the chemical he is using has been proven to lead to the growth of eyeballs in the forehead and third testicles on lab rats, but unless you have been living under a rock for 40+ years, you know what the Surgeon General has said about first hand smoke. Knowing that risk and taking it anyway is the distinction here.

>How far should a business owner be allowed to govern himself? As long as there’s a niche and a dollar to be made, let anything/everything go! Strip bars, dog fighting, etc. should all be legal in order to not let the gov’t have a say in what is moral and safe? Where does the line get drawn in that direction?

Last time I looked, smoking was not illegal, immoral, or unethical. As this is the case, the reasoning for government intervention loses a legitimate basis to interfere with these businesses.
That is the line, and that is what separates them from dog fighting(illegal, and frequently under more than one set of statutes) and strip clubs(a case where governments regulate it as moral policy, either by making certain forms of it illegal, like communities which prohibit full nudity, or through zoning, by which it is relegated to parts of the community where it is least likely to be exposed to those in society that government has decided do not need to be exposed to it.
The “line” as you put it already exists. Government, in its desire to augment powers it should already not have, is not going to remind you of that fact.

>Just because it was allowed for so many years, does not make it justifiable. I would love to see Roe v. Wade over turned, Social Security overhauled, Welfare re-revamped. Three more examples of situations of the status quo being status crap.<

It’s interesting that you choose three proactive government screw ups for your status quo choices. However, not dictating to a business who it may serve, and allowing the government sanction of killing babies as birth control or self-imposed eugenics are hardly equal concepts, as one violates the property rights of private individuals, and the other sanctions murder in violation of our nation’s charter. And the court’s support of the latter was and remains legally untenable, a fact even prominent liberal scholars have admitted to.

Social security was an illegal expansion of federal power that only succeeded because FDR and SCOTUS played chicken and SCOTUS blinked.

Welfare…as practiced by the state, a more likely than not legitimate exercise of the state’s power. As exercised by the Feds, illegal and to the degree that it was supposed to be a war on poverty, an utter failure.

Smoking really doesn’t compare to these three examples.

> If smoking is not healthy enough to be allowed in commercial planes, schools, hospitals, grocery stores, it certainly not healthy enough to be allowed in a bar or restaurant.<

Again, assumption of risk is the key here.

If you get on a flight to Dallas, and someone lights up, you cannot just leave, and get on another plane.

Attendance in public school is compulsory. You do not have a choice about being there if you are a student.

Hospitals are also different. If you are taken there, more likely than not, you are not ambulatory enough to get up and walk out if someone lights up. And if you are there for an elective procedure, you are there because your physician has privileges there, so again, leaving isn’t really an option.

Grocery stores…yes people could conceivably grow their own food, but the reality is that most food production is done industrial style…the family farm is a thing of the past, and nearly everyone in society gets their food from a grocery store. There is not really another place to go to buy all the foodstuffs for a modern household, so people do not have real choice.

>I love debating with someone who has more than emotions to bring to the debate. Thank you, [BiW]. This is fun!!

Yes it is, but I am also deadly serious. Whenever you deal with an expansion of government power to prohibit conduct that is not illegal, immoral, or unethical, you need to think like you are playing chess, not checkers. It isn’t just about the move being made right now. It’s about the move that comes next, or the one after that…

The return volley:

Just like beauty, ethics and morals are in the eye of the beholder. In my eyes, smoking in public is both immoral and unethical. The ONLY reason people are allowed to do it at all is because no one stood up to them enough in the past.
This bill is not a matter of government infringement on business owners. The gov’t is not taxing the owners more. The gov’t is not forcing the owners out of business or to even change their form of business.
The gov’t is finally creating a law that the taxpayers and voters of this state have asked for repeatedly. The Casino lobby is the only reason there isn’t a law in place already.
When the gov’t mandates seat belts, workplace safety, workplace ethics, food regulations, etc, it is for the better good of the whole.
I can not agree more that gov’t intervention just for the sake of greater power is wrong and very bad for America. This bill is not such a case.
Every so often, the gov’t should step in and listen to what the majority demands. Unlike DC, where power and special interests rule regardless of majority opinion, this bill is doing exactly what the voters asked for, not just what the politicians need to get re-elected.
If the gov’t is allowed to fine and stop polluters of our rivers and lakes, why not my body?
If the gov’t can mandate certain safety regulations to make my car safer for my family, why not do the same when we get out of the car and go into Ruby Tuesdays?
I hope that you’ll agree, there are times when even the gov’t should intervene when it’s obvious that only profits matter and people don’t.
This is one of those situations.
 
At this point, I decided there was nothing more to say.  I hope I don’t have occasion to remind him of this someday…

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