January 20, 2004

Smoking Ban is Banned (Temporarily)

From Syracuse Post Standard:

Damon's Party House in Cicero is the first bar in Onondaga County - and possibly the first in the state - to win a waiver allowing tobacco smoking inside its premises because of financial hardship.

Damon's was granted a one-year smoking-ban waiver Friday by county Health Commissioner Dr. Lloyd Novick after presenting evidence it had lost approximately 40 percent of its bar business in three months. The state's smoking ban took effect July 24.

This is a common problem facing restaurants, bars, and other establishments who have had draconian regulations enforced upon them in the name of public health.

These public health zealots are forcing these privately owned establishments to disallow smoking. Many of these establishments are bars who cater to a professional after work crowd. These people enjoy a cigar or cigarette with their cocktail, and with the enforcement of these laws they are required to either smoke outside, or just go home to smoke.

If he would allow smoking to be present, his bar would be subject to highly punative fines, and possibly even revokation of their liquor license.

Before getting a waiver, Damon's was one of five bars in Onondaga County to be fined for violating the law, which prohibits smoking indoors at almost every worksite in the state. Damon's was fined $250 earlier this month after health department inspectors said they saw customers smoking cigarettes in the tavern. Damon said he will pay the fine.

His tavern, which is open Tuesdays through Saturdays, lost most of its regular customers after the smoking ban became effective July 24, Damon said.

His patrons - generally an older happy-hour crowd - drifted away as the weather got cold because they didn't want to have to go outside to smoke, said Damon, who smokes just under a pack a day. Damon said he hopes his regulars return now.

Is smoking bad? Yes. Though I sometimes smoke cigars. Other times I appreciate a place to eat where they do not allow smoking. But when I want to smoke, I want to be able to find a bar or restaurant that allows smoking.

The point is, it should be my choice. My choice to choose an establishment that allows or disallows smoking. It is also up to the owner. He or she owns the place, and THEY should make the decisions on things like this.

It is not the government's or public official's place in this world to watch over and regulate every possible thing that can hurt us. The world is full of danger, it is my place to watch out for it, not Uncle Sam's.

Posted by TomCat at January 20, 2004 09:15 AM

I agree. The problem is that, among the governing class, the idea has become that instead of power originating in the people and some of it being granted to the Federal Government so that it may protect the rest, our leaders believe that all power originates with them.

I've had a legal theory tickling the back of my mind for a while... Mixing Amdnedments 9, 10, and 14. What I envision is a line of argument challenging the nanny-state local laws by pointing at the state constitution and the Federal Constitution. The state government is constitutional, and therefore limited, just like the federal, but it occupys a different, closer-to-the-citizen location. The state government, necessarily should be more intrusive in our normal lives. Nevertheless, when it goes into areas not granted to it by it's constitution or specifically mandated by the Federal Constitution (statuts, too, probably). The 9th and 10th Amendments make it clear that individual rights and liberties are real even beyond Amendments 1-8.

It would be a violation of "Equal Protection" probably and "Due Process" certainly under the 14th Amendment for a state to impose laws beyond the reach of its own constitution.

I do not know that the 9th or 10th Amendments have been used in this way, but I think a strong argument could be developed.

The state would probably argue that it has the right and responsibility to create a "safe" working environment. It would be encumbant, then, for the state to demonstrate an actual connection between second-hand smoke and safety, and then (I suspect) that they would need to ballance whatever connection they find and the amount of safety improvement that might be obtained against the loss of liberty.

In any event, I think it would get past summary judgement and therefore be too expensive for most jurisdictions to challenge.

What do ya'll think?

Posted by: Bronson at January 20, 2004 12:08 PM
It is not the government's or public official's place in this world to watch over and regulate every possible thing that can hurt us.

Excellent!!! The right of the Owner trunps the priviledge of the Government.
Spot on!

Posted by: Tuning Spork at January 20, 2004 11:21 PM

Smoking is nasty, filthy, dirty, expensive & disgusting...which explains why trial lawyers and politicians are drawn to it like flies on sh*t.

The War on Smoking is a giant scam. States use the money for everything under the sun, not just to help smokers as was promised. It's the politician's dream; a huge tax increase without their fingerprints on it. Lawyers contribute heavily to politicians (usually Dems), who bend the rules so lawyers can sue for an ever larger share--as long as the pols get their cut. The only people who never see a dime? Smokers, of course.

The States and the Trial Lawyers are effectively in the tobacco business now. One day, they'll cut out the middle-man (the tobacco companies) entirely. There will be state-run tobacco plantations where whip-weilding lawyers lash trachiotomied butt-addicts to roll cigarettes faster. The slaves will of course be charged for the pleasure.

You've Come A Long Way, Baby.

Posted by: Noel at January 21, 2004 11:35 PM
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