How Can We Make Calabasas Look Tolerant?

Jacob Sullum | November 16, 2006

Last night KGO, the San Francisco news station, interviewed me about an ordinance the city of Belmont is considering that would ban smoking everywhere except in private cars and detached single-family homes. This would be the most sweeping smoking ban in California, which is saying a lot, and it is based on astonishing misinformation about the dangers of secondhand smoke.

A councilman who was quoted in the news segment that preceded my interview mentioned in passing that exposure to secondhand smoke is just as bad for you as smoking, which I guess means that smoking poses hardly any risk at all. The councilman who was on with me, Warren Lieberman (who is what passes for a smoking ban skeptic on Belmont's city council) kept saying that further restrictions seem necessary in light of warnings from federal and state regulators that tobacco smoke contains dangerous chemicals. No kidding. As I emphasized, that much has been clear for at least half a century. The question is what dose of these chemicals poses a risk that is worth worrying about. Since it's hard to measure a risk even from long-term, relatively intense exposure to secondhand smoke, the concern about the occasional whiff from a restaurant's outdoor seating or from the smoker in the apartment next to yours is absurd. In any case, if spillover is the real concern, why did the state ban smoking inside bars and restaurants that no one is forced to enter?

Comments

|11.16.06 @ 12:58PM|#

"why did the state ban smoking inside bars and restaurants that no one is forced to enter?"

Really, Jacob, how can you ignore the fact that children are consistently forced to enter restaurants on a daily basis, by none other than their own parents.

fyodor|11.16.06 @ 1:13PM|#

if spillover is the real concern, why did the state ban smoking inside bars and restaurants that no one is forced to enter?

Because the left of center does not buy that choice exists for workers or matters for patrons. The latter point point could be rephrased as for their convenience. Neither aspect of this contradicts a concern for spillover, even if they are wrongheaded sentiments in their own right.

|11.16.06 @ 1:19PM|#

if spillover is the real concern, why did the state ban smoking inside bars and restaurants that no one is forced to enter?

Because property is a crime. 'K?

|11.16.06 @ 1:19PM|#

So can they smoke in a car or not? According to another article ( http://www.smdailyjournal.com/article_preview.php?id=66988 ), the ban also applies to people in their cars.

|11.16.06 @ 1:20PM|#

The notion that secondhand smoke is as bad as primary smoke is preposterous. I don't see how anyone can take anyone who says that kind of bullshit seriously.

Jim Murphy|11.16.06 @ 1:21PM|#

Really, Jacob, how can you ignore the fact that children are consistently forced to enter restaurants on a daily basis, by none other than their own parents.

Wow...I think this is the quickest invocation of the 'its for the children' nonsense that I've ever seen.

The point is that bars and restaurants should have a choice to allow smoking or not. A place with a large clientèle of families with children--a McDonalds or a Chucky Cheese--would probably choose to not allow smoking. It's their business, so more power to them and they're welcome to do as they wish.

Of course I seldom go to places like this, and I've never seen any children--with or without parents--in the places I go to enjoy a cocktail and a cigar. Why should an establishment that doesn't cater to children--for that matter won't allow anyone in the door if they're under the age of 21--be forced to go against their own wishes and the wishes of their patrons for the mythical "good of the children?"

In any case, its nice to see you posting in the comment section, Mayor Bloomberg... ; )

|11.16.06 @ 1:40PM|#

Wait - Second-hand smoke is just as dangerous as primary smoke? Those who are exposed to primary smoke (i.e. smokers) are, almost by definition, also exposed to second-hand smoke, even if it's just their own. And if second-hand smoke is as bad as primary smoke, that means the smoker is taking a double whammy. And THAT means that all the studies that indicate smoking is bad for you must overstate the health risks by 100%.

SO. I just need to invent a device that allows smokers to receive the primary smoke, without being being exposed to the the secondary smoke, and I'll have made smoking only half as risky as it would otherwise be.

My genius is undeniable. Thank Jebus for people who make up statistics.

|11.16.06 @ 1:42PM|#

Places of public accommodation - establishments which exist for the purpose of inviting the general public to come in, spend time, and transact business with the owner - are, like it or not, somewhere in between completely private places (private offices or homes) and the truly public realm (the public right of way).

Multifamily homes, however, exist even further towards the private-space end of the spectrum. In terms of the business transacted in their purchase and lease, for example, they have long been regulated. But the activities of the occupants therein have been treated as private, so much so that renters have property rights - not just contracted ones, but legal rights - that can be enforced against the owner.

I do not see how restrictions on what one does in the privacy of one's home can depend on the style of the housing. That bit is not going to hold up in court.

|11.16.06 @ 1:45PM|#

Let's get Brian Doherty to organize a real Burning Man event in the heart of Belmont. We could have the cigarettes vs. cigars, with both sides allowed to recruit pipe smokers. We'll just be doing as George W. Bush says and smoking the terrorists out.

Gordon|11.16.06 @ 1:48PM|#

Wake up supporters, you are the frog and the water temperature just went up one degree....

Eric Dondero|11.16.06 @ 1:49PM|#

We here in Anchorage are in the last days of an iniative drive to repeal the smoking ban in bars, bingo halls, VFW and American Legion. It's sponsored by the Libertarian Party.

It's a tough fight, but if we can turn back the tide in America's last frontier, perhaps there's some hope.

We're tackling this from a Property Rights perspective, and quickly chastise those who frame it as a smoker's issue.

Eric - Non-smoker

fyodor|11.16.06 @ 1:51PM|#

"Places of public accommodation"

Thank you, joe. To rephrase my answer to Jacob's question, it's to accomodate nonsmokers (lucky fookers).

joe, if I read this right, private offices that don't accomodate anyone but those who work there also fall under the ban. Think that'll get thrown out by the courts, too?

|11.16.06 @ 1:52PM|#

They are hiding behind made-up science to ban what is essence is a smell they don't like. I bet second-hand farts are even worse for us. First they came for the smokers...

|11.16.06 @ 1:54PM|#

fyodor,

I did not invent the term, not the concept, "places of public accommodation." It is a longstanding, recognized term in our legal system.

But you got me on "private offices." Offices that are occupied by employees will undoubtedly be covered by the ban.

Jim Bob|11.16.06 @ 2:00PM|#

Perhaps the city could consider changing my diapers as well, after its through breast-feeing and burping me.

R C Dean|11.16.06 @ 2:02PM|#

One thing I've never understood.

We've all been told that nicotine is terribly addictive, and that cigarette companies add things to their cigarettes to make them even more addicitive. I think this means that cigarette smokers are addicts.

Under the Americans with Disabilities Act, an addiction is a disability. Disabilities have to be reasonably accomodated by places of public accomodation (not to mention employers).

So why isn't it a violation of the ADA to ban smoking in a restaurant or workplace? Where's the reasonable accomodation in that?

|11.16.06 @ 2:05PM|#

Jim Murphy, recalibrate your sarcasm meter.

RC, good points.

fyodor|11.16.06 @ 2:14PM|#

I did not invent the term, not the concept, "places of public accommodation."

I didn't mean to imply that you did, sorry. I do, however, reserve the right to take an ironic, non-reverant tone towards recognized concepts in our legal system! :-)

Offices that are occupied by employees will undoubtedly be covered by the ban.

See, protecting the employees, because they don't have choice! (Again, I'm not accusing you, joe, of being a one-man army on the matter, only using your words as elucidation on the prevelant POV.)

|11.16.06 @ 2:29PM|#

Funny they didn't try to ban it in private cars. ['Funny' in the sense of ironic inconsistency.]

Not because of secondhand smoke, but because of the likelihood that the distractions caused by lighting and handling a cigarette probably are more likely to injure bystanders than secondhand smoke. [I don't know of any specific studies on this, but I suspect that injuries caused by driver distraction while smoking are orders of magnitude larger than the effects of secondhand smoke.]

Before anyone rants at me on this one, I am NOT advocating such a ban. I am just pointing out the inconsistency of the ban in it's intended aim of protecting "the public" where a miniscule risk is focused on while a larger one is ignored.

|11.16.06 @ 2:40PM|#

"I do, however, reserve the right to take an ironic, non-reverant tone towards recognized concepts in our legal system! :-)"

You BASTARD! This is why no one takes libertarians seriously, you know. For a magazine called Reason...

"See, protecting the employees, because they don't have choice! (Again, I'm not accusing you, joe, of being a one-man army on the matter, only using your words as elucidation on the prevelant POV.)"

Right. The law recognizes that one does not have the same freedom to take and leave one's job that one has to smoke, or not, in one's own home.

RC,

Really lame points. The ADA does not - in fact, it explicitly renounces as unreasonable - accommodations that are injurious to other people's well being, or which are unduly disruptive of the business's functioning. Letting the dishwasher chew nicotine gum, or step a few paces out the back door to smoke, IS a reasonable accommodation.

|11.16.06 @ 2:47PM|#

Eric,
We're tackling this from a Property Rights perspective, and quickly chastise those who frame it as a smoker's issue.

I think you will find that the property rights approach will fail as it has in other attempts to litigate this matter. The real battle will be won by challenging the claims that second hand smoke is a heath hazard. This core issue to my knowledge has not been litigated in the US. Once a "finder of fact" rightfully determines that by all OSHA regulations, tobacco smoke or any of it's constituents does not begin to approach their permissible exposure levels, smoking bans will be judged as frivolous and arbitrary, and will not be considered a public health issue or responsibility

ed|11.16.06 @ 2:51PM|#

But it is a property-rights issue. One could just as easily argue that dart games should be banned in bars. I'd sure hate to get hit by a second-hand dart.

|11.16.06 @ 2:55PM|#

Wow, Joe you seem very... um... wrong. As if you respect the law over reason itself... hmmmm. Step back, have a drag, or if you don't smoke, just inhale anywhere that there is industry. Individuals create businesses and have every right to do with them as they please. No one is forced to enter or work at said businesses. Only the government can use force legally. (By the way, loved RC and Dennis comments which used humor to illustrate the lack of logic behind this crap. The irony and futility of bureaucracy. Bravo! ;)

|11.16.06 @ 2:56PM|#

Did you know you can kill someone with a spoon? You can! BAN THEM before the KILL THE CHILDREN! AHHHHH!!!

|11.16.06 @ 3:06PM|#

The Dailey Journal Article makes it pretty clear, no smoking on the streets, in the bars or in the cars. Not even stepping out of the back of the restaurant or it can be implied on your property unless you are in your property. Of course as some one earlier pointed out they are not going to pursue pot smoking, so they still are giving you a choice.

|11.16.06 @ 3:12PM|#

"I think you will find that the property rights approach will fail as it has in other attempts to litigate this matter. The real battle will be won by challenging the claims that second hand smoke is a heath hazard."

No, in your scenario, the real battle will be lost. Because the real battle is not about smoking, but about freedom.

In fact, it's utterly misguided to fight this with counterarguments about secondhand smoke, etc. Because even if your statistics "win" here, you've set the precedent that the argument is about statistics in the first place. And then it's just a matter of whose statistics are better -- you'll have thrown away any chance to stand up for principle.

Fighting this battle with talk of "OSHA," "public health" and so on is to immediately cede the entire debate to the bad guys.

fyodor|11.16.06 @ 3:13PM|#

Right. The law recognizes that one does not have the same freedom to take and leave one's job that one has to smoke, or not, in one's own home.

Our rights come in gradations!

|11.16.06 @ 3:49PM|#

Juju,

My comments were meant to be descriptive, not normative.

fyodor,

No, the opportunity to exercise free will comes in gradations. You could argue that someone with a gun to his head is still entirely free, just choosing from among his options. The threat of a punch in the nose is a less-bad option than the threat of a bullet, the threat of a tongue lashing less bad still.

Where does the threat of losing the means by which you feed your children fall on that scale? Somewhere.

Juju|11.16.06 @ 3:54PM|#

Children MUST eat in restraunts? There are no options? Glad I don't have kids... Too damned expensive! ;>

Juju|11.16.06 @ 3:58PM|#

Sorry, just being an ass...

|11.16.06 @ 4:02PM|#

For my money it's about time that smoking be banned in restaurants.

I'll be lobbying next week for the ban of red meat in Restaurants, since cows produce methane, which contributes to global warming, which is going to eventually cause heat exhaustion in our children.

In fact, in one way of thinking, cows can be considered be as dangerous in this area as exercise.

Then it's on to banning the color red, which has shown to cause unpleasantness in psychiatric studies.

|11.16.06 @ 4:03PM|#

Short and simple: Just ban the freakin' kids.

Juju|11.16.06 @ 4:08PM|#

Agreed: Cows are the devil. Let us not forget mad cow disease and that silly cow in Jack and the Beanstalk. Milk is fattening. Fat is unhealthy. Restaurants serve milk and beef and should be banned to all under 21.

ed|11.16.06 @ 4:10PM|#

Don't forget the Chicago fire.
Yep, a friggin' cow.

fyodor|11.16.06 @ 4:13PM|#

Where does the threat of losing the means by which you feed your children fall on that scale? Somewhere.

Kinda obscures the difference between setting up rules for your own business and busting someone's kneecaps. But no matter, we can go back and forth on this all day. You've certainly expressed your position very well. I'd rate the ability to exercise the free will of running one's own business the way one chooses higher than the right of others to force payment (fines) out of business owners who don't give the choices to their employees that those others prefer. And I emphasize "give" because jobs don't just come out of nowhere, nor do we have rights to them as we have rights to our own skins, but rather someone creates a business and creates those opportunities for someone else to feed their children. That's where your well phrased argument falls apart. But as I say, we could go back and forth all day....

|11.16.06 @ 4:17PM|#

Hallelujah brother! :)

Rhywun|11.16.06 @ 4:47PM|#

"... Belmont police officials visited other cities that have adopted strict ordinances against exposure to secondhand smoke, and police there reported there were no requests for enforcement by citizens."

Oh, nothing to worry about then! This is just another tool for the Authorities to get you for something bigger. Say you're walking down Main Street and get pulled over for smoking. Better hope you're not carrying any dope or firearms.

|11.16.06 @ 5:12PM|#

"Where does the threat of losing the means by which you feed your children fall on that scale? Somewhere."

I see your point. But people don't have the "right" to a 100% perfectly safe job. Why ban smoking in bars but allow crab fisherman out on the bearing sea, or window washers on tall buildings?

The "workers rights" issue is a canard. You frame the debate as have a job or get sick, which is just absurd.

The real choice people have is. Get a job in a restaurant/bar that allows smoking at the risk of potential health risk after years of exposure. Versus get a job in a smoke free restaurant/bar, perhaps make a little less(I haven't seen ANY data that says this) and have less of a health risk.

fyodor|11.16.06 @ 5:18PM|#

Dakota,

Good points, but consider that the ban won't be just limited to bars and restaurants in Belmont if the proposal goes through. Apparently (if I read this right), all private places of employment will be subject to the ban!

|11.16.06 @ 5:27PM|#

fyodor,


I understand this ban is even more repressive then the lot we have recently seen. As a matter of fact I take this particular ban as proof of what the tobacco nannies true motivation is. It has nothing to do with saving workers, it is really about saving us from ourselves. Bald face nannyism, at the expense of several natural rights people (should)have.

fyodor|11.16.06 @ 5:50PM|#

Dakota,

I don't claim to know others' motives as you and Sullum do (if there are revealing statements by backers of the ban, that would be different, but I'm sure Jacob would have let us know if there were!), but the reach of the ban shows how joe's sort of logic, as well articulated as it is compared to my original caricature, can, and likely will, lead to greater and greater intrusiveness. I'm betting then ban on attached homes won't get thrown out, either, though I'll be fascinated to know if it does!

Larry A|11.16.06 @ 6:57PM|#

"Thrown out in court." How quaint.

The courts in California will rule that the government's responsibility to protect people superceeds all individual rights. You might have a chance in Alaskan courts, but the Supreme Court will take care of that little detail.

Rhywun|11.17.06 @ 1:11AM|#

*Sigh* California has another idea that Bloomberg probably wishes he had first.

fyodor|11.17.06 @ 2:48AM|#

joe,

I've been thinking about what you've said, and, well first of all, I compliment you on that, you got me thinking. As I've alluded to before, you unpacked things a little more than the usual "workers have no choice" rhetoric. But what I thought about is your use of: "Somewhere." Oh yeah, where? If having to quit or not accept a job because you don't want to have to deal with cigarette smoke is really on the same continuum that stretches from being threatened with death to being threatened with a tongue lashing, you'd be able to say where it is on it. But you can't, because it isn't; your vague attempt to stick it "somewhere" on there only shows it doesn't belong. As for what you say about always being "free" to make a choice, it's true, taken literally, and seemingly meaningful on the surface, but upon further scrutiny it turns out to be mere semantics. When libertarians speak of freedom, it's really shorthand for a particular subset of what can be meant by the word. It would be tedious to explain this every time we use the word, so we don't. To conflate the freedom to choose to have your head blown off with what we mean by freedom is to employ smoke & mirrors. Beyond this point of the argument I would likely only repeat what you've heard plenty before, so I won't. But I thought I should address the part of what you said that did throw me off for a bit! Again, my compliments!

R C Dean|11.17.06 @ 8:11AM|#

The ADA does not - in fact, it explicitly renounces as unreasonable - accommodations that are injurious to other people's well being

Way to beg the question. I think the whole point here is that second hand smoke is not any more injurious to your well-being than a million other things in the environment. You're kind of assuming the conclusion here.

or which are unduly disruptive of the business's functioning.

I'm not sure how allowing employees to smoke is disruptive of the business's functioning. Exactly what functions does it disrupt, and how? Indeed, requiring them to go outside to smoke seems to be the disruption.

And trust me on this, joe, the ADA requires businesses to tolerate some pretty major disruptions. As an example I have been working with lately, the ADA requires a hospital to allow any animal claimed to be a service animal to have free access to the hospital unless the hospital specifically designates areas where it cannot go, and why. Ponder the level of disruption that entails, and tell me that allowing employees to smoke is more disruptive.

Letting the dishwasher chew nicotine gum, or step a few paces out the back door to smoke, IS a reasonable accommodation.

I'm not so sure. I think the ADA would require, at a minimum, that you provide some kind of shelter if you are going to require your staff to go outside because of their disability. And the ADA generally frowns on requiring the disabled to do things like use the back door. I can just imagine the screaming if a restaurant puts its wheelchair ramp in back, next to the garbage.

|11.17.06 @ 9:07AM|#

RC Dean: You are making excellent points. Why do we make every single anti-social activity into a disease? Heroin addiction is also a disease. Why not let the dishwasher shoot up at work?

The more we demonize cigarettes as addictive and anti-social, the more they seem to fit into the "disease" or "disability" category, especially since we seem to be moving towards defining broad new categories of disability.

chris|11.18.06 @ 2:08PM|#

Can't we just go back to when there were reasonable restrictions on smoking (i.e. indoor sections for both smokers and non)? Jesus, when did we turn into this society of hysterical bigots? By the way, we can argue about the justice or injustice of this nonsense until we're all blue int he face, but what'll really get them is a hit in the wallet. How about some boycots?

|11.19.06 @ 11:31AM|#

Fyodor: as far as motivatiosn go, just look at the laws. Here in NY, they sent around mailing to bar owners telling them they absolutely could not have separate rooms with separate ventilation for smokers that employees would not have to enter. Same thing in chicago, where they opened a smoking lounge--the only place in the city where smokers could go and smoke in peace. No non-smoker had to patronize or work in the place. The guy who sponsored the ban went ballistic. Clearly, "protecting non-smokers" is just a cover for punishing smokers.