Property Rights

Honey, If We Pay You, I Can't Smoke (and Neither Can You)

|

Yesterday the Washington Supreme Court ruled that the state's smoking ban applies to private clubs as well as businesses open to the general public. Washington's Clean Indoor Air Act, passed in 1985, exempts "private facilities which are occasionally open to the public except upon the occasions when [they are] open to the public." An initiative approved by voters in 2005 broadened the ban to cover "places of employment." American Legion Post 149 in Bremerton challenged the Kitsap County Board of Health's attempt to stop its members from smoking at the post home, where all seven employees are relatives of members and all but one smoke, arguing that the exemption for private facilities remained in force. A five-judge majority of the state Supreme Court disagreed. Four judges dissented, with one of them, Richard Sanders, concluding that if the majority's interpretation of the law is correct, the law is unconstitutional:

I would hold the Act does not apply to the Post Home as a private facility.  Alternatively, if the Post Home's status as a private facility does not limit the Act's application, I would hold the Act is void for vagueness; unduly interferes with the Post Home's right of intimate association; violates the Post Home's substantive due process rights absent actual proof of a real and substantial relation between secondhand smoke and workplace dangers; and violates equal protection by distinguishing between two classes of business without reasonable grounds.

The equal protection argument is based on the smoking ban's exemption for "a private enclosed workplace, within a public place," which has some puzzling implications:

Suppose two taverns have a "private enclosed workplace" adjacent to the primary workplace.  This "enclosed workplace" is "private" in the sense that it is completely separated from the primary bar, work is performed there, and it is "intended for or restricted to the use of a particular person or group or class of persons : not freely available to the public." Now suppose the first bar is called "Moe's Tavern" and open to anyone, but the second is called "The American Legion Post Home" and only open to members. Smoking can occur at Moe's Tavern in its "private enclosed workplace" but it cannot occur at the American Legion Post Home in its "private enclosed workplace" simply because it is private? I can imagine no reason for this distinction, and I challenge the majority to posit one.

Sanders also notes that an American Legion member "may smoke with his wife at home but not at the Post Home because at the Post Home his wife is being remunerated for her time." The government is forcing this "workplace protection" on employees who do not want it:

The State imposes its coercive power on the members of the Post Home, not because there are people at the Post Home who do not want to be around smokers, but quite the contrary. Every member of the Post Home would prefer smoking be permitted at the Post Home, including the seven members who are also employees. Rather, the State imposes its coercive power on the Post Home notwithstanding the desire of those locked behind its private doors to prevent outside intrusion.

Quoting libertarian law professor Randy Barnett, Sanders argues that smoking at the post home falls into "a private domain within which persons may do as they please," which includes decisions such as whether to smoke, what to eat, how much to exercise, and when to go to bed. Unfortunately, legislators are happy to invade this private domain, and courts rarely stop them. If pot smoking can be prohibited not just in private clubs but in private homes, why not tobacco smoking? (In fact, local governments already are moving in that direction.) If trans fats can be banned, can't cheeseburgers? Nor do I see any difference in principle (although there is certainly a difference in degree) between forcing people to wear seat belts or helmets and forcing them to do calisthenics or go to sleep on time. 

Back in 2005, I noted the sweeping reach of Washington's smoking ban, although it almost looks lax compared to more recent smoke-free laws in places such as Calabasas and Belmont, California. In a 2007 reason article, I explored the totalitarian implications of public health.

[Thanks to Paul in Seattle for the tip.]

NEXT: The Red in the Roy Orbison Glasses

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Sure, smoke at home. Smoke whatever you please. But your right to swing that smoky fist… well, you see where I’m going with that.

  2. No, you can’t smoke at home. You may have hired a babysitter once.

  3. And if your apartment building or condo complex has a maintenance person on staff?

    Does this mean I have to fire my butler? James was getting old anyway.

  4. This shows the problem with democracy, especially direct democracy. Remember, this law exists because a majority of voters in the state voted for it specifically, via an initiative.

    Of course, as Churchill said, democracy is the worst form of government, except for all those other forms that have been tried from time to time.

  5. a smoking ban in private clubs, cars soon in your own house. Just make tobacco illegal. woops now now there’ll be none of that. what would the government do without their cash cow?
    Interesting isn it only the government is allowed to make money off tobacco. not private businesses

    http://www.smokersclubinc.com

    http://www.forces.org

  6. Its bad for you and should be made illegal.

  7. The fact of the matter is that government can and will dictate personal behaviour– even that which occurs behind closed doors.

    We’re open to suggestions.

  8. Wow. Just…wow.
    I need a smoke, and I’m too tired to ask for permission. And I don’t even smoke!

  9. America is losing the legal traditions that made it American.

  10. Nor do I see any difference in principle (although there is certainly a difference in degree) between forcing people to wear seat belts or helmets and forcing them to do calisthenics or go to sleep on time.

    I haven’t worn a seat belt or a helmet for two years, during which I’ve lived in a jurisdiction that has the laws you speak of.

    I also haven’t been violating those laws during that time. How have I managed to do this?

    Solve this riddle, and you’ll see why seat belt and helmet laws are not remotely similar to mandatory calisthenics and centrally planned bedtime.

  11. Cunnivore: you ride the bus?

  12. That is correct.

    I can choose not to partake in activities where seat belts and helmets are required. The things Mr. Sullum refers to as identical in principle cannot be avoided in that way.

  13. Cunnivore, Sullum pointed out a difference in degree. For instance, if they started requiring seat belts on the bus, would you then walk everywhere?

    The state can impose increasingly onerous restrictions to the point where it is impossible to move about in society without the effects of said restrictions weighing upon you. But yet we can continue to point to the increasingly narrowing venues which don’t affect your behavior and declare “you still have a choice”.

    But I guess if your only beef here is a nitpick about comparing seat belts and mandetory calisthenics then maybe the comparison does go to far. The larger point, however, remains.

  14. err. Mandatory and “goes too far”.

    Time for a drinkypooh.

  15. How long before incense is prohibited during Catholic Mass? You know, for the children.

  16. another wonderful well thought out law.

  17. Shawn: If I kidnapped you and blew smoke in your face (which I’d love to do as you are apparently a sexy beast, and I get off on that kind if thing), you might have a point. But I don’t see how some smoky fist forced you into that privately owned space in the first place. I guess this is the way this gets done though- claim a ghostly fist as justification for a real one.

    Next thing you’ll be demanding that clubs stop playing music you don’t like.

  18. Paul,

    I’d probably wear a seat belt of my own free will on the bus if they were provided (kind of hard to do that when you’re standing, though). People who don’t wear seat belts while driving are incredibly stupid. Of course, I believe the state should allow them to turn themselves into high velocity projectiles if they wish, but I’m not going to cry wolf about creeping totalitarianism because of seat belt laws.

    Such laws impose a much lighter requirement than the things Sullum compares them to, AND only apply to those choosing to partake in a certain activity. If that’s just a difference in degree, then every law is only different from arbitrary totalitarian rule in degree.

    For instance, do you consider the state’s prohibition of chugging a 24-pack of beers immediately before driving to be only different in degree from mandatory cals?

  19. “I guess this is the way this gets done though- claim a ghostly fist as justification for a real one.”

    “Ghostly Fist” would be a great name for a Kung Fu movie.

    Or maybe “Ghost Fist versus the Flying Death Kick.”

  20. My parents own a restaurant bar in PA. They just banned smoking thursday. I don’t smoke. I think this is by far the stupidest law on the planet No you know what I don’t think it is I know it is it is now factually the stupidest law ever. The government gives us no money no tax breaks nothing in return for our compliance.
    Just because a bunch of whiney pussies don’t want a little smoke in their face.

    Drink at home or grow up.

    The most disgusting thing is the “PRO choice”
    democrats pushing these. yeah pro choice. As long as it’s a choice they agree with.

    If all non smokers stopped going to bars or anywhere where there was smoking you’d see these places ban it themselves pretty damn quick. But they can’t be bothered to boycot or actually show unity so they whine until their pussy fuck politician friends.

    I can show you actual proof that music over a certain level for a prolonged period of time can cause irreparable damage to your ears.
    So what’s next loud music? how about flashing lights cus ,you know, epileptics like to drink to. What about foul language. Or even big words as it may harm someones self image if they hear someone speak with a better vocabulary it could push them to suicide. depression etc.

    children.

  21. I explored the totalitarian implications of public health.

    Tee-Hee-hee…that got a full belly laugh from me.

    I can show you actual proof that music over a certain level for a prolonged period of time can cause irreparable damage to your ears.

    I wonder if you can figure out how this is different than smoking?

    If all non smokers stopped going to bars or anywhere where there was smoking you’d see these places ban it themselves pretty damn quick. But they can’t be bothered to boycot or actually show unity so they whine until their pussy fuck politician friends.

    If all smokers took their smoking politely outside, you can bet that the non-smokers would have never have been motivated to use the hammer of government to screw the smokers.

    What comes around, two sides, same coin, whatever.

  22. The tension between concern for your fellow man and entitlement continues unabated.

    Strangely, both sides of this conflict lack a sufficient degree of concern for others and an over-inflated sense of entitlement.

  23. If all smokers took their smoking politely outside, you can bet that the non-smokers would have never have been motivated to use the hammer of government to screw the smokers.

    Bullshit. The same Anti-Smoking whiners involved would instead complain that the smokers were smoking too close to the doors, or too close to the pathways, or too close to other people – anything to use the hammer of government to screw the smokers.

  24. Why don’t the Anti’s eat and drink outside. Oh ya i forget they don’t spend money in bars and restaurants. They just Huddle together deciding how to get bans enacted… Anti’s are just a bunch of jackbooted fuckheads!!!!!

  25. But, but…..there was a study done, and everything!

    I just looooove statistical data.

    Did you know that virtually 100% of all non-smokers born between 1800 and 1900 are DEAD?

    That 100% of those DEAD people were exposed to oxygen as an inhaled agent? Quite a strong statistical correlation between oxygen inhalation by non-smokers and death.

    This gives me a GREAT idea for new legislation.

  26. If all smokers took their smoking politely outside, you can bet that the non-smokers would have never have been motivated to use the hammer of government to screw the smokers.

    NM, is there any type of govt coercion that can’t be justified in this manner? “If you’d only done what we wanted you to do, we wouldn’t have had to coerce you to do it.”

    It’s not a case of what goes around comes around, either. Smokers weren’t coercing non-smokers to hang out where people were smoking, were they?

  27. If only people would sell their house to the government when asked, we wouldn’t have to seize it via eminent domain.

    If only Mexicans had refrained from smoking marijuana, we wouldn’t have had to ban it.

    If only slaves had stayed on the plantation instead of running away, we wouldn’t have had to make a fugitive slave law.

  28. The nanny state is going to be shoved down our throats whether we like it or not. Obama and his ilk know best what is good for us.

    I suggest stocking up on guns and ammo. Bullets shoot nannies good.

  29. Is this the first decision that references The Simpsons?

  30. This has gone from ridiculous to downright stupid. The more governments try to screw people who smoke, the more the economies get screwed. It’s that simple, regardless of any “studies” or whining antismokers.

    Moreover, the “nanny” politicians have been repeatedly voted out of office both in the US and abroad. Stupidity never pays.

    Withdrawal from nicotine entails temporary cravings. Withdrawal from smoking is a bit more tricky. Withdrawal from freedom entails the abuse of science, law and humanity.

Please to post comments

Comments are closed.