Smoking, Smoking, I Feel Alright Mamma, I’m Not Joking

Another historical argument from the file. Austin passed several smoking bans. Passed and overturned and passed again. Anyway, it lead to some interesting thoughts on mine and other’s parts. This is some of it. The rest may still be in the archive over at the Liberty List and TCLPactive.

First round: Just Say NO! to Compromise

The city of Austin proposed a smoking ordinance in 2003 that would have banned smoking in public places. It passed. They then went on to offer to sell smoking permits to businesses that wanted to allow smoking. In other words, they could pay to get a permit to do something that they should have been able to do anyway, but now have to pay for because the city government felt pressured to act. Then they realized they’d created a massive cash cow that they could suck funds out of. It’s a beautiful world, isn’t it? There was a chance that other alternatives to the original ban might be entertained alongside the permits idea.

Rock Howard proposed the following in response to the suggestion that any form of compromise would be an abandonment of our principles as libertarians. This is a compromise on the smoking ordinance that would simply clarify business practices that already exist, allowing the customer to then make an informed choice.

To me an example of a workable compromise would be:

a) If they wish, an establishment can sign up on a city maintained smoking registry, but doing so is not necessary if the owner puts up a sign near the entrance(s) of the establishment detailing their smoking policy. (Minimal signage would be: “Smoking Permitted”.) or

b) If they wish, an establishment can sign up on a city maintained “smoke free” registry, but doing so is not necessary if the owner puts up a sign near the entrance(s) of the establishment to the effect detailing their smoking policy. (Minimal signage would be: “No Smoking” or “Smoke Free”.)

This compromise would hopefully placate those who consider cigarette smoke as an assault on their personages. (For some people it actually is an assault) As far as abridging rights goes, it is simply coupling the right of the property owner to the equal and legitimate responsibility to make their smoking policy clear to prospective patrons either through signage or by the public process of signing up on a registry.

As far as the permit idea goes, let’s see if we can dig up actual examples where a permitting process for smoking turned into a ban. If we can do that, then that would be helpful as it might give the business owners more intestinal fortitude about defending their rights. At this point many are seeing this as a life and death issue for their businesses and that makes more susceptible to a slippery slope compromise.

When further objections were offered, he then posted the following.

It is possible to stay with our principle but also get involved with the current process too. If we refuse to get involved for the sake of principle, then we abandon our constituents to their fate (which likely entails a slippery slope compromise that dooms them in the future) The only other avenue is the courts, but we have no friends or power their either.

I have seen this fight in other cities and with the current political mindset of the voters, as long as it remains a political battle, we are doomed. If we can be smart and lucky we might be able to help craft a compromise that staves off the rights-snatchers for a while and, more importantly, helps preserve the livelihoods of our core constituents for the time being. If we do, then we will have bought ourselves some time as well as additional support for the long term project of opening up the minds of the people to the larger issue (i.e., the critical importance of personal property rights.) This will take time and money and, without it, we are just kidding ourselves about our ability to win this battle.

The only reason that I used the word compromise in the first place is that there are only two possibilities right now: 1) no compromise happens and the current harsh Smoking Ordinance goes into effect; or 2) a compromise occurs to stave off the most harsh effects of the ordinance for some time. I do not accept that there is a third option (as much as we would all prefer it) in the near future. I suggest that to get to the preferred outcome that we all want, it makes sense to be involved in the current process as the outcome of “no compromise” will simply kill off many of the small businesses that we are supposedly trying to support.

In point of fact, if the local [LP] works against some sort of compromise, then we are, in effect, working to enact the Smoking Ordinance. Go ahead and do so if that is what you want, but in my considered opinion that approach is counterproductive in the short, medium and long run.

Then the argument really started.


If we try to mediate a compromise in this case, we are saying that government taking away just some of our rights is ok verses taking all of them. If we need to take this to court to fight this injustice we should, it would really make a name for ourselves. We should stand up for what’s right, not for what we feel is acceptable for the moment.

Smoker

What about the rights of the non-smokers to do business in a smoke-free environment? What about the real health issues involved in breathing smoky air? I assure you that the solid majority of Austinites are 4-square behind an outright ban based on those two arguments alone.

I don’t agree with them, but they are our audience.

A requirement to sign the exterior of your business is no different than putting ingredients on the outside of packages, or spelling out the details of a contract in advance. It’s not a compromise it’s collaboration, an acknowledgement that there are telling arguments for those who support a ban, but that a ban is not necessary or even desirable.

IMO, signing the exterior of your business IS what is right. Some of us would prefer to do without the smoke. Thank you, Rock, for the level headed suggestion.


The outcome of the vote on the smoking permits ? Landslide in favor of it, the council couldn’t resist that cash cow. The local LP candidates (except for the exceptional Rock Howard) opposed all compromises and sunk any chance of sidestepping what happened then, and what happened next. At the suggestion of the moderator at TCLPactive, I then moved the resultant discussion to my Liberty List

Second round: Smoke lies are 50

Getting in your car and driving will lead to serious health consequences, to the same degree that lighting a single cigarette will lead to serious health consequences.

Smoker

It has nothing to do with the number of trips. I can get in my car right now and drive, and while I stand a statistical chance of harm, the mere act of driving the car does not increase the chance in and of itself.

My wife and I were test car drivers for quite awhile. She has driven more than a million miles. She’s still breathing.

A relative of mine has smoked 3 packs of filterless cigarettes a day for 30 years. He’s had cancer twice, (thankfully not lung cancer) cancer that is statistically related to smoking, and he still insists that the smoking isn’t the problem, all the while smoking like a chimney. He may still be breathing now, the latest radiation treatments won’t start for a few more weeks. The man could have lived in good health to the age of 100 or more, without the cigarettes. I personally don’t think he’ll see 70 because of them.

There are three kinds of men.
The one that learns by reading.
The few who learn by observation.
The rest of them have to pee on the electric fence for themselves.

Will Rogers, The Wisdom of Will Rogers

Your rights are not being transgressed when someone smokes in your presence, because you are free to leave, or not to breathe the smoke, or to wear a mask. Your rights are being transgressed when someone forces you to do something that harms you or others, or when they harm you directly.

Smoker

When I am engaged in commerce, dining out for instance, I and the parties I am doing business with have entered into an informal contract. Part of that contract involves a smoke-free environment if you are doing business with me. During the process of commerce, while I’m eating for example, someone decides to engage in their particular form of self-destruction and lights a cigarette.

How am I free to leave? I daresay that the owner of the establishment would take exception to my departure before contracts are satisfied, before I paid, in this example. As someone who is known to demand a smoke-free environment, why should I be expected to leave? Since non-smoking is something that I demand up front, should not the smoker be ejected if he refuses to leave?

…”wear a mask”. Why doesn’t the reverse apply? Since smoking carries no negative impacts, let the smokers wear a mask and not waste a single breath of their precious nicotine.

…”not to breathe the smoke”. Not breathing as a choice. No, I don’t think so.

The truth is, when someone lights up in my presence, they are in fact forcing me to engage in their habits. It’s a cop-out for libertarians to say “you’re free to leave” or “it’s a (property) rights issue”, because that is just the surface. The reality is much more complex than that.


Your usage of “informal” is as a euphemism for implied. A contract not discussed and not agreed to is a contract which does not exist.

Smoker

Informal does not equal implied. The words have different meanings. Walk on a check at a restaurant and see if the restaurateur doesn’t think you have a contract. That you are expected to pay for services rendered and food consumed is an informal contract; informal because you did not agree to the contract in writing, in advance.


When people complain about an aspect of free-wheeling liberty (such as people lighting up whenever they please whenever the owner of the property they’re standing on doesn’t mind), it is my reflexive assumption that the person making the argument would turn a blind eye toward government force should it be stamping down on that aspect of liberty…

Smoker

I have the right to object to harm and I will exercise that right vehemently. To put the shoe on the other foot; do you put tags on your car? carry a driver’s license? pay income taxes? If you answer yes to any of those questions, then by your definition you can apply the label to yourself, because government force is used to mandate things which are infringements on our liberty as we define them.

Austin banned smoking recently, and no, I’m not going to spend time fighting that battle now. The alternative wording (see above) that I agreed with was deemed a compromise by the local activists, and they decided to stand on principle and go down with the ship. Well, the property rights ship sank, and smoking is banned here now, unless the business owner agrees to pay the city for the privilege of allowing smoking. As Austin is “the liberal island in the conservative sea of Texas”, this is probably the way it’s going to be for awhile.

The net effect is positive for me personally, since health issues are deemed too touchy-feely to be taken seriously by hard-core types. My choices were reduced to either choke on the smoke of the free-wheeling, or breath the socialist air. So my fellow libertarians (who love to talk about choice) forced me to pick the lesser of two weevils. Not a position I relish, I assure you.

That’s also an assertion. I don’t know what study it’s based on but I’ve enough smoking and second hand smoking studies demolished by examining their statistical methods that I don’t put any stock in them. Cato has plenty of these. The claim that 400,000 Americans die every year from tobacco is an outright fabrication from the American Cancer Society, for example.

Back to the original question, the only acceptable smoking ordinance IMO is having establishments clearly post their smoking policy at the entrance so you can make your decision before entering, as was suggested by Rock Howard previously

Smoker

Back at the beginning I endorsed Rock Howards proposal, so I think we’ve come full circle here. As another aside, The CATO Regulation article that is being alluded to was addressed in ACSH – Environmental Tobacco Smoke: Health Risk Or Health Hype? Needless to say that I think the scientists at ACSH are pretty sure of their numbers.

Third round: A non-smoker clears the air on smokers’ rights

About the only thing that the writer got right was that it’s not an issue of smoker’s rights.

What most people who aren’t in the architecture field don’t realize is just how controlled building standards are in EVERY OTHER AREA except indoor air quality. The establishment of building codes that spell out minimum standards would go a long way toward addressing the problems of smoking vs. non-smoking, giving more choice to people in the long run rather than a strict smoking/smoke-free establishment.

Back in the good ol’ days the upper class spent the money to have smoking rooms, because it was ill-mannered to smoke in front of the ladies. Now we’re all slaving in a socialist paradise, chucking the niceties of proper etiquette and the class structure, dragging the unwilling along with us kicking and screaming in whichever direction the whim of the majority takes us. Soon we will all be trailer trash (what in math is referred to as a Lowest Common Denominator) and not even the trailer trash will be allowed to smoke. Ah, democracy.

Business owners want one thing over all others: profit. I say fine, but let’s get to the real cost and benefit of the systems that we create. restaurateurs and club owners will not take a hard stand for property rights. It doesn’t sell food and drink. Oh, they’ll cheer us on, but they’ll toe whatever line that a) causes the least trouble, and b) makes them the most cash in the system.

…and the system does not take long-term health effects into account.

So, you had business owners who were more than happy to crowd everyone together with sub-standard ventilation, breathing each other’s exhaust fumes, because it was cheap and the majority of the population smoked. Now the majority are non-smokers, don’t want to smell smoke, and are willing to subvert property rights (Just as it’s been done since the beginning of time) in order not to have to. Guess what? The business owners will make the just-enough-to-prove-a-point noise about it, and then roll over and comply. That’s how they ‘work the system’ to their advantage. They get to appear sympathetic to the ‘poor smoker’, but they can follow the majority and their dollars into a non-smoking paradise; best of all they get to keep their poorly ventilated, overly crowded buildings just the way they are, and look good in the process.

Best bang for the buck that there is.

This has been my point all along. Ya’ll can stay on the high horse of property rights, and loose. You will lose, mark my words. If it’s a choice of defending this myth that business ownership is some kind of grandiose last stand for property or defending my desire to breathe cleaner air, then I’m going to breath easier.

I could do that or we could establish that the system should take account of air quality, just as it does minimum structural standards, minimum exiting standards, minimum bathroom sizes, etc, etc, ad infinitum. Call it signage, call it minimum codes, call it defending my property, my body, from the negative health effects of your bad habits, even when I’m not physically on land that I own. I don’t care what you call it but it’s better than establishing smoking bans all over the nation, which is where we are headed right now. Then we can add tobacco to the list of black market drugs. How about ‘smoke-easy’ establishments? They probably already exist in New York.

Do you know what I would love to see? Smokers wearing space helmets to smoke in. With a HEPA filtration system on the helmet, no smoke would escape to annoy the non-smokers. Can you arrest him for smoking in his own private space? Would anyone bother? That would be an argument involving the rights of the smoker and no one else. Do you think we’d find a volunteer to test the theory? Or does even the most devout smoker balk at being cooped up in small space with too much smoke in it? If you really believe that it’s not a health hazard to smoke, then why would you not be willing to?

There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. When there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

Ayn Rand

I’m sure some of you out there dismissed my solution out of hand “Bah, more minimum standards. Just another there-oughta-be-a-law solution for problems that are none of the gov’ts business.”

Now, if I were talking about law, then I would agree with you. However, that wasn’t the subject. Building codes are not laws. Yes, I know, in most places they are adopted and enforced as laws; but they start out as guidelines drawn up by groups concerned about public safety. They are minimum standards for safe building, and are as necessary in the scheme of things as any written manual. Anyone interested in limiting their liability, and most businesses are interested in this, will attempt to follow some acceptable standard of practice. So the creation of minimum standards for building was inevitable and actually desirable.

The problem with building codes is that they become bound up in the bureaucracy of government. Wander down to the building department in nearly any city in the U.S. and you will see the stellar results we get from this approach. In Austin, the indecipherable rat’s maze of overlapping authorities has lead to the need to create an office – the Development Assistance Center – just to tell the newcomers where they should start in the maze. One size fits all – and you will comply with the standards.

Tying the codes to government has several other undesirable side effects. I want to focus on one of them: The negative effects that rigid standards imposes on innovation. Many of the new technologies face impediments placed in their way by codes that were drawn up before they existed. IMHO, minimum standards for indoor air quality is one of the areas that has been affected by this, which has lead to the panic over the negative effects of secondhand smoke.

The solution to making the codes more responsive is to divorce the creation and enforcement of building codes from the government altogether. Much like independent Underwriters Laboratories creates minimum standards and tests assemblies and devices based on those standards, building codes should be based on logical, definable standards that can be tested, inspected and approved by any sufficiently educated third party. Allow the property owners and the professionals who design the facilities to decide what standards they wish to meet; and then hold them accountable for failures in design.

…and the solution to the smoking issue in the built environment is to create a minimum standard for indoor air quality that addresses the public’s concern.

It is not the strongest species that survivenor the most intelligentbut the most responsive to change

Charles Darwin

Editor’ note. This was a clusterfuck to edit together the first time, and it has been a clusterfuck every time I’ve tried to re-edit it. Pulling quotation marks and semicolons left and right. Typing out full words for stupid abbreviations. I think it sort of makes sense now. This article remains a cautionary tale for trying to include conversations in a format that doesn’t permit real dialog. The question that should be asked is “is it really worth the trouble? Can I turn the dialog into a monologue that doesn’t sound insane?” If no, then don’t even start the editing process in the first place.

There were arguments along the way through the conversation about smoking bans that suggested something to the effect that “the average person doesn’t care about smoking, and so the smoking ban will never pass if put to a vote.” Not too long after the Round 3 discussion, a referendum on banning smoking indoors in Austin was put before the voters, and it passed by a slim majority. This development put Case Closed on the subject of smoking here in Austin, and it reversed the council’s transparent attempt to milk cash out of business owners who wanted to cater to smoking clientele.

The battle went on in court over the new ban, but it never looked good and eventually was upheld. Personally, I don’t think the courts want to reverse a ban instituted by referendum. There is such a fear of the will of the majority that minority rights are ignored when the majority deems it necessary. This has been true since the day when democracy was invented.

So the dust up over the property rights of business owners comes to naught, except for those business owners who see a serious dent in their profit margin in complying with the new ordinance. Which is pretty much how I saw it shaping up in the beginning.

Author: RAnthony

I'm a freethinking, unapologetic liberal. I'm a former CAD guru with an architectural fetish. I'm a happily married father. I'm also a disabled Meniere's sufferer.

Attacks on arguments offered are appreciated and awaited. Attacks on the author will be deleted.