In addition to seconding Hugo's most recent post, I would like to stress again the distinction between a public place and a private establishment. Just because it is a place for people to congregate does not change the fact that it is a private establishment with the owner or manager afforded the same rights as any other private property owner.

The public places the government has a right to ban smoking would be government buildings, state parks and any other facilities funded by all tax payers, regardless of smoking preference. You have as much right trying to force a nightclub to prohibit smoking as I do to say what you can or can't eat in your own home.

So frequent establishments that don't allow smoking. Or maybe take the initiative of petitioning the owner of these establishments to prohibit smoking. It's a cop out, and a violation of private business owners' rights, to cry to the government to ban it because people were too lazy to address the issue themselves or go somewhere else.

That's easier said than done....let's see, in my neighborhood, that limits me to McDonalds, Burger King or Taco Bell......If I want to have a nice dinner with my friends, plotting that out is a bit more difficult.....



Likewise, if I allow sex on the tables in my establishment, that should be my choice.....If I like loud music in my apartment or as I'm driving down a residential neighborhood, that should be my choice, and if you don't like it, go somewhere else.....(nod to Cephus and quarkhead)

Another solution: In order to serve alcoholic beverages, bars must apply for a permit, perhaps they should also apply for a permit to have a "smoking" bar.

Noise in your car driving through a residential area, or noise played extremely loud in an apartment, are a different matter than smoking. When you do that, you encroach upon the space of other private citizens. The noise from the car or stereo extends beyond your space into theirs.

With restaurants, the smoke affects only that private establishment... and it is you who makes the choice of whether to enter or not. (nod to anyone who can see the difference...)

If you can't find any other restaurants, try petitioning the owner. If there are enough non-smokers to warrant a change, you should have no trouble convincing him or her that prohibiting smoking is in his or her best business interest. The government has no business telling them whether they can or can't allow smoking in their establishment.

That's true, but a business is also a public place (supposedly) and people other than yourself are affected by smoke. You ostensibly have employees and customers who don't wish to be exposed (the bartender and waitress unions lobbied heavily for the smoking ban in California because they didn't wish to be exposed).

I don't know of any smokers who are going to stop going out because they can't smoke indoors, but there are a lot of non-smokers who are going to avoid businesses which permit smoking. As a business-owner, you can certainly choose, in a state which permits it, to allow smoking, but it's not a very intelligent choice.



Sorry, was there a Constitutional right to smoke in public that I missed? It is a state and local issue, a state or city could, if it chose, outlaw smoking *COMPLETELY* within it's borders and there isn't a thing smokers could do about it. Now I don't necessarily recommend that, it would be an uphill legal fight, but it is certainly possible and completely legal if they chose to do so.

Abs like Jesus writes:


What do you think you do when you smoke? Smoke extends beyond your space into the space of others. It isn't like drinking, you can drink and the people around you don't get drunk. You can't smoke and exclude people in the area from your exhaust.

You really can't even use the car example because most states have instituted automobile exhaust requirements. You can't, by law, have a car that smokes and excessively pollutes the environment.



I do. In this state, that's ALL of them. The voters passed a law which stated that there was no smoking in enclosed businesses (you can still smoke in restaurants which have outdoor seating if you wish). The voters *DID* address the issue, some politician didn't impose the law on everyone, the people spoke.

They become a place of public gathering because the owner allows patrons to enter for profit. They are first and foremost a private establishment. It is not illegal to smoke in this country and the public has no place in telling a business owner how they can or can't legally operate their business.

When last I checked, smoke does not have the ability to break down walls. It also has a tendency to dissipate in open air, preventing smoke from one establishment from crossing the street and entering another. If a business allows smoking, it's the choice of that business and effects only those patronizing that business. The restaurant owners and patrons across the street have no more place dictating the smoking policy of the club across the street anymore than the club owner in question would in dictating the menu options of the restaurant.


The Fourteenth Amendment allows private business owners to dictate their own smoking policies for their establishments. Second hand smoke is also not an issue for non-smokers in open areas where it dissipates quickly into the air. Without tobacco being an illegal substance, I'd love to see a state or city try to outlaw it "completely" within their borders.

Using the 14th Amendment is pretty weak - "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Conversely, we could argue that by allowing smoking, your discriminating against those with health issues, i.e. asthma - 'the Court concluded: “Just as a staircase denies access to someone in a wheelchair, tobacco smoke prevents Plaintiffs from dining at Defendants' restaurants.'
-from
Edwards,et al.v.GMRI,Inc.,et al.
Montgomery County (Md.)Circuit Ct.,No.179593 (1997)

This is a question of breaking social morays - most people don't see a problem with smoking, because it is so widely accepted.

- from the Hawaian Star

Except the 14th Amendment doesn't mention smoking at all. The only case you can make is the passage which states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of course, if the citizens of a particular state vote to eliminate smoking within its borders (perhaps leaving it legal only within private residences), that is due process of law. Let's not forget that smoking is not a right, any more than driving is. You can have your license to drive revoked, there is no reason to think that you can't have your ability to smoke in public revoked as well.

The Fourteenth Amendment also doesn't specifically address privacy issues such as abortion and consentual sodomy, but it has been construed to protect these rights. Denying those who legally smoke tobacco products the right to do so in public, or denying a business owner the right to allow the legal smoking of tobacco products on his or her property, is an abridgement of their rights.

As long as smoking tobacco is a legal practice, it is the right of citizens to do so, and the right of business owners to allow it on their property. The right to drive can be revoked when there are laws broken. There aren't any laws a smoker can break to have their right to smoke revoked, Cephus.

The citizens of a particular city or state should not be able to dictate the legal activities of their fellow citizens merely by vote. That's what has already been referred to as the "tyranny of the majority" in this thread and elsewhere on this site. Were that the standard, we would likely still be faced with segregation, laws prohibiting homosexual acts, etc. The majority is not always right and should not be enough to limit the actions of individual citizens for good reason.

Should the citizens of a particular city or state be able to vote to strip women of their voting rights, segregate schools based on race or prohibit consentual sodomy between adults? Should the majority be able to vote to go to war with France because the majority is consumed with emotion against our ally? There is a reason the tyranny of the majority is to be avoided, and it extends itself to the case of smokers and non-smokers.

In regards to the comparison between smoking and those with a disability, Andy, the steps prevent those with wheelchairs from accessing the building at all. They are essentially denied the right to choose whether they enter an establishment or not, which is not the case with smoking.

If an asthmatic makes the argument of being physically unable to dine in a particular restaurant, can they then take their argument to Bath and Body or a similar shop with excessive fragrances in their shop? They, the patron, makes the decision of whether they go in there or not. The Body Shop is no more responsible for a person with an allergy to jasmine entering their shop with negative effects than an asthmatic entering a restaurant which clearly does not prohibit smoking on their premises.

Businesses allowing smoke do not inhibit the choice of patrons to enter or avoid their establishment. They are not infringing on the rights of individual citizens. Forcing such establishments to prohibit a legal action, however, does infringe upon their rights.

But sodomy has been found to be legal only in the privacy of your own home. You can't do it in public. As I've said, I really don't have a problem with people being allowed to smoke in their own homes, I don't like the idea of the government being able to regulate it to that degree. As far as businesses though, they are all licensed by the government and the government has an interest in public health and safety. You have the right to free speech, you just can't yell fire in a crowded theater because it might harm someone and cause a panic. You can smoke, but you can't do it where it infringes on the rights of others to remain smoke-free.



Unless laws are passed that restrict it, of course. If the majority of voters vote that there be restrictions on smoking, then anyone violating those legal restrictions has broken the law.



Funny, they do every day. You have to clean up after your dog. You can't park in a red zone. You have to drive at a certain speed. You can't operate an adult business within a certain distance from a school. These are all legal restrictions on legal activities, imposed by society on the individual. In almost all cases, it is done for the common good, as determined by the voters of the state, county or city in which it is imposed.



All of those are Constitutional issues. Smoking isn't. There is no right in the Constution to smoke, as there is for equality, voting and privacy.

Yelling fire in a crowded theatre puts people at risk they aren't aware of. As long as a restaurant posts their smoking policy, it is not within the rights of the citizens to say whether they can or cannot allow smoking in their facility. Smoking is legal whether it's the cigarette itself or the second hand smoke that stems from it. What is legally done within a business establishment, and which does not extend to the general public, is not a public health issue but a business one. Smoking in a club or restaurant does not affect the public at large but rather those citizens who have made the decision to expose themselves to a smoking environment.

Emphasis added to my quote

A dog can leave feces all over its own yard. The laws requiring owners to collect it from public property and the private property of separate citizens is in effect not merely because of a vote, but because it violates the property of other citizens. The same follows with your other examples. It is not merely a matter of voting, but the rights of other citizens being violated without their consent.

Before you quote that and give your beef on second hand smoke violating the rights of citizens to free air, please not the "without their consent." If a person knowingly enters a bar, restaurant or club knowing that they allow smoking, they are giving their consent to breathing air tainted with second hand smoke. Nobody forces the second hand smoke upon them.

Finally, the choice to smoke or not is the right of American citizens. As long as the smoking of tobacco products is a legal practice, the government has no place in telling business owners whether they can or can't allow it in their establishments. Nobody is forced to enter a smoking establishment so the smoke is not forced on anybody wishing to breathe cleaner air. As soon as a person makes the conscious decision to enter a smoke filled environment, they make the choice to breathe in the secondary smoke of a cigarette.

Edited to add While I still maintain the government has no right to impose such a ban, I was recently giving some more thought to the argument of a majority vote. Again, I also maintain my opposition to any form of "tyranny by the majority."

But, why would there need to be any vote if there truly is such a majority? It seems well within reason that non-smokers could unite to petition local business to prohibit smoking, rather than try to involve the government in the first place. If there are that many non-smokers willing to commit themselves to eliminating smoke in their restaurants and bars, surely it would be in the best interests of business owners across the country to heed their requests.

So, while I'm completely against a government ban on smoking or "tyranny by the majority," it seems there's an easier solution, assuming there truly is a majority willing to eliminate smoking from their social environments.

Abs -

You don't seem to have a problem identifying with our examples, I.E. yelling fire in a crowded movie theater, or loud music blaring from a car stereo, or cleaning up after a dog....because these are not accepted behaviors....these are not the social norms....but to the majority of us...the non-smoking majority, find second hand smoke as unacceptable as any of the above examples.




Actually, its discrimination.....the restaurant was ultimately fined for discriminating against those with asthma - which is covered under the Americans with Disabilities Act.

Because the bar/restaurant/whatever is open to the general public, the general public safety and health must be considered. If you walk into a restaurant that allows smoking, look around, see that no one is smoking, place your order and sit down to eat, only to have someone smoking a cigar sit down at the table next to you and blow smoke your direction, I'd say you have a very valid reason to complain, wouldn't you?



And second-hand smoke violates the lungs of other citizens. There are rights on both sides here: the rights of the smokers and the rights of the non-smokers. You can't dump toxins into the city sewer systems because it affects the health and wellbeing of the community as a whole. So why do you propose that you can punp those toxins into the air where everyone within a certain radius is affected?



So why not legalize live sex shows in bars across the country? After all, the government has no place telling business owners what they can and can't allow, right? And nobody is being forced to go into the bar, right?

The simple fact is that smoking is a proven health hazard, that second-hand smoke is a proven killer and smokers simply can't cry foul because their disgusting habit is being restricted as a public health menace, just like asbestos and radon gas. Or should business owners be able to use asbestos insulation, since the government can't tell them what to do and anyone who goes in there and gets sick, obviously deserved it because they CHOSE to enter the establishment?

I'm not identifying with them simply because I view them to be "unacceptable." As I've already said, they either have an effect on other citizens which those citizens didn't have a choice in, put other citizens at a risk they were previously unaware of or both. A business allowing smoking does neither of these.


Gosh, should we prohibit the sales of foods high in cholesterol too because obesity is an epidemic and fast food chains are open to the public?

The general public is not affected by the actions taking place and confined to a private establishment. If I kill myself in the McDonalds on Fourth Street, that doesn't affect you six blocks over in Wendy's. If Bill lights up a cigarette in the smoking section of a Denny's on Market, that doesn't affect you or anyone else not sitting in the Denny's. If you don't see anyone smoking, but know that it's a restaurant that allows smoking, no that's not a valid reason to complain. It makes no difference whether a person is smoking or not at the very moment you sit down.

Gee whiz, who didn't see this one coming?Edited/Emphasis added
Let me know if you need it repeated a third time.

Edited to add: I might also point out that toxins in the sewer system does, as you say "affect the health and wellbeing of the community as a whole." As I stressed before in a previous post, and in the Denny's example in this one, smoking in and confined to a private establishment is the business of only that business, not the community as a whole.


Smoking is a health hazard, but it is also a legal health hazard just like alchohol and cholesterol. Second-hand smoke is actually the subject of some debate in the Health and Medicine Forum. It's not quite the proven killer the EPA once made it out to be. Regardless, as long as smoking tobacco and the second-hand smoke that results remains legal in this country, business owners have the right to have it in their establishments.

Asbestos and radon gas are Class A carcinogens first of all. Second of all, employees and patrons weren't routinely notified about the use of these substances unlike tobacco products. Restaurants and clubs typically make it known whether smoking is or isn't prohibited in the premises, allowing customers and employees alike to make the conscious choice of what quality air they wish to breathe on any given day or night.

*Before anyone tries to classify second-hand smoke as a Class A carcinogen with asbestos and radon, the EPA report which previously did so has since been refuted. Please join us in the Health and Medicine forum for further discussion on the health issues of ETS.
*In regards to live sex shows, Cephus, we probably could if they would take the step of legalizing prostitution. There is little doubt that it would fall under the parameters of sex for money as I assume there is some profit to be made in a "live sex show" in a bar. Of course, I'm all for legalizing that as well, but that's the stuff of another topic...

No, and in fact I argue against that in another thread. Eating fatty foods and blowing up like a blimp is a personal choice. If you eat, the people around you don't get fat. If you drink, the people around you don't get drunk. If you smoke... everyone around you smokes too.

Unless you can come up with a way to keep smokers from 'sharing' their carginogenic toxins with the surrounding population, it's a very different issue.



But it does affect those who are in McDonalds or Denny's. Sure, they can get up and leave, but what's the functional difference between Bill saying it's okay to smoke in his establishment and Bill saying his establishment is white-only? Hey, the black people can go somewhere else, right?

The reason Bill can't do that is because it is illegal to discriminate on the basis of race, creed, sex, etc. There is no right to smoke in the Constitution. You can discriminate against smokers any time you want, either on an individual basis or by passing laws on a local, state or national level. Again, you act like some politician just decided to write a law one afternoon and ban smoking in enclosed public areas. It was the will of the people, a Constitutional concept, that made those laws come into being. Why do you think you know better than the will of the people?

Nobody prohibited non-smokers or smokers from entering Denny's or McDonalds. Nobody forced non-smokers or smokers to enter either establishment. People had a choice, unlike the segregation analogy you're attempting to create. If I do a white or black only system, I'm denying a person the right to choose where they may or may not dine.

If a business owner allows smoking, they are not restricting the right of non-smokers to dine there. They should have the choice of whether they allow or prohibit smoking, and their patrons should have the choice of whether they enter or not.

The will of the people has no business in my personal life and actions which don't concern them. The will of the people has no business in businesses allowing a legal practice that is not imposed upon them. Just as the people can't collectively ban fatty foods in private restaurant establishments, the people have no right to ban smoking in private establishments.

Nobody forces a person to enter a building which allows smoking. Nobody is forcing the smoking environment upon them. If you don't like smoke and you know the club on Fifth Street allows smoking... don't go in. It isn't the owner's fault that you put yourself in a situation you don't like, and it's not your right to tell him or her how he or she can legally operate their place of business.

The smoking policies of a private establishment, which allows and confines second-hand smoke to their establishment, is not the job of the people to control. It is not an issue for the "general public" but of those within the establishment. If you don't like smoke, you don't have to go in. There is no more sense in entering a restaurant that allows smoke and complaining about the air quality than there is entering a burning building and complaining about the heat.

[QUOTE]and it's not your right to tell him or her how he or she can legally operate their place of business.[/QUOTE]

but it is my right...If I'm not given the choices, it's my right to take up to the next level....if the restaurant owner aren't taking care of the needs of the public, I have every right to take it up with the city councel......

[/QUOTE]They should have the choice of whether they allow or prohibit smoking[QUOTE]

I agree, however, when 100% of the restaurants in my neighborhood allow smoking, and only 20% of the population smokes, and the restaurants refuse to cater to the non-smoking populace...the options are obviously imbalanced....I'll be the first one to start the petition..

..in fact, I gotta get going, I've got work to do....

[QUOTE=Andy Mosity,Sep 7 2003, 11:35 AM] [QUOTE]and it's not your right to tell him or her how he or she can legally operate their place of business.[/QUOTE]

but it is my right...If I'm not given the choices, it's my right to take up to the next level....if the restaurant owner aren't taking care of the needs of the public, I have every right to take it up with the city councel......

[/QUOTE]They should have the choice of whether they allow or prohibit smoking[QUOTE]

I agree, however, when 100% of the restaurants in my neighborhood allow smoking, and only 20% of the population smokes, and the restaurants refuse to cater to the non-smoking populace...the options are obviously imbalanced....I'll be the first one to start the petition..

..in fact, I gotta get going, I've got work to do.... [/QUOTE]
I will bet everyone of those restaurants has a non-smoking section. I will bet 90+% of those restaurants you can dine without being aggravated by smoke. I cannot recall the last time I was irritated by smoke in a restaurant. Of course I am not some wide-eyed crusader wishing to impose my will on the freedom and property rights of others.

What *** NOTICE: THIS WORD IS AGAINST THE RULES. FAILURE TO REMOVE IT WILL RESULT IN A STRIKE. *** me off is having to listen to messages in both Spanish and English when trying to contact a business. Think I will attempt to make leaving messages in Spanish illegal, it raises my blood pressure, it can't be good for my health.

From the NY Post

[QUOTE]May 12, 2003 -- Business at New York bars and restaurants has plummeted by as much as 50 percent in the wake of the smoking ban - and the drop has already sparked layoffs and left some establishments on the brink of shutting their doors, a Post survey has found.

From this site

[QUOTE]The risk factor involved with any carcinogen can be expressed as an "odds ratio," or how many times greater the risk is when compared to a control group where no risk was present. A ratio of "5" means the risk is five times greater than in a control group, and is considered a "strong" risk. A ratio of "1" means there is no difference. Anything less than 3 is considered inconclusive.

The EPA concluded non-smoking spouses of smokers, exposed to ETS for a period up to forty years, experienced a risk ratio of 1.19. The risk ratio for drinking chlorinated tap water is 1.5. The EPA has concluded then, that it is safer to spend up to 40 years in daily exposure to ETS than to drink tap water.

Driving across town to visit a restaurant is 17 times more dangerous than the exposure to ETS while eating there. If you include the risk factors of the food and drink, just going out for dinner is 450 times more dangerous than the exposure to ETS.

The December, 1989 study by the Department of Transportation estimated the probability of contracting cancer from the cosmic radiation at cruising altitude as being some 2,000 times greater than the risk posed by ETS while on the aircraft.

Our intelligent layman, who correctly predicted that the health risk of ETS was insignificant, might wonder how the EPA can substantiate it's claim that 3,000 people are killed each year as a result of exposure to environmental tobacco smoke. The answer is quite straight forward: Exaggerating the dangers of environmental tobacco smoke has proven an effective means of sidestepping the freedom of choice issue, enabling unfair laws to be passed which would otherwise be blatantly unconstitutional. These laws ARE blatantly unconstitutional because the evidence clearly shows that the health risk of ETS is insignificant.[/QUOTE]



Obviously the tyrannical majority cares less if people lose their businesses and jobs.

No one is prohibiting smokers from eating there either, they just can't smoke while they are there. Believe it or not, you don't have to smoke 24/7. You can have some consideration for others. Amazing concept, eh?

In my previous example about the non-smoker who was eating when a smoker came in and started smoking, I guess you're saying business owners are going to have to absorb a lot of free meals and wasted food. You certainly can't expect a non-smoker to pay for food which he is unable to eat or enjoy due to the smoke in the air, can you?



The will of the people controls your actions every day of the week, what are you talking about? You act like this is the only place where laws have been passed that restrict your personal freedoms.

I agree.

Newsflash: Private businesses aren't there to serve the needs of the public. Your government, your elected officials and federal offices are there to serve the needs of the public. If they aren't taking care of them, you have every right to take it up with the city council. The Pizza Hut down the street or the night club over on Market are there to make a profit for the owner. They are no more obligated to "take care of the needs of the public" than the eight year-olds selling overpriced lemonade on the street corner.

Edited into quotation boxes for clarity
If 100% of the restaurants in your neighborhood allow smoking and only 20% of the population smokes, it's still none of the government's business. If 80% of consumers are non-smokers they should have no difficulty at all in persuading local business owners to prohibit smoking in order to save a profit. It simply is not the government's place to do this.


Nope, they aren't. If a business chooses to prohibit smoking, they are exercising the same rights to run their business as one which allows it. Whether smoking is allowed or prohibited, both the smoker and the non-smoker make the choice of whether or not they enter. The smoking policies of a private establishment are not the concern of the general public and should not be regulated by it.

Emphasis added

When my private actions are something which "concern them," or I impose something on them without their consent, then they can pass laws which restrict personal freedoms. As I have already pointed out, that is not the case with smoking policies in private establishments.

While the general public may dine at a particular restaurant or entertain themselves at a particular club, the policies of that club do not extend beyond the private property of that establishment. Nobody is prohibited from entering, nor are they forced to enter. A non-smoker has no more right to regulate the smoking policies of a Shoney's than a local AA has the right to regulate the distribution of alchohol in their county.

Just as private business don't get to extend their authority to say what the general public may or may not do, the general public does not get to extend their authority to say what the private business may or may not [legally] do. So again, as long as smoking is legal, along with the second-hand smoke it spawns, the general public and government does not have the authority to regulate the smoking policies of private establishments.

Abs, your free market thinking is great and correct...

The unfortunate reality of the situation is that the courts would look at the Pizza Hut as a workplace. Therefore, that Pizza Hut may be subjecting its employees to an "unsafe working environment", based on the junk science studies that it have been quoted in the past. Promoting safe work environments IS in the Courts' overreaching perview and thus it would have a basis to make a ban Constitutional.

Amlord: As I understand it, the "working environment" argument would only apply to that which is illegal - violations of health regulations, for example. "Occupational hazards" are not grounds for "unsafe practices" unless the employer has demonstrated negligence. The employee would have no case in relation working in a noisy venue (as has already been pointed out, noise pollution can cause headache, induce hearing loss, raise blood pressure, exacerbate hypertension, and have cardiovascular, autonomic, and gastric effects) or in a venue which has the air-conditioning set fairly high (which can cause headache, muscle pain, and chills, lower resistance to cold and flu germs, exacerbate sinus and respiratory infections, adversely affect asthma, and compound pneumonia) or in which there is a smoking section (which some people find annoying).

No employee is forced to work at a race track or a rock venue or a sports stadium or a dance club; no one is forced to work in a venue which is over-air-conditioned (or, for that matter, in a refrigerated environment like a meat-packing plant); no one is forced to work for a business which allows smoking. If one doesn't like noise or arctic temperatures or smoke - or if one feels any of these things may have an adverse affect on their health - one seeks work elsewhere. Unless one is chronically stupid. Maybe we should be trying legislate against witlessness instead.

:::::::::::::::::::::::::

Abs: I appreciate your perspicacity and admire your patriotic fervor in your stalwart defense of what should be the constitutional rights of private business - especially as you are a non-smoker. But, at a certain point, I think you must simply concede that you are banging your head against a wall. It is more than apparent that some people either don't understand the words "privately owned" or just don't get the concept of freedom.

Very interesting topic. Wertz makes a great arguement. The problem Wertz is is that you are assuming the rights of the smoker trump the non-smoker and that is in itself un-Constitutional. You have the right in this country to do what you want as long as it doesn't infringe on someone elses rights. Smoking infringes on non-smoker right to fresh air. I can be driving down the road and I can tell you that the car or truck in front of me is smoking or not if their window is down. If you can make the case that smoking is necessary for your life...then you have an argument.

It is the right of the private business owner that reigns supreme. The private business owner should choose how he runs his business. I thought Wertz made that quite clear.

Let me quote Wertz



A privately owned business should be treated just like your own home. If I want to invite you into my home you have the option to decline my invitation.

I guess the word OSHA has no meaning...

There ARE OSHA guidelines for noise levels. There is really nothing preventing OSHA from instituting a protective "ambient smoke level" above which it would be unhealthy. As a matter of fact, there is already a guideline on permissible air contanimant levels.

Now that does not automatically mean a ban, but if the permissible level is set low enough, then a ban may be the only practical solutions for most workplaces.

I do not agree with the far-reaching powers of the Courts and OSHA. It is just the sad fact that our business climate is controlled by bureaucratic establishments like OSHA.

Regulation of business may or may not be constitutional

How the courts decide:

Strict Scrutiny:

Strict Scrutiny Test:
1) Does the law further a compelling state interest ? (ENDS must be compelling)
2) What MEANS are being used by the state to meet the compelling state interest?and
3) Are the MEANS necessary or narrowly tailored? (If the law is found overbroad, it will be struck down as unconstitutional).

Strict Scrutiny Distinguished from the Rational Basis Test:

1) Strict Scrutiny "strictly scrutinizes" the law. The law being looked at must involve a "compelling" state interest, which is much more urgent than a reasonable state interest (Rational Basis) or even an important state interest (Intermediate Scrutiny -- used by the Supreme Court in gender or illegitimacy cases).
2) Strict Scrutiny Standard: The burden of proof is on the government.
3) Rational Basis Standard: Presumption that the law is valid.



--------------------------------------------------------------------------------

Rational Basis:

Rational Basis Test:
1) What is the Objective of the Law?(ENDS); *
2) What MEANS are being used by the state to meet that objective; and
3) Are the MEANS rationally related to the ENDS? **
* A court will not probe for the true purpose of a law. ** Keep in mind that courts are extremely deferential to the legislature when applying the Rational Basis Standard.


--------------------------------------------------------------------------------

State must Consider Both Consumer and Company Interests:

To determine whether a regulation is reasonable, a court may consider the following:
1) the economic impact of the regulation on the individual;
2) the extent to which the regulation has interfered with specific investment expectations; and,
3) the character of the government action.

Without clear and unrefutable evidence that ETS causes any substantial harm I do not see how non-smoking laws can be held constitutional when they do impact on a businesses bottom line. There is clear evidence in New York that no smoking laws are costing businesses greatly.

Sorry, I'm making no such assumption. I am speaking of what a private business owner may do with his or her own property. In manmy places now, a restaurant owner cannot legally allow anyone to smoke in his own premises. Even if s/he wanted to call the place Smoker's Haven and post warning signs that there was a smoking section within, s/he could not legally do that in the state of Florida (where I live). One cannot even have a separate, ventilated, hermetically sealed room for smokers or a separate building for smokers. On one's own property! That, my friend, is unconstitutional. That infringes on no one's rights but the rights of the property owner. As long as tobacco-smoking is legal, if I want to open a restaurant which had no non-smoking section, that is my constitutional right. Well, not any more - not in "the Land of the Free".


That would be great! Sadly, it is far from the truth. I do not have the right to consume marijuana. I do not have the right to form a legal domestic partnership with my same-sex mate. I do not have the right to open a gambling casino on my property. I do not have the right to work as a prostitute - not to engage anyone else for similar services. I do not have the right to drink before a certain age - or to have sex. None of these things infringe on the rights of anyone else - and they are all illegal.

Now, making decisions about what I wish to do with my own property is also illegal.


You are now arguing that people should not have the right to smoke in cars? My God, this discussion is taking a fascistic turn. I would suggest that, if you're concerned about toxins being released from automobiles, perhaps there are graver concerns than a bit of second-hand smoke being dispersed from a window. In fact, if you're concerned about pollutants at all, ETS should be near the bottom of a very long list.

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Amlord: It looks to me as though the OSHA guidelines regarding noise only apply to industrial worksites where there is persistent machine noise or similar. This would not apply to the race track or the concert hall. I suspect that there might be similar differences of application, even if ETS were classified as an "air contaminant". If contaminant standards must be applied smoking sections or smoking rooms, however, and would determine a level of ventilation or other precautions, so be it. Fine. No argument (especially if they could actually determine what an "unsafe" level of ETS was). But an outright ban is downright unconstitutional.

The problem isn't that smokers or non-smokers having precidence, but that Abs is claiming that there should be no restrictions placed on legal activities. I can't think of many legal activities that don't have SOME sort of restrictions regularly placed on them. It's legal to drink, but there are many places you can't do it. It's legal to drive, but there are many places you can't do it. It's legal to have sex, but there are many places you can't do it. It seems like the opposition is thinking that smoking is the only activity that has been banned in public places.

No one is stopping you from smoking, they are just telling you that there are places where it is inappropriate to do so. Smoking, unlike the above examples, causes inherent health problems for the people around you. So long as you smoke, everyone around you does as well. Therefore, the people who wish to remain healthy have a higher right to remain smoke free than a smoker does to pollute the atmosphere.

This is not at all what I am saying, Cephus. I have stressed several times now, to no avail, that I am making the distinction between legal activities that affect the community as a whole and those legal activities which affect only myself or perhaps those who make the personal decision to expose themselves to the effects of my actions.

You have twice misrepresented what I am saying, the previous time coming only in your second to last posting:
Hopefully I won't have to clarify this again.

When I drive, I am driving on roadways constructed by the government and I am sharing the road with fellow drivers. If I drive recklessly on the roads, I'm putting fellow drivers at risk without their knowledge or consent. In contrast, when I smoke in a private establishment and make this fact known, I am not forcing secondary smoke on any person who knowingly enters the establishment with the understanding that there will be a reduction in air quality.


They are attempting to tell smokers it is inapprorpiate to do so in places which are none of their concern and which are not within their rights to regulate. The public has no more right to regulate the smoking policies of a private establishment than they do to come in my home and demand I cease smoking for the duration of their visit. Sure, the smoke from a cigarette will reduce the quality of air they're breathing in my presence, but it's my house.

Similarly, the business owner who allows smoking in his or her establishment is making the decision on what legal practices they allow on their property. This nonsense about "the people who wish to remain healthy have a higher right to remain smoke free" isn't going to cut it. They have the right to remain smoke free and nobody is imposing the smoke on them.

Is the smoker or business owner who allows smoking forcing them to enter his or her establishment? No. Is the smoker or business owner who allows smoking transporting the secondary smoke from his or her establishment into the non-smoking facilities of another citizen. No. Non-smokers have the right to remain smoke free without smoking bans. They need only stay out of facilities which allow smoking.

If a non-smoker makes the choice to enter an establishment which allows smoking, they have nobody but themselves to blame for the environment they're in. It is not the fault of the business owner or the smoker, and their patronizing does not grant them the right to decide how a private business owner runs his or her own establishment.

HEAD -------> WALL

(Hopefully, I won't have to clarify this again. )

Seriously. I never thought I'd live to see the day when someone would actually put forward a "some are more equal than others" argument here - and mean it.

There were two restaurants within walking distance of my last residence. The owner of the Italian restaurant chose - through his own free will - to have a separate, clearly-marked open-air smoking area on the property which he owned. The owner of the Chinese restaurant chose - through his own free will - to have no smoking area at all. When I lived there, I could choose - by exercising my free will - to dine at the Italian restaurant and enjoy a a cup of coffee and a cigarette after my meal - with no offense or overwhelming danger to anyone. Or I could choose - by exercising that same free will - to eat Chinese and forego the cigarette. Or, of course, I had the choice of dining at home.

Non-smokers had exactly the same options: they could choose - through their free-will - to patronize a privately-owned establishment which allowed smoking on the premises or to patronize one which did not. If they were that desperate for fettucini alfredo, they could choose to put up with having to glimpse a smoker outside a window - or, if they chose to dine al fresco, they could endure the possibility that some cigarette smoke might drift in their general direction.

Now, the owner of the Italian restaurant is forbidden by law to do what he chooses with his private property. I am forbidden by law to choose to sit in his separate, clearly-marked open-air smoking area - as is everyone else. Our free will has been abrogated. The tyranny of those with "a higher right" has triumphed. This is not America. This is Stalinist Russia. (Apologies to any Stalinists reading this).

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The poet and playwright, Bertholt Brecht, was interrogated by the Nazis before he fled Germany for the US. Later, he was interrogated by the House Un-American Activities Committee here - as a suspected communist. Afterwards, he was asked which had been worse, his Nazi interrogators or his American interrogators. After some considered thought, he replied: "The Nazis were worse - at least the Americans let me smoke." Today, apparently, there would be no difference.

You should never assume that just because you have put your argument forward, that it is clear or should be accepted.

THAT is a head-wall scenario.

I have already shown that the government would have no qualms with proceeding with such a ban were the (in)correct-minded legislators to act.

Why hasn't the smoking ban in NYC been challenged for Constitutionality? Because it would probably fail. We have already revealed that the government is perfectly willing to use junk science studies to back up their anti-smoke arguments. That won't stop them, so what will??? (crickets....)

I am completely against a forced smoking ban, as long as smoking is a legal activity. You must see, however, that our 800 pound gorilla government would be perfectly willing and able to impose such a ban, however.

But if smoking is legal in *ALL* places, then the potential is there to affect the community at large. People choose to go out to eat, if there is nowhere that you can go to get away from the smoke, then it really isn't a choice to avoid it, as that smoke can show up in any bar, restaurant or business at any time.

You seem to think that businesses are magically going to go non-smoking on their own. That wasn't the case before the ban in California went into effect, business owners were terrified of upsetting anyone and driving away business and therefore, non-smokers were left with no alternatives.



Your house isn't open to the general public. Businesses are. For all your claims that government and voters have no right to regulate smoking, there sure seem to be a lot of unchallenged laws on the books doing just that. Apparently they have more right than you might want to think.

You can stop right there. People choose where they do or don't go, so there isn't the problem of there being nowhere they can go to get away from it. As long as they have the choice of where they can and can't dine, they have the choice of whether they are exposed to smoke or not.

You say that if most or all of the businesses allow smoking that they no longer have a choice, but they do. Private businesses are not there to cater to your every need and desire. A Mexican restaurant offers Mexican food regardless of whether you like it or not. A bar doesn't serve Coors Light regardless of whether you like it or not. And a bar allows or prohibits smoking [of their own choice] whether you like it or not.

Opening and conducting a business is done by the owner for their own profit. They do whatever is within the law to earn money. If the majority of their customers smoke it's in their interest to continue to allow smoking in their establishment. If the majority of their customers do not smoke, and have expressed a problem with second-hand smoke, it's in their interest to prohibit it.

They get to make the decision. Customers are not granted any rights to ownership or company policies just because they take their business there. If the customer doesn't like the way the business is run, they can take their business elsewhere.


You need to start paying more attention, Cephus.

How many times have I told you that while a community doesn't have the right to regulate private business policies, they are more than capable of organizing to petition local businesses to make the changes themselves?

You've brought up several times the idea that 80% of a community is non-smoking, so there should be no problem with those 80% convincing any and every local business owner that it is in his or her best interest to prohibit smoking. As long as the business owner desires a profit, they will concede or go out of business. Either way, it's one less establishment which allows smoking and it serves as an example for other local businesses.

No magic involved, nor has there ever been any implied.

And if business owners are "terrified of upsetting anyone" that does not mean the government gets to rush in and soothe their fears. The government is not, and should not become, a babysitter for small businesses. Making tough decisions is part of being an owner. Just as it would take very little effort for a community to petition a local business to prohibit smoking in the interest of his or her profits, it would similarly take very little effort for a business owner to conduct a controlled poll of his or her customers to find out what the overwhelming opinion was on smoking policies.

It's their job to run their business, not the government's.

Edited to add:
I can make my house open to the general public. As a matter of fact, there are many businesses run out of homes converted into businesses, often times with owners living on the very premises. While they are open to the general public, their private legal actions do not have an effect on the public at large.

There were laws that prevented consentual sodomy too, Cephus. Of course, it took several years for that case, and others like it, to finally have their day in court. Laws are not inherently infallible.

For shame that someone should want to go out in public, right? People *CHOOSE* to smoke as well. Nothing says they can't stop and be courteous to others. They aren't going to drop dead if they don't smoke (although they probably will if they continue).

Smokers have a choice where they dine as well, they simply cannot smoke while they eat. Isn't it pretty disgusting to do both at the same time anyhow?



Apparently you've never run your own business. There are laws and regulations for virtually every type of business out there. A business owner can't simply do whatever they want to earn money. In this case however, permitting smoking is not within the law, hence a business owner can't choose to do it.

You keep claiming that business owners should have free reign to do whatever they want while ignoring the fact that they have *NEVER* had free reign to do whatever they want. This isn't just a smoking issue, there have been laws on the books for decades restricting what a business owner can do in the privacy of their business. Deal with it.



You're right, there were, and now it is legal *IN YOUR HOME* to do whatever you'd like sexually. A business owner can't now offer sodomy shows, that is *ILLEGAL*.

You're not inherently infallible either.

Private businesses which open their doors to the public do not have an inherent obligation to serve any and every desire of their patrons. Smokers do not have an inherent obligation to stop smoking in the company of non-smokers either.

If a business makes the decision to allow smoking, they can smoke where and while they eat. It is unconstitutional for any level of government to say what legal activities a business owner may or may not permit.


Is it possible for you to go one post in this debate without misrepresenting the argument?

I'm well aware that there are laws and regulations for all businesses. I know they can't do anything and everything they may like to earn money. And in this case, smoking is within the law because smoking is a legal activity, as I have stressed many times. If a business chooses to prohibit smoking, then they can't smoke. If they choose to allow it, however, then they can.

And as I have said previously in this post, it is unconstitutional for any level of government to say what legal activities a business owner may or may not permit. It is not Constitutionally within the government's power to ban smoking in private businesses (open to the public) so long as smoking tobacco is a legal activity.

I have never claimed businesses should have "free reign" to do whatever they want. I have stressed throughout this thread that they should be allowed to conduct any legal activity within the confines of their establishment.

I would point out again that there were "laws on the books for decades" about what right African-Americans, women and homosexuals could and couldn't do as well. It is not unheard of for laws to be passed and exercised despite being unconstitutional in nature.

I may start another topic on the right of business owners to allow sodomy shows within their business, actually. As far as I know that would be something related to legalizing prostitution and perhaps even to what is permitted in the state of Nevada.

The bottom line on this issue is that it is unconstitutional to ban smoking in private businesses. The government is stepping out of bounds to say that business owners can't allow smoking in their facilities. As long as the activity is legal, a private business owner should be the only one to say whether or not it is permitted within his or her business. I don't care if it's prostitution, sodomy or smoking. The government should not be babysitting its citizens simply because they can't choose to go to an agreeable restaurant or because they are too lazy to organize themselves to petition local businesses for change.

In my opinion as an individual that does not partake in the activity of smoking tobacco or anything else for that matter I would have to agree with the ban to a certain extent. I think that what people do with their own body is their choice, UNTIL it affects someone around them not wishing to partake in the activity. Second hand smokers have to deal with the affects of tobac co much worse than the actual smoker. Due to the fact that the smoker is inhaling through a filter {most of the time} the second hand smoker is not. So the second hand smoker gets all of the chemicals being filtered for the actual smoker. So in a business a privately owned business they should have the choice to allow smoking in their facilities. But I also think that public health should be taken into consideration. So even if a business allows smoking inside and separates the two groups it will still be in the air. If they make them go outside it will bother people walking. So it doesn't make a difference they may ban it they may not personally even if it is legal it should not be. Why would our country let us harm ourselves and others?

Welcome to the site, iceangel412!

The smoking policy of a private business, whether open to the public or not, is not a concern to public health. The smoking affects only those within the establishment who made the conscious choice to enter a facility allowing the smoking of tobacco products.


They can make the choice of whether or not they participate when they make the choice of whether or not to enter a smoking establishment. As I have said before, there is no more reason in a person entering a smoking facility and complaining about the quality of air than there is walking into a burning building and complaining about the heat.

The smoke and smoking policy of a private establishment does not extend beyond the establishment to affect the population at large. Only those who choose to enter, and thereby choose to accept the smokey environment, are affected. They are neither forced or prohibited from entering and the second-hand smoke is not forced upon them.


It isn't legal to harm others without their consent. In regards to harming ourselves, we are not the property of the government. We have [in most cases] the Constitutional right to do with our bodies as we please so long as it harms no others without their consent. Nobody is forcing second-hand smoke on persons in private establishments or in open air forums (where the smoke dissipates).

Once an activity begins to pose harm to others, it should be regulated. In the same manner that I wouldn't want a restaurant having employees never wash their hands, or have raw chicken strewn about the kitchen, neither would I like public place I visit--or even a private establishment--to be filled with airborne carcinogens. People are still free to smoke, but only outside where they are harming no one but themselves.
The community I live in recently passed a restaurant smoking ban. While there was an initial push to stop it, people have nothing but praise for the new measure, and business has actually increased this summer, contrary to the pro-smoking agenda's claims.

In fact non-smokers are pushing smokers to feel like criminals. First you make us go outside to smoke but then you say that smoking outside is crossing into your private space.

I saw on the news over the summer where a smoker in his own apartment got sued by someone that lived above him cause of the smoke and won. The smoker was on his patio of his own apartment and the non-smoker was a level above him and had there windows open, so the smoke came in not by the fault of the smoker cause like you say if we smoker smokes outside that is does not infringe on your private space. So where is the smoker supposed to go since it was his own private space?

I have several friends who have quit smoking. They say they are happy they quit smoking. But I also have several friends who still smoke. They say they are happy smoking.

Nevertheless, a smoking ban is consitutionally questionable. While I don't feel they should allow smoking indoors at work, there have been suggestions to ban smoking from public sidewalks in Utah. This is going way too far. The air quality is hazardous as it is, so I don't buy that smoking outside will harm non-smokers. Either way, we'll probably die from lung cancer.

Someone in this forum compared people choosing to enter a workplace where smoking is allowed and complaining to entering a building on fire and complaining about the heat. It's a weird argument, since a building on fire would be put out. Maybe if he had said working at a coal mine and complaining about the heat?

However, to ban smoking would be similar to banning alcohol (i.e. Prohibition). It's not a good idea. However, alcohol has its place and is not allowed in public places, unlike cigarettes and smoke. Maybe they should have "smoking" bars or clubs? Like oxygen bars, only with smoke.

I do agree that it's ridiculous to ban smoking outside, and especially crazy that the fellow you mentioned lost his trial, Cadman.
I also don't think a ban on indoor smoking is constititional, but is perfectly acceptable on a municipal or even state level. A smoking ban would clearly be an issue that's supposed to be left up to state and local powers. However, the constitution has been subverted on issues like this before. An example is the national drinking age of 21. Constitutionally, each state should be able to set the age limit, but the federal government threatened to remove highway funds from any state which did not accept the 21 and over measure.

Well, there are two ways to look at this issue. Through the eyes of a smoker,
and through the eyes of a non-smoker. I've been on both sides of the coin.
I smoked from age 18-22. While I was a smoker I didn't see what the big
deal was if a little smoke passed someone else's way.

When I became a non-smoker I understood the discomfort of breathing
second-hand smoke. BUT, I vowed to never turn into a hypocrite on the
issue. Smokers have the right to smoke. And nobody should try to
take that right away. However, non-smokers have the right to not
have the air they breath infringed upon by smoke from someone else's
cigarettes. It's plain and simple.

On that note, I have an idea for the cigarette manufacturers:

Invent a kind of cigarette where the smoke that is inhaled just stays inside a person's body,
and never comes out. It would speed up the inevitable death process, and would also handle
the problem of unwanted second-hand smoke.......

Hey, evolution in action. I like it!

You are right though, non-smokers have a right *NOT* to breathe smoke. If smokers had been more considerate in the past, no one would ever have come up with the smoking bans, so the only people smokers have to blame is themselves.

I think its funny that some smokers whine about the stigma that comes with smoking. Quit! Only dumb people smoke.

I may be mistaken, but I do not believe state or local governments have any more power or right than the federal government to violate the Constitution.


A ban effectively restricts the rights of citizens who smoke whereas the current absence of bans in most areas does not restrict the rights of non-smokers. There is no right to not breathe smoke or otherwise tainted air. Were there such a right we could rule most industry, car exhaust, cigarettes and fire places as illegal objects and practices.

Perhaps I am being foolish in my political beliefs here, but I do not feel the government should be a tyranny or be made a tool of tyranny by the people. There are no rights being infringed upon or restricted by the legal practice of smoking tobacco. Citizens still have the choice of whether they frequent establishments who allow or prohibit smoking regardless of whether they choose to smoke or abstain. Proposed and existing bans, however, do infringe upon and restrict the rights of those who choose to smoke.

So long as the consumption of tobacco products is a legal practice, I do not see smoking bans as they relate to private businesses falling within the legal powers of any form of government whether it be the federal, state or local. It appears to be to be a matter between the citizens of a community and their local businesses without government intervention. If there truly is a large movement in individual communities to eliminate smoking from bars, restaurants and other private corporations it should be the responsibility of the citizens to petition or boycott those businesses with unfavorable smoking policies.

If the people are too lazy or irresponsible to act themselves, they should not be able to wield the government as a tyrannical tool to restrict the rights of other citizens performing a legal practice in a private establishment that neither prohibits or forces other citizens to enter.

Regarding the fully consumable cigarette, it's not such a bad idea were they able to come up with such a product. As it doesn't infringe upon or restrict the rights of citizens to perform a legal practice, I can support evolution in action.

I don't know about you, but I don't put my face right next to a smokestack, exhaust pipe, or chimney. Those types of pollution are diluted in the air before most people breathe them. Secondhand smoke is still highly concentrated when it reaches a bystander. I can't remember who said it, but the dose makes the poison.



I thought most restaurants banned smoking voluntarily as a reaction to complaints by non-smokers before any such federal bans were enacted. I agree that in a private business, the owner should make the decision (and despite the laws about smoking in bars that is still the case) but in a public area, the government can and should serve the majority by banning smoking.

If you don't like smoke, don't go where they allow it. Banning it definitely infringes on an individual's rights. There is no question about that. Places people are generally required to go, I can understand that. The post office, grocery store, you get the idea. But a bar? A restaurant? These places are not necessary for survival. Nobody is forced to frequent these places. If I own a bar and want to allow smoking, who should have the right to tell me otherwise? If you don't like it, open your own bar and ban smoking there, but leave my business alone and run yours!

Please show us where the right to smoke appears in the Constitution. Smoking is not a right, any more than driving a car is. Both are legal, but you need to follow the laws regarding them at all times and the local, state or federal government can change the laws at any time whether you like it or not.

As long as smoking remains a legal practice, Cephus, private establishments do have the right to establish their own smoking policies. For the government to prohibit a legal practice in a private establishment is unconstitutional. And while you're busy looking for a right to smoke, could you find for me a right to fresh air free from any contaminants of any sort?