ECONOMIC LOSSES DUE TO SMOKING BANS IN CALIFORNA AND OTHER STATES

United Pro Choice ^ | 3-6-05 | David W. Kuneman and Michael J. McFadden

[SheLion]

Many studies have been published purporting to prove smoking bans in bars and restaurants are either good or neutral  for business, and conflicting studies have also been published purporting to prove bans are bad for business. Scollo, Lal, Hyland and Glantz recently summarized many of these studies, concluding those which find no economic impact are published in the peer-reviewed scientific literature and funded by “objective” antitobacco interests, while those that do find bans hurt business are funded almost universally by Big Tobacco or its allies. Tobacco Control, 2003;12:13-20. However, the objectivity of those who publish studies finding smoking bans don’t hurt business is also questioned because they are funded by groups with clear and open objectives of promoting smoking bans.

One common problem with many studies of smoking bans is that the time-span studied before and after a ban goes into effect is too small to accurately measure the ultimate impact of such bans. For example, long before state bans go into effect, many local governments have passed bans that affect business, and long before local governments pass bans many restaurants voluntarily ban smoking. For example, we obtained a copy of California Smoke-Free Cities  Bulletin , October, 1993 which was developed with the support of the California Department of Health Services.  The “Fact Sheet” summarizes that by the publication date, 8,668,235 Californians, or 27% of the population lived in an area whose local government had a 100% ban on smoking in restaurants.  Further, 62 cities and nine counties had ordinances requiring 100% smoke-free restaurants, and 295 cities had ordinances restricting smoking.  In addition, many more restaurants had voluntarily banned smoking in areas not covered by an ordinance.  Long before the state restaurant smoking ban took effect, in 1995, many Californians did not have the option of dining in a smoking environment.  Therefore, in this example, we would expect total California bar and restaurant revenue to decline years before the state ban took effect, and studies which typically only measured data collected one year before that state ban would not have measured the entire economic impact of the loss of smoking accommodations in California’s restaurants.

After a ban goes into effect, some establishments violate bans, others find ways to skirt bans, and some establishments are granted exemptions. Sometimes, bans are not immediately enforced by public officials. Some establishments raise prices to offset lost business which can temporarily mask the revenue effects of bans, and some smokers continue to patronize affected establishments until they adopt other socializing habits that don’t involve patronizing the affected establishments. For these reasons, measurements of the economic impact of smoking bans must also consider that some smoking accommodations can remain available after smoking bans take effect, and data must be collected longer than the one year after a ban takes effect in order to accurately measure the effect of a ban.

We further question why studies on both sides of the issue most often utilize data related to sales tax revenues collected from bars and restaurants, or employment data of those workers who work in bars and restaurants.  We agree such data would be useful if the studies were exploring the relationship between smoking bans and tax revenues collected by various taxing authorities, or if they were exploring the relationship between smoking bans and employment in bars and restaurants. Very few studies actually utilize data of gross sales received by bars and restaurants in business before and after bans take place, which would , naturally, be of most concern to those who own bars and restaurants.

One recent claim even capitalized on the 9-11 disaster in New York City  to “prove”  bans don’t hurt business. It claimed the city’s March 2003 ban was good for business because the city’s “bars and restaurants paid the city 12% more tax revenues in the first six months after the smoke-free law took effect than during the same period in 2002.”  Flyer: SMOKE-FREE LAWS DO NOT HARM BUSINESS AT RESTAURANTS AND BARS , Campaign for Tobacco-Free Kids  1400 I St. Suite 1200, Washington DC. The same period they refer to in 2002 was from March 2002 to September 2002, when many Wall Street businesses were operating in New Jersey due to the disruptive clean-up of the World Trade center site, and tourists were avoiding NYC, many fearing another possible attack.  Mayor Guiliani appeared on television and asked nonessential personnel to avoid the area. Estimates were publicized in the media that the  9-11 disaster cost NYC in excess of $50 billion in business, in late 2001 and 2002; much, certainly was lost by bar and restaurant businesses situated near the attack site. In 2003, Wall Street businesses, residents, and tourists returned to NYC and comparing 2002 to 2003, ban or no ban, cannot be valid without controlling for the effects of the attack.

Those who conduct these studies should rely on long term total bar and restaurant revenue data because they are a direct measurement of how much money was spent by customers in bars and restaurants, and such data are readily available from the U.S. Dept of Commerce.   Comparing these revenues to total retail trade data controls for the spending power of the public, as evidenced by the data from the other retail sectors. For example, if a recession occurs at the same time as a ban takes effect, a researcher can adjust retail bar and restaurant revenue data for the effects of the recession using total retail sales numbers.  During the period from 1990 to 1998, The U.S. Dept. of Commerce published such data through the Census Bureau’s annual periodical Statistical Abstracts of the United States.  These editions are available in the reference sections of better libraries, because these references are considered to contain the best data available. These data we will utilize are also available on the web, at www.census.gov. During this period, the Dept. of Commerce reported data using the Standard Industrial Classification code to define bars and restaurants. After 1998, the Dept of Commerce adopted the North American Industry Classification System and cautions comparisons with the SIC system may not be valid. This is why we limit our analysis to the period 1990 to 1998.

States’ Bar and Restaurant Revenue Losses With Smoking Bans

In 2000, the Connecticut Office of Legislative Research published a report classifying states as either smoker-friendly or smoker-unfriendly in terms of bar and restaurant smoking restrictions.  A state was classified as smoker-unfriendly if bans had been imposed at the state level or if many local governments had severely restricted or eliminated smoking in bars and restaurants, even if the state had not.  www.cga.ct.gov/2000/rpt/olr/htm/2000-r-0890.htm  

These states are tabulated below, along with the United States, overall, as reported by the U.S. Dept of Commerce. All data are in billions of dollars and not inflation adjusted. The 1987 data are also included to demonstrate growth was occurring in all these states prior to 1990, before smoking bans were common. After 1990, local smoking bans began to take effect in California, and smoking restrictions began to take effect in the other states, so this is the period we have chosen for study.   

Table I

 

	Bar&Rest retail1987	Bar&Rest retail1990	Bar&Rest retail1998	%growth 1990-98	Total Retail 1990	Total Retail 1998	%growth1990-98
CA	20.7	26.3	28.0	6.5	225	291	29
NY	10.8	13.1	13.8	5.3	124	148	19
MA	4.8	6.1	5.9	-3.3	50.7	62.6	23
VT	0.37	0.46	0.44	-4.3	4.5	6.0	33
UT**	0.78	0.94	2.1	123	10.6	19.3	82
USA	153	182	260	43	1807	2695	49
*USA-	116	135	210	56	1392	2168	56

 

*USA- is the USA data minus the data from CA, NY,MA,VT, and UT; or the total of the 45 smoker friendly states and D.C.  

**Utah had a 14% smoking rate in 1998, so the presence of a ban there would not affect business as much as states with higher smoking rates, which typically range from 22% to 29%.   

The USA experienced bar and restaurant revenue growth of 19% between 1987 and 1990 and USA- experienced growth of 16% in the same period indicating the not-yet smoker-unfriendly states  contributed the extra +3% difference.  Taken as combined data, bar and restaurant revenue growth in California, New York, Massachusetts, Vermont, and Utah exceeded the national trend.  

The USA experienced bar and restaurant revenue growth of 43% between 1990 and 1998 and USA- experienced growth of 56% in the same period indicating the now smoker unfriendly states contributed the loss of  -13% difference. Taken as combined data, bar and restaurant revenue growth in California, New York, Massachusetts, Vermont, and Utah lagged the national trend from 1990 to 1998.   

Except for Utah, all the smoker unfriendly states’ bar and restaurant  revenue growth was substantially lower than total revenue growth.  Since Utah had a 14% smoking rate in 1998, demand for smoking accommodations was too weak for a ban to have much of an effect. Utah also hosted the 2002 Winter Olympics, and by 1996, the economic impact of the preparations was already contributing to the local economy, and the workers would have dined out frequently since they were temporary residents.  (www.olympic.utah.gov) In the other smoker unfriendly states, bar and restaurant revenue growth under-performed total revenue growth on average about 25%, which is close to the average adult smoking rate of 21.7%  in these states in 1998.  

We examined the complete U.S. Dept of Commerce data set referenced in the “background” section of this article and confirmed most of the individual states not considered smoker-unfriendly by the Connecticut research report fit the pattern of business growth similar to the USA- from 1990 to 1998.  

If California’s bar and restaurant retail growth had kept up with the smoker-friendly states ( USA-) between 1990 and 1998, California’s bar and restaurant revenue would have grown from $26.3 billion in 1990 to $41 billion in 1998. (26.3 X 1.56) This is a bar and restaurant revenue loss of $15 billion for 1998 alone.  However, this trend had been going on for eight years, and interpolating  a linear trend on the data, we find total revenue loss for the eight-year period is $60 billion dollars. (1/2 the base X the height)   

Bar and Restaurant Revenue Growth in Smoker-friendly States  

The U.S. Center for Disease Control publishes MMWR, a weekly update of health-related reports throughout the United States.  In the June 25, 1999, edition, they published a report summarizing smoke-free indoor air laws, and as of December 31,1998, 46 states and the District of Columbia restricted smoking to some extent, but Alabama, Kentucky, Mississippi, and North Carolina had no restrictions on smoking in any category including bars and restaurants.  www.cdc.gov/tobacco/research_data/legal_policy/ss4803.pdf  ; starts on page 24  

In the same manner above, utilizing the same data resources, we have tabulated the most smoker-friendly states:   all data in billions of dollars.  

 

Table II

 

	Bar&Rest retail 1990	Bar&Rest retail 1998	% growth	Total Retail 1990	Total Retail 1998	% growth
AL	2.2	3.3	50	26.4	39.9	51
KY	2.2	3.5	59	23.9	36.8	54
MS	1.1	1.6	45	13.8	20.8	51
NC	4.5	8.0	78	45.7	81.1	77
Ave			58			58
USA	182	260	43	1807	2695	49
USA-	135	210	56	1392	2168	56
USA--	172	244	42	1697	2516	48%

 

USA- is USA minus the smoker-unfriendly states from Table I, for comparison.

USA-- is USA minus the smoker-friendly states.  

The most smoker-friendly states’ average growth in bar and restaurant revenues matched their average total retail revenue growth of 58%.  The USA-, which do not contain data from the smoker-unfriendly states from Table I, also matched their bar and restaurant revenue growth with their total retail growth of 56%.   However, USA, and USA-- in Table II under-perform the smoker-friendly states because they contain the data from the smoker-unfriendly states. Thus far, the only states whose bar and restaurant revenue did not grow as fast as their total retail revenue are the states which were smoker-unfriendly ( except Utah), or total USA data  and USA-- which are terms which both included the smoker-unfriendly states. Most importantly, if claims were true that smoking bans are good for bar and restaurant business, then the lack of smoking bans should be bad for those businesses. However, we have found the lack of any smoking restriction or ban law does not adversely influence bar and restaurant revenue growth when compared to the states with reasonable smoking restrictions.   

Considering the smoker-friendly states’ bar and restaurant revenue growth data, we conclude that nonsmokers do not patronize bars and restaurants less often when state or local governments don’t severely restrict or ban smoking.  More than 70% of adults in these smoker friendly states do not smoke, but seem as willing as nonsmokers in states with moderate smoking restrictions to patronize bars and restaurants. The four most smoker-friendly states do not prohibit any individual bar or restaurant from banning smoking, if it is what the owner determines is best for business.  It is obvious our free-market economic system, without any smoking laws at all, and leaving the smoking policy decisions in control of the owner, works to satisfy all customers.  

Bar and Restaurant Revenue Growth in the Border States  

California is bordered by Arizona, Oregon and Nevada. All U.S. Dept. of Commerce data are in billions of dollars.

 

Table III

 

	Bar and Rest retail 1990	All retail except Bar&Res, 1990	Bar and Rest retail1998	B&R % growth	All Retail except Bar&Res, 1998	% growth
CA	26.3	198.7	28.0	6.5	262.9	32.3
AZ	2.6	23.5	6.1	135	42.9	82.6
OR	2.4	20	3.1	29.2	34.6	73.0
NV	1.0	8.6	2.7	170	19.2	123

 

 

Smoker-friendly Arizona’s bar and restaurant revenue growth exceeded its other retail growth by a margin of 135 : 83, Oregon’s lagged 29 : 73, and Nevada’s exceeded by 170 : 123.  Averaging these margins, the combined three states’ bar and restaurant revenue growth exceeded all other retail by a margin of 111 : 93.  California’s other retail grew 32.3% from 1990 to 1998, and based on the smoker-friendly border states’ average margin, California’s bar and restaurant revenue growth should have been (111 divided by 93 times 32.3  =) 38.6%  Since the actual growth was 6.5%, we attribute the difference of 32.1% to local and state smoking bans.  

If California’s bar and restaurant margin-adjusted revenue growth had kept pace with its border states, its bar and restaurant revenue for 1998 would have been $36.5 billion, or $8.5 billion more than it actually took in. Over the time span of 1990 to 1998, California lost $34 billion based on (1/2 base X the height) calculations. This disagrees with our earlier estimate of $60 billion because these calculations take into account a slightly weaker overall economy in California than its border states.  While directly comparable government tabulated figures do not exist for the years of 1999 to 2004, it would not be unreasonable to assume that these trends have continued and that California’s smoking ban has cost the state’s economy on the order of  $75 to $100 billion since 1990.  

However, this calculation may underestimate California’s bar and restaurant losses because they are calculated by comparing to California’s all retail except bar and restaurant growth which also would have been higher without smoking bans. This would happen if California’s  bar and restaurant employees and owners also lost wage growth corresponding to the 25.8% difference between all retail except bar and restaurant revenue growth and bar and restaurant revenue growth. Therefore, those owners and employees would be 25.8 % less able to contribute to all retail except bar and restaurant revenue growth than they otherwise would have been, and may have adversely affected total retail growth in addition to the $8.5 billion loss in 1998 directly attributable to the ban. In summary, California’s smoking ban probably contributed to its overall economic problems since the late 1990s beyond the direct impact of the contribution of lower bar and restaurant total revenues.  

One should note earlier we found California and other smoker unfriendly states lagged the national trend of bar and restaurant revenue growth between 1990 and 1998.  As the combined data from Arizona, Oregon and Nevada clearly show, the aggregate of these other western states did not lag the national trend. Most of California’s population lives too far from the borders for California smokers to commute easily for the purposes of patronizing smoker-friendly establishments in those states.  Therefore we do not believe these states benefited from California’s smoking ban. Lastly, the combination of lack of opportunity for California smokers to commute and the finding of California’s under- performance in bar and restaurant revenue growth prove that when a “level playing field” environment is imposed, all bars and restaurants still lose business even in a state as large as California.   It is not possible to “trap” smokers in a ban environment and expect them to patronize establishments subject to bans as much as they did before the bans were imposed. The “playing field” of a large scale smoking ban may be level but it is far more of a level basin than a level plateau.  

Conclusions:

 Total bar and restaurant revenue growth in California and other smoker-unfriendly states did not keep pace with those states’ other retail businesses or our nation’s overall bar and restaurant retail growth 80% of the time.  The overall order of magnitude of the bar and restaurant retail growth losses in all smoker unfriendly states, except Utah, was about 25%.  

Bar and restaurant revenue growth in states with no smoking restrictions did as well as states with reasonable smoking restrictions.  Claims the public demands smoking restrictions or eliminations, if true, would have caused states with no restrictions to lose bar and restaurant revenue growth relative to other retail revenue growth.    

There were no regional business conditions that could have explained the bar and restaurant revenue losses California experienced from 1990 to 1998. Although California’s border states had overall retail revenue growth in excess of California’s even after adjusting for the overall retail growth data, California’s bar and restaurant businesses still lost growth than cannot be explained without considering the smoking bans.  

Claims studies can only find smoking bans are bad for business when funded by Big Tobacco or its affiliates, or use anecdotal data are not true. We have shown smoking bans hurt bar and restaurant businesses 80% of the time using data from the U.S. Dept of Commerce. Further, most studies which find bans don’t hurt business are at odds with our conclusions because they use tax revenue and employment data to determine ban effects; and fail to measure for a sufficient length of time before bans take effect and a sufficient length of time after bans take effect.   

DISCLOSURES:  

The authors, used their own time and funds to research and prepare this article. Neither has any competing financial interest in this research or the outcome of this research.  

Dave Kuneman, who smokes, worked for 6 years in the 1980s as a research chemist for Seven-Up and still draws a small pension from that work.   At the time of his employment Seven-Up was owned by Philip Morris.  His current work and concern in this area has no connection to that employment.  

Michael J. McFadden does not have any financial connections or obligations to Big Tobacco, Big Hospitality, Big Pharma, or other major players in this fight.  He is a smoker, a member of several Free-Choice groups, and the author of  Dissecting Antismokers’ Brains  and Stopping A Smoking Ban.

March 2005

© Copyright 2005 The Smoker's Club, Inc. Please repost with link back to this original article.

 

 

[Just another Joe]

What it comes down to, IMO, You believe in the tyranny of the majority. The law MUST be obeyed no matter what.

I do not.

Your points are valid from your point of view.

We have nothing more to discuss.

[Lucky Dog]

We have nothing more to discuss.

Sorry, I must clarify a misstatement you made before this discussion is terminated.

...You believe in the tyranny of the majority.

You could not be more mistaken. In no way, do I support infringement of the individual rights enshrined in our Constitution, and in particular, the US Bill of Rights or those similarly enshrined in individual state constitutions. However, there is also no way that I support someone claiming a behavior as a "right" just because he or she says it is. Additionally, there are bona fide situations in which individual rights come into conflict. In such situations, legislative or judicial action determines which right is superior.

The law MUST be obeyed no matter what.

You are, again, incorrect as when a law is unconstitutional, I do support civil disobedience. However, when the law is Constitutionally valid, then you are correct, it should be obeyed. Without the rule of law, society degenerates into the "rule of men" which inevitably becomes despotism and tyranny.

[Just another Joe]

So if the government say they must regulate something for no good reason, we must obey that regulation?
You kid yourself if you think you are not on the side of bad government.

[Lucky Dog]

So if the government say they must regulate something for no good reason, we must obey that regulation?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 8. Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises...

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

If the government "decides" it must regulate something, it is because our freely elected representatives pass a law. Such can occur only in accordance with above guidance from our Constitution after debate and deliberation. Any citizen is free to contribute such debate through petition of his or her representative.

You kid yourself if you think you are not on the side of bad government.

"Bad" government can exist only if its citizens allow such.

[Just another Joe]

"Bad" government can exist only if its citizens allow such.

You will allow, "bad government", because you hate to smell tobacco smoke.

And let me tell you, you are one such allowing it.

As I said, we have nothing left to discuss.

[Just another Joe]

"Bad" government can exist only if its citizens allow such.

You will allow, "bad government", because you hate to smell tobacco smoke.

And let me tell you, you are one such allowing it.

As I said, we have nothing left to discuss.

[Just another Joe]

Sorry about the double post.
It came up with a blank reply for me the first time.

[Lucky Dog]

As I said, we have nothing left to discuss.

Sorry you feel this way.

You will allow, "bad government", because you hate to smell tobacco smoke. And let me tell you, you are one such allowing it.

I disagree with both of your postulates.

First, it is not bad government to limit smoking, the open display of pornography, or any number of other things, in businesses open to the "public" or other public places.

Second, I am but one citizen and even if I were a legislator, I would have but one vote. Consequently, the must be an agreement by a majority of my fellow citizens and/or fellow legislators after deliberate debate and consideration that such restrictions were appropriate.

Additionally, such a restriction could easily be, and would be, struck down on judicial review if it were unconstitutional.

Therefore, while such a restriction might qualify as "bad" government in your opinion, it does not do so in my opinion, or obviously, a majority of other citizens, legislators or jurists.

[djreece]

Are you calling me a liar? Before Maine was forced to go smoke free, my favorite Tavern down town has 4 big smoke eaters on the ceilings. The smell of STALE beer and smoke was greatly reduced. I use air purifiers in my own home, they are that good.

It's just that it never ceases to amaze me how smokers think no one can tell there is smoking going on. It makes one's clothes and hair reek. It carries through closed doors and often through walls. Have you ever asked nonsmokers if they can smell the smoke in your home and at the tavern? Somehow I wouldn't be surprised that when they tell you of course they can, you put it down to them being "whiny."

Anytime I travel outside of California, I reaffirm how glad I am that we have prohibited smoking inside of public places.

[SheLion]

Have you ever asked nonsmokers if they can smell the smoke in your home and at the tavern? Somehow I wouldn't be surprised that when they tell you of course they can, you put it down to them being "whiny."

Anytime I travel outside of California, I reaffirm how glad I am that we have prohibited smoking inside of public places.

I wouldn't and have never had a "friend' so narrow-minded as you.  And I sure am happy that none of my friends are such sensitive  wimps.

"YOU" prohibited?  Are you one of those highly paid ant- smokers we all bitch about?!

Did you forget that this is the Free Republic Forum and not the Yahoo Smoking Boards?  I think you have a little CINO in you.  You are all for your own freedoms and to hell with the rest of us.

Here you are:

[djreece]

Your response is exactly what I expected. It's that type of "considerate" response that pushed a lot of nonsmokers into the position where they backed the bans.

In regards to someone having to be a part of the "anti-smoking lobby" to have been part of the ban, you are severely mistaken as far as California is concerned. In California WE THE PEOPLE used the initiative process to ban smoking in public. Personally, I voted against the second ban (for bars) because I thought it went too far.

In other states the bans may have been imposed by legislators influenced by "anti-smoking Nazis" and your arguments may carry some weight, but that was not the case in California.

[SheLion]

Ok Mr. Big Wig. You're not making any friends here, that's for sure.

CYA. Enjoy your life in Kookifornia.

[Just A Nobody]

"Gabz recently moved to VA. They are quit happy there so far."

Thanks for the insight. I was in VA in Nov. for about 3 weeks. I did like it there, which is why I listed it as a 2nd choice.

[Garnet Dawn]

"The key difference seems to be where you (and your fellow smokers) think the "BOUNDS" of government should be versus where the majority of the population thinks they should be. Given that none of your objections have involved any of the individual guarantees in the Bill or Rights, it would appear that your position is only an opinion versus the opinion of many more of your fellow citizens. In a democratic republic such as ours, you remain entitled to hold your opinion but not demand that others adhere to it."

---

I was not going to respond again, but you have touched on a few subjects that require one more response.

Californians, like voters in Florida and New York were poorly informed as to the details, ramifications and inconveniences that result from statewide smoking bans. Admittedly, the antis have been very clever in the wording they use when they take opinion polls or propose smoking bans, and have used social engineering to convince a majority of the "sheeple" living in this country that smoking is harmful to the bystander. Second hand smoke, passive smoke or ETS, whatever you choose to call it HAS NOT been proven by unbiased authorities to be harmful. Until it really is, the court is still out on the final answer.

I'm glad you understand we are a DEMOCRATIC REPUBLIC, we are not a country ruled by the mob majority. "I pledge allegiance to the flag and the REPUBLIC FOR WHICH IT STANDS....."

It is often said that majority rule is just like mob rule. You can pretty much see this in the mentality and propaganda of smoking bans. He who screams the loudest and whips up the biggest crowd will win and it has nothing to do with who is right. We used to burn witches you know.

The distinction between our Republic and a democracy is not an idle one. It has great legal significance.
Our Republic is one dedicated to "liberty and justice for all." Minority individual rights are the priority. The people have NATURAL RIGHTS instead of civil rights. THE PEOPLE ARE PROTECTED BY THE BILL OF RIGHTS FROM THE MAJORITY. One vote in a jury can stop ALL of the majority from depriving any one of the people of his rights; this would not be so if the United States were a democracy.

In a pure democracy 51 beats 49[%]. In a democracy there is no such thing as a significant minority: there are no minority rights except civil rights (privileges) granted by a condescending majority. Simply stated, a democracy is a dictatorship of the majority. Socrates was executed by a democracy: though he harmed no one, the majority found him intolerable.

Since you say we have omitted reference to the Bill of Rights (or our first ten Amendments), I will give my example of how smoking bans are violating this country's basic principles.

Amendment V
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Smoking bans are depriving small business owners of their liberty and property without due process of law. Their property is being take for public use without just compensation. Also, the liberty and pursuit of happiness by smokers is being intruded upon by the "mob" majority, and we count for far more than ONE.

These are liberties that it is unconstitutional for our government to intrude upon.

[Lucky Dog]

Amendment V

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property [emphasis mine] be taken for public use, without just compensation."

Smoking bans are depriving small business owners of their liberty and property without due process of law. Their property is being take for public use without just compensation. Also, the liberty and pursuit of happiness by smokers is being intruded upon by the "mob" majority, and we count for far more than ONE.

These are liberties that it is unconstitutional for our government to intrude upon.

You are incorrect. No smoking ban is depriving any small business owners anywhere of “their liberty and property without due process of law. “

The answer to your objection has already been discussed on this thread. However, for convenience, I have extracted and repeated portions of several previous posts below that address the point you raised:

The following exchange compares other restrictions on business owners concerning legal activities or substances to the restriction on tobacco:

From Post 202 posted on 03/07/2005 2:23:22 PM PST

And what do ANY of these things have to do with the right of a property owner to allow, or disallow, the use of a LEGAL commodity on their property?

Let's take these examples and see by comparison what points are similar to smoking bans in restaurants.

First, pornography is legal in most places for adults to purchase. However, there are legal restrictions on where and how it can be displayed by the business owner selling it. (A "legal substance," or item, if you will, that is restricted by law)

Second, prostitution is legal in Nevada (not so in most other places in the US). However, even in Nevada, it is legally restricted by more than just "health" regulations. (Another "legal substance," activity, if you will, restricted as to where and how it can be consumed)

Thirdly, public drunkenness is prohibited nearly everywhere in this country. However, "private" drunkenness is perfectly legal. Additionally, nearly all states have a prohibition against having an open container of alcohol in a moving motor vehicle. (Another "legal substance," if you will, restricted as to where it can be consumed)

Fourthly, gambling is legal in some states in certain locations but not others. (Another "legal substance," activity, if you will, restricted as to where it can be consumed)

In short, there are all kinds of restrictions on property owners that operate "public business" and "legal substances" or "activities" as to where and how they may occur. There is no legal reason for tobacco to be any different.

From Post 203 posted on 03/07/2005 2:29:18 PM PST

I would think that private property rights, whether the property is open, at the invitation of the owner, to the public, or not, is protected by the founding government documents

You are incorrect in your thoughts on this issue. The existence of a host of business regulations in every US jurisdiction proves the point. The minute "private" property is used in a "public" business, the property owner surrenders a large number of rights that would otherwise be his or hers.

Sorry, it is a fact of life all over the world and especially here in the US.

From Post 206 posted on 03/07/2005 2:55:43 PM PST

I don't care a whether tobacco is outlawed or not. I only care if I am forced to endure any ill effects, including its noxious order, against my will. If smokers wish to partake of this activity where it has no possible way of impacting any one but themselves, I really have no objections.

Private property owners are unreasonably being denied the RIGHT to allow...

Get over it. Private property owner surrender a huge number of rights when the use their property for "public" business. It is a fact of life. I haven't heard you complaining about any of the other rights these "private" property owners surrender for the purposes of business.

[Garnet Dawn]

"..Without just compensation." were the words I highlighted, and I don't care WHAT you wrote in your previous posts. I read them once and was disgusted then. I answered you once, that was enough! You just like to argue.....Bye.

[Cantiloper]

Lucky, you've been hanging around Antismokers for too long: you've absorbed their sound bite mentality and fallacisous argumentation techniques.


Lucky wrote:Having a smoking section in a restaurant is like having a corner of the pool to pee in.

I respond: Lucky, a restaurant changes its air on the order of 15,000 times a year. A pool changes its water once a year. Can you see a difference there? Of perhaps one million five hundred thousand percent? Here's what I said about it in Dissecting, p. 112:

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Let me include a final and somewhat amusing note on secondary smoke to bring our spirits back up. Antismokers have historically been partial to using scatological imagery to add impact to their descriptions of tobacco smoke in the air. Sometimes these are deliberately humorous, (as in “Do you mind if I smoke? No, do YOU mind if I fart?”), and sometimes unintentionally so, (as one Antismoker found when she reduced a TV hostess to laughter by comparing smoking to wandering around a restaurant placing warm buckets of manure on everyone’s tables – [“It’s Your Call with Lynn Doyle” 07/14/01 – Gabrielle LeVecque and Regina Carlson]), but one of the most common of such arguments concerns public swimming pools.

In this argument the Antismoker will state as fact that having a nonsmoking area in a restaurant is like having a non-pissing section in a swimming pool. This image has power unless you think about it for a minute or two, but the “naughtiness” of the image usually precludes the idea of such closer examination.

In reality of course the restaurant changes its air six times or more every hour. The pool water is lucky if it’s changed twice in a year! The analogy is imperfect by a factor of about 15,000 air/water changes!! In addition, any decently designed non-smoking section will have an air current that will be toward, rather than from, the smoking section. Pissing somewhere down stream in a river (as almost every riverside American city does) would be a more appropriate analogy than pissing in a pool.

Let me make a final observation: if any adult out there seriously thinks they can dive into a public pool with a hundred screaming kids and NO piss… they probably also believe in the tooth fairy!

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Lucky wrote: No one “has to smoke,” but everyone has to breathe.

I respond: Lucky, this is an example of a "False Dilemma." Here's how I examined it in Dissecting, page 205-206

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Fallacies of Equivocation and False Dilemma

The fallacy of equivocation occurs when one uses the same word in two different ways during the course of an argument in order to produce the desired, and false, conclusion. We saw an exam-ple of this in the chapter on Language when we spoke of the “toxic” elements in tobacco smoke. There is the scientific term toxic, which refers to a certain amount of a given element producing harm, and there is the popular definition of toxic, which means “it will kill you,” without reference to the amount necessary, and then there is the even looser popular interpretation that toxic simply means “something bad.”

Thus, scientifically speaking, salt is toxic to the human body when ingested in unusually large quantities. Popularly, of course, salt is never considered to be a toxin. Conversely, a real scientist would not normally use the term “toxic” to describe the quantity of arsenic in the air when someone has smoked a cigarette. Remember, the quantity a nonsmoker would normally be exposed to is measured in nanograms or even just picograms!

To the popular mind however, arsenic is a deadly poison, and people are not accustomed to thinking of it in any other way, regardless of the dose involved; which, of course, is why arsenic, formaldehyde and similar chemicals are often the ones cited by Crusading groups at hearings on smoking bans. The table at the end of Appendix B shows just how weak those arguments really are when examined with science rather than rhetoric.

Crusaders also use equivocation in several different ways when they speak of “Saving the Children.” First, as pointed out earlier, is the simple play on the word “children” itself, which summons up images of 6-year-olds rather than 18-year-olds. The second equivocation occurs when they speak of deaths in the same breath as they speak of children. The deaths that they speak of are not the deaths of children as children, but deaths that largely occur when those children are retired and raising grandchildren themselves! While assuredly no death is ever good, the emotional appeal of confusing the possibility of deaths decades into the future with the present image of childhood’s purity and innocence is equivocation....

One particularly popular equivocation at hearings on smoking bans is the false opposition of “The Right To Breathe” with “The Right To Smoke”. Politicians are given a false dilemma choice between “air that is safe to breathe” and air that is “contaminated by toxic tobacco smoke.” People were breathing quite successfully for decades without the existence of wide-spread smoking bans, and of course air that has a sufficiently diluted quantity of tobacco smoke in it is still generally going to be quite safe to breathe from any rational scientific, individual or even public health standpoint.

Even the air at the top of Mt. Everest will always contain a few atoms that rose from someone’s pipe, cigar, or barbeque. “Safe” air does not necessarily mean “smoke-free” air. The matter of concern for safety is always one of degree… a distinction universally ignored by Crusaders when they push for total bans: in true Newspeak fashion the goal is to redefine the terms so that it becomes impossible to even think of air as being safe if it might have a trace of smoke in it.

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[Lucky Dog]

Lucky, you've been hanging around Antismokers for too long: you've absorbed their sound bite mentality and fallacisous argumentation techniques.

I hope you don’t mind if I disagree with your assessment.

Lucky wrote: Having a smoking section in a restaurant is like having a corner of the pool to pee in.

I respond: Lucky, a restaurant changes its air on the order of 15,000 times a year. A pool changes its water once a year. Can you see a difference there? …

The analogy you are quarreling with on a logical basis was offered both for humor and rhetorical effect. The intent of the analogy was to show that someone adding what is, certainly, a disagreeable and, potentially, a dangerous substance to some, to an environment shared by all, is, prima fascia, a conflict of rights and exceptionally poor manners.

Lucky wrote: No one “has to smoke,” but everyone has to breathe.

I respond: Lucky, this is an example of a "False Dilemma." Here's how I examined it in Dissecting, page 205-206…

Again, I hope you don’t mind if I disagree with your assessment.

Your entire postulation assumed that the comparison was based only “toxic” elements in smoke. In deed, there is such “toxicity” and your explanation ignores the element of exposure over time, i.e., accumulated dosage. However, the comparison, while inclusive of “toxic” elements, goes well beyond any “toxic” substances issue.

Since you’re into logic, let’s try a few syllogisms:

There is an absolute physiological requirement for all people to breathe.
There is no absolute physiological requirement for anyone to smoke.
Therefore, everyone has to breathe but no one has to smoke.

Breathing is an autonomic nervous system function which can be interrupted for only a few minutes without extreme detriment to the individual.
Smoking is a purely voluntary function which can be interrupted indefinitely with no detriment to any individual.
Therefore, interrupting smoking is preferable to interrupting breathing.

The presence of smoke is offensive and potentially hazardous to all non-smokers.
The absence of smoke is only inconvenient and potentially health enhancing to all smokers.
Therefore, the absence of smoke is more beneficial to both smokers and non-smokers.

Everyone has a right to the enjoyment of an environment necessary for life and health, free of unreasonably offensive and unhealthful infringement by others.
Smoke is an offensive and potentially unhealthful infringement of all non-smokers’ environment.
Therefore, non-smokers have right to be free of smoke in their environment.

I could go on and on, but unless you particularly want more, I think these make the point sufficiently.