Opposition To Smoking Bans Heats Up
By Norman E. Kjono, April 5, 2007
I've always believed that a lot of the trouble in the world would disappear if we were talking to each other instead of about each other - Ronald Reagan.
Intolerance betrays want of faith in one's cause - Mahatma Gandhi
Current events in Colorado were discussed recently on the Chuck Baker Show (KKKK radio 1580 AM). The two one-hour segments are available in MP3 format by clicking on the below links:
There is a great deal of activity in Colorado as this is written. In this commentary I address communications between the Coalition for Equal Rights and members of the state legislature, recent events regarding two legislative bills, and some aspects of what may occur from here. First, however, we put the basic premises of tobacco control advocacy in perspective.
Tobacco Control Core Policy and Philosophy
From page 22 of "Planning for a Tobacco Free Washington:"
Strategy: ". . . the most effective way to reduce smoking rates is to decrease public tolerance of tobacco use."
Policy: "Changing public acceptance of tobacco use will require policy change, a critical ingredient of societal change."
Media: "Social change requires that people receive persistent and consistent messages from sources they trust. To this end ASSIST resources will be used to generate a variety of media messages that will foster and strengthen public support for proposed policy changes."
The American Cancer Society was the nationwide manager for Project ASSIST, the federal anti-tobacco program that kicked off special-interest tobacco control as we know it today. The above policy of orchestrating public intolerance for "Target Group" consumers stands as the society's statement of its beliefs and values. Please consider that the next time you receive a solicitation for donations from the American Cancer Society.
Tobacco control is predicted on orchestrating intolerance for its "Target Group" of choice. But, like cancer, hate and intolerance always spreads beyond its focus through creating a hostile cultural environment. Today, intolerance toward persons how are overweight is emerging in the Robert Wood Johnson Foundation's anti-obesity agenda as a reflection of the foundations self-described "Assault on Smoking."
Tobacco control is unique in several respects, however two aspects stand out at the present time: first, it is a stunning example of deliberately inciting intolerance of and fomenting violence against its American "Target Group" of choice in pursuit of a mercantile agenda; second, it provides a clear illustration of how an intolerance agenda that is successfully launched to support one mercantile agenda will predictably run out of control and be applied to another. Tobacco control is also unique in its callous, cavalier disregard for the collateral damage that it imposes on others who are peripheral to its immediate focus. This work documents the tobacco control damage imposed on hospitality trade independent small business owners and taxpayers in one state, many of whom are nonsmokers. The learning point is that orchestrated intolerance predictably spreads well beyond its intended primary targets to include anyone who opposes the mercantile agenda.
Perhaps it is well past time that by our reasoning, our choices as to how we relate to others, and our demands for honest public policy we resoundingly tell tobacco control advocates to butt out of legitimate public health and meaningful public discourse.
Tobacco control's now-predictable response to smoking ban opposition in Colorado has been attempts to expand smoking prohibitions to casinos and to increase the criteria for a "Cigar Bar" exemption. Facts about he "Cigar Bar" exemption were cogently addressed by Rocky Mountain News columnist Bill Johnson on March 21, 2007 in "Anti-Smoking Zealots Get Swift Kick In the Backside:"
"It has to be the dumbest, most-transparent piece of legislation ever. And in Colorado, that is saying a lot. It is why, standing face to face with Rob and Heidi Orio after their latest legislative battle, it is almost impossible to know whether to congratulate or resent them for taking on the system and kicking it square in the mouth. A state Senate committee killed legislation Tuesday that would have eliminated an exemption in last year's Colorado Clean Indoor Air Act that allowed customers in the Orios' restaurant and bar, the Roadhouse, to continue smoking. The legislation, regardless of what its sponsors repeatedly say, clearly was designed to foil the Orios, who had the guts and money to challenge first the city of Durango and, later, the local district attorney, demonstrating that they, indeed, were in full compliance with terms of the smoking ban enacted a year ago. In addition to casinos, cigar bars and the smoking lounges at Denver International Airport, the law exempted any establishment that derives 5 percent or $50,000 of its revenue from the over-the-counter sale of tobacco." (Underline added.)
Apparently some legislators believe that not only is cigarette smoke deadly and cigar smoke safe perfume but that cash received from cigarette sales is also toxic and cigar sale currency is printed on rose petals. There is simply no end to the hair-splitting and self-serving exemptions that tobacco control advocates will manipulate to impose their small minority will on the majority of consumers, taxpayers and small business owners. As noted by Bill Johnson, however, there is a point where tobacco control speaks for itself with "the dumbest, most-transparent piece of legislation ever."
As of this writing, legislation that would remove the casino exemption is stalled in the Colorado Senate. What was said last year to garner enough votes to get House Bill 06-1175 through the Colorado legislature is long forgotten today as the now-mortally-wounded great leap forward to a "Smoke Free" America stumbles along.
So much for the "We're not trying to . . . we only want to "Save the Children" and . . . " BS from tobacco control. They said they weren't interested in smoking bans for bars, taverns and restaurants when passing other workplace smoking bans in Washington during the 1990s. Those who believed that false statement confronted a reality-check when Pierce County imposed a countywide ban including bars, taverns, restaurants, and other hospitality establishments that became effective in January 2004.
Fortunately, that county ban was overturned by Washington's superior, appeals and supreme courts. They said they weren't interested in expanding smoking bans to private residences when campaigning to pass Washington's I-901, which included the hospitality trade. They immediately began promoting smoking bans for apartments in early 2006 after I-901 passed in November 2005. They said private clubs and bars would be exempt in the original 2006 legislative bill in Colorado. After midnight-hour amendments a smoking ban emerged from the legislature that included private clubs and bars. They said private clubs would be exempt in Ohio when campaigning for Issue 5, which passed November 2006. The Ohio Department of Health drafted rules to enforce smoking prohibitions at private clubs and has now amended those rules with criteria that would include enforcement against many private clubs, while claiming that exemption stands.
We begin taking a close look at what is going on in Colorado with a simple understanding: the only way tobacco control's financial sponsors-the Robert Wood Johnson Foundation and "Smoke Free" pharmaceutical nicotine distributors with which it is directly tied through $3 billion plus in common stock-can achieve the nicotine market monopoly they have pursued for years is to eliminate cigarettes. Accordingly, tobacco control will continue to apply its multi-billion-dollar-per-year infrastructure to impose its financial sponsors' will on Americans until it is forced to cease and desist. What is occurring in Colorado at the present time provides one of the most well-documented and transparent stories there can be as to why tobacco control has become a threat to legitimate public health, due process and the rule of just law, as well as common decency.
Three interesting and informative exchanges have also occurred in the Rocky Mountain News over the past few days concerning the smoking ban in Colorado. Those exchanges are presented in comments for three Opinion works:
April 3, 2007 "Smoking Ban," by Allen Campbell
April 3, 2007 "No to Smoking Ban" by Elsie Brougham
April 4, 2007 "Legislators Blew It On 'Cigar Bar' Measure," by Dr. Don Parsons
Both the content of the Op-Ed works, which present opposing views about the Colorado smoking ban, and the numerous reader comments are highly recommended reading. What emerges from the comments is that there are myriad opinions and views about smoking bans other than those promoted by tobacco control advocates. The good news is that there is active and continuing dialog about the Colorado smoking ban. Where genuine dialog occurs tobacco control loses.
Readers can and should reach their own conclusions based on the content in the comments. I believe, however, that those supporting tobacco control are a distinct minority and that they are being informed the majority feels their views are out of touch with reality. Most conspicuous to me are anti-tobacco proponents' mean-spirited comments that attack persons who smoke and those who accommodate them as patrons. Which is, of course, an "in their own words" confirmation of the above-quoted tobacco control public policy as set forth in "Planning for a Tobacco Free Washington." Mean-spirited, weak people seek and apparently relish hurtful ways to get what they want for themselves. But, as Gandhi pointed out, such behavior also betrays faith in one's cause. If the proposed policy has legitimate merits in its own right why should promoting intolerance of "Targets" be part of it? If all one truly has to sell is hate and intolerance why should their agenda be considered by normal people?
There has also been an important exchange of views and information between the Coalition for Equal Rights and members of the Colorado Legislature. We will discuss that shortly. I believe that it is important, however, to first present and discuss a few excerpts from the smoking ban legislation that was passed last year by the Colorado legislature.
What Bar Owners and Private Club Managers Face In Colorado
From the Legislative Declaration included with House Bill 06-1175, the Colorado Clean Indoor Act:
"The General Assembly hereby finds and determines that it is in the best interests of the people of this state to protect nonsmokers from involuntary exposure to Environmental Tobacco Smoke in most indoor areas open to the public, public meetings, food service establishments, and places of employment. The General Assembly further finds and determines that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places. Therefore, the General Assembly hereby declares that the purpose of this Part 2 is to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke."
The declared finding of the Colorado General Assembly, "it is in the best interests of the people of the state to protect nonsmokers from involuntary exposure to Environmental Tobacco Smoke" could apparently be implemented in the hospitality trade with a simple sign that says "This Establishment Permits Smoking." Anyone who entered would then voluntarily choose to enter an environment where smoking is permitted.
The Colorado General Assembly rejected such a straightforward approach. Then again, the simple approach would not suit the mercantile purposes of tobacco control advocates' financial sponsors. To make things work for hidden special-interests behind smoking bans things necessarily become complicated and ultimately unworkable.
From Section 25-14-208. Unlawful Acts - penalty - dispositions of fines and surcharges:
(1) It is unlawful for any person who owns, manages, operates, or otherwise controls the use of a premises subject to this Part 2 to violate any provision of this Part 2.
(2) It is unlawful for a person to smoke in an area where smoking is prohibited pursuant to this Part 2.
(3) A person who violates this Part 2 is guilty of a Class 2 petty offense and, upon conviction thereof, shall be punished by a fine not to exceed two hundred dollars for a first violation within a calendar year, a fine not to exceed three hundred dollars for a second violation within a calendar year, and a fine not to exceed five hundred dollars form each additional violation within a calendar year. Each day of a continuing violation shall be deemed a separate violation.
There you have it. That's the operative portion of the smoking ban law in Colorado, according to what is included in the act as passed by the legislator. Now let's take a careful look at what hospitality trade owners and managers confront. The below are my layman's views. Policy or defense decisions in light of the statute should only be undertaken on advice of competent counsel.
Scenario No. 1: Sidney Smoker walks into a Colorado springs tavern, sits at the bar, and orders a beer. As he drinks his beer he lights a cigarette.
1. What does the law explicitly say the bar owner or bartender are to do? Nothing. Neither the bar owner nor the bartender are smoking. The law prohibits smoking in the bar, period. The law simply says "It is unlawful for any person who owns, manages, operates, or otherwise controls the use of a premises subject to this Part 2 to violate any provision of this Part 2." (Underline added.) The violation is to smoke in a place where it is prohibited. The law does not say "It is unlawful for any person who owns, manages, operates, or otherwise controls the use of a premises subject to this Part 2 to violate, or to permit any person to violate, any provision of this Part 2 on their premises" (Underlines are additions to text of quotation.)
2. What does the law specifically authorize the bar owner or bartender to do? Nothing. The law does not say what the bar owner or bartender are to do to cure the alleged violation by persons other than themselves, no governing jurisdiction is provided, and no statutory authority to contact any enforcement agency is included. In addition, the statute as written provides no lawfully enforceable remedies that must be undertaken, such as refusing service, removing the violator from premises, etc.
3. What affirmative duty does the law place on the bar owner or bartender? None. The law says nothing about preventing patrons form smoking, places no affirmative duty on the bar owner or bar tender to take remedial action, and does not require or authorize that any enforcement authorities be contacted.
Despite the above wording of the law, numerous bar owners in Colorado have been personally cited for violations of the state's smoking ban because patrons were smoking in their establishments. The fines are now mounting to thousands of dollars. To my mind, this raises severe due process issues. Many of those small business owners have now retained counsel and will present strong affirmative defenses. Taxpayers look forward to funding a protracted and costly enforcement effort. Taxpayers also look forward to footing the bill for defense of lawsuits related to smoking ban enforcement, should they be filed. Should ban-related lawsuits be filed and successfully prosecuted taxpayers look forward to financing payment of judgments against the state and/or its various entities as well. The point being that special-interest tobacco control legislation - including smoking bans - predictably costs everyone, smokers and nonsmokers alike.
The only recourse in Scenario No. 1 is for the bar owner or bartender to inform Sidney that smoking is prohibited, then call the police (at their risk) and have Sidney cited for a $200 Class 2 Petty Offense if he persists. An alleged problem that has not bothered the bar owner or his patrons for decades, and that could be solved with a simple sign that smoking is permitted, imposes disruption of business risks on the bar owner and bar tender. They become responsible for enforcing another person's behavior, regardless of the fact that they did not violate the law and the statute that is violated provides no authority for remedial action by the bar owner or bartender.
Scenario No. 2: Wanda Wingnut strolls into the tavern with several friends. They go to a booth in the back of the establishment and continue their conversation. For about an hour they stare daggers at Sidney, who is still sitting at the bar and smoking. They call the police from a cell phone. When the police arrive Sidney happens to be between smokes and is not smoking. Now backed by the power of the law enforcement, Ms. Wingnut and her friends angrily confront Sidney, saying "He had to be smoking, just smell the air!" The conversation escalates to Wanda screaming at Sidney that he is killing her. Sidney drolly responds that seems like it would be a genuine public service. Wanda snaps back that she has been sitting there watching Sidney smoke for "more than an hour," and that "everybody knows" one can die of a heart attack from secondhand smoke with a mere one-half hour of exposure. The police cite Sidney, tell Wanda to calm down, and leave the premises.
1. What violation did the bar owner or bartender commit? None. Under the wording of the Colorado statute they merely endured a major disruption of business.
2. What right of Sidney's was violated? None. The law says he is prohibited for smoking in the tavern.
3. What right of Wanda's was violated? None. There is no constitutionally protected right of "Smoke Free" air. She could have walked out when she saw Sidney smoking. However, it could be said that Wanda violated other patrons' and Sidney's right to peaceful enjoyment of the premises by making a scene about her personal preference.
Scenario No. 3. Sidney has three more beers. He forgets he shouldn't be smoking and lights up. Wanda, still sitting in the booth with secondhand smoke in the air, goes ballistic. She rushes over, slaps the cigarette out of Sidney's hand and screams that she's not going to take it anymore. Sidney flops off the bar stool. Tired of the ruckus, the bartender has the bouncer put them both out the door.
1. Sidney sues the tavern for the broken arm that he received when flopping off the bar stool, plus alleged violation of civil rights concerning how he was thrown out of the premises.
2. Wanda sues the tavern for alleged permanent disability caused by more than 30 minutes of exposure to secondhand smoke and emotional distress induced by her hair that she alleges "smelled like an ash tray" after an evening at the tavern.
3. Tobacco control activists and pharmaceutical nicotine distributors laugh all the way to the bank at the Rubes in Colorado Springs who have once again been suckered into enduring problems that they created to expand the Robert Wood Johnson Foundation's mercantile agenda.
Who is the victim in the above scenarios? It certainly isn't Wanda Wingnut. She could have avoided her alleged injury and emotional distress by simply walking out of the tavern when she saw Sidney smoking. If that choice caused her distress then she should think about the distress that her personal preference mandate imposes on other patrons who choose to lawfully smoke legal cigarettes. Sidney Smoker had a choice to smoke or not smoke, he chose to smoke. The only true victims here are the tavern, its owner(s), and its employees. They are placed in a position of enduring the adverse consequences of an unnecessary and poorly written statute. While doing so they find themselves juxtaposed between a Wingnut rock and a Smoker hard place. Regardless of what may occur with enforcement proceedings in the future, today and each day neighborhood hospitality trade small business owners in Colorado know several things with certainty:
1. Their daily revenue is dramatically reduced from where it was before the smoking ban.
2. They have more disruption of valuable customer relationships after the ban than before.
3. Those problems are created by a law that seeks to "Save" employees patrons from an alleged health risk that does not exist as represented by tobacco control advocates.
Let's briefly consider the issues raised by the above all-to-real three scenarios presented above.
1. The statute as written makes hospitality trade neighborhood business owners responsible for the conduct of other persons. The conduct they become responsible for is the lawful behavior of patrons consuming a legal tobacco product.
2. The statute as written imposes an unwarranted imbalance of concerns and rights, in contradiction with its Legislative Declaration:
"The General Assembly further finds and determines that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places."
3. Under the imbalance imposed in violation of the statute's Legislation Declaration, Wanda Wingnut presumes a constitutional right to "Smoke Free" air that she does not have, while pushing her personal preference on others in violation of their rights.
4. The tavern and its owner(s) face unending intrusion into their rights to conduct a lawful hospitality trade by well-financed, special-interest tobacco control advocates.
5. The tavern and its owner(s) face continued disruption of business by police enforcement.
6. The tavern and its owner(s) face increasing financial risks of fines levied in apparent violation of the statute.
7. The tavern and its owner(s) face increased prospective liability from lawsuits.
8. The greater prospective risks are imposed by enforcement of a mercantile agenda that is not disclosed.
9. The tavern and its owners(s) have been disenfranchised by many legislators who have ignored to date important comments about the smoking ban by hospitality trade members.
10. The above disruptions and risks are imposed on the tavern and its owner(s) to enforce abatement of an indoor air constituent health risk that does not exist as represented and cannot impose the alleged risks as stated.
Based on the above information it is fair to say that the time for change in the Colorado smoking ban has arrived. Delay at this point in rescinding the ban-or at the least exempting bars, taverns and private clubs-is a legislative statement that that out-of-state special-interests are considered to be more important that local neighbor hood hospitality small businesses.
To simply wait out the legislative session and leave Colorado hospitality trade small business owners hanging until next year would be a travesty in every sense of the word. It could also give rise to unfortunate but urgently necessary litigation that will cost taxpayers a considerable sum to defend. There's a message in that to the Colorado legislature:
Get 'er done!
Norma E. Kjono
---- Coalition for Equal Rights Communications With the Colorado Legislature ----
Three communications between the coalition and a member of the legislature appear below. The below communications have reportedly been forwarded to all member so the legislature by the coalition. The documents peak for themselves. Perhaps readers will have a special-appreciation for where Colorado bar and tavern owners, as well as private clubs, stand on the issue of smoking bans. Please read the below three communications with the above thoughts In mind.
Senator Windels Correspondence Regarding Colorado Smoking Ban
April 2, 2007
On March 29, 2007 Coalition for Equal Rights Jr. Vice President Lisa Fender met with Senator Sue Windels (D-19th). During that meeting Ms. Fender presented Senator Windels with a list of eight questions concerning the statewide smoking ban (see questions presented at end of text for Coalition for Equal Rights response.) On March 31, 2007 Senator Windels responded by to Ms. Fender:
From: Senator Sue Windels [mailto:firstname.lastname@example.org]
Sent: Saturday, March 31, 2007 3:55 PM
To: Lisa Fender
Subject: Re: Senators
Thanks for coming to the Capital and I'm sorry the entire morning was taken up by the Resolution on the War in Iraq. It made it difficult for me to have time to talk with you.
Thanks for all the information you brought to me.
I've talked with my colleagues about this and the majority feel as I do, that Colorado should be smokefree. My husband's relatives live in NY and they have been smokefree for years and they have bars of all sizes still thriving.
It's never easy to disagree with someone who is passionately opposed to the position I have taken on behalf of my constituents. My mail has been overwhelmingly in support of smokefree Colorado.
I hope you come back to the Capital someday when we have a more "normal" regular day of debate.
---- Response of the Coalition for Equal Rights (CER) to Senator Windels' E-Mail of March 31, 2007 ----
April 1, 2007
Dear Senator Windels,
We appreciate that you met with Lisa Fender on March 29, 2007 regarding the Colorado smoking ban and that you took the time to respond to her by E-Mail on March 31, 2007. We thank you for that effort.
The matters addressed by Ms. Fender during the meeting on March 29th are not, as implied in your E-Mail, mere issues of passion. For many CER members and their employees the issues addressed by Ms. Fender are a matter of economic survival and go directly to the heart of how we govern ourselves as a people. It is clear to us that tobacco control as implemented and enforced in Colorado through the current smoking ban is a mercantile intervention. Were genuine Indoor Air Quality and legitimate public health the underlying purposes of tobacco control we would not be contending with the adverse consequences of Colorado's smoking ban because other less intrusive and more effective remedial measures would already be incorporated. Under House Bill 06-1175, as enacted by the legislature last year, we simply have a ban on one Indoor Air Quality constituent that suits the mercantile needs of out-of-state "Smoke Free" nicotine special-interests, while completely ignoring other air quality constituents and imposing behavior prohibitions that adversely impact consumers, taxpayers, and hospitality trade small business owners. While your position is clearly suitable to special-interest needs, we disagree that it is taken on behalf of your constituents who are members of the Coalition for Equal Rights.
We note with deep concern that you did not address or respond to important questions concerning Environmental Tobacco Smoke (ETS) raised by Ms. Fender during your meeting. We also take strong exception to the fact that your response merely addressed in passing the important issue of hospitality trade economic impact through reference to the opinion of relatives in New York about bars "thriving" under that state's smoking ban. Finally, we note that your statement concerning overwhelming E-Mail support for your position. First, how many of those E-Mails are organized response from paid and volunteer tobacco control advocates? Second, how do you explain the fact that alleged "overwhelming" support for your position is contradicted by a Denver CBS poll, showing 70 percent of respondents do not support smoking bans in bars, that Ms. Fender brought to your attention in her questions submitted to you?
Members of the Coalition for Equal Rights (CER) have a long history of being responsible, taxpaying small business owners in Colorado who conduct lawful business. We strongly believe that the fact we are constituents of elected representatives, as well as the contributions that we make to our state and communities through providing jobs, paying taxes and often making charitable donations, entitle us to responsive communications from legislators concerning important legislative issues. To that end, dialog with representatives is an essential part of our participation in Democracy. Accordingly, we provide the following response to your E-Mail of March 31, 2007.
1.0 You mention anecdotal comments, apparently from relatives in New York, about New York bars "thriving" under that state's smoking ban. We respectfully, but most strongly, disagree with your statement concerning New York hospitality trade and its application to the Colorado hospitality trade. We request that you reconsider your position on that subject in light of the following:
1.1 Please see a May 2004 report, "The Economic Impact of the New York State Smoking Ban on New York's Bars", prepared for New York Nightlife Association and Empire State Restaurant and Tavern Association by Ridgewood Economic Associates. That report includes for following statements:
"To date, the only statistical evidence put forth to gauge the ban's economic impact has analyzed the combined revenue and job totals from both restaurant and bar industries. The following economic study is the first detailed economic analysis focused exclusively on the economic effects of the state smoking ban on New York State's bars. This report measures the direct and indirect economic impact of the New York smoking ban on bars, taverns and clubs*. The major findings are that the passage of the state smoking ban in 2003 has directly resulted in a dramatic loss in revenue and jobs in New York's bars, taverns and clubs. . . . In summary, the enactment of the New York State smoking ban has had a dramatic negative impact on the bar and tavern business and related businesses. The total economic impact is:
· 2650 jobs
· $50 million in worker earnings
· $71.5 million in gross state product (output)"
1.2 Please see a report about the effect of the New York smoking ban on individual hospitality establishments in that state compiled by the Smokers Club at: http://www.smokersclub.com/banloss3.htm . That report documents severe revenue reductions, layoffs and closures for more than 160 hospitality trade establishments due to the that state's smoking ban, which was enacted in 2003. The report includes numerous personal comments by business owners and managers that attribute the losses to the state's smoking ban. Which anecdotal evidence carries ore weight with you: personal relatives speculating about the New York smoking ban impact on hospitality trade or fact-based statements by boots-on-the-ground hospitality trade small business owners who are your constituents in the State of Colorado?
1.3 Please note that many bar trade members of the Coalition for Equal Rights (CER) in Colorado are experiencing revenue declines in excess of 20 percent, some revenue losses approach 40 percent, many employees of those establishments are being laid off, some bars have closed, and other bars face closure for economic impact reasons in the near future. In addition, many establishments that currently permit smoking find their revenues return to approach pre-ban levels. Many bars that permit patrons to smoke at the present time, as I am certain you are aware, do so for reasons beyond mere protest. Principal among those reasons is to clearly establish revenue facts as proof of smoking ban damages. We therefore conclude based on actual revenue records prepared by CER members that their economic losses are uniquely caused by and a direct result of the statewide smoking ban passed by the legislature in 2006 through House Bill 06-1175.
1.4 Finally, please note the recent commentary Tobacco Control: Basic Information No. 1 posted to Forces.org March 30, 2007. That commentary includes observations about the statistical methods used by tobacco control advocates to falsely allege to the effects that smoking bans are positive for hospitality trade business and that nonsmoking patrons flock to bars to make up for lost trade when smoking is banned:
"2.3 The fact that smoking bans impose severe economic costs and disruptions on many hospitality establishments is now certain.
a.) Anecdotal information in news stories from across the nation allege severe economic losses by some hospitality trade establishments.
b.) Many bars, restaurants, taverns and casinos engaged in opposition to smoking bans are now maintaining month-to-month revenue records for the year preceding and following enactment of the smoking ban. The records speak for themselves. The difference between pre and post ban revenues may be regarded as economic damages associated with the smoking ban. In addition revenue data for periods when certain establishments did and did not comply with the smoking ban provide additional damage information.
c.) The fact that revenues may modestly rise over time compared to those immediately after the ban was imposed and/or complied with does not change the fact and/or amount of ban-related damages. The preceding months have come and gone with documented losses, revenue lost in the past cannot be recovered.
d.) The fact that some hospitality establishments, such as large franchise chain venues, may have experienced increases in revenues after the ban does not change the fact or amount of ban-related losses sustained by other establishments. First, many such establishments were voluntarily "Smoke Free" before the smoking ban was enacted and the ban would enure to their market share advantage; second, trade associations, such as state restaurant associations for which the majority of members are large chain francises, have historically supported smoking bans; third, trade association support for public policy that benefits its members at the expense of nonmembers or smaller members more strongly supports the mercantile nature of smoking ban advocacy and diminishes public health arguments to support such advocacy; fourth, fairness and freedom of competition dictate that one business owner's voluntary mercantile choice should not and does not equal another business owner's legal mandate; fifth, tobacco control advocates' reporting of total industry statistics to garner support for smoking bans is deceptive in that it masks and/or hides revenue loss disparity between segments of the hospitality industry."
1.5 Our conclusions at the Coalition for Equal Rights, based on actual member reports and first hand experience, are that the Colorado statewide smoking ban has imposed severe and sustaining economic hardship on bar, tavern, and private club proprietors at a minimum. Moreover, given the vast amounts of data now available concerning the adverse economic impact of smoking bans on the hospitality trade form other states, we also conclude that the economic impact described above for Colorado establishments was predictable and therefore intended. Beyond immediate month-to-month revenue losses, the adverse economic impact of the Colorado smoking ban is also measured in many other ways. Other measurements include but may not be limited to:
a.) Reduction in fair market value of a small business due to revenue losses imposed by the smoking ban and the overtly hostile cultural environment concerning accommodating patrons who choose to smoke as part of their hospitality experience.
b.) Sharp reduction in retirement assets for many hospitality trade small business proprietors due to declines in the fair market sale value of business they have spent years building and developing.
c.) Loss of income and livelihood to hospitality many trade employees in Colorado who have been laid off due to reduced business revenues.
d.) Reductions in state liquor and other tax revenues due to reductions in bar and other trade revenues. Such reductions also impose declines in payments to state Workman's Compensation and unemployment funds.
e.) Declines in income to hospitality trade suppliers across a wide spectrum, including beer and liquor distributors, vending and game operators, and trade suppliers for products for everything from napkins to drink additives or embellishments.
1.6 Please consider the above information in context of the fact that the largest private source of funding to tobacco control advocates who promote smoking bans - now reportedly more than $446 million - is from Nicotine Replacement Therapy (NRT) manufacturers and distributors or those economically associated with them. Why should any small business owner in Colorado be forced to endure one dollar of revenue losses by involuntarily accommodating a mercantile agenda that ensures profits for out-of-state pharmaceutical and private foundation special-interests? Additional information concerning the direct economic relation ship between Nicotine Replacement Therapy special-interests and tobacco control advocates is available in the Forces.org commentary Tobacco Control: Basic Information No. 1
1.7 Considering the above, we take strong exception to your offhand, and to our mind somewhat flippant, statement concerning the economic impact of the smoking ban in New York. Not only does the actual data and analysis concerning New York reveal your conclusion to be incorrect but such a also response evades addressing the genuine and immediate concerns of your hospitality trade constituents in Colorado.
We apologize if you feel the preceding statements are somewhat harsh. We respectfully point out, however, that in the case of smoking bans harshness is truly in the eye of the beholder. Accordingly, please gauge your emotional response to the above information by how you would feel if the value of a small business that you worked for years to build, as well as your income to your support month-to-month livelihood, was dramatically reduced virtually overnight to accommodate an out-of-state private mercantile agenda.
Having presented the above information about the adverse economic impact of the Colorado smoking ban we believe that your March 31, 2007 E-Mail to Ms. Fender was unresponsive to that issue, evaded providing material information for a constituent, improperly interjected false information concerning another state, and utterly ignored firsthand accounts of adverse impact on our Colorado members, to justify persisting with a smoking ban in the State of Colorado regardless of the facts. We believe that such an unresponsive and misleading reply to our concerns deprives Coalition for Equal Rights members of their right to equal representation and equal protection of the law, as well as creating special-privileges and immunities for out-of-state special-interests.
2.0 We also note with concern and disappointment that you have not addressed the numerous points of information brought to your attention concerning tobacco control advocates' false claims regarding the alleged hazards of exposure Environmental Tobacco Smoke (ETS).
2.1 It is possible that one could say in 1994, when the first round of smoking bans in public places was promoted by tobacco control advocates, that the issue of genuine, bona fide material risk from exposure to ETS was open to question. At the time, the December 1992 EPA report on secondhand smoke had just been released and litigation of the issue was newly-commenced.
a.) Since 1994, however, many changes have occurred based on responsible and credible analysis about the true effects of exposure to ETS. Many of those sources are and were cited in the questions presented to you by Ms. Fender on March 29, 2007 (see below questions). For example:
i.) In 1994 a study of ETS abatement at a Washington worksite demonstrated that ETS constituents could be reduced to at or below levels of detection with supplemental ventilation systems, while providing air quality in nonsmoking areas superior to outside air and with smoking permitted at work stations.
ii.) In 1998, U.S. District court judge William Osteen ordered chapters 1 to 6 and all appendices to the 1992 EPA report on secondhand smoke be vacated, citing major fact and procedural deficiencies in conclusions that supported EPA claims about the allegedly-adverse health consequences of exposure to ETS.
iii.) In 2001, the federal Occupational Safety and Health Administration (OSHA) withdrew its proposed Indoor Air Quality (IAQ) regulations that included a nationwide workplace smoking ban after a seven year review of ETS in public hearings and dedicated workshops. OSHA cited major deficiencies for information about ETS exposures. The American Cancer Society, the American Lung Association, and the Campaign for Tobacco-Free kids agreed with that policy decision.
iv.) In 2003 OSHA reiterated its policy position that in normal work environments ETS constituents do not exceed its established Permitted Exposure Levels (PELs) when smoking is allowed and that it would not apply a general duty clause to protect workers based on ETS.
v.) In 2003 the Enstrom and Kabat study (see 2.2 below) was released that concluded, "The results do not support a causal relation between environmental tobacco smoke and tobacco related mortality."
vi.) In 2005 the Journal of the National Cancer Institute (JNCI) published a study that concluded "These results also 'suggest that exposure to carcinogens in environmental tobacco smoke may not be the major pathogenic factor involved in the origin of lung cancers in never smokers but that an as-yet-unidentified carcinogen(s) plays an important role.'"
vii.) In March 2007 the Stanford University researchers published a report concerning lung cancer in nonsmokers that concluded "According to Wakelee, the problem is that researchers cannot use the data currently available to discern which causes are most important and how they interact. 'It's known that lung cancer in nonsmokers behaves a little bit differently than cancer in smokers,' she said. 'The problem is that most of our statistics come from databases that don't include smoking information.'"
b.) It is one thing to support statements concerning alleged risks when the statements are speculative and unproven. It is, however, yet another issue to persist with false claims concerning the alleged risks associated with exposure to ETS today in light of the extent to which tobacco control claims have been thoroughly rebuked by highly authoritative sources. Such behavior merely emphasizes the now-transparent point that tobacco control advocacy and its related vested-interests continue to impose their agenda on others regardless of the credibility of their claims about ETS and in utter disregard for the economic consequences experienced by "Targets" of their self-serving programs, including neighborhood bars, taverns and other hospitality establishments.
In light of the above observation concerning ETS we at the Coalition for Equal rights respectfully, but strongly, request that you reevaluate your position of non-response to and apparent tacit support of false claims about the alleged dangers of exposure to Environmental Tobacco Smoke (ETS).
2.2 We bring to your attention recent developments concerning the study "Environmental Tobacco Smoke and Tobacco Related Mortality in a Prospective Study of Californians, 1960-98," by Enstrom and Kabat, as published in 2003 by British Medical Journal (BMJ 2003;326:1057). That study reached the following conclusion after extensive review of American Cancer Society data for thousands of individuals:
"Conclusions The results do not support a causal relation between environmental tobacco smoke and tobacco related mortality, although they do not rule out a small effect. The association between exposure to environmental tobacco smoke and coronary heart disease and lung cancer may be considerably weaker than generally believed." (Underline added.)
A recent development concerning the above study was reported March 30, 2007 by Dr. Micheal Siegel on http://tobaccoanalysis.blogspot.com/, "Enstrom Cleared of Scientific Misconduct Charges; American Cancer Society Owes Him An Apology:"
"After an internal investigation, the University of California has cleared UCLA professor and epidemiologist Dr. James Enstrom of all charges of scientific misconduct - charges that were leveled by the American Cancer Society."
By clicking on the "cleared" underline above you find a March 22, 2007 letter to the Chief Executive Officer of the American Cancer Society from an Executive Vice President of the University of California. That letter exonerates the study's co-author, Dr. Enstrom, of charges concerning scientific misconduct leveled by the American Cancer Society. After rigorous peer review as to the study's analysis and conclusions, as well as careful professional review concerning scientific conduct, the above conclusion that "The association between exposure to environmental tobacco smoke and coronary heart disease and lung cancer may be considerably weaker than generally believed" stands as valid.
Even many persons in the tobacco control movement do not agree with many of the extremist conclusions promoted by some tobacco control advocates about the allegedly deadly health risks of tobacco smoke. By what credible standard does the Colorado legislature impose business disruptions and economic losses on small, independent hospitality trade establishments when the above study and other highly credible sources such as OSHA, our federal courts and Journal of the National Cancer Institute clearly state that the risks imposed by Environmental Tobacco Smoke (ETS) are not as represented by smoking ban advocates?
3.0 The above and other intervening events concerning the alleged affects of exposure to ETS negatively impact the credible, and we believe lawful, application of tobacco control advocates' claims to public policy. That negative impact is particularly important at this point, given clear evidence that the Colorado smoking ban imposes adverse economic and other consequences on hospitality trade venues.
3.1 We believe that persisting with false claims about ETS to justify smoking ban public policy falsely, unfairly, and improperly labels hospitality trade establishments that permit smoking as creating an unsafe, deadly environment for their patrons, thereby imposing unwarranted disruption of business in customer relationships.
3.2 We believe that persisting with false claims about ETS to justify smoking ban public policy falsely, unfairly, and improperly stereotypes hospitality trade establishments that permit smoking as creating an unsafe, lethal environment for employees, thereby imposing unwarranted disruption of business in employee relationships.
3.3 We believe that persisting with false claims about ETS to justify smoking ban public policy, the current Colorado smoking ban, and enforcement procedures currently applied put hospitality trade establishments and their proprietors at undue risk through violations of due process and by creating a hostile environment in which business owners face severe disruption concerning patrons' lawful behavior, while lacking the opportunity or authority to employ effective remedial measures.
3.4 We believe that persisting with false claims about ETS to justify smoking ban public policy, as well as the current Colorado smoking ban and its current enforcement, are in direct and meaningful contradiction with the Legislative Declaration included with House Bill 06-1175:
"The General Assembly further finds and determines that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places."
3.5 In light of the now-demonstrable facts concerning ETS, the perceived violation of the legislative declaration of intent, the legislature's apparent reluctance to hold hearings which question the validity of their previous finding that ETS justifies the smoking ban in hospitality businesses, and because evidence on ETS is now available that credibly questions the idea that it is a health risk in any workplace, a serious question is raised of whether or not the smoking ban is a legitimate governmental intervention. We at the Coalition for Equal rights have reached these conclusions after extensive review of current literature and earnest discussion with several parties conversant on the subject. In light of that extensive effort we strongly object to the false assumption that questions regarding ETS are credibly addressed by tobacco control advocates and their political supporters.
Considering the foregoing, we urge you to sponsor and support immediate legislation to correct the severe economic losses and business disruptions and unwarranted that legislative bill 06-1175, as passed by the Colorado legislature last year, impose. In this regard, we point out that the end of the legislative session fast approaches. We therefore respectfully suggest that time is of the essence in addressing these issues.
Any questions regarding the policy position of the Coalition for Equal Rights can be directed to the coalition's spokesperson, Allen Campbell.
Coalition for Equal Rights
April 2, 2007
---- Questions Presented to Senator Windels by Lisa Fender March 29, 2007 ----
1. In your first e-mail to me you said that "I voted for what I felt was best for Colorado". How do you figure that banning smoking from hospitality establishments is the best for Colorado when the ban is shutting down small businesses, losing jobs and reducing tax revenue to the state?
2. Many bars in Colorado are on the brink of closing and may not last another year. How is causing loss of future income for business owners and loss of future revenue to the State of Colorado best for the state and its taxpayers?
3. How is it acceptable to cost bar owners lost income to address a health issue, the alleged risks of Environmental Tobacco Smoke (ETS), that does not exist as represented by those promoting smoking bans (see Summary of 16 Important Points About Environmental Tobacco Smoke attached)?
4. How is it acceptable to cost Colorado small business owners and taxpayers money to benefit Phillip Morris through a smoking ban that the company supports (see Philip Morris & Tobacco Control) attached)?
5. Enforcement issues concerning Murray's Street Darts in Colorado Springs appear to be similar to those for Frankie's Sports Bar & Grill in Olympia, Washington, which also received citations for smoking ban violations. How is it acceptable to enforce the smoking ban through violation of due process (see The Olympian, March 17, 2007, "Bar Owner Cleared of Violating Smoking Ban," by Keri Brenner)?
6. Facts: 70% oppose smoking bans in bars in Colorado, according to a recent poll put out by CBS news Denver (see www.stopthebans.com ) Less than a 1/3 of respondents to a poll in Washington state supported smoking bans in bars (see November 2003 E-Mail by John Britt attached). 60% of respondents to a poll in Minnesota oppose smoking bans in bars (see Minnesota USA Poll attached). What justification is there to continue smoking bans in bars when the public and small business owners affected do not agree with it?
7. The CCIAA contradicts itself and rules written by each city do the same. The legislation passed last year appears vague and unclear as to establishing uniform enforcement. This causes discrimination against bar owners their patrons who smoke by the State of Colorado through the smoking ban. What do YOU plan to doing to correct this problem, or will you just wait until there is a class action suit to resolve this matter?
8. When during this legislative session can we expect a legislative bill that will exempt Colorado bars, taverns and private clubs from the smoking ban, too?