Hawaii Law

By Norman E. Kjono, February 4, 2007

Some Legislators Get It About Smoking Ban's Negative Impact

From the Hawaii Reporter, January 30, 2007, "Bill Reverses Hawaii's Smoking Ban In Bars, Nightclubs and Restaurants,"     by Rep. Colleen Meyer (R-Kaaawa)" 

"Honolulu - I drafted and introduced Bill H.B. No. 792 in the Hawaii State House of Representatives to exempt bars, nightclubs, and restaurants from the complete ban on smoking, provided that exterior signage adequately warns the public that smoking is allowed within. I'm very concerned with the calls my office is receiving about the loss of revenue that small business owners are experiencing across the state since the statewide smoking ban went into affect in November. Many long time business establishments have closed in other states due to the passage of smoking ban legislation and hundreds of others are limping along with revenues 30 to 50 percent of what they were before the ban. This is really a piece of common sense legislation that would allow a choice for both business owners and their patrons. I was joined by Representatives Rida Cabanilla, Karen Awana, Tom Brower, Cindy Evans and Gene Ward in the signing of this bill. . . . A U.S. Supreme court decision during the early 1970's ((Lloyd Corp v. Tanner, 407 U.S. 551 (1992)) said a place of business does not become public property because the public is invited in. So, by that same reasoning. A restaurant or bar is not public property. We need to support small business and stop regulating them out of business." 

Six legislators in Hawaii have introduced a bill that says they "get it" about the negative impact that statewide smoking bans have on independent small hospitality business owners. Their common sense, responsiveness to small business owner constituents, and recognition of basic legal supreme court decisions speaks well and clearly for itself. Further comment is therefore unnecessary, other than to say that legislators in other states would be well-advised to follow suit in this laudable effort by responsible legislators. I wish them well with the success of H.B. 792. 

The common sense, fair approach by Hawaiian legislators is in marked-indeed, stark-contrast with that by some inveterate, knee-jerk supporters of  tobacco control in Colorado. From the Rocky Mountain News, January 31, "Bills to Soften Smoking Ban Are Piling Up," by April M. Washington: 

"Sen. Brandon Shaffer, D-Longmont, had no answers during a recent townhall meeting at the VFW lodge in his hometown. That's why he introduced a bill Tuesday that would lift the statewide smoking ban on private membership clubs and lodges. 'I believe in the smoking ban,' Shaffer said. 'But ultimately, I couldn't give the guy an answer when he stood up and said, 'Now, you're telling me I can't drink a beer and smoke with my buddies at our own club.' . . . 'If my bill doesn't move forward, I'll support one that's trying to get casinos (included in the smoking ban),' he said. 'How do you justify that to veterans who put their lives on the line? We need to make sure we have a level playing field.' Senate Bill 120 is one of four bills introduced this year to try to fix or dilute the smoking ban. One bill, by Sen. Lois Tochtrop, D-Thornton, would allow "mom-and-pop" bars to pay an extra $500 for their liquor licenses in exchange for letting patrons light up. Rep. Ellen Roberts, R-Durango, has introduced House Bill 1108, which would close cigar bar loopholes that are allowing some bar patrons to smoke. Denver Democrats Sen. Ken Gordon and Rep. Anne McGihon said they plan to introduce a measure today to require casinos to go smoke free." (Underlines added.)
 

Contradictions and logic conflicts apparently abound in Colorado, defying the simple, straight-forward, fair-minded,  common sense of legislative colleagues in Hawaii. For example, in Colorado:

 

1. It apparently has not occurred to Senator Shaffer that one cannot simultaneously claim to support a smoking ban and craft exemptions from it. If the tobacco control's wildly-inflated claims about Environmental Tobacco Smoke (ETS) were true the only rational public health policy would be to prohibit the use of tobacco statewide. Artfully twisting with the political winds to craft exemptions for one business group and not another merely exposes the tobacco control agenda for the Social Marketing Junk Science agenda that it truly is. Perhaps tobacco control gurus such as Stanton Glantz with the University of California at San Francisco and "Secondhand Smoke Consultant" James Repace will next produce a "study on demand" about how ETS is deadly in bars but benign in VFW halls. Which should not be any stretch for Repace: he has previously testified that it takes 35,000 air exchanges to clear secondhand smoke in Toronto, Canada, 50,000 exchanges in Tacoma, Washington, and 100,000 exchanges in New York. Repace has also opined that smoky bars "have up to 50 times more cancer-causing particles in the air than highways and city streets clogged with diesel trucks," and that "indoor air pollution virtually disappears once smoking is banned" (see Chief Engineer magazine, February 2005, "Smoky Story Lights A Fire.") If 35,000 air exchanges per hour clearly does the job in Toronto then it should be transparent that the rates for Tacoma and New York are unnecessary and false. Equally transparent is the fact that if an exemption is warranted for the bar in a VFW hall then it is also warranted for a bar on private premises. Why not apply the same "study on demand" Junk Science to bars and VFW halls? Better yet, why not ignore tobacco control's self-conflicting Junk Science about ETS altogether and do what makes sense: post a sign that smoking is allowed and let patrons sort it out form there?

 

2. Senator Tochtrop apparently sees tobacco control as a cash cow, which is entirely consistent with how anti-tobacco activists have viewed it for more than nearly two decades. But that begs the material issue. Why should any private bar owner be coerced to pay an additional $500 fee to continue to do what they have every lawful right to do in the first place: accommodate patrons who choose to smoke as part of their hospitality experience?

 

3. The capper is Rep. Roberts' bill. She appears to have such a fixated thing about cigarette smokers that she has sponsored a bill to exclude establishments that sell cigarette from the cigar bar exemption. Personal preference could not be more fixated than that. It appears Rep. Roberts would be content to sit in the pristine essence of a cigar smoke filled back room to cut exemption deals but-oh, my God!-don't you dare light up one of those filthy, stinky cigarettes.

 

4. Final Honors for the who-can-produce-more-ban-exemptions political posturing in Colorado go to Sen. Ken Gordon and Rep. AnnMcGihon. Their solution in support of special-interest tobacco control advocates is to simply expand the economic devastation they already witness in bars to state casinos, too. Now there's a few fiscally responsible brain-trust-children busily at play.

 

Perhaps, in a flashing moment of uncommon clarity, it will occur to Sen. Shaffer that the "level playing filed" he is so concerned about can be easily achieved with no fuss, no muss, and with utter simplicity. Hint: they're already sponsoring a legislative bill in Hawaii to accomplish that.

 

The Denver Post chimed in on the smoking ban debate in Colorado, too, with its February2, 2007 editorial "Clarify Colorado Smoking Ban:"   

"Seven months after Colorado's statewide smoking ban took effect, a number of bar owners are convinced that their businesses will not survive if they cannot allow smoking. Some are flouting the law, allowing customers to smoke until someone tells them they can't. A few are mounting legal challenges in hopes of being able to skirt the ban. . . . That's why we're glad to see bills in the legislature aimed at clarifying and strengthening the law. One measure would eliminate the exemption given to casinos. Another clarifies that cigar bars exempted from the law cannot include cigarette sales to meet the income-from-tobacco requirement. . . . On Tuesday, a La Plata County judge ruled that a bar in Durango, Orio's Roadhouse, can count its cigarette receipts and does not have to have cigars or a humidor to qualify for the exemption. The ruling is only effective in that county, but if the law is unchanged, surely the La Plata interpretation will be adopted statewide. . . . One of the reasons the legislature passed the law in the first place was to avoid the patchwork of prohibitions that were cropping up in different jurisdictions around the state, creating an unfair playing field for some businesses. While we understand the difficulty of breaking a bad habit, good public health policy would provide a uniform prohibition for as many indoor enclosed areas as possible, including bars, casinos and racetracks." 

The Post's thinking is more internally-conflicted than that of Sen. Shaffer: 

1. The Post states that the purpose of the ban is to protect nonsmokers from secondhand smoke. The necessary assumption of the post is that secondhand smoke presents a health risk for nonsmokers. Then it describes a cigar bar exemption, with which it clearly agrees. If what The Post writes about secondhand smoke is true, one must therefore reach either of two contradictory conclusions: 1) cigars do not emit secondhand smoke, or 2) cigar secondhand smoke does not present health risks for nonsmokers. In addition, given anti-tobacco activists' whining about their hair "stinks" when they leave a bar that allows smoking, one must also conclude that cigar smoke does not leave an odor. One can only take The Post's position as credible if they make three false assumptions. 

2. Further, the matter of the "level playing field" is not only contradictory but childishly foolish. Cigar bars clearly enjoy the benefits of a non-level playing field through their exemption. Without the exemption for tobacco use their business would be significantly hurt, as it is that of bars. We therefore conclude that The Post agrees with supporting the interests of cigar bars through a non-level playing field, but it cries aloud for a level playing field ban for bars that currently allow cigarettes to be smoked. Addressing this argument by saying that cigar bars are in the business of selling cigars is specious because the exemption merely requires that 5 percent of revenue be derived from cigar sales or humidor rentals. The level playing field argument necessarily assumes that The Post supports a competitive market advantage for distributors of non-cigarette tobacco products-in the name of anti-tobacco. If that is true, why not the same exemption for cigarette tobacco products as well? The cigar bar exemption arguments expose both tobacco control advocates and The Post for the purveyors of elitist crap that they truly are: the common man smokers can do without his cigarettes while enjoying a brew, however fat cats cutting exemption deals in back rooms are free to enjoy their choice of tobacco products. The obvious response is that there are vastly more cigarette smokers who vote than voters who smoke cigars. 

It is extremely important to understand policy behind this conflicting policy, so-called reduced risk. I strongly recommend that everyone read the following study, the .PDF version is only six pages. Toward a Comprehensive Long-Term Nicotine Policy:   Please note that the authors of the study are directly connected to tobacco control advocacy, and in many cases have personal financial ties to Nicotine Replacement Therapy manufacturers and distributors. The policy is intended to focus coercive policy on by far the largest tobacco user source consumer base-persons who smoke cigarettes-in order to sell Nicotine Replacement Therapy products such as Nicorette gum, NicoDerm CQ patches and Commit Lozenges, while letting the considerably smaller cigar and pipe smoker populations off the hook for discrimination.  

Readers may find the following January 22, 2007 article from the Edmonton Journal  "Anti-Smoking Groups Look to Drug Giants for Funding" to be of considerable interest. It turns out that the money behind fatally-flawed smoking ban regulations is from pharmaceutical nicotine peddlers. It bears mention that pharmaceutical-funded purveyors of smoking ban propaganda do so with the underhanded bludgeon on Junk Science. See, for example, "Politics & ETS Summary" of sixteen important points about Environmental Tobacco Smoke that thoroughly debunk the "Secondhand smoke kills, always, inevitably and with out fail" mantra sung by pharmaceutical-funded anti-tobacco activists.  

Seen in its true light, The Post's fatally-conflicted editorial reasoning becomes yet another example of main-stream media's knee-jerk support for public policy that discriminates against the common many in order to accommodate the demands of a mercantile, elitist few. That may do wonders for media revenues from pharmaceutical advertising, however is a clear disservice to readers and the public.   

Which raises another question for Senator Shaffer: "Why should any hospitality business owner in Colorado be forced to endure diminished business opportunity to accommodate policy crafted to increase multi-national pharmaceutical's sales of nicotine delivery device products?"

 

That question applies to all hospitality business owners, their employees, and suppliers of the trade nationwide.

 

It is encouraging that we observe uncommonly good sense emerging in Hawaii, to surface through the tobacco control compost heap. I suspect that this is just the beginning of common sense legislation about smoking bans. It will expand as more legislators conclude that, as the U.S. Supreme court reportedly concluded, private establishments do not become public property simply because the public is invited in. The next step is simple: as Rep. Meyer wrote: "to exempt bars, nightclubs, and restaurants from the complete ban on smoking, provided that exterior signage adequately warns the public that smoking is allowed within."

 

Its amazing how a little liberty and freedom to choose can dramatically simplify coherent public policy. See "Liberty."  The only time that we get hopelessly conflicted and bound up in exemption snares is when we confuse special-interest tobacco control dogma with legitimate public health.

 

Norman E. Kjono


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