Opposition To Smoking Bans Heats Up
Where To From Here?

By Norman E. Kjono, March 19, 2007

 

 

This commentary should be read in context of a March 14, 2007 radio talk show broadcast by KKKK Radio 1580 AM in Colorado Springs, Colorado. Links to MP3 audio files for the show are as follows:

 

Chuck Baker Show first segment

Chuck Baker Show second segment

 

Criminal Sanctions for Alleged Civil Violations?

 

From Washington's The Olympian, March 17, 2007, "Bar Owner Cleared of Violating Smoking Ban,"   by Keri Brenner:

 

"Olympia sports bar owner Frankie Schnarrs was cleared today of complaints by Thurston County that he violated an injunction enforcing the state's anti-smoking law by allowing customers to light up inside his tavern on two occasions this year. "It's just sad that I have to be here," Schnarrs said after Superior Court Judge Anne Hirsch denied the county's motion to order him in contempt of court. 'I'm being challenged every day by fire officials, police officials and the court -- all I'm trying to do is run a business.' Hirsch said while 'clearly Schnarrs needs to comply with the state law,' the county had not produced sufficient evidence to prove that he had deliberate intent to violate the Dec. 29, 2006, permanent injunction. 'I don't think the showing the state used was the appropriate process,' Hirsch said. The injunction, first filed April 7, 2006, on a temporary basis, was to order Schnarrs to comply with the state's ban against cigarette smoking inside public places, approved by voters in December 2005. 'The county tried to prosecute my client for criminal contempt through a civil process,' said Schnarrs' attorney, Shawn Newman. 'They tried to make an example of my client because he's been outspoken on this issue.' . . . "Clearly, he didn't get the message," Deputy Prosecuting Attorney Jane Futterman told Hirsch at the hearing.  Futterman had asked the judge to impose fines against Schnarrs of $100 per day dating back to the Dec. 29 injunction, or $7,500." (Underline added.)

 

The following documents filed with the superior court for this case are available: Frankies' Response Frankies Declaration,  and Frankies Proposed Order.   A copy of the hearing transcript has been ordered by counsel for Frankies Sports Bar & Grill, Shawn Newman, Esq., and should be available within a week. We will post the hearing transcript and any further developments. It is important that we the people understand such proceedings and the measures being employed to enact and enforce smoking bans.

 

I respectfully but strongly differ with Deputy Prosecuting Attorney Jane Futterman: Mr. Schnarrs clearly got the message sent by the county health department, that is why he went to court. He apparently understood loud and clear that criminal proceedings were being employed against him and his legitimate business interests to enforce a civil matter. Fortunately, an able attorney presented the facts and law on Mr. Schnarrs' behalf and a judge understood the underlying issues of law. Frank won. We the people won a small victory on behalf of legitimate due process-may many more follow. The county and its prosecuting attorney lost, big time.

 

Smoking Ban Enforcement, New York Tobacco Control Style

 

From the New York Post, March 8, 2007, "Pool Cue' Bouncer Faces Slay Rap," by Ikimulsa Livingston:

 

 March 8, 2007 -- A strip-club bouncer could face murder charges now that a customer he clubbed with a pool cue was taken off life support, officials said yesterday. Cops busted bouncer Cesar Paz shortly after the Feb. 25 brawl at Goldfingers in Queens that sent Besnik Prebreza to St. John's Hospital. Doctors declared Prebreza, 23, brain dead and wanted him taken off life support almost immediately. . . . Prebreza, who was at Goldfingers that night with his brother and a friend, drew the wrath of bouncers after lighting a cigarette, cops said. " (Underline added.)

 

Smoking bans kill. Under the political leadership of New York Mayor Bloomberg, light up in a bar and you can die. Were Frankies' Sports Bar & Grill in New York City, one ponders whether the county health department would have noted in a compliance report that pool cues were not displayed in a highly visible location alongside the requisite "No Smoking" sign. The implicit message speaks for itself.

 

The March, 2007 New York murder of a person who smoked is not an isolated incident, nor is it in contradiction with the viciously intolerant views held of persons who smoke by tobacco control advocates. In 1996 tobacco control advocacy group Action on Smoking and Health (ASH) posted a promotion of the novel "Gasp: A Novel of Revenge,"   to its Web site (see WWW.ASH.ORG/PROTAGONIST.HTML). The book promotion describes a tested and proven plan to cyanide product tamper with cigarette packages for the express purpose of killing persons who smoke. The promotion includes the following statements:

 

"'In researching the book, I did everything my character did except, of course, actually poison people,' said Frank Freudberg, the Wayne, Pennsylvania, author of the book. 'I even dialed an 800 number and ordered cyanide crystals and had them sent to a mail box service ... a week later I had enough cyanide to murder 2,500 people.'" (Underline added.)

 

Knocking one person in the head with a pool cue is small potatoes compared to racking up a body count through mass product tampering that approaches deaths in the New York on 9/11 tragedy. At the time that promotion was posted by ASH to its Web site the beginnings of orchestrated violence against persons who smoke was becoming apparent. I wrote several columns about that, beginning on Forces in November 1997:

 

November 12, 1997 ANTI-TOBACCO VIOLENCE

December 6, 1997 MODEM MADNESS

January 16, 1998 ANTI-TOBACCO VIOLENCE UPDATE

January 21, 1998 MORE ANTI-TOBACCO VIOLENCE

 

The incidents reported in the above commentaries include beating a pregnant woman, police slapping teens, a D.A.R.E. tobacco advocate mother abusing he daughter, injuries caused by explosives put in cigarettes, and a radio talk show host advocating that citizens throw water or beer on those who smoke at sports stadiums.  Now a decade later, the violence continues, apparently escalating to pool cue mayhem.

 

Such violent and abusive incidents are a predictable extension of established public policy written in 1993. Such use of media to advance Social Marketing agendas was clearly set forth on 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 above-referenced document was published under federal contract April 1993 to support the George H.W. Bush administration's $135 million 1991-1998 American Stop Smoking Intervention Study (Project ASSIST). The American Cancer Society was the nationwide manager for Project ASSIST. State taxpayer's money was used to deliberately create a hostile and abusive cultural environment focused on those to discriminatorily taxed and banned. That hostile environment openly condones, indeed sends "consistent and persistent messages to foster" and engender, such behavior. Media supports that agenda of violence when it cavalierly publishes articles about smokers killing nonsmokers with secondhand smoke, routinely publishes tobacco control advocates' false information about the alleged costs to society of tobacco use without critical review or content check, or write articles that characterize individuals and small business owners who oppose smoking bans as outlaws.  

That behavior is entirely consistent with the views expressed by Seattle-King County Department of Public Health tobacco czar Roger Valdez in Seattle Weekly, January 18, 2006 Big Nanny is Watching you, by Philip Dowdy:

 

"Americans think they have a lot of rights they really don't have. Smoking is one of those things where people think they have a right to smoke, but you don't. . . . You have no right to smoke. It's an addiction. It's something you should see a doctor about. . . . The condo association can ban it, and you have no legal recourse." (Underline added.)

 

It must be noted that the mindset expressed about the rights of persons who smoke by Mr. Valdez is remarkably consistent with that which apparently pervaded the attempts at prosecuting Frank Schnarrs. If state and county health departments choose to make self-serving pronouncements about the rights of "Target" smokers how can we reasonably expect them to be at all concerned about the rights to due process of a bar owner who accommodates the "Target"?

 

Adding regulatory insult to physical injury, many public officials now call for suspending or terminating the liquor or business license of hospitality establishments that accommodate patrons who choose to smoke as part of their hospitality experience. In Colorado, a Republican legislature passed a smoking ban and a Republican Governor signed it into law. In Washington, a Democrat Governor requested new cigarette taxes and a Democrat legislature hastily complied. Those who consider political their party to be a solution to the tobacco control problem are well-advised to reconsider. In most cases those of the Anti-Mentality liberally populate both sides of the aisle.

 

The caustic, hostile views of Washington legislators concerning constituents who smoke were eloquently expressed in 2005 floor debate for ESHB 2314, which increased cigarette taxes by 60 cents per pack and added new liquor taxes as well. The following excerpts are from the TV Washington video of that floor debate: 

 

Rep. Shay Schaul-Berke (D-33rd): Voted "Yes"

 

"I'm OK with just doing the tobacco tax. We don't even have to dedicate it to education, and I'm not going to worry about the fact that some day we may tax it out of existence. We'll cross that bridge when we get to it." 

Rep. Lynn Kessler (D-24th): Voted "Yes

"A bottle of gin, a bottle of bourbon, a carton of cigarettes. Is this what we're complaining about? The family at home with the children, having to pay another $1.33 for their quart of gin to bring home.  Is this what we're complaining about? Going out and leaving the children at home while we go to the grocery store to buy our $6.00 pack of cigarettes, to come home and smoke them around their children and give them secondhand smoke. . . . Cigarettes and alcohol are the most discretionary buying any of us will probably make. I don't think this will break up families. I don't think that the earth will be shattered. I think we will be just fine. And if people choose to go to their stores, to their liquor stores, and buy alcohol, if they choose to buy cigarettes, I think that's fine. But it is their choice. I urge your support of this bill because these taxes that we're talking about are discretionary. And because we are focusing the cigarette tax on education. . . . I don't want to hear a lot about how people are suffering from this. Don't buy the cigarettes, don't buy the bottles of gin, don't pay the tax."

 

The hostile cultural environment that is willfully created by media and many legislators concerning tobacco use also spills over into other areas. Those who have found it to be politically expedient to bash smokers will also bash the legitimate business interests of bar owners who accommodate them, as is occurring in Colorado today. Those who enjoy stereotyping persons who smoke as secondhand killers of coworkers, family members and children to advance their agenda will also negatively label as violent any opponent of their programs, too, just as the American Cancer Society did to smoking ban opponents in Ohio February 28, 2007 (see Opposition to Smoking Bans Heats Up - Epilogue).  And those who find it to be economically rewarding to vilify and demean smokers in pursuit of a Robert Wood Johnson Foundation anti-tobacco grant buck will also do so to overweight persons nationwide in pursuit of another Robert Wood Johnson foundation anti-obesity grant buck. Those Agenda-Afflicted grant junkies will have no more concern about how their new food regulations adversely affect restaurant small business owners tomorrow than they do about how their smoking bans drive mom and pop neighborhood taverns or bars out of business.

 

Beyond Pretense

 

We are well beyond any legitimate policy pretense for continuing tobacco control programs. The programs benefit Big Tobacco and Big Drugs alike (see Philip Morris & Tobacco Control; the programs do not produce the results promised; the programs provide financial largess for private special-interest advocates, while decimating the legitimate interests of many small business owners; people are being physically injured and small businesses financially damaged by these special-interest programs; and the programs increasingly violate important issues such as due process, property rights, and legitimate public health approaches.

 

There is also no longer a valid pretense that tobacco control programs enjoy broad public support. See for example, survey data and discussion in the first three pages of my commentary, California's Proposition 86: A Review of Voting Patterns and Broader Issues, posted to Forces.org January 15, 2007. As voters became aware of special-interest issues concerning $2.1 billion in new tobacco taxes in California and another $350 million in Missouri support for those ballot measures quickly evaporated and the measures lost. Notably, the greatest swings from positive to negative in the polls for Proposition 86 occurred among demographic groups that have traditionally supported tobacco control. As discussed on later pages of that commentary, when public awareness of tobacco control programs increases support precipitously declines. 

 

Heath department survey data concerning smoking bans in bars is also instructive. A Washington health department survey revealed that less than one third of respondents supported smoking bans in bars (see November 2003 E-Mail by John Britt). That E-Mail also discusses with "Secondhand Smoke Consultant" James Repace what studies and other information-including the survey data-should be excluded from health commissioner briefing books for a hearing on the 2004 smoking ban in Pierce County. That county smoking ban-financed in large part as to both advocacy and legal defense by the Robert Wood Johnson Foundation-was overturned by state superior, appeals, and supreme courts. Smoke politicians who supported that ban later resigned-appropriately so in my opinion.

 

The Washington survey data about smoking bans in bars was recently confirmed by polls in Minnesota and Colorado. As of March 18, 2007 a CBS Colorado poll shows that 69 percent of respondents answered "Yes" to the question "Should Colorado's smoking ban be reconsidered to help smaller bars stay open?" (see www.stopthebans.com for current data). A Minnesota USA Poll  reports similar results for that state: 58 percent of respondents oppose smoking bans in bars.

 

The preceding poll data and discussion presents a compelling circumstance for politicians who continue to support tobacco control agendas: not only are they on the wrong side of the issue to begin with but they are supporting an agenda for which public support will predictably decline in the future. In addition, as the adverse consequences of the current nationwide push for smoking bans begin to be felt by private clubs and small business owners' affirmative opposition grows. Any politician considering their career's future in November 2008 would be well advised to consider that by then the grant money will be long gone and the tobacco control advocates they supported will be into new phases of their agenda, while politicians who supported them could well be left hanging high and dry looking for votes.

 

Tobacco control has its own infrastructure and funding. That enterprise will do what suits its special-interest purposes.  Politicians are only important to that enterprise when they vote to support it and otherwise expendable. Based on the inner communications of county health department anti-tobacco insiders and their consultants it is also clear that important information is also deliberately withheld from politicians by tobacco control to advance its own agenda. It is well worth politicians considering how much risk that enterprise is worth when it comes to their own careers.

 

A Special-Interest, Mercantile Intervention in Public Policy

 

Pharmaceutical nicotine special-interests that finance both county health departments and tobacco control advocates also lost with the Washington Decision concerning enforcement of I-901 last Friday. The more smoking bans there are, and the greater the penalties imposed for violation, the higher the probability that persons who smoke cigarettes will switch nicotine brands to "Smoke Free" delivery devices such as NicoDerm CQ patches manufactured by Johnson & Johnson subsidiary ALZA Corp. for distributor GlaxoSmithKline. Which apparently accounts in large part for why the Robert Wood Johnson Foundation lists on pages 5 and 6 of its November 2005 publication, "Taking on Tobacco: the Robert Wood Johnson Foundation's Assault on Smoking,"  tobacco control grants of $1 million or more that total $446 million. One of the greatest beneficiaries of the foundation's tobacco control grant largess is the American Cancer Society. In addition, for several years GlaxoSmithKline paid the American Cancer Society and annual fee for use of the society's seal to market its smoking cessation products.

 

The preceding facts reveal tobacco control for what it is and always has been: a special-interest mercantile intervention in the nicotine market. The relationship of "Smoke Free" nicotine special-interests to tobacco control has been addressed in previous commentaries for this series. We need not belabor the point. By now the glaring conflicts-of-interest on the part of those promoting the current wave of smoking bans nationwide is transparent and self-evident. The above conflict merely serves to reemphasize an on-point question:

 

Why should any independent small business bar, tavern or restaurant owner, or any private club, lose one dollar of revenue to accommodate the biggest of big tobacco, drugs and foundations reaping profits?

 

We next take a brief look at a few nondisclosures by tobacco control advocates.  I then close this commentary with the antidote to tobacco control intolerance-mongering and the violence that it predictably inspires.

 

Questions of Nondisclosure

 

Tobacco control often stridently proclaims that "The people have spoken" regarding smoking bans. When one looks at the manipulative statements and processes used to enact smoking bans to opposite becomes apparent: tobacco control smoking bans are a "Bait and Switch" where in their actual implementation becomes anything but what the people voted for.

 

From the MSNBCNews, March 13, 2007, "Clinton: Vast Right Wing Conspiracy is Back," by the Associated Press:

 

"WASHINGTON - The "vast, right-wing conspiracy" is back, presidential candidate Hillary Rodham Clinton is warning, using a phrase she once coined to describe partisan plotting. Once derided for her use of the phrase, Clinton is now trying to turn the imagery to her advantage. . . . Clinton made her charge of conspiracy in response to a question about her proposed bill that would make Election Day a federal holiday, and make it a crime to send misleading or fraudulent information to voters." (Underline added.)

 

I wish Senator Clinton's criminal bill well. Her proposal to make it a crime to send misleading or fraudulent information to voters could be public service, too. Judging from past experience, such a bill would certainly shut down Social Marketing for tobacco control ballot measures and probably take out the majority of the state Democrat party as well. Washington passed statewide smoking ban I-901. The ballot measure specifically exempted private clubs and private residences. Surprise! As reported in the section subtitled Connecting the First Set of Dots in Opposition to Smoking Bans Heats Up VII, in the state of Washington tobacco control is going after smoking bans in apartments and private clubs. King County began an effort tot support smoking bans for apartments in early 2006 and Kitsap County has undertaken a legal proceeding against the American Legion to enforce the smoking ban. The Washington Democratic Party provided a mailing list to get out the vote for I-901 (see I901Cont.PDF). Perhaps Senator Clinton could be explicit about aiding and abetting in her bill, too.

 

One wonders what would the vote for I-901 have been had the public been aware that:

 

1. Smoking bans such as I-901 are supported by the biggest of Big Tobacco, Philip Morris. Such policy directly supports the market for Philip Morris' "Smoke Free" Aria nicotine inhaler announced in October 2005 and also supports its joint venture with US Smokeless tobacco in promoting its Taboka smokeless tobacco and other brands. Philip Morris and tobacco contro advocates share at least eleven points of common policy or product interests that support continued and expanded distribution of nicotine products. See Philip Morris & Tobacco Control for further information. Did voters intend to support Philip Morris' distribution of nicotine products when they cast their ballot?

 

2. The statewide smoking ban was immediately applied to private clubs and residences after it passed, despite exemptions stated in the text. Did voters intend to expand smoking bans beyond the scope of authority states in I-901?

 

3.  The statewide smoking ban was sponsored by, and 90 percent of the financial support behind it came from, those with a mercantile interest in assuring it passed. Did voters intend to financially reward and politically support special-interest advocates by voting for that ballot measure?

 

4.  The statewide smoking ban would create a predictable migration of patrons who smoke from taxpaying hospitality trade small businesses to tax-exempt and smoking-ban-exempt tribal venues. Sponsors of I-901 opposed disclosure of tribal exemptions in the ballot measure's description, even though the Thurston County superior court ruled in 2004 such language must be included for a previous statewide smoking ban, I-890. Did voters intend to reduce the customer base for nontribal hospitality small businesses and expand casino trade for tribal casinos?

 

5. Migration of patrons from nontribal hospitality small businesses to tribal venues reduces business payments to the state. Small, independent businesses that lose revenue must close or lay off employees. Did voters intend to reduce liquor and other business taxes to the state and, further, to reduce contributions to state unemployment and workman's compensation funds?

 

6. The statewide smoking ban gave new and expanded powers of enforcement to health departments to where department attorneys could bring legal proceedings without oversight from county of city attorneys. That disclosure was not include din the ballot description for I-901. Did voters intend to expand enforcement powers of city and county health departments?

 

7. The new powers conferred on local health departments would result in enforcement  proceedings against bar and tavern owners that attorneys now plead violate due process (see  Frankies Response Pleadings). Did voters intend violation of due process for enforcement proceedings when they voted for that ballot measure?

 

8. Surveys conducted by the Pierce County, Washington health department in 2004 report that two-thirds of respondent did not support a smoking ban in bars (see November 17, 2003 E-Mail by John Britt)  Did voters rely on false tobacco control statements concerning "overwhelming public support" for smoking bans in bars when they voted for I-901?

 

9. The claims regarding Environmental Tobacco Smoke (ETS) used to advance I-901 have been rejected by the U.S. Occupational Safety and Health Administration (OSHA); OSHA withdrew (refused to promulgate) a nationwide workplace smoking ban in 2001 after a seven year study of tobacco control claims about ETS; the December 1992 EPA report about secondhand smoke was eviscerated as to its methodologies and conclusions and ordered by a federal judge in 1998; studies published in the Journal of the National Cancer Institute in 2005 conclude that secondhand smoke may not be the primary pathogenic factor for lung cancer in nonsmokers and that other as-yet-unidentified carcinogens play a significant role; and that a study was reported by Stanford Daily in March 2007 that concludes current data concerning lung disease is not sufficiently useful to determine that smoking is the cause of lung cancer in nonsmokers. See Opposition to Smoking Bans Heats Up for access to a summary of 16 important points about ETS, recent study reports, and dissenting opinions about the risk factors of ETS within the tobacco control community. Did voters intend to pass new regulations based on false claims?

 

10. Actual workplace tests conducted for a Washington office work site Indoor Air Quality (IAQ) system show that ETS constituents can be reduce to at or below detection levels, while producing air quality in designated nonsmoking areas superior to outside air, with smoking permitted at work stations (see HPAC.PDF). Did voters intend to exclude more effective means to address all Indoor Air Quality constituents?

 

By extension, Senator Clinton's federal bill could also solve a few compelling problems in Ohio. Voters in that state were lead to believe that the text of Issue 5 meant what it said: private clubs, including Veterans of Foreign Wars (VFW) posts, would be exempt. Surprise! The rules being drafted by the Ohio Department of Health now include all "places of employment," which means the VFW and other private clubs are not exempt as falsely stated in the ballot measure. Issue 5 also did not disclose that its Implementation would shred due process.

 

Some Ohio legislators beg to differ (see attached Ohio Legislators Due Process Comments). Not only does tobacco control seek to expand the application of Ohio's smoking ban as stated in Issue 5 beyond that explicitly approved by voters but the rules the Ohio Department of Health seeks to impose on advice of the American Cancer Society make a mockery of honest due process. As Ohio Representative Sietz and Senator Grendell state in their letter to the Ohio department of Health:

 

"These rules, are, in a word, an abomination.  Their mere promulgation in draft form is an affront to every citizen of Ohio."

 

Senator Clinton's bill would therefore score one for normal, honest folks in Ohio, too.

 

The people have spoken? To the contrary, voters have consistently been bamboozled by well-heeled Social Marketeers who advance a private mercantile agenda regardless of its adverse impact on taxpayers, consumers, small business owners and private clubs. It's well past time to clean up the public policy mess they have created in pursuit of profits. 

 

Where to From Here? 

 

There are two types of measures that must be considered, remedial and preventive. Remedial includes actions to be take that can cure the presently-dysfunctional state of affairs. Preventive measures are those which will deter similar future conduct by special-interest advocates. I briefly address both below. 

 

Remedial Measures 

 

Remedial measures should be considered in two ways. First, those which are part of statewide efforts. Second those which reach persons can control within their personal resources and by their choices.  

 

In point of fact, strong statewide remedial measures are already proceeding as this is written.  As noted at the beginning of this commentary a sports bar in Washington has achieved a significant victory against enforcement of Washington's I-901. Strong protests against statewide smoking bans are underway in several states, including Hawaii and Colorado. Those protests will be accompanied by strong affirmative defenses. In addition, a smoking ban in South Carolina was recently overturned because it violated state law and several Illinois cities have opted rescinded previous bans. Nebraska and other states have included or are considering legislative provisions for local communities to "Opt Out" of state wide smoking bans. Suffice it to say that  the days of tobacco control imposing its will unfettered by reasoned opposition are long gone. The damage that it imposes is simply to great to ignore any longer. I will report on development as they occur. Expect the trend of expanding opposition to accelerate. 

As to personal remedial measures, choice is the core issue. What do you believe, feel, and trust? Do you believe that all other must conform to your personal preferences? Do you feel that any authority is acceptable to support your preference regardless of its lawful credibility? Do you trust what "they" say, rather than your own research and thinking on important public policy issues? Those questions determine your choices. 

 

Nothing can be done to help those who believe that their personal preference automatically becomes everyone else's legal mandate.  Those who preen in their ability to mandate that all places everywhere must conform to their personal preference all the time regardless of the facts, science, or consequences to others are already beyond the boundaries of civil discourse by normal people. By choosing their preference for how others should behave over other citizens' legitimate rights they but themselves on the fringe of society, where unredeemable misfits customarily reside.  

 

The first personal remedial step that every citizen can take is to honestly evaluate their own beliefs. Think about current news and conflicts-of-interest reported in the above text. Reflect on a few questions, then exercise your inalienable right to choose for your life. 

 

1. What cultural environment do you choose to live in? Do you prefer tobacco control's orchestrated intolerance to "justify" your personal preference, or do you choose that which allows all citizens to engage in the lawful conduct of consuming legal products, regardless of this year's political agenda? It may occur to you that orchestrated intolerance inevitably and predictably leads to violence against "Target Groups." And what do you do when you become next years "Target" about a different legal product? Are you skilled at dodging pool cues? Politely inform the next person who complains about a bad hair night because they stink that they can exercise the freedom of choice to take a hike out of hospitality places they so strongly dislike.  

 

2. Who do you prefer to define public policy? Do you believe that private, special-interest advocates should mandate what behavior is acceptable and suitable for their undisclosed agenda, or do you believe that the people have a voice in how they govern themselves through their elected representatives? It may occur to you that elected representatives such as Rep. Seitz and Sen. Grendell in Ohio have a firm grasp on due process. One can be reasonably certain that those elected representatives' respect for due process will be equally applied to subjects other than tobacco control. Consider supporting them in their efforts. Consider their efforts in supporting due process the next time you are in a voting booth.  

 

3. What business owner in your community do you respect the most? Do you respect large franchise chain managers that expediently stand aside through their silent restaurant association as smoking bans are promoted, waiting to scoop up market share and revenues from mom and pop local neighborhood taverns, bars, and restaurants that are driven out of business?  Perhaps small business owners such as Frank Schnarrs in Washington and Bruce Hicks in Colorado merit more respect because they have the moxy and determination to stand to duty and say that due process counts. It may occur to you that by standing up for due process as it applies to their legitimate small business interests they are also standing up for due process as it applies to you and your interests. Stop by their small business, say a word of thanks, enjoy a beverage in their establishment. They'll appreciate the business and you may come to know many folks you find you can agree with.  

 

4. Who do you want as a neighbor? Do you want the bouncer at Goldfingers who wields a pool cue and an American Cancer Society representative who has spent the past decade or more promoting intolerance under Project ASSIST policy living on either side of your home? Or would you prefer a fellow who stood I court and said due process matters as a neighbor? Choose now, your choice determines the quality of cultural environment that you allow to be created for you and your family.  

 

We need not become fixated on the details of a specific policy to understand what is right and wrong. We simply need to choose what cultural environment we desire to live in, who we prefer define public policy, what behavior we most respect, and who we want as neighbors, then act on those choices. That course of action is guided by the thoughts in the below poem. Take the thoughts for what you believe they are worth to you:

 

Neighbors 

My Neighbor's rights are more important
than mine could ever be.
Because, in fact, in truth, indeed,
I'm someone else's neighbor too, you see. 

My neighbor thinks, my neighbor feels,
my neighbor acts too, you see.
Our neighbor needs, our neighbor wants,
our neighbor hurts, as do we. 

I've come to learn through thick and thin,
through times that make one feel so lost,
that not considering our neighbor too
comes at a very, very high cost. 

So, when you think you've got the edge,
when you know you've got it locked,
when you push your own new rule;
if it's at your neighbor's expense,
if it gives you something they can't do,
consider that, in fact, you are
someone else's neighbor, too.

When you think that you're one up,
when you feel that "they" don't count,
just stop and think that "they" are you.
Because, in fact, in truth, indeed,
you're someone else's neighbor, too

Excerpted From:

"Tree: One Life That Made a Difference"
By Norman E. Kjono

Copyright © Norman E. Kjono 1997

Preventive Measures 

 

These measures are intended to provide a deterrent to continuing unlawful and/or hurtful behavior. The following should be considered in light of the facts that I am not an attorney and laws do vary from state to state. My background in law is derived by more than 200 appearances as an expert witness in litigation proceedings. As recent events have unfolded concerning the aggressive and often mean-spirited push to enact smoking bans, however, provisions of tort law come to mind.  My layman's view is that the doctrine of prima facie tort may have application to the immediate issues concerning smoking bans. I believe that it is important to explain why that is the case so individual readers can make up their own mind. If one chooses to pursue this legal doctrine based on their personal or organizational circumstances it is important that it be done through competent  counsel who is conversant with applicable state law.  

 

In Opposition to Smoking Bans Heats Up VII  I mentioned an unfortunate circumstance where representatives of the American Cancer Society alleged threats were made against their personal safety at a hearing before the Ohio Department of Health. The alleged threats caused sufficiently alarm to where the ACS representatives left the hearing 45 minutes early. In Opposition to Smoking Bans Heats Up - Epilogue  I provided additional reports on that incident. That commentary included my correspondence with the Columbus Dispatch reporter who wrote the original article and well as discussion of my personal contact with the Ohio State Highway Patrol. 

 

At this point it is fair to say that the fact that ACS lied about threats is clearly established. First, there is the view of many attendees at the ODH hearing that no aggressive behavior toward or threats to ACS occurred. Second, we have a denial of threats to ACS by an attendee at the hearing. Third, we have written corroboration by the Ohio State highway Patrol that no threats were made. And third, we have the and requests for correction with two media establishments (TV 10 and Columbus Dispatch).    

 

This is far more that an isolated incident of an incorrect statement by an ACS spokesperson, it appears to be proof of a pattern of conduct by ACS to make deliberate false statements to media that intentionally apply negative labels to those who oppose their proposed policy for the express purpose of marginalizing opponents as dangerous and violent malcontents. As mentioned in Opposition to Smoking Bans Heats Up VII I have personally experiences similar circumstances regarding the American Cancer Society in the past. 

 

Since the American Cancer Society is aware of the negative economic consequences of policy that they advocate on small business owners (they heard testimony about business losses at the Ohio Department of Health hearing and walked out of under false pretenses), and the ACS statement was made to suppress or marginalize opponents so affected, my lay view is that Ms. Simpkin's statement as a apokes person for the American Cancer Society could rise to a "prima facie tort" (see Nees v. Hocks, OR.1975). From West Group, 3rd Edition, pages 146-147: 

 

a.) "One who intentionally causes injury [such as lost bar revenues] to another is subject to liability to the other for the actual harm incurred, is his conduct is culpable and not justifiable." (Brackets inserted.)

 

b.) "An intentional tort is an act committed (or omitted) with a particular state of mind. How is the actor's state of mind to be proved? . . . His conduct, in the context of his surroundings and what he presumably knew and perceived, is evidence from which his intent may be inferred."

 

c.) "The law presumes that one intends the natural and probable consequences of his acts in light of the surrounding circumstances in which he may be assumed to be aware."

 

d.) "Intent is usually defined as a desire to cause certain immediate consequences. . . . But to establish a prima facie case, all that need be shown is the defendant's conduct, the invasion of a legally protected interest of the plaintiff, and the requisite intent." (Emphasis in original.)  

 

As defined above, this matter is not only important in and of itself but I believe it could well be a credible and proper stepping stone to effective opposition on a broader legal scale. The same principals could apply to intentionally spreading false information about Environmental Tobacco Smoke (ETS) to impose bans that will predictably and with reasonable certainty cause economic harm to specific small businesses. Intention ally inflicting harm to others to garner a benefit for oneself is the core essence of these actions. The measure of damages could be every dime in lost bar, tavern, casino, and restaurant revenues attributable to smoking bans.  

 

The criteria for a prima facie tort are clearly laid forth in several court cases. See for example, the following: 

 

1. That Defendant intentionally [did some act] [failed to act], even when the act is lawful. 

There can be little reasonable doubt that calling a newspaper and causing an article to by written about alleged threats was intentional. Nor can it be reasonably argued that aggressively promoting smoking bans is intentional. 

 

2. The defendant intended that the [act] [failure to act] would cause harm to plaintiff OR that the defendant knew with certainty that the act would cause harm to the plaintiff. 

There can be little, if any, reasonable doubt that negatively labeling hearing attendees as violent malcontents caused harm to those so labeled, nor can it be reasonably questioned that the ACS spokesperson publicly accused hearing attendees of the crime of assault. As to smoking bans, the severe economic impact that such bans have on small, independent hospitality businesses is a matter of record in many states. One therefore reasonably concludes that the economic harm to small business owners is and was intended.  

 

3. That the defendant's [act] [failure to act] was a cause of plaintiff's harm. 

The harm to hearing attendees is uniquely caused by published news reports prompted by an ACS spokesperson. The harm to small business owners from smoking bans is clearly identifiable in business revenue records before and after a smoking ban. 

4. That defendant's conduct was not justifiable under all circumstances. 

 

Under what conditions is it ever justifiable that violent aggression be undertaken, persons be publicly defamed, and small businesses lose revenue, so that participants in a private tobacco control enterprise can garner profits from the sale of Nicotine Replacement Therapy (NRT) delivery device products?  

 

I believe this to be an appropriate place to close this commentary. Much food for thoughts has been provided. It is up to us, individually and as a people, to decide future courses of action from here.  

 

The next, and final, commentary in this series, "Opposition to Smoking Bans Heats Up - Resistance is Not Futile" will be published on Thursday of this week.  That commentary will provide MP3 audio links from a talk show appearance tomorrow. The talk show will feature bar owners in Colorado and Washington discussing their common experiences with tobacco control advocates.  

 

Norman E. Kjono


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