Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

April 29, 2007

“There Oughta Be A Law”: A conversation with someone who just doesn’t get it

by Chris Byrne

A few months ago, Arizona passed a statewide comprehensive smoking ban in all work places and public gathering spaces excepting those that earn 51% or more of their revenue from tobacco.

Essentially, as of May first, it will be illegal to smoke in public in Arizona, except on the sidewalk (away from bus stops), in your own car, in a private club, or at a smoke shop.

My wife and I went to a casual Mexican restaurant in Scottsdale for lunch today; and when we asked to be seated they asked us the normal question, “Smoking or Non-Smoking”. A bystander said “Ahh no more smoking as of May first thank god”.

I answered “Non-Smoking”, and then I turned to the gentleman who had spoken and said “Well sir, I don’t smoke, and I would prefer to not have people smoke around me, but this law is a bad thing”.

The gentleman responded “Why’s that?”

“Well sir” I replied “It’s a violation of property rights”.

“Property rights? How can it be a violation of property rights. I just don’t want people smoking around me when I eat”.

“Sir, It’s a question of self determination. A private property owner should be able to determine on his own, whether people can smoke on his property or not. If the government can tell you that people can’t smoke on your private property, they can tell you anything”

“Ok” he replied “I understand what you’re saying and I agree with it as far as it goes; but I don’t want people smoking around me”.

“Well sir, then you should choose non-smoking sections” I countered.

“I do; but why should I have to put up with other people smoking around me at all?” he asked; seeming genuinely puzzled how I (as a non-smoker) could disagree with him.

“Sir” I politely and patiently explained “It’s not your property, it’s not your decision; or the governments for that matter. If you don’t want people smoking around you, you can always go to restaurants that don’t allow smoking. If it is profitable for restaurants to make such restrictions, then they will do so”.

“Some of them already do, and I don’t see why they all shouldn’t”.

At this point I’d given up on the idea that the person could see the problem with what he was saying, but I gave it one more effort responding with “Why should the government, or you for that matter sir, decide what a private property owner can do with his property?”

“But smoking is bad. I just don’t like it. I don’t want people smoking near me”; was his final argument (actually his first, final, and only argument).

He just didn’t get it. He didn’t understand why the government shouldn’t step in and force a private property owner to do whatever HE personally wanted them to do. He thought it was entirely reasonable that his preferences should be made into law, and should infringe on the rights of the property owner. As far as he was concerned, because he didn’t want people smoking around him he ate, then no-one should ever be allowed to smoke in a restaurant.

As we were about to be seated I turned and made one final statement: “Sir, d’you know what the most dangerous words in the English language are? ‘There oughta be a law'”

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  • http://www.tfsternsrantings.blogspot.com T F Stern

    Well thought out, thank you for saying what should have been explained to those who voted to put such a law on the books.

  • http://gottsegnet.blogspot.com Dana

    For one of my child development courses for the school of Ed, I had to observe young children and place them on a little pyramid of child development based on what I observed.

    At the Grand Canyon, I observed an energetic little girl step off the path to get a closer look. The mother immediately grabbed her and warned her of the danger of falling. She looked in wide-eyed amazement and responded, “There ought to be a rule against that.”

    It is classic early elementary school reasoning. All problems can be solved by formulating a rule against it.

    I think some people never progress beyond that level of reasononing

  • Peter

    The idea that you ought to be able to do whatever you want in your business is ridiculous. At that rate you could decide to sell food that was possibly hazardous or refuse to use hot water to clean dishes just to save a few bucks. When you allow smoking in your establishment not only are you showing disrespect for the health of customers but also employees who are forced to breath hazardous air all day and all week long. Smokers can easily go outside and spare the air for the eighty percent who do not smoke.

  • tarran

    OK, from the top:

    At that rate you could decide to sell food that was possibly hazardous or refuse to use hot water to clean dishes just to save a few bucks

    Yes, you’re right! You should be free to do these things. Of course, when a business makes its customers sick, it has trouble getting them to come back. Nobody buys drugs from Massengil anymore for example.

    When you allow smoking in your establishment not only are you showing disrespect for the health of customers but also employees who are forced to breath hazardous air all day and all week long.

    First, if you are feeling that a business is treating you with disrespect, don’t go there! Nobody is forcing you to shop at any particular store.

    Additionally, businesses that do leave their customers feeling ill-treated tend to go out of business fairly quickly. Yet customers keep returning to establishments that permit smoking.

    Thirdly, nobody is “forcing” employees to do anything. If the employee feels that the pay is not worth the work+environment, they will quit and go somewhere else.

    Smokers can easily go outside and spare the air for the eighty percent who do not smoke.

    Wow, I think you just exposed a great market to exploit. You could have started a restaurant that catered only to non-smokers and made a killing! Being allergic to tobacco smoke, I would have happily eaten there.

    This law is as baseless as the laws that prohibited black people from being served at certain restaurants, or, for that matter, laws forcing white people to serve black people.

  • David T

    The Arizona legislature – elected by the people to enact their wishes – passed a law on the behalf of the people.

    “Why should the government, or you for that matter sir, decide what a private property owner can do with his property” “This law is as baseless as the laws that prohibited black people from being served at certain restaurants, or, for that matter, laws forcing white people to serve black people. ”

    You’re not talking about private property. A restaurant is in the public domain and open to the public. On the other hand, if you really wish to maintain private property status, then lets allow restaurants to ban blacks, or Jews, or create separate seating sections based on religion or gender. If you adopt the position that smoking bans are government interference, then would you defend segregated seating, since government action was necessary to end the practice? No smoking bans in a movie theater? No Jews either. After all, it’s private property, right?

    Restuarants, theaters, stadiums, parks, and the like are in the public domain and subject to the laws and restrictions of the locale, which includes the the ability to ban smoking. I disagree that this is about private property.

  • http://thedailyburkeman1.blogspot.com/ Charles Bowen

    David and Peter, whether they know it or not, source their theory on property rights to Robspierre and the French Revolution. Their God, Democracy, should truly be seperated from the State.

  • tarran

    You’re not talking about private property. A restaurant is in the public domain and open to the public. On the other hand, if you really wish to maintain private property status, then lets allow restaurants to ban blacks, or Jews, or create separate seating sections based on religion or gender. If you adopt the position that smoking bans are government interference, then would you defend segregated seating, since government action was necessary to end the practice? No smoking bans in a movie theater? No Jews either. After all, it’s private property, right?

    Precisely. In fact, I believe you quoted the very sentence in my previous post where I said just that…

    This idea of someone owning something that is in the “public domain” is, I think, indefensible. After all, when does private property morph into one of these places of public accomodation?

    Take a house. When does it stop being private property?
    When you invite friends over for a superbowl party?
    When you ask them to kick in money for the pizza and beer?
    When you hold a yard sale?
    When you invite paying guests into your home?
    When you rent out your spare room when the World Series is in town?

    Whether you invite guests into your property for pleasure or business is irrelevant. It is still private property.

  • Bob Schroeder

    Sounds like the arguments my brother and I, both anti-smokers, have been having.

  • David T

    Homes are not open to the public and quite different than restaurants. So, taking money from friends for pizza or holding a yard sale are not really relevant questions because homes are not germane to the discussion. Restaurants and perceived government interference are the salient points, so let’s stick to them.

    I just wish I could just get answers to the following questions:

    Did the government overstep its boundaries when it legislated that segregated seating in restaurants be banned?

    Should restaurants (not private clubs) be allowed to provide services to one race but not the other? Should they post ‘No Jews allowed’ and actually adhere to it?

    If restaurants have the autonomy you contend, they should be allowed to serve ‘only whites’ if they so choose. Otherwise, legislation to the contrary is interference, no?

    A government can legislate that a restaurant cannot discriminate against its patrons. It can legislate under which conditions it may serve alcohol. It can legislate the hours it is allowed to operate. It is also allowed to ban smoking. I’m not seeing Tarran’s dismay here because there is ample precedent for government ‘interference’ on behalf of public restaurants. All the rules I mention here pertain to restaurants, but none of them pertain to homes because restaurants are open to the public.

  • Nick M.

    Did the government overstep its boundaries when it legislated that segregated seating in restaurants be banned?

    Yes

    Should restaurants (not private clubs) be allowed to provide services to one race but not the other? Should they post ‘No Jews allowed’ and actually adhere to it?

    Yes

    If restaurants have the autonomy you contend, they should be allowed to serve ‘only whites’ if they so choose. Otherwise, legislation to the contrary is interference, no?

    Yes, Yes

  • tarran

    David,

    I”m happy to answer your questions. I should warn that I speak only for myself, and not necessarily for other contributors.

    Did the government overstep its boundaries when it legislated that segregated seating in restaurants be banned

    Yes.

    Should restaurants (not private clubs) be allowed to provide services to one race but not the other? Should they post ‘No Jews allowed’ and actually adhere to it?

    I have no idea how you differentiate private clubs from restaurant, but yes. Restaurants should be permitted to discriminate against Jews if they wish to. However, on a personal note, I would refuse to patronize any restaurant that does this.

    If restaurants have the autonomy you contend, they should be allowed to serve ‘only whites’ if they so choose. Otherwise, legislation to the contrary is interference, no?

    Yes. You’ve nailed it. Let me ask you a counter-question, what is your opinion on the question whether a restaurant should be permitted to ban members of the Hell’s Angels from their premises under any circumstances?

    A government can legislate that a restaurant cannot discriminate against its patrons. It can legislate under which conditions it may serve alcohol. It can legislate the hours it is allowed to operate. It is also allowed to ban smoking. I’m not seeing Tarran’s dismay here because there is ample precedent for government ‘interference’ on behalf of public restaurants. All the rules I mention here pertain to restaurants, but none of them pertain to homes because restaurants are open to the public.

    Ah yes, the old tyranny in the past justifies tyranny in the future argument. ;) I actually disagree with all those laws, so I am dismayed at them too. It’s not as if I was humming along, content with prohibitions on racism and unsafe food preparation practices, and then balked at the idea of forbidding smoking. In fact, while I condemn racism, unsafe food handling and smoking, I do not accept that the state has any business in this area.

  • Wild Pegasus

    If restaurants have the autonomy you contend, they should be allowed to serve ‘only whites’ if they so choose. Otherwise, legislation to the contrary is interference, no?

    Correct. If a restaurant only wants to serve whites or women or gays or Lutherans, no one has any right to tell them otherwise.

    – Josh

  • David T

    What is your opinion on the question whether a restaurant should be permitted to ban members of the Hell’s Angels from their premises under any circumstances?

    First, I wish I knew how to create italics or quoteboxes to make my response more easily read. :-)

    I would contend that as long as the exclusion of Hell’s Angels was not done on the basis of religious or racial preferences, then it’s the restaurant’s perogative. I would also state that if the restaurant had a dress code, and someone (not just a Hell’s Angel) didn’t adhere to it, then they could ban entry. “No shirt, no shoes, no service” is not a problem for me. If the restaurants bar entry to a group that is verbally abusive to staff or other patrons, it’s the restaurants’ perogative. I have no problem with that, whether it’s Hell Angels or Boy Scout Troop #1234.

    It’s not as simple as saying they’re a private establishment and therefore completely separate from public regulation. I suspect that’s your ultimate point, but I do not share your opinion :-)

  • Tom Gellhaus

    Part of the issue here, as I see it, is that somewhere along the way, restaurants, bars, and hotels got separated out from ALL OTHER privately owned businesses. What makes them different?
    “You’re not talking about private property. A restaurant is in the public domain and open to the public.”

    Are not ALL businesses open to the public? Businesses are privately owned in almost all cases and attempt to cater to the whole public that they can reach – thats how they make their money ! But that does not make ANY business a public domain.

    The issue for me is simple: If a business operates on private property, and does not take any money from a governmental agency (govt grants or loans), it should not matter whether it is a store, a bar, a hotel, a newspaper stand, or whatever. The owner of the business has EVERY right to decide who they sell to – customers who don’t like it are perfectly free to shop elsewhere or set up their own competing business (for instance…restaurants that ban smoking entirely.)
    Refusing to serve certain classes of people (who otherwise want to spend money at a place) is completely foolish; such businesses are turning away large amounts of money for some irrational bias. And the public has every right to boycott or “shame” such a business owner – but NOT the right to force them to serve people they do not wish to serve.

  • tarran

    David.

    The way to do quotes is to use the html tag: blockquote

    For example inserting &#60blockquote&#62Cogito ergo sum&#60&#47blockquote&#62

    will get you:

    Cogito ergo Sum

    .

    As to your comment about dress codes, what legal grounds are there for permitting a dress code while banning a skin code? After all aren’t they attempts to regulate the appearance of customers?

    Update: Fixed broken html.

  • tarran

    Refusing to serve certain classes of people (who otherwise want to spend money at a place) is completely foolish; such businesses are turning away large amounts of money for some irrational bias.

    That is very true. In fact, that is the rationale behind many of the old Jim Crow laws. Despite the endemic racism, there were always businessmen who viewed a dollar spent by a black man as being just as good as a dollar spent by a white man. These businessmen operated at a competitive advantage, and in lines of business where profit margins were low, could undercut their racist competitors and drive them out of business.

    The Jim Crow laws were an attempt to negate the benefits gained by whites who chose to do business with blacks.

  • Tom Gellhaus

    tarran, is there definite proof that those laws WERE in fact put in place for that reason? It would be helpful in a few of my discussions about this whole issue (regarding the elimination of anti-discrimination laws) to be able to show with certainty that Jim Crow laws were enacted to INTERFERE with private business owners who chose to sell to blacks. I ain’t saying I don’t believe you, but I know too many people who just do not understand that most of their objections to the free market arise from STATE interference and regulation of the market. If I can point to some proof it would be very useful.
    I will have to look stuff up in my spare time, but if you already know, for instance, of old newspaper articles with quotes from state legislators about why those laws were passed…

  • Steerpike

    Your arguments tend to fall down against the fact that in no other situation you have compared smoking with is the situation dangerous for the surrounding people.
    “Your right to swing your fist stops where my face begins.”

  • Nick M.

    Steerpike,

    You are not forced to go to any establishment that allows smoking. So, it’s more like you running your face into my outstretched fist.

    Nick

  • Ted

    Steerpike,

    How about driving an Automobile?

    They say driving on the highway for an extended period of time (1 to 2 hours a day) is the equivelant to smoking 1-2 packs of cigarettes a day.

    Does that mean we should ban autos?

    There is a belief that wi-fi will cause health problems. Should wi-fi be banned now? Even on private property? What if you have wi-fi inhibiting paint, and the signal cannot get outside of the building? Does a person have a right to have it on private property?

    How about in a eaterie? Wi-Fi inhibiting paint…a sign that says “Wi-Fi is used here.” You could choose not to go in, or not to be employed there. Same goes with smoking.

    Personal note:
    I am a smokers rights advocate. I do not smoke.
    I have tried it. I did not like it. I do not mind second hand smoke. I feel highways do more damage to my lungs than smokers do. And I know my eating habits do worse than either.

  • Steerpike

    Nick:
    Untrue, smoke does not respect boundaries so one al fresco cafe on a busy strip that allows smoking means that the cafes on both sides are going to be affected even if they have prominant ‘no smoking’ signs displayed.

    Ted:
    Those are very silly arguments, everyone in a car on the highway has made that choice. There are also steps you can take in a car to minimise the amount of fumes you inhale. Not the same situation as sitting at an outside table and having four people at the next table light up.
    There’s also a difference between ‘belief that causes health problems’ and the proven correlation between second hand smoke and health issue – especially for children.
    Your WiFi argument fails at an even greater level if you think that (if wifi really *does* cause health problems) that a sign at the door would prevent those health problems from extending beyond that border – wow, just like cigarette smoke!

  • Steerpike

    The last comment was a little snarky, so I apologise, but I *am* a smoker and I also work in hospitality and I think laws that ban smoking in public areas are good things. Especially for workers.
    You suggest I can choose not to work in places that allow smoking, but sometimes you don’t have the luxury of being so picky about your job and you are forcing every worker in that place to suffer through 10+ hour shifts in a poisonous environment.

    Even the most hardcore smoker hates the smell of their hair and clothing and the rawness in their throat after a night out at a smokey pub: try having that every single day.

  • Ted

    Steerpike,

    You call my arguments silly, but obviously you failed to read them and responded with a section of comments that I fail to see as accurate.

    1. You state that “everyone in a car on the highway has made that choice”.

    But what about the people living nearby? What about people who bike? People who walk on the sidewalk?

    It is the exact same situation as with cigarettes, save the highways are TRUE public property, versus restraunts, which are open to the public, but are privately owned on private land.

    2. You state “Not the same situation as sitting at an outside table and having four people at the next table light up.”

    Actually, it’s worse. The toxins in automotive fuel are worse than cigarettes, more prevelant, and tend to be easier to smell at an outdoor cafe by the road than cigarette smoke.

    3. You state “Your WiFi argument fails at an even greater level if you think that (if wifi really *does* cause health problems) that a sign at the door would prevent those health problems from extending beyond that border.”

    Did you fail to read about the wi-fi inhibiting paint? This means that the signal cannot go past it. There are other materials for doors and windows, which have similar properties.

    No, this is not exactly like cigarette smoke, but it is similar.

    4. You state “You suggest I can choose not to work in places that allow smoking, but sometimes you don’t have the luxury of being so picky about your job and you are forcing every worker in that place to suffer through 10+ hour shifts in a poisonous environment.”

    Sure as hell you do have that luxury. I’ve done my share of ditch digging. If I did not like the place, I can go somewhere else to dig a ditch. Eventually, I’ll find an employer who does it in a way I can find acceptable.

    These days, I work in an office. See that. I chose a different form of employment. And I can go somewhere else if this place is bad.

    People who say they do not have a choice are just fooling themselves. You ALWAYS have a choice. Most people are just too afraid to make the hard ones.

  • Pingback: The Face of the Enemy // Brian Quinn

  • Gregory

    As a business owner I want to have a smoking-permitted policy on the interior, and by the way every one of my employees smokes.

    I want to designate a non-smoking section out on the patio.

    Do any anti smoking people have a problem with that?

  • Nick M.

    As a business owner I want to have a smoking-permitted policy on the interior, and by the way every one of my employees smokes.

    Man, that’s apoint most people miss, especially when it comes to bars/restaurants, the majority of the workers smoke. Go to any restaurant after hours, and you will find employees sitting at the bar smoking.

    Nick

  • Nick M.

    Steerpike,

    1) I am a former smoker, who worked in bars and restaurants in college.

    2) The effects of second hand smoke are over rated.

    I think Ted covered cars pretty well. My truck exhaust is much worse for you than second hand cigrarett smoke.

    Even the most hardcore smoker hates the smell of their hair and clothing and the rawness in their throat after a night out at a smokey pub: try having that every single day.

    You suggest I can choose not to work in places that allow smoking, but sometimes you don’t have the luxury of being so picky about your job and you are forcing every worker in that place to suffer through 10+ hour shifts in a poisonous environment.

    These two statements give away your true colors. You are a victim. You won’t try to change your life, so you want someone else to do it for you.

  • Steerpike

    Wow, for a supposed collection of free thinkers you all certainly love to over simplify a problem.
    If it’s not imaginary paint it’s that I’m a victim.

    Hospitality is the demesne of the young and inexperienced. Try living in a small town, with no access to a car and looking for your first job – reality for thousands of young people and students – the opportunities just arrive in waves don’t they! So many choices!

    You guys are all simply sitting in positions where is barely affects you in any way aside from some supposed ‘ideal’ about rights and I’m telling you that for everyone who works in this industry these laws can’t come fast enough.

    By the way, you’re also pretty much all assuming that the owner of the restaurant has some kind of rights as to what goes on in their building. If you really believed the stuff you were saying you’d be fighting for the rights of the owner of the building that the restaurant owner generally rents from. Very rarely are these the same person. So which one of them gets to dictate the smoking rules?

  • Ted

    Once more, with feeling…

    Hospitality is the demesne of the young and inexperienced. Try living in a small town, with no access to a car and looking for your first job – reality for thousands of young people and students – the opportunities just arrive in waves don’t they! So many choices!

    My first job was in this town. http://en.wikipedia.org/wiki/Carnegie,_Oklahoma
    Take a look at the population. I went to Junior High there… Played football.
    I was offered a job waiting tables. I declined. I took a job working the fields for some farmers. As you can see, I had more than one opportunity, because I looked for them or made them, in a very small town.

    My second job was working for Wal-Mart in Paris Texas. Bigger town.
    http://en.wikipedia.org/wiki/Paris_Texas

    These days I work for a global consulting company in the tech support field. I do not have a college degree, though I have some college under my belt. In time, I do plan to complete my degree.

    Opportunities arrive with slow frequency… That is why others must be made. I’ve had my ups, and my downs. Right now, I am on an up.

    You guys are all simply sitting in positions where is barely affects you in any way aside from some supposed ‘ideal’ about rights and I’m telling you that for everyone who works in this industry these laws can’t come fast enough.

    Ever been homeless, living on the street? I have. Wouldn’t wish it on anyone, and if you have as well, then you should know that I’ve been sitting in positions where everything affected me.

    It did not last long, because I refused to let it. Just a few weeks of living on the street. I got a day laborer job. I scrimped and saved. My ideals are still with me, and I’ve been in positions that few would call lofty. I still believe in the individual above the majority. Always have. Always will.

    The majority has no right to say “You sir, you cannot do this with your land.” The individual has a right to say “While you do this, sir, I will not give you my money, or solicit your services.”

    By the way, you’re also pretty much all assuming that the owner of the restaurant has some kind of rights as to what goes on in their building. If you really believed the stuff you were saying you’d be fighting for the rights of the owner of the building that the restaurant owner generally rents from. Very rarely are these the same person. So which one of them gets to dictate the smoking rules?

    Knowing that he is leasing to someone who is opening a place in the food industry, the owner has the right to decide… On the lease. Just like he can specify what can and cannot be changed with his property.

    And if he says that the building cannot be used as a smoking establishment, the person who wants to open the place has a decision to make. He can always look for another location.

  • Nick M.

    Ted,

    Thanks for showing the wiki link. I did the same for my town. http://en.wikipedia.org/wiki/Lynn%2C_IN

    I spent 18+ years there. Graduating class of 61 kids. I worked on farms baling hay/straw and picking up rocks. I also mowed lawns and worked for my dad doing industrial maintenance (nights/weekends/summer shutdowns until I was 18) After high school, I went to college. I paid for it. I worked 40 hrs a week at a country club as a server/bartender/bus boy/snack bar manager. (Ask my roommate Brad Warbiany)I didn’t get my first car until the summer after my sophomore year in college. I road a bicycle to work until then.

    So Steerpike, I am not sitting in an Ivory Tower making decisions based on ideology. I am making decisions based on ideology and my life experiences from my 1.5 bed apartment in a city I just moved to, where I know no one, so I could advance faster in my career.

    Ted pretty well covered your example of lessor/lessee contracts.

    Nick

    P.S. Check out my hometown’s most famous resident.

    P.P.S. I swear the population in 2000 is the exact same as it was when the town was founded in the 1800’s.

  • http://www.smokersclubinc.com/modules.php?name=News&new_topic=58 looped_ca

    Hope you enjoy the bars in that small town. Bet they won’t be there in 5 years. (English economic experts say a 30% drop in bar sales after ban starts in July)

    In my small town (in Canada) there were four bars 5 years ago. Now there’s only a stripper bar. I won’t get all dressed up to stand out in the cold (with no roof, or any type of shelter allowed). Look at the outfits on people, and tell me they (drinker and friends) want to leave their drinks or try to keep someone at the table for every smoke(takes about 25 minutes, if your allowed back in).

    Restaurants, all have takeout menu available now. Yet there’s only supposedly 30% smoking rate in the area.
    PS I also have people over to my house and we do buffet, and smoke and drink to our hearts content. No worrying about the fights, from having no bouncers on the street (smoking area).

    Enjoy your bars while you got them! Soon there won’t be much choice, if any. How long can you consistently live on 30% less? Yet we hear, there’s no damage to the economy.

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