House OKs statewide smoking ban

By MIKE SMITH
The Associated Press

INDIANAPOLIS -- The Indiana House approved legislation Monday that would establish a statewide ban on smoking in most enclosed public places, a move that surprised many lawmakers.

The measure passed on an unrecorded vote but at least 60 lawmakers supported it. The legislation was attached as an amendment to a major health care bill that if approved might eventually be funded by an increase in cigarette taxes.

The amendment by Rep. Eric Turner, R-Gas City, would prohibit smoking in most enclosed public places, sports arenas and indoor places of employment. It would not apply to retail tobacco stores, bars, public areas that are leased for private functions or businesses that have no employees other than the owner.

It also would not apply to personal residences, unless they were licensed to provide day care.

Turner said the restrictions were modest compared with those in some states, and local ordinances restricting smoking in Indiana could be stronger than the state provision if it becomes law. Some local jurisdictions, including Allen County, Bloomington, Fort Wayne, Indianapolis and New Haven have smoking restrictions in some public places.

Smoking restrictions are scheduled to go into effect in West Lafayette on July 1.

"I think this is a beginning," said Turner, who has supported some anti-smoking legislation in the past.

Rep. Matt Pierce, D-Bloomington, said that Bloomington's anti-smoking ordinance has not hurt the city's economy.

"People eat, people drink, people enjoy themselves," Pierce said. "People breathe clean air. I think we should do anything that promotes clean air in Indiana."

House Minority Leader Brian Bosma, R-Indianapolis, did not vote because he was one of two lawmakers counting those who stood up to vote for the amendment. He said he believed the provision probably went too far, especially on businesses, but said passage of the amendment was a "substantial statement" and had bipartisan support in a House controlled by Democrats 51-49.

"It's a huge thing to do without public testimony," Bosma said.

The bill includes major health initiatives that could ultimately be funded with a cigarette tax increase, and it still has a long way to go. The overall bill was eligible for passage in the House on Tuesday. If approved, it will likely go to a joint House-Senate conference committee where compromises will be sought.

The bill is the primary vehicle for a top priority among many lawmakers in both parties and Republican Gov. Mitch Daniels -- providing health care to more Hoosiers. If a proposed cigarette tax increase is revived to fund that and perhaps other health initiatives, the tax increase likely would be placed in another bill during the waning days of the session.

It's a narrow issue, I've found. I'm not going to convince anyone who doesn't already agree with me, and their going to pass whatever they want to pass. I can't make any effect if no one starts with rationality, I know. But ... I just can't concede the point by keeping my mouth shut! It's like an old scab I have to pick at because down deep, very fundamentally, I'm convinced there's clean skin underneath. Ensue the rage of a perpetual optimist:

Someone: These public places that you're referring to, where you're claiming to have a right to fresh air, are these "public" places owned and operated by individuals? Are they restaurants and bars that other people own, and if so how can you claim that your rights trump theirs? You must have clean air on their property, but they aren't able to use and operate their property as they see fit.

If you think about it, you'll find that rights aren't dictums to have things, such as clean air, provided for you at other's expense. Rights are the legal guarantee that any individual may dispense with his bodily, mental, and physical property without coercion, coercion such as would be enforced on the rightful property owners were this bill to pass.

This is one of the worst fallacies I've seen parroted perpetually throughout campaigns for a smoking ban. A place does not belong to the public or any group of people other than those who actually own it. And inviting people into one's building does not grant them any stake in its ownership.

Just imagine if you invited your neighbors into your home for a dinner party, and instead of respectfully declining they demanded that you ban smoking in your house. Better yet, they pushed a law putting the force of government behind their demand. 

The word "public place" in this context is advance warning to the rational individual to run in the opposite direction for fear of regulation by a nanny state.

Flying in the face  of my previous post, I responded to this exchange of cliches on the latest development of a smoking ban in West Lafayette.

Post subject: I really do enjoy beating my head against a wall
Posted: Fri Jan 12, 2007 7:58 am

tfl, these are not 'public places', they aren't owned collectively. They are owned, maintained, and operated by specific people, namely Mark Cook and Greg Ehresman. Neither you nor any other person in West Lafayette, singly or in collective, have any right to their establishments simply because they invite you inside. It's a rather simple arrangement, they offer a service and if you want you can pay them in return for that service. I fail to see where in this relationship you find the right to dictate their business policy. Could you elaborate how you think these qualify as _public_ places?

Ah, but what about the poor employees, you say? People should not have to make difficult life decisions, like what risks they're willing to take for what rewards they want. So, what you propose is that we violate the rights of the property owners so we can ensure the 'right' of employees not to have to actually make those tough decisions, to have a safe work environment supplied to them effortlessly. Forget pursuing a more rewarding job, we can simply create new rights and do away with those out-dated ones from the 17th and 18th century!

When I say this legislation violates the rights of owners, I'm not talking about their business success. I'm talking about the right to choose how one dispenses with one's property [intellectual, bodily, and material], in other words, liberty. Whether or not you 'truly believe' that your dictations are in another's best interest is entirely irrelevant compared to what they decide they want to do. If Mary Cook wanted to make her bar non-smoking, if she thought it was in her best interest, or if she had wanted the opinions of anyone else she could done it or asked your opinion of her business policies. Don't kid yourself into thinking that you aren't wronging her, even as she pleads for you to stop.

But you know, prohibition worked so fantastically all the other times we've tried it, no wonder you think that this one is a good thing.

P.S. Way back when I was arguing at the council meetings against the passage of this legislation, there was only one council member who I thought might have voted against it on principle rather than because the language was vague and in need of refining. His name is Matt Plomin. Just before he voted in favour of the legislation he made  a little speech that makes a brass-assed monkey seem modest. He quoted De Tocqueville's warning against the oppressive rule of the majority and in the same breath stated that he would be putting aside his personal convictions in order to comply with the wishes of the majority of his constituency. The only reason I relate this scene is because I don't ever want to forget it.

If you live in the West Lafayette area and also oppose the recently passed smoking ban I encourage you to voice your opinion. Kris Knigga has set up an e-mailer for those who want to declare their opposition to the common council. This is his letter (he has a form that automatically fills in the blanks):

From: (your name here)
To: The West Lafayette City Government
Subject: About the smoking ban...

Dear (recipient name),

As a member of the West Lafayette Community, I would like you to know that I do not support the recently passed smoking ban.

I believe that dining in a restaurant or visiting a bar is not a fundamental right, but a luxury. People in our community can choose where they will dine or with whom they want to do business. If a non-smoker decides they don't wish to patronize an establishment that allows smoking, they are free to do so. This makes the smoking ban solely a matter of convenience, not of necessity.

In the same way, no employee is forced to work at an establishment that allows smoking. As Americans, we have the freedom to choose for whom we will work and can choose to work in a smoke-free environment if we do not appreciate second-hand smoke. In fact, Tippecanoe County's largest employer, Purdue University, chooses to be smoke free, along with many other businesses. So again, this is a matter of convenience, not of necessity.

Freedom of Association is an inherent right that Americans hold, guaranteed to us by the Bill of Rights. To deny business owners and smokers the choice of participating in a legal activity goes against the very spirit of our nation. We must uphold the principle that it is never acceptable to deny rights to one group of people simply for the convenience of another group.

Furthermore, I believe that the economic harm caused by this ban will outweigh any good that might come of it. I believe that this ban will result in restaurant and bar business being shifted to Lafayette, causing a loss of business in our city. West Lafayette already has smoke-free establishments for those who choose to visit them. By forcing all restaurants and bars to be smoke-free you take away an advantage that smoke-free establishments hold with non-smokers.

For all of these reasons and more, I ask you to do what you can to repeal the smoking ban before it can take effect.

Thank you for your consideration,

(your name here)
(your street address here)
West Lafayette, IN

The first three paragraphs I agree with entirely. While I still agree with the next two paragraphs, I think they miss the key issue here (which is of rights), though they're probably the arguments that will be the most convincing. For example, Kris argues freedom of association. Though he's correct, I'd say the more pertinent argument is the right to property, because of which one is able to have freedom of association. (Freedom to associate comes from the right to own property and dispense with it as one chooses). By dictating how an individual may or may not run their business the government of West Lafayette is violating the citizens' right to do with their property as they see fit.

I understand, though, Kris is directing his letter to the most pressing of the fallacious arguments used by those in favour of the ban.

Tonight is the second reading for the smoking ban. I'm going for something a little more philosophical in my approach this time because the last meeting dissolved into a mess. No one there had any concept of what rights, justice, and liberty are. They were arguing as though this were an issue of equally valid claims that needed to be finely compromised to get the maximum amount of satisfaction for everyone (including those that don't deserve it at the expense of those that do). This is what I had prepared to say:

We are not granted rights out of generosity. As the founding fathers knew, rights result directly from man's nature, and the character of man is such that he must act in order to secure his life. This concept of 'right' is exemplified by an American's stated unalienable right to life, liberty, and the pursuit of happiness. You may note that actual gratification is not guaranteed; the act of pursuing values and by implication, the consequences of those actions are.

The merchants of West Lafayette have a right to their business and the operations of such by virtue of the fact that they own it. Desiring a smoke-free environment on someone else's property does not mean you have the right to it. And inviting the general public onto one's property does not imply the public has any right to the property or it's functions, it is not a 'public place' no matter that you call it such. So let us clarify this legislation, it is not the needs or desires of business that you are compromising, but their rights, for the desires of others. In judging this bill you are not balancing equally valid interests, you are balancing the rights of some citizens with the wishes of others.

Another point, the rightness or wrongness of enacting this legislation has nothing to do with the decisions of other governmental bodies. The purpose of legislation and enforcement is to protect individual rights, previously defined as derived from the nature of man. The decisions of neither Madison, nor Bloomington, nor Montana, nor 85% of the population can change the nature of man and his rights. The opinion of no person or group can change the fact that this legislation makes children out of citizens.

Update [4.3.2006 - after the council meeting]: The proposed ordinance passed 5-1. I'm going to stay out of politics from now on. I haven't got the stamina for beating my head against a wall.

Our city council has been tossing around this legislation for a while now, since about November (old articles from the campus newspaper can be found here). It was barely voted down in late January, due mostly to 'ambiguities' in the wording and heavy complaint from local business. So, recently they've introduced a revised version (Linky). This is the pertinent article. The council met on Monday (Mar. 6) to discuss passing this legislation again and I attended the meeting to speak against the ordinance myself. I only got two/three minutes, so I tried to attack mostly their fundamental justifications for it (in the actual ordinance, everything after "WHEREAS"). This is what I'd prepared to say:

The reason the proposed smoking ban is being considered as a beneficial ordinance to the citizens of West Lafayette is: A.) smoking and second-hand smoke are health risks and B.) it is the responsibility of this city council to ensure an environment free of smoke-risk.

The second of those statements is false rendering the first irrelevant to legislation. If Mr. X desires a smoke-free environment because of the inherent risks, then it is in Mr. X's every right to abstain from entering into such environments. No one is forcing Mr. X to suffer a smoke-filled room; if he enters a bar or restaurant or club or 'place of employment' where smoking is allowed by the owner of the building, then he does so by choice. Yet, according to this legislation, Mr. X would have this council force another citizen to provide that environment. It is not the needs or desires of business that this legislation is compromising, but their rights, for the desires of others. And, contrary to popular opinion, it is not your obligation to protect my health and welfare, it is my own. If you pass this legislation in the name of public good, then please count me out of the public, because setting the precedent for violating property rights is not in any one's best interest.

Greg Ehresman owns Triple XXX, Mary Cook owns Harry's, and Derrick Raymer owns Where Else?. If they wish to allow their patrons to smoke on their property, it is not for anyone else to say otherwise. It is not the prerogative of any governmental body to dictate what citizens may freely choose to do on private property, whether they're smoker or non-smoker, business-owner or customer.

I've often heard the argument that if left to themselves businesses wouldn't offer non-smoking services. To that let me point out that businesses very seldom fail to capitalize on such consumer demands. And that, if it is found businesses can't make a profit from catering to non-smokers, it is a failure of the demand for such a service rather than of the business.

Update [Same Day]: Take a wild guess at who was quoted in the Exponent today! ^_^ Though, I'm a sophomore transfer student, not a freshman.