In six days, Kansas' ban on smoking goes into effect in a majority of the Sunflower State's restaurants and watering holes. Bar and restaurant owners (and, of course, libertarians) are bristling about the state stamping out smoking, especially provisions in the bill that allow gamblers in state-owned casinos and blue-haired bingo players to keep puffing.
Topeka lawyer Tuck Duncan has filed suit on behalf of four establishments, initially seeking a temporary injunction to stop the law. He answered a few questions about his argument against the ban.
The Pitch: How is it that some private clubs will be allowed to continue to have smoking, and others won't?
Tuck Duncan: The Legislature said that Class B clubs [private establishments with fees] licensed before January 1, 2009, could continue to allow smoking, clubs licensed after that cannot. We brought this case to question that bifurcation.
And state-owned casinos can still allow smoking, but bingo parlors cannot?
The state-owned casino is a drinking establishment, and they are allowed to have smoking, but all others are not. There's no rational basis for the classification that allows smoking in a state-owned and operated casino, and not allowed it in bingo. Gaming is gaming whether it's a casino or bingo.
Describe your legal argument against this law.
It violates the 14th, 9th and 10th amendments. The 14th pertains to equal protection, while the 9th and 10th relate to reserved powers of states and individuals. It violates the use of ones' own private property. Nobody has to walk into a smoking establishment. Typically when a state executes police power, they should do it in the least intrusive way. Some places, like Wichita, have laws regarding smoking spaces and ventilation equipment, and it accomplishes the same goal in a less intrusive way.
Smoking will still be allowed on outdoor patios. Can't a lot of bars just build outdoor space for smokers?
You're presuming that in an existing location, you have the option. Not every establishment can have an outdoor patio. If you accept the premise that a party who owns private property should be allowed to use that property in a lawful manner -- smoking is legal -- a smoking ban is contrary to that principle.
Bar and restaurant owners in several states and municipalities have challenged laws like this unsuccessfully. Are you optimistic about your chances?
Our law has more holes than Swiss cheese. Therefore, I think we have a greater chance of success [than other legal challenges to smoking bans]. I'm buoyed by the fact that the appeals court sent a case back about a San Francisco law that banned cigarette sales at Walgreens but allowed sales at grocery stores. They said that law didn't pass the smell test, and that's what we're saying about this law.
What does the future hold for bars, clubs and bingo parlors if you're unsuccessful with this case?
I have bingo parlors [in the case] with 90 percent of the people who go there smoke. Forty to 50 percent of them just will not come. Or, ironically, they'll go to Class A clubs (such as VFW halls and American Legion , where smoking will be allowed) and smoke there [while playing bingo]. What's fair about that?
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I feel bad for all the businesses that are going to be forced to shut down. Government is getting way too big. It's like we're a bunch of babies.
The new Tobacco Prohibition
I would like to take the time to tell the entire community about a falsehood so big that everyone who believes in freedom should be appauled.
This falsehood is so big it resonates from historical fact forward to this day. This falsehood is so big billions of dollars have been spent to make it believable to those of us who dont take the time to look up the facts.
We all remember reading about alcohol prohibition,but did you know there was also tobacco prohibition going on before alcohol became such a target of the last nanny staters.
Our great grandparents lived thru prohibition and the great depression,they also lived thru tobacco prohibition.
Heres a time line starting in 1900,dont be surprised to see the same thing playing out today nearly 100 years later.
1901: REGULATION: Strong anti-cigarette activity in 43 of the 45 states. "Only Wyoming and Louisiana had paid no attention to the cigarette controversy, while the other forty-three states either already had anti-cigarette laws on the books or were considering new or tougher anti-cigarette laws, or were the scenes of heavy anti- cigarette activity" (Dillow, 1981:10).
1904: New York: A judge sends a woman is sent to jail for 30 days for smoking in front of her children.
1904: New York City. A woman is arrested for smoking a cigarette in an automobile. "You can't do that on Fifth Avenue," the arresting officer says.
1907: Business owners are refusing to hire smokers. On August 8, the New York Times writes: "Business ... is doing what all the anti-cigarette specialists could not do."
1917: SMOKEFREE: Tobacco control laws have fallen, including smoking bans in numerous cities, and the states of Arkansas, Iowa, Idaho and Tennessee.
1937: hitler institutes laws against smoking.This one you can google.
Now onto the falsehood......
We have been told for years by smoke free advocates that second hand smoke is the cause of everything from johnnys ear ache to cousin ED'S lung cancer. But wheres the proof!!!
Remember they claim 50,000 deaths a year yet,there are no bodys not even mass graves of the dead to second hand smoke.We await the names of these victims.
A simple stroll down historys road say 10 years or so and we start to get at the truth......
A federal Judge by the name of osteen got a case dropped in his lap in North Carolina,the case was that of EPA'S study on second hand smoke/environmental tobacco smoke.The judge an anti-tobbaco judge by reputation spent 4 years going thru the study and interviewing scientists at EPA and came to the conclusion :
JUNK SCIENCE
''EPA's 1992 conclusions are not supported by reliable scientific evidence. The report has been largely discredited and, in 1998, was legally vacated by a federal judge.Before its 1992 report, EPA had always used epidemiology's gold standard CI of 95 percent to measure statistical significance. But because the U.S. studies chosen[cherry picked] for the report were not statistically significant within a 95 percent CI, for the first time in its history EPA changed the rules and used a 90 percent CI, which doubled the chance of being wrong.
This allowed it to report a statistically significant 19 percent increase [a 1.19rr] of lung cancer cases in the nonsmoking spouses of smokers over those cases found in nonsmoking spouses of nonsmokers. Even though the RR was only 1.19--an amount far short of what is normally required to demonstrate correlation or causality--the agency concluded this was proof SHS increased the risk of U.S. nonsmokers developing lung cancer by 19 percent.''
The EPA fought to have Osteen's decision overturned on technical grounds, ignoring the multitude of facts in the decision. They succeeded in 2002 on the narrowest of technicalities. The fourth circuit court of appeals ruled that because the report was not an official policy document Osteen's court did not have jurisdiction. In their appeal the EPA did not answer a single criticism in the 92 page report, nor challenge a single fact put forth by Judge Osteen. Not one.
Although the anti-smoker movement was already established, this report was used, and continues to be used, to bolster their claim that SHS is a killer.
http://knol.google.com/k/secon... #
So here we find that second hand smoke was made a political scapegoat by EPA.Lets not forget how EPA has reworked the global warming studys just this last summer. Where its top scientists paper was rebuked because it didnt carry the EPA'S stand that global warming was real.
The political shenanigans surrounding SHS/ETS go deep not only with the government and its health agencies but also to the big pharmaceutical companies and non-profit orginizations aka ACS,ALA,AHA and a meriad of others. All lobbying for smoking bans and their weapon of choise Propaganda paid for by big pharma and tax dollars. Studys made to order that second hand smoke is deadly. Take a memory note here too,over 250 studys on shs/ets have found it safe.
Yet a simple look at the chemistry shows us that its:
About 90% of secondary smoke is composed of water vapor and ordinary air with a minor amount of carbon dioxide. The volume of water vapor of second hand smoke becomes even larger as it qickly disperses into the air,depending upon the humidity factors within a set location indoors or outdoors. Exhaled smoke from a smoker will provide 20% more water vapor to the smoke as it exists the smokers mouth.
4 % is carbon monoxide.
6 % is those supposed 4,000 chemicals to be found in tobacco smoke. Unfortunatley for the smoke free advocates these supposed chemicals are more theorized than actually found.What is found is so small to even call them threats to humans is beyond belief.Nanograms,picograms and femptograms......
(1989 Report of the Surgeon General p. 80).
Now, how odd that when we search the smoke free activists sites not one of them mentions that water vapor and air are the main components of second hand smoke. Is this just a fluke or an outright omission to further their political healthscare against the general public.
The last informative tid bit I have for you is what does OSHA have to say about all this secondhand smoke stuff.
Here is where it gets interesting,it seems John Banzhaf, founder and president of Action on Smoking and Health (ASH) decided to sue OSHA to make a rule on shs/ets not that OSHA didnt want to play ball with him,its just that the scientific facts didnt back up a rule to start with.
Now for a rule to happen Osha has to send out for comments for a period of time and boy did the comments fly in, over 40,000 of them....Osha has whats called PEL'S and limits for an 8 hour period of exposure to chemicals in indoor environments...[epa is in charge of outdoor air]some smoke free groups have tried to use 30 minute air samples using epa monitoring to create a air borne healthscare.
The actual standard to use is OSHA'S
The EPA standard is to be used for OUTSIDE ambient air quality and it is the average over a period of 3 years.
The proper standard to compare to is the OSHA standard for indoor air quality for respirable particulate (not otherwise specified) for nuisance dusts and smoke. That standard is 5000 ug/m3 on a time-weighted average (8 hours a day, 5 days a week) and is intended to be protective of health over an average working life of 30 years!
This is where second hand smoke really becomes a joke,remember its nearly 90% water vapor and air.....now lets get to the facts of toxicology and dose makes the poison:
According to independent Public and Health Policy Research group, Littlewood & Fennel of Austin, Tx, on the subject of secondhand smoke........
They did the figures for what it takes to meet all of OSHA'S minimum PEL'S on shs/ets.......Did it ever set the debate on fire.
They concluded that:
All this is in a small sealed room 9x20 and must occur in ONE HOUR.
For Benzo[a]pyrene, 222,000 cigarettes
"For Acetone, 118,000 cigarettes
"Toluene would require 50,000 packs of simultaneously smoldering cigarettes.
Acetaldehyde or Hydrazine, more than 14,000 smokers would need to light up.
"For Hydroquinone, "only" 1250 cigarettes
For arsenic 2 million 500,000 smokers at one time
The same number of cigarettes required for the other so called chemicals in shs/ets will have the same outcomes.
So,OSHA finally makes a statement on shs/ets :
Field studies of environmental tobacco smoke indicate that under normal conditions, the components in tobacco smoke are diluted below existing Permissible Exposure Levels (PELS.) as referenced in the Air Contaminant Standard (29 CFR 1910.1000)...It would be very rare to find a workplace with so much smoking that any individual PEL would be exceeded." -Letter From Greg Watchman, Acting Sec'y, OSHA, To Leroy J Pletten, PHD, July 8, 1997
WHAT! DILUTED BELOW PERMISSABLE LEVELS
By the way ASH dropped their lawsuit because OSHA was going to make a rule and that rule would have been weak and been the law of the land,meaning no smoking bans would ever have been enacted anywhere,simply because an open window or a ventilation system would have covered the rule.
Let me also tell you that the relative risk for shs/ets by the SG report of 2006 was a 1.19 ''EPA study is whats used to call it a carcinogen''......milks is a 2.43 and that glass of chlorinated water your about to drink is a 1.25 yet these things aren't determined to be a carcinogen....The gold standard in epidemiology is a 3.0....Now had the SURGEON GENERAL included 2 other shs/ets studys the relative risk for disease from shs/ets would have been nearer a.60-.70 meaning it would have a protective effect against ever getting disease.
But,what each of us has is years and years of exposure and the knowledge that our kids all grew up around shs and generations of others,yet we are here alive not dead from a lousy 30 minute exposure to shs as stanton glantz tries to claim.....thats another story and its just as crazy as all the rest of smokefree's claim about shs/ets.
Oh! have you heard the one about ''laugh'' thirdhand smoke or third hand drinking.
Like I said their claims border beyond that of any reasonable persons commomsence.
The next time you see a healthscare claim
consider the source.Especially if it comes from a government or non profit agency!
Alright, can someone tell me exactly how many bars and restaurants there are that are willingly non-smoking. Smokers continually make the argument that no one is forcing us non-smokers to walk into a smoking establishment. Well, actually, yes we are sort of forced, since finding a non-smoking establishment is next to impossibly.
Bullcrap, there are many smokers(in fact, I believe a majority) who are not inconsiderate about their habit, and don't make it a point to smoke anywhere they please, even in banned indoor and/or outdoor areas. I think despite our great differences in how we view the smoking ban issue, we should be able to both agree that absolutely no smoking should be allowed in truly public buildings(i.e. government buildings, public transit vehicles, etc.), and that smoking only should be allowed either in private buildings that set up a smoking room that is ventilated and physically separate from the rest of the building(and providing non-smokers don't have to walk through the smoking room to access bathrooms), or businesses that chose to declare themselves an entirely smoking establishment. Exterior signage would be posted for any business declaring themselves a smoking establishment or having a smoking room, and that employees affected by smoke should absolutely be allowed to opt out of working in any areas that are designated as smoking.
Kansas lawmakers made a huge mistake to not adopt a state smoking law mirroring Wichita's fair citywide smoking ordinance. Such a law would protect employees not wanting to be exposed to smoke, protect both the rights of non-smoking and smoking patrons to patronize businesses that cater to their preferences, and finally allow private businesses to establish an entirely non-smoking(including outdoor patios) or smoking policy, if they chose. At least an increasing number of people are starting to wake up and see how unjust smoking bans are, very thankfully.
Mark, I have a question:
Huh?
If you're going to make an argument, please employ some logic.
The issue is not about forcing private property owners to allow smoking; it's about ALLOWING private property owners to allow smoking.
So, yes--talk of rights is not only relevant; it is the crux of the lawsuit.
I don't smoke. I will nearly always go to a non-smoking bar before I enter one where smoking is allowed. Your argument is simply so bad that I couldn't help but comment.
The smoking ban is an issue only for smokers who feel they should be able to pursue their hobby wherever and whenever they please. No activity enjoys that kind of protection. Talk of rights is irrelevant.
There has never been a single study showing that exposure to the low levels of smoke found in bars and restaurants with decent modern ventilation and filtration systems kills or harms anyone.
As to the annoyance of smoking, a compromise between smokers and non-smokers can be reached, through setting a quality standard and the use of modern ventilation technology.
Air ventilation can easily create a comfortable environment that removes not just passive smoke, but also and especially the potentially serious contaminants that are independent from smoking.
Thomas Laprade
http://fightingback.homestead....
http://thetruthisalie.com
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