johnwk

I'm sure you find that very amusing, but just so you know, this is real issue for some people. I have an immediate asthmatic reaction to strong perfumes, to the point that the albuterol inhaler becomes necessary. No, as a matter of fact I do not find Fragrance free is a civil rights issue! as being funny. Nor do I find those who bath in strong perfumes "funny"___ I too have found myself gasping for fresh air because of those too lazy to take a shower and decide to bath themselves in perfumes to camouflage their B.O.

Slkinsey wrote OK, John... let's ask a simple question. I don't want a bunch of quotes and whatnot, just a yes or no answer. Do you believe it is within the government's purview to enact legislation with the intention of protecting employees that regulates, say, the amount of volatile coal dust in the air inside coal mines or the safety of machinery in factories or the use of respirators at chemical plants? Understand, of course, that these places of employment are all located on privately owned property. So... yes or no? ANSWER Slkinsey, there is no question that folks in government have authority within constitutional limits to adopt regulations for health and safety purposes, even on privately owned property. I have repeatedly pointed this out to you, and have not only done so using my own words, but documented this fact from written legal opinions from both the United States Supreme Court and , two State Attorney General’s opinions! Why you ask such a question is quite suspect of your motives and sincerity in discussing the NYS smoking ban. Perhaps I’m wrong, but it appears you have some difficulty accepting the requirements which folks in government must meet for health and safety regulations to be within constitutional limits. I’m surprised you, or any American, would feel this way because those rules are there to not only protect individual and unalienable rights, but also to insure that such “… regulation is exercised reasonably, within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.” as stated by the Attorney General of Florida. Slkinsey wrote “ To rephrase your quote, you could just as easily be saying: "…entering a privately owned dioxin plant [even if it is to work there] which does not provide breathing apparatus and other safety equipment for employees, is done so with full knowledge that one may ingest carcinogenic chemical vapors and willingly subject themselves to all heath consequences resulting from the ingestion of those carcinogenic chemical vapors." ANSWER Dioxin plant? I think you mean a plant in which dioxins may be released into the air during some type of operation in the plant’s processing. However, I believe a better example would be an auto repair shop in which engine repair work is done with engines running and without a ventilating hose attached to the auto’s exhaust. In such a case there is, without question, an imminent life threatening danger from carbon monoxide poisoning and so, is a legitimate target for government regulation for health and safety reasons. Slkinsey wrote This is tantamount to saying that the government may not enact any legislation to protect employees from dangers at any workplace located on private property because that would be stepping on the property owner's right to do whatever he wants on his own property, and that all employees at these workplaces are "knowingly and willingly" subjecting themselves to the (preventable) dangers associated with those workplaces. This is ridiculous, because this line of reasoning removes any ability whatsoever for the government to protect employees in the workplace and we end up back at the standards of the industrial revolution. Regardless, it has long been established in this country -- and upheld by the Supreme Court -- that the government does, in fact, have the mandate to enact such legislation and so your entire point is moot. ANSWER No one on this end has suggested what you have stated above. Why do you continue to resort to such absurdity and imply such an extreme which is not even remotely suggested? Is this your way of trying to avoid the rules which must be followed by folks in government when adopting regulations for health and safety reasons? Slkinsey wrote If the NYC or NYS smoking bans ever make it to the Supreme Court, I have no doubt whatsoever that they will be upheld as constitutional. ANSWER Maybe in the New York State Supreme Tyrant’s Court, but not in the United States Supreme Court. The SCOTUS would have to reverse countless decisions and what they have stated regarding due process of law with respect to rights associated with property ownership and government regulation.. Slkinsey wrote That said, there is copious evidence from long-term human studies as to the health effects of first-hand smoking and there are plenty of animal studies -- both laboratory and environmental -- demonstrating the negative health impact which results from the passive inhalation of environmental tobacco smoke. This strikes me as plenty of evidence to satisfy the Constitution and the Supreme Court. Whether or not it is enough evidence for you... who cares? The City and State of New York don't have to satisfy you. ANSWER But they do have to satisfy the SCOTUS! To this date the promoters of the NYC smoking ban have been delinquent in presenting credible evidence to support their assertions, and quite busy making outlandish statements concerning 2nd hand smoke. For example, we find in an articleNew York Mayor Proposes Citywide Smoking Ban, that Mayor Bloomberg alleges "Working one 8 hour shift in a smoky bar exposes one to the same amount of carcinogens as smoking half a pack of cigarettes a day," In the same article Bloomberg’s Health Commissioner, Thomas Frieden, is quoted as saying: "Secondhand smoke causes more cancer deaths than asbestos, benzene, arsenic, pesticides, hazardous waste sites, industrial chemicals, contaminated sledge, and consumer products combined,…. Secondhand smoke kills approximately 1,000 New York City residents every year. That is why we must act now." As it turns out, the allegations made by Mayor Bloomberg and his Health Commissioner Thomas Frieden, as well as many of those made by the promoters of the NYC smoking ban, are found to be groundless, especially if applied to an average restaurant, billiard hall, bowling alley, or other such privately owned businesses affected by the newly adopted smoking prohibitions. See: Mayor Bloomberg Exaggerates Secondhand Smoke Risk In addition, and just for your personal information, the following two cases ought to interest you. RE: CASE LAW AND SECOND HAND SMOKE In regard to case law and the alleged health consequences caused by 2nd hand smoke, the following two cases zero in on the actual conditions under which real people were subjected to “2nd hand smoke who initiated a legal action because of alleged consequences suffered under such conditions. Case No. 1: IN THE MATTER OF VERONICA JOHANNESEN v. NEW YORK CITY reveals that: “The facts are essentially uncontroverted. Claimant, Veronica Johannesen, was an office assistant for the City of New York when, in 1981, she was assigned to work at the City's Department of Housing Preservation and Development. The office in which claimant worked consisted of one large room for approximately 50 employees, at least half of whom smoked cigarettes. The room was crammed with desks and file cabinets, so that the employees worked in close proximity to one another. The windows were kept closed because of smoke from the kitchen of a restaurant located below the office. Also, the office ventilation system did not function properly. A co-employee, who worked on the same office floor as claimant, confirmed claimant's factual allegations.” The Court ruled: “The holding in this case does not change existing criteria and legal principles for determining whether a work-related and work-site injury is accidental. Claimants are still required to make showings of unusual environmental conditions or events assignable to something extraordinary that caused an accidental injury. This claimant did so to the satisfaction of the Board and each court that has reviewed the matter. Standard pre-existing legal tests were met in this case and substantial evidence supports the Board's determination that claimant's disabling and aggravated asthmatic condition, caused by prolonged exposure to secondhand cigarette smoke in her confined employment workplace, constituted an accidental injury within the meaning and intent of the Workers' Compensation Law. The award should be upheld.” Case No. 2 HELLING v. McKINNEY, 509 U.S. 25 (1993) This case reveals: “Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev.Stat. 1979, 42 U.S.C. 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, id., at 7-8, and that certain cigarettes burned continuously, releasing some type of chemical, id., at 9. Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. Id., at 14. The Court ruled: “We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.” In neither of the above cases are the conditions under which 2nd hand smoke was alleged to have caused or may have been causing an injury even remotely similar to the actual conditions of countless bars and restaurants in the State of New York which, to accommodate their non-smoking customers and employees several years back, and, because of reasonable state imposed clean air legislation [New York State’s Clean Indoor Air Act] spent thousands of dollars each to have well designed and efficient ventilating systems installed, so their non smoking customers and employees would not be bothered from the nuisance of other people‘s smoke. To date, no scientific evidence has been presented to establish the air quality in these specific business establishments, much less all those business establishments in New York attacked by the N.Y.S. smoking ban, presents a clear and imminent danger to their employees or patrons from “second hand smoke” Having made such allegations in order to control and restrict the use of privately owned property, for health and/or safety reasons, proof is quite necessary to meet the requirements of due process of law. as the lack of such proof would allow arbitrarily legislation or legislation within the realm of pure speculation and therefore be permissive in a total deterioration of rights associated with property ownership. Slkinsey wrote One other thing... you know that this is a discussion board devoted to food and subjects related to food, right? One would hope that you're not just here to flog your pet topic. ANSWER Just following the conversation which a good number of posters have been engaged in, including you! JWK ACRS

Slkinsey John, you seem to be widely missing the point. The NY ban -- or at least the NYC ban as I understand it -- is there to protect employees from dangers associates with the inhalation of second hand smoke at their place of employment. Public spaces where the ban is in effect are those which inherently have employees. For example, if there were to exist a private smoking club that had no employees (i.e., where the members performed all the maintenance and other duties normally done by employees) then that club would not be subject to the smoking ban. ANSWER I believe you have missed the point.”…entering a privately owned restaurant [even if it is to work there] which allows smoking, is done so with full knowledge that one may ingest other peoples smoke and willingly subject themselves to all heath consequences resulting from the ingestion of that smoke“. Slkinsey As for your repeated statements as to the "rights associated with property ownership and individual liberty" -- it is quite clear that the government is free to pass laws regulating activities that take place on private property where the safety and wellbeing of employees working on said private property is concerned. If this were not the case, there could be no legislation regulating the workplace whatsoever. ANSWER I have addressed this in my previous post, I wrote: This does not mean that you may exercise you liberty to smoke wherever and whenever you please, there are qualifications and restraints upon the exercise of one‘s own personal liberty especially when it affects others. You may not smoke on privately owned property if the owner of said property forbids it. You may smoke on privately owned property if the owner permits it and there is no clear, compelling and imminent public danger identified by folks in government for which a specific regulation has been passed regulating privately owned property. Example: smoking in an elevator of a department store or on a crowded bus going downtown at 8 am, or smoking near oxygen in a hospital. Such activities do in fact present a compelling, clear and imminent public danger, and so, are legitimate targets for government regulation for health and safety reasons. But a smoking ban allegedly to protect the public health simply does not fall within this category of a compelling, clear and imminent public danger and for a number of reasons. There is no clear and imminent public danger to the “general public health” from those who smoke on privately owned property. The danger, if any, falls upon those who smoke and those who willingly enter upon privately owned property….those who exercise personal liberty and freedom of choice.. Unlike food stored above certain temperatures which is then consumed by an unsuspecting patron in a privately owned restaurant, which may then cause instant, sever and even fatal results from food poisoning, [ego a legitimate reason for regulation requiring food to be stored at certain temperatures], entering a privately owned restaurant which allows smoking, is done so with full knowledge that one may ingest other peoples smoke and willingly subject themselves to all heath consequences resulting from the ingestion of that smoke.” Slkinsey Where you make your mistake is in assuming that the smoking bans are intended to protect the general public (patrons of establishments or visitors to private properties). This is not the case, and could not be the case because, as you suggest, patrons and visitors may exercise their freedom of choice and take their business or selves elsewhere. The standard for employees is different, however, and it is quite clear that the government may enact laws to protect employees in the workplace from a reasonably perceived potential danger. ANSWER I made no mistake! Due process of law, when individual and fundamental rights are concerned, such as rights associated with property ownership, requires much more than a “reasonably perceived potential danger”, as I have already documented. Perhaps you missed what I posted concerning the Legal requirements to be met for government regulation to be within constitutional limits. JWK ACRS

Thought this might interest you guys! The Arizona Republic Jul. 23, 2003 07:45 PM TEMPE - A U.S. District Court judge dismissed a lawsuit claiming Tempe's smoking ban was unconstitutional ..Judge Roslyn O. Silver said in Tuesday's ruling that the ban "easily passes constitutional muster." She stated that a city does not need proof that smoking is a hazard, but can base regulation on the belief that is so. She also stated the ban is not an illegal. See Suit vs. smoking ban dismissed I am amazed a federal Judge [Roslyn O. Silver] would suggest that folks in government are free to impose regulatory legislation upon privately owned property, restricting a use of that property, based upon a mere belief. A principle of law allowing folks in government to be free to legislate as they please based upon a “belief” may have some truth if said legislation did not directly affect unalienable and constitutionally protected rights of our citizens. But in the instant case, [Clicks Billiards Inc.] constitutionally protected rights are at issue, e.g., rights associated with property ownership and individual liberty, and such a theory allowing folks in government to encroach upon an individual’s rights associated with property ownership or their liberty based upon a mere “belief” is immediately contradicted when considering the spirit and intent of our written constitutions. For instance, our federal constitution declares: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”…probable cause is not a mere belief and requires much more than a “belief” before a warrant shall be issued. Likewise, our 14th Amendment guarantees that no State shall deprive any person life, liberty, or property, without due process of law. Due process of law intentionally forbids actions by folks in government which is “unfair“, “arbitrary” and/or “capricious“, and regulatory legislation based upon “belief” and not upon factual evidence, when it affects constitutionally protected rights, is forbidden by the legislative intent for which “due process of law” has been adopted by the people of America as the law of their land. Principle of law as stated by the U.S. Supreme Court: “A finding without evidence is arbitrary and baseless. And if the government's contention is correct, it would mean that the Commission had a power possessed by no other officer, administrative body, or tribunal under our government. It would mean that, where rights depended upon facts, the Commission could disregard all rules of evidence, and capriciously make findings by administrative fiat. Such authority, however beneficently exercised in one case, could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power. See:INTERSTATE COMMERCE COMMISSION v LOUISVILLE & N.R.CO. 227 U.S. 88 Same principle, again stated by the Court: “It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty….” See: Lochner v. New York 198 U.S. 45 (1905) Same principle: Legal Opinion 99-0-17 Lorain City Council 200 West Erie Avenue, 7th Floor Lorain, Ohio 44052 Legal requirements to be met for government regulation to be within constitutional limits: “…it must first have evidence of a particular problem affecting the health, safety, morals, or general welfare.”… “that can be demonstrated by some factual evidence, and not just from opinions held by certain members of the community” “Council must obtain some evidence to support these assertions, and may not rely upon mere conclusions or opinion evidence or hearsay.” “if Council does in fact identify a legitimate problem from the evidence that is actually presented to it, Council must then determine how to remedy the problem. For example, does the problem, which Council identifies, really require the complete ban …” “Police powers may not be applied in such a manner as to be arbitrary or capricious… is there a rational basis?” The constitutional considerations involved in adopting regulations are both Due Process and Equal Protection requirements of the Constitution. In a case dealing with recreational vehicles, the Eighth District Court of Appeals in, Euclid v. Fitzthum, (1976), 48 Oh.App.2d 297, at 300-301, stated, \"The vice of the present ordinance is that the record will support neither an application of the ordinance which bears a substantial, and therefore reasonable, relationship to the public health, safety, morals or welfare nor the imposition of a taxonomic scheme based upon any state of facts that may reasonably justify it. Part of the lack of the reasonableness is exposed by evidence of an uneven regulatory application that contravenes the imperatives of the Yick Wo case."4 4 Yick Wo v. Hopkins, (1886), 118 U.S. 356, which involved the unequal application of regulations of laundries in San Fransisco, California. The regulations resulted in discrimination against Chinese laundry owners, and therefore lacked any legitimate purpose while having a detrimental effect upon persons of Chinese ancestry. Also see what Florida’s Attorney General has stated : AGO 77-139 “It is undisputed that an individual has an inherent right to engage in a lawful business or trade. It is also axiomatic, however, that a municipal corporation (as an arm of the state) may impose reasonable restrictions upon the conduct of such activities in the interest of the public peace, health, morals, or general welfare, so long as such regulation is exercised reasonably, within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.” I have not been able to find and read the written opinion of the Judge in the above mentioned case [Clicks Billiards Inc.] , nor the lawyer’s brief, so what follows is based upon what appears in the above mentioned news article. If indeed U. S. District Court Judge Roslyn O. Silver has stated in her opinion that a city may restrict the use of privately owned property based upon a “belief” that a public hazard exists upon that particular property, I would say that Judge needs to be immediately charged with Sec. 242 - Deprivation of rights under color of law and removed from the bench for willfully violating her oath of office to uphold “this” constitution, which guarantees, among other rights, the right to due process of law, and rights associated with property ownership! But if you want to study some of the reasoning which justifies regulation of privately owned property under the banner of public health and constitutional considerations, I suggest you study City of New York v New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979 (1986) scroll down to “CONSTITUTIONAL CONSIDERATIONS” and study the evidence produced to justify the ban. Also see: "Where such a compelling State interest is demonstrated even the constitutional rights of privacy and free association must give way provided, as here, it is also shown that the remedy adopted is the least intrusive reasonably available." In addition, a voter initiative may not be used to deny constitutional and fundamental rights. For state initiatives being struck down when they attack fundamental rights [life, liberty, rights associated with property ownership, etc., see: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 And, the Court, in LUCAS v. COLORADO GEN. ASSEMBLY, 377 U.S. 713 (1964)continued from the above paragraph by adding: “A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be…” Likewise, and only a few years ago, the Court, in ROMER v. EVANS, affirmed that a constitutionally protected and fundamental right could not be voted away by a statewide referendum saying that: “It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U.S., at 24.” Likewise here are two more voter initiatives struck down by the SCOTUS. And why were they struck down? The people tried to deprive others of fundamental rights by a majority vote! TRUAX v. RAICH, 239 U.S. 33 ADAMS v. TANNER, 244 U.S. 590 From smoke free,to fat free,to obese free, and now, Fragrance free is a civil rights issue!] Sincerely, John William Kurowski, Founder American Constitutional Research Service "As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

From smoke free,to fat free,to obese free, and now, Fragrance free is a civil rights issue! Smoking, just as deciding to have bacon and eggs for breakfast, or refusing to exercise each morning for its health benefits, finds protection from government interference, e.g., in the federal Constitution by its legislative intent to protect individual “liberty” and the “pursuit of happiness”___ the freedom to make ones own choices! This does not mean that you may exercise you liberty to smoke wherever and whenever you please, there are qualifications and restraints upon the exercise of one‘s own personal liberty especially when it affects others. You may not smoke on privately owned property if the owner of said property forbids it. You may smoke on privately owned property if the owner permits it and there is no clear, compelling and imminent public danger identified by folks in government for which a specific regulation has been passed regulating privately owned property. Example: smoking in an elevator of a department store or on a crowded bus going downtown at 8 am, or smoking near oxygen in a hospital. Such activities do in fact present a compelling, clear and imminent public danger, and so, are legitimate targets for government regulation for health and safety reasons. But a smoking ban allegedly to protect the public health simply does not fall within this category of a compelling, clear and imminent public danger and for a number of reasons. There is no clear and imminent public danger to the “general public health” from those who smoke on privately owned property. The danger, if any, falls upon those who smoke and those who willingly enter upon privately owned property….those who exercise personal liberty and freedom of choice.. NOTE: The U.S. Supreme Court in LLOYD CORP. v. TANNER, 407 U.S. 551 (1972) involving rights associated with property ownership pointed out that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” The ownership of property and rights associated with property ownership are indisputably constitutionally recognized rights, that is, both the United States Constitution, and the Constitution of NY recognizes, protects and secures, rights associated with property ownership. There is no hidden danger on privately owned property open to the general public where smoking is allowed, and patrons entering upon such property do so within the parameters of what is legally called “informed and implied consent” and accept the possibility of such a perceived health hazard. I say this to point out and distinguish a legitimate area for government regulation of privately owned property open to the general public. Unlike food stored above certain temperatures which is then consumed by an unsuspecting patron in a privately owned restaurant, which may then cause instant, sever and even fatal results from food poisoning, [ego a legitimate reason for regulation requiring food to be stored at certain temperatures], entering a privately owned restaurant which allows smoking, is done so with full knowledge that one may ingest other peoples smoke and willingly subject themselves to all heath consequences resulting from the ingestion of that smoke. Bottom line___ the smoking ban effects a fundamental right, that “bundle of rights” associated with property ownership, and, it effects personal liberty and actions upon privately owned property, [constitutionally protected rights] and does so without a compelling, clear and imminent public health hazard to the “general public health” as alleged, and only effects those who are exercising their personal liberty. The smoke control freaks are attempting to use government force to control privately owned property for their own personal comfort and enjoyment, to the exclusion of an identifiable group, those who smoke [attempting to require the owner of said property to discriminate against former guests who smoked] and to do so without the permission of the owner of said property…this is what is called tyranny. From smoke free,to fat free,to obese free, and now, Fragrance free is a civil rights issue! "As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas JWK ACRS