NYC Smoking Ban

[Jaymes]

I suspect there is a moral or other agenda (smoking is a nasty habit, those people should know better, I'm helping them save themselves, etc.)  motivating these lawmakers' actions. 

And that's the accusation that it always comes down to, isn't it. People who don't want to be subjected to your smoke are prudes, moralists, evangelists - some sort of judgmental zealot crusader - preachy busybody do-gooders run amok.

Would that my motives were so altruistic, so moral, so selfless as that.

In truth, I don't give a rat's ass if you or anyone else smoke yourself to death. It is your right. It is your decision.

But I shouldn't have to have to suck the damn stuff into myself while you're at it.

Like if you choose to drive your Cadillac convertible off the south rim of the Grand Canyon. I'll lament your choice and your demise only briefly - if I notice it at all. I won't be picketing at the canyon rim in an effort to disuade you, or to save your wretched soul. You're in charge of both of those things.

But I don't think I should be forced to sit in the car with you.

Edited July 28, 2003 by Jaymes (log)

[Bux]

I think even gentle well thought out laws can seem to run roughshod over preceived rights, or real interests and surely we have a right to our interests. The smoking ban makes more of NY emminently enjoyable to be and it's hard to disguise my pleasure in that. That doesn't mean I am blind to the fact that other people's joy is diminished. The shoe is on the other food in that regard. There is nothing inherently positive or progressive about that sort of trade off. They sympathy I have for those who've lost a pleasure is perhaps due to the revolutionary, rather than evolutionary nature of the change. One day you could do something you enjoyed and today you can't.

Universal sufferage is similarly revolutionary in a certain way, but while a whole new group gets to vote, no one is taking away the votes of the existing voters. I suppose my contribution here is only to agree that perhaps the change might have been made in a less drastic manner and still protected the rights of employees. I have a general problem with "separate and equal," as the separate parts are never equal, but there are exceptions that could have been allowed to continue for some period. Of course the more complex the law becomes, the harder it may be to enforce it. In the end, the success of this law will depend on its social acceptance, just like prohibition.

[davidbdesilva]

The August issue of Cigar Aficionado has an article entitled "Clearing the Air - Can you still smoke a cigar in New York City? The owner of the Campbell Apartment states "A smoking policy should have been my right as an owner to make. I resent the backdoor way the secondhand smoke issue was used. It's hurting to owners." The owners of F.illi Ponte state "Our revenue has dropped 35 percent since we lost the lounge as a smoking area. A lot of our guests would go to the lounge for a cigar and brandy, but that's not happening anymore."

They list 17 places that remain were one can still smoke a cigar in NYC. They are: Aubette, Campbell Apartment, Carnegie Club, Circa Tabac, Club Macanudo, Florio's Grill, Grand Havana Room, Hudson Bar and Books, Lexington Bar and Books, Lobby Court Lounge, Merchants NY, Mustang Grill, North West, Scores (Cigars and a whole lot more), Swan's Bar & Grill, and Uncle Jack's.

Shouldn't it be the owners decision whether they want to allow smoking in their restaurant/bar or not? They DO own the place don't they? Then, as customers, one can decide whether or not they want to patronize that establishment or not. Yes the staff of that establishment will be exposed to smoke, but then can't they decide whether they want to work at that establishment or not? The cigar bars that I frequent here in Philadelphia have such good filtration systems that there is never smoke in the air anyway. When I visit NYC I hate that I eat dinner in one part of town and then have to take a cab all over town to find a place where I can have a cigar. I agree that people should not have to be exposed to others smoke if they don't want to but it's ultimately the owners decision and then your decision as to whether you want to go there or not.

[malachi]

Employees shouldn't, in my opinion, be put in a position where they have to choose between their health (and arguably their lives) and their job. For many people, giving up their job is simply not an option -- and which point it is no longer a choice.

Edited July 28, 2003 by malachi (log)

[Jaymes]

Next thing you know, they'll be banning steakhouses (high cholesterol, beware!) and nightclubs (loud music is dangerous to your ears!).

Two excellent examples that perfectly illustrate the difference (and here I was beginning to think you didn't understand it).

When one chooses to eat steak, or any other unhealthful food, one cannot force the people at the surrounding tables to also have a bite every now and then ("and if you refuse to have a bite of my steak, well, you don't have to eat here - you can just leave").

As for loud music - that DOES infringe upon the rights of others.

Which is why every city where I have ever lived has noise ordinances.

Edited July 28, 2003 by Jaymes (log)

[Felonius]

I suspect there is a moral or other agenda (smoking is a nasty habit, those people should know better, I'm helping them save themselves, etc.)  motivating these lawmakers' actions. 

And that's the accusation that it always comes down to, isn't it. People who don't want to be subjected to your smoke are prudes, moralists, evangelists - some sort of judgmental zealot crusader - preachy busybody do-gooders run amok.

Would that my motives were so altruistic, so moral, so selfless as that.

In truth, I don't give a rat's ass if you or anyone else smoke yourself to death. It is your right. It is your decision.

But I shouldn't have to have to suck the damn stuff into myself while you're at it.

Like if you choose to drive your Cadillac convertible off the south rim of the Grand Canyon. I'll lament your choice and your demise only briefly - if I notice it at all. I won't be picketing at the canyon rim in an effort to disuade you, or to save your wretched soul. You're in charge of both of those things.

But I don't think I should be forced to sit in the car with you.

Jaymes,

If you read my posts carefully, you would find that I am not for forcing smoking on others, and have NO problem with a smoking ban in most places (restaurants, bars, or areas where employees must be subjected to second hand smoke). I am just wondering why my right to smoke in a private situation, where no one is compelled to join me, other than fellow smokers.

I am certainly not calling you or anyone on this forum a prude, moralist, evangelist, etc. I was looking for thoughtful responses for WHY my personal freedom has been taken away in situations where it is not bothering anyone. The rabidly agressive response by many non-smokers, as well as the overreaching nature of the NY state law (as opposed to the city law), still leads me to believe that there is pent-up agression being directed at smokers. I suppose I can't blame those who have suffered against their will through years in smoky bars for enjoying their chance to let smokers have it. I just wish the law had been written with a bit more tolerance in situations where it would likely have been appropriate.

SlKinsey brings up an interesting point about the need for a simple law with no exceptions in his stoplight analogy. I won't argue with his logic, as it is sound.

I guess I'll just have to go outside NYC to enjoy that occasional cigar or late-night smoke with friends. The majority has won. That doesn't mean I agree with it. I will never be a fan of state intervention in such matters unless ABSOLUTELY necessary. I am basically a libertarian and a free-market capitalist (with a few exceptions), which means I probably have no business opening my mouth in NYC anyway!

[Felonius]

I think even gentle well thought out laws can seem to run roughshod over preceived rights, or real interests and surely we have a right to our interests. The smoking ban makes more of NY emminently enjoyable to be and it's hard to disguise my pleasure in that. That doesn't mean I am blind to the fact that other people's joy is diminished. The shoe is on the other food in that regard. There is nothing inherently positive or progressive about that sort of trade off. They sympathy I have for those who've lost a pleasure is perhaps due to the revolutionary, rather than evolutionary nature of the change. One day you could do something you enjoyed and today you can't.

Universal sufferage is similarly revolutionary in a certain way, but while a whole new group gets to vote, no one is taking away the votes of the existing voters. I suppose my contribution here is only to agree that perhaps the change might have been made in a less drastic manner and still protected the rights of employees. I have a general problem with "separate and equal," as the separate parts are never equal, but there are exceptions that could have been allowed to continue for some period. Of course the more complex the law becomes, the harder it may be to enforce it. In the end, the success of this law will depend on its social acceptance, just like prohibition.

Bux,

We may disagree, but I respect those who can do so using reason and respect for the other side. You wanna run for mayor next time around?

[slkinsey]

For what it's worth, Felonius, and for the record: I do agree that the City law is better than the State law, and there should be accomodations for situations like yours.

[Felonius]

They list 17 places that remain were one can still smoke a cigar in NYC. They are: Aubette, Campbell Apartment, Carnegie Club, Circa Tabac, Club Macanudo, Florio's Grill, Grand Havana Room, Hudson Bar and Books, Lexington Bar and Books, Lobby Court Lounge, Merchants NY, Mustang Grill, North West, Scores (Cigars and a whole lot more), Swan's Bar & Grill, and Uncle Jack's.

David,

Thanks for the info. If anyone cares to continue this debate over a cigar, I'm headed over to Lexington Bar and Books.......

Anyone know how long these "cigar bar" bars will be allowed to operate as such under the new law?

[Bux]

I think even gentle well thought out laws can seem to run roughshod over preceived rights, or real interests and surely we have a right to our interests. The smoking ban makes more of NY emminently enjoyable to be and it's hard to disguise my pleasure in that. That doesn't mean I am blind to the fact that other people's joy is diminished. The shoe is on the other food in that regard. There is nothing inherently positive or progressive about that sort of trade off. They sympathy I have for those who've lost a pleasure is perhaps due to the revolutionary, rather than evolutionary nature of the change. One day you could do something you enjoyed and today you can't.

Universal sufferage is similarly revolutionary in a certain way, but while a whole new group gets to vote, no one is taking away the votes of the existing voters. I suppose my contribution here is only to agree that perhaps the change might have been made in a less drastic manner and still protected the rights of employees. I have a general problem with "separate and equal," as the separate parts are never equal, but there are exceptions that could have been allowed to continue for some period. Of course the more complex the law becomes, the harder it may be to enforce it. In the end, the success of this law will depend on its social acceptance, just like prohibition.

Bux,

We may disagree, but I respect those who can do so using reason and respect for the other side. You wanna run for mayor next time around?

Just because I have sympathy for someone doesn't mean I'd act on it. Just because there might be a better way, doesn't mean I'll spend my time and energy looking for it. Fairness is far easier in the abstract.

The first thing I'd do as mayor is close all the places that serve lousy food. Whaddya mean I can't do that? I'm not running.

[mogsob]

Shouldn't it be the owners decision whether they want to allow smoking in their restaurant/bar or not? They DO own the place don't they? Then, as customers, one can decide whether or not they want to patronize that establishment or not.

No.

Just like restaurant/bar owners:

1. Can't serve every type of food they want.

2. Can't serve every kind of alcohol they want.

3. Can't play music at any volume they want.

4. Can't provide any kind of entertainment they want.

5. Can't serve as much alcohol to certain patrons as they want.

I've spent a good part of my career defending minority rights, but the plain fact is that smoking is different. The exercise of your right to smoke tobacco directly affects third parties, many of whom do not like tobacco smoke.

The truth is that restaurant owners brought this on themselves. Instead of acting pro-actively to accommodate non-smokers in a meaningful way, they bent over backwards to accommodate the smoking minority. They could have put in ventillation systems themselves, or created truly separate smoking spaces. The problem is that restaurant owners frequently violated the laws, allowed regulars to smoke and tried to cut corners wherever possible. Nonsmokers finally had enough, and now we have a Mayor who respect our voice.

[tommy]

...they bent over backwards to accommodate the smoking minority.

and why do we think that is? cost? habit? cultural/societal standards? because they were given the chance and there was no meaningful push for a compromise?

Edited July 28, 2003 by tommy (log)

[mogsob]

...they bent over backwards to accommodate the smoking minority.

and why do we think that is? cost? habit? cultural/societal standards? because they were given the chance and there was no meaningful push for a compromise?

My guess is that it is fear compounded by poor business sense. After the law banning smoking in most restaurants went into effect a few years ago, I was at one of my regular haunts when a diner lit a cigarette. The staff, instead of asking her to put out her cigarette, brought over an ashtray. Then, as expected, she turned to exhale, and blew her smoke directly at us.

I called over our waiter and said that smoking was now illegal in restaurants and would they tell the smoker to put out her cigarette. They said she was a regular and didn't want to offend her. Once again, it was a restaurant failing to compromise and accomodating soley the smoker at the expense of the majority nonsmokers.

So I said either they make her put out her cigarette, or I was leaving immediately and, in addition to not paying my bill, I would swear out an affidavit at the local police station reporting the violation.

Needless to say, the staff quickly resolved the issue. And as the smoker in question headed for the freezing cold outdoors to finish her smoke, I could only smile and laugh as she glared at me.

[alacarte]

CNBC just ran a piece on how NY bars are serving tobacco-infused liquor to help compensate for the smoking ban.

[menton1]

CNBC just ran a piece on how NY bars are serving tobacco-infused liquor to help compensate for the smoking ban.

How ridiculous; maybe the next idea will be to use snuff saliva as a base for gravy!

[tommy]

CNBC just ran a piece on how NY bars are serving tobacco-infused liquor to help compensate for the smoking ban.

sounds like an interesting idea that might help those who have cravings. just have a shot instead!

[NeroW]

Just like restaurant/bar owners:

4.  Can't provide any kind of entertainment they want.

Damn. Is that why there's not a mechanical bull in every bar?

Those bastards. I'm going in the backyard to smoke a cigarette.

[slkinsey]

CNBC just ran a piece on how NY bars are serving tobacco-infused liquor to help compensate for the smoking ban.

Interesting, but potentially dangerous. Nicotine is a poisonous alkaloid that can cause respiratory failure and general paralysis in a dose of less than 50 mg. Smaller toxic doses can cause heart palpitations, lowered blood pressure, nausea, and dizziness.

The good news for smokers is that smoking one cigarette equals around 3 mg of nicotine, which merely increases the heart rate, constricts the blood vessels, acts on the central nervous system and makes you feel good. However, these bars had better be very careful about how they are infusing their tobacco, or they may give someone a lethal or serious sub-lethal dose of nicotine. I would not be surprised if it were actually against the law.

[Lyle]

CNBC just ran a piece on how NY bars are serving tobacco-infused liquor to help compensate for the smoking ban.

Interesting, but potentially dangerous. Nicotine is a poisonous alkaloid that can cause respiratory failure and general paralysis in a dose of less than 50 mg. Smaller toxic doses can cause heart palpitations, lowered blood pressure, nausea, and dizziness.

The good news for smokers is that smoking one cigarette equals around 3 mg of nicotine, which merely increases the heart rate, constricts the blood vessels, acts on the central nervous system and makes you feel good. However, these bars had better be very careful about how they are infusing their tobacco, or they may give someone a lethal or serious sub-lethal dose of nicotine. I would not be surprised if it were actually against the law.

Slkinsey, most full-flavor cigarettes only contain aroung 1 mg of nicotine. And I believe that oral and digestive absorption of nicotine is less effective than lung absorption. It would be one hell of a tobacco cocktail that would poision one already resistant to nicotine.

Should tobacco stock, highly reduced, be covered in the eGCI?

[elyse]

It's possible to die from nicotine poisoning.

[Blondie]

Check out the Nicotini, a Florida nightclub owner's tobacco-infused concoction (via Gawker).

[slkinsey]

Slkinsey, most full-flavor cigarettes only contain aroung 1 mg of nicotine.

No... most full-flavor cigarettes are rated at around 1 mg of nicotine. That is a far cry from "contains" or "delivers to the average smoker." As Philip Morris says on their own web site

No two smokers smoke cigarettes exactly the same way. The tar and nicotine yield numbers that are reported for cigarette brands are not meant (and were never intended) to communicate the precise amount of tar or nicotine inhaled by any individual smoker from any particular cigarette. These numbers come from standardized testing methods, which compare different brands when smoked by a machine under identical laboratory conditions. As regulators have said since their introduction, these tests - including those developed in cooperation with the U.S. Federal Trade Commission (FTC) and the International Organization of Standardization - show the relative differences in yields among brands, assuming that each brand is held and smoked the same way as it is in the machine.

It is a known fact, and has been known for some time, that cigarette makers do things to their products like putting tiny pinholes around the filter in order to artificially lower the nicotine content as tested by the machine. The machine numbers are widely reported to be significantly lower than the actual delivery of nicotine to the smoker's system. Again, Philip Morris acknowledges this:

It is reported that smokers "compensate" for the reduced tar and nicotine yields of some brands by smoking them differently than they would higher yield brands. For example, they may take more or larger puffs, smoke more of the cigarette or block ventilation holes that contribute to the lower reported yields of some brands. Generally speaking, the more intensely a smoker smokes a cigarette, the more tar and nicotine he or she will inhale from that cigarette.

And I believe that oral and digestive absorption of nicotine is less effective than lung absorption.

I don't have any data on this, but I don't see how it could possibly be true. There is no way that a smoker absorbs any more than a small percentage of the nicotine contained in one cigarette's worth of tobacco. Digestion, on the other hand, would tend to introduce all the nicotine into the system. My own personal esperience of having smoked a cigarette a time or two and having tried smokeless tobacco a time or two is that oral delivery is several orders of magnitude more potent a delivery system than lung absorbtion. One cigarette never made me feel much of anything, whereas less than one cigarette's worth of smokeless tobacco (by volume) was enough to make me light-headed and queasy.

It would be one hell of a tobacco cocktail that would poision one already resistant to nicotine.

I don't think one can "build up a resistance" to a lethal dose of a poison. Some people may be better able to tolerate a sub-lethal dose below a certain threshold, but it does not necessarily follow that the amount required for a lethal dose or serious sub-lethal dose would be less for one such person. The fact of the matter is that 50 mg of nicotine will kill just about anyone. Period. While it is probably unlikely that one cocktail will include 50 mg of nicotine (although, who knows? it is highly soluble in water and alcohol, so it would depend highly on the preparation) it is certainly within the realm of possibility that someone could consume a lethal dose by drinking 3 or 4 cocktails containing 12 - 16 mg of nicotine.

From Blondie's article:

Although the cocktails are somewhat akin to the nicotine patch and nicotine gum some use to quit smoking, those products contain a set amount of nicotine and carry warnings about how they should be used. With the drinks, the nicotine content could vary widely depending on how many tobacco leaves were in the marinade and how long they fermented.

"This is craziness," said Glenn Singer, a lung specialist at the Broward General Medical Center. "It's crazy to give people nicotine-laced cocktails so they don't have withdrawal."

According to Singer and other health experts, the side effects can include dizziness, nervousness, heart palpitations and nicotine poisoning.

Wald realized the potential potency of the drink as he experimented to find the right mix. One batch was so strong that Jeffrey Fuller, a Cathode regular who was helping taste-test the early versions, felt lightheaded and had to sit down.

I can tell you for sure... if I were a bar owner, I wouldn't want to assume the added liability of serving a nicotine-infused drink.

[johnwk]

When laws become this overbearing and farfetched, look out.  Next thing you know, they'll be banning steakhouses (high cholesterol, beware!) and nightclubs (loud music is dangerous to your ears!).

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

Edited August 2, 2003 by johnwk (log)

[johnwk]

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

[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.

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.

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.