It’s been busy in Ohio and things are smoking. First a Press Release telling how the heath department cooked the numbers. Then Pam Parker, Regional Director, Buckeye Liquor Permit Holders Association and active member of Opponents of Ohio Bans had this great Radio Interview As Pam Points out in the interview costs have increased, she mentioned just a keg of beer has gone up 40%. These anti-smoking activist love t measure everything but a businesses bottom line,(Which is the only true measure of impact) Liz Klein and her group used sales tax’s to measure impact. If costs rose 50% a business could lose 30% of their business and still show the same sales tax data and from sales information from Pam that is exactly what is taking place.
But my favorite event must be the response of the defense in the Zeno’s case as this could have national implications. For those that don’t know this case is about the smoking ban and is being heard next month in the Ohio Supreme court. What I love about it is they couver most of the points that most of us have been making for years. To read the entire brief it can be found here.
To start off with, just what is the intent of the Constitution. To Libertarians like myself its intent is clear, it is to protect and codify the rights of the individual against the government and the tyranny of the majority but I have written on this subject many times Here is just one. Now if you read Page 9 of the brief it bares this out.
ii. Majority tyranny must be restrained.
Moreover, the procurement of benefits for some at the expense of others, through a simple majority
vote, warrants special scrutiny. This state’s authority to regulate property “was never meant to be a vehicle to
enforce the personal taste of one on another.”28 To that end, it “is not to be inferred * * * whenever a
momentary inclination happens to lay hold of a majority of [the people], incompatible with the provisions of
the existing Constitution, [the people or the Court] would on that account, be justified in a violation of those
provisions.”29 Put more strongly:
[W]ritten Constitutions have heretofore been framed chiefly to protect the weak from the
strong, and to secure to all the people “equal protection and benefit.” They have been
constructed upon the theory that majorities can and will take care of themselves; but that the safety and happiness of individuals and minorities need to be secured by guaranties and
limitations in the social compact, called a”constitution.”3o
Thus, special care must be taken to ensure that the momentary passions of voters in November of 2006 are
compatible with Zeno’s longstanding and sacrosanct property rights.
Then there is the concept of volenti non fit injuri (Assumption of risk) This is brought up on page 16
This Court, in assessing the reasonableness of this regulation, should apply a legal principle
frequently applied in negligence actions: “a premises owner owes no duty to persons entering the premises
regarding dangers that are open and obvious.”62 This Court has explained that “the open and obvious nature
of the hazard itself is the warning, and an owner or occupier may reasonably expect persons entering the
premises will discover the dangers and take appropriate measures to protect themselves.”63
They even bring up the questionable science behind the ban. Page 14 & 15
And smoking rates amongst Ohioans have risen each full year that the ban has been in effect, even
though they have declined nationally.54
The only evidence in this case, from Zeno’s tobacco policy expert, is that indoor smoking bans at
bars have never been demonstrated to improve “public health for nonsmokers :’55 Moreover, in the absence
of smoking bans, bars cater to their clients, with some bars being smoking bars, some being non-smoking
bars, and others offering accommodations to both.56 Finally, the record demonstrates that brief, acute,
transient exposure to secondhand smoke – the type experienced by bar patrons and employees – do not causes
increased health risks 57 This is reflected in the fact that workers’ compensation premiums have not decreased
since the ban was implemented;58 and only one claim for secondhand smoke related occupational disease has
ever been filed: it was denied 59 Finally, many other states, even without Ohio’s stricter protection of
property rights, adequately “protect the public health” by making distinctions between liquor-oriented
establishments and other businesses 60 Thus Ohio’s all-out ban in bars, even in separately ventilated rooms, is
not narrowly-tailored, and there is no evidence before the Court that the ban substantially advances public
health, if at all.
ii. Imposition of the ban on bars is not reasonable.
Further, ODH likens imposition of the ban on bars to legitimate child labor laws, minimum wage
laws, and “laws affecting occupational safety.” However, to analogize the curtailment of smoking a cigar in a
bar environment to child labor laws is incredulous – – the coercion of children into factory labor bears no
54 Unpaid smoking.
I could go on and on but I think I hit the most important points, this is a great piece of work.
P.S. I forgot to mention the main argument that of property rights, namely the Fifth amendment in the federal Constitution and also the property rights in the states constitution. Elliquently put on page 13.
Finally, ODH urges that the caveat “subservient to the public welfare” trumps the protection of
private property rights expressed in the primary clause of Section 19, Article I, i.e. “Private property shall
ever be held inviolate.i46 However, the right to own property is hollow and meaningless if one does not have
considerable autonomy to gainfully use that property. This Court has implicitly acknowledged as much,
affirming in Norwood that the Ohio Constitution’s protection of private property contains “Lockean
notions.”47 As to the police power and property rights, Locke was clear that government, and the police
power in particular, were instituted to secure, rather than to imperil, property rights: the power exists to
secure rights rather than to provide public goods, and its use is only legitimate insofar as it does so, while
leaving citizens with the enjoyment of “their properties in peace and safety.”48
Of course this is why we see the mad scramble by Anti-smoking activist to show no economic harm as it weighs heavily in property rights cases as can be seen here.