Cracks in ban are bad for business
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David Barker
As I have said in the past, I am for the smoking ban. I don’t feel it infringes on the rights of property owners because if secondhand smoke is dangerous to others, it can be regulated in situations where smokers and nonsmokers mingle.
However, I also have said I would have preferred businesses ban the smoking on their own initiative. The reason I would have preferred the second route — unlikely as it was — is illustrated by the Blue Midnight Hookah Lounge, 330 Albert Ave. Because the law exempts businesses with more than 75 percent of sales derived from tobacco products, hookah lounges are allowed to remain open.
The reasoning for that is simple enough: Smoking can be banned in areas where it is peripheral to the main activity. People go to restaurants to eat and to bars to drink; smoking is something that happens in the course of those activities. What doesn’t make sense is that the inverse should be true: Food should not be served at establishments where smoking is the main objective. Blue Midnight owner Patrick Kent points out that “the way that the law reads, we can serve food, but it has to be ‘shelf stable.’ We can’t serve anything hot, we can’t serve anything cold (and) we can’t serve anything prepared.”
Can’t they get an exemption or something? Make no mistake, it isn’t a huge deal for Blue Midnight. Kent points out that Blue Midnight still sees nearly as many sales as it did before the smoking ban and that “the ban has affected us a little bit, but the bottom line is we still have hookah.” The point might be more for startups such as Saylis Hookah Lounge & Café, 300 N. Clippert St., in Lansing. Owner Mahad Bussuri said restrictions on food being served have decreased sales nearly 40 percent from their pre-smoking ban levels. That’s not cool. A glance at the name of the business, Hookah Lounge & Café, says that these two things go together. To clarify, it means the tobacco smoking is not incidental; it is part of the point of the business.
In my first column supporting the ban, I said, “A bar that closes because of the smoking ban is a bad bar.” I think if Saylis were to go out of business, I would not think it was because it had a bad business model. Instead I would say it is the result of a business falling through the cracks of the law and no one doing anything about it. It isn’t enough to say, “Oh, well the law says this and that is the end of that.” Laws do, on occasion, have unintended consequences. Not being able to serve food at a hookah bar is one of them.
This law was made with at least two strong arguments in mind. The first was that secondhand smoke is harmful to human beings. There are plenty of legitimate studies — besides the Environmental Protection Agency’s and World Health Organization’s — that conclude secondhand smoke is harmful. The second is that there are precedents and guidelines that the government, acting under the auspices of the public’s health, can create laws limiting what can be done inside a private business. Neither of those reasons applies to hookah bars. I think it is in this gray area where we can find a way to responsibly apply the law.
I don’t think it was the express purpose of this law to control food in areas where smoking is allowable, but to control smoke in places where food and drink were served. The special permits granted to “tobacco specialty retail stores” confirm that the issue revolves around use of tobacco and not use of food. If Blue Midnight could serve food before the ban, it doesn’t make sense to ban them from selling it after; nothing has changed. The penalty, in this case, is unfair. To correct it, I would suggest amending the special permit to allow for the serving of all kinds of food within the premises.
I think it would mirror, in some ways, the tavern license approved by the East Lansing City Council for What’s up Dawg?, 301 M.A.C. Ave. Those conditions included things such as a 50 percent food requirement in sales, no less than 10 food items on the menu and no service of beer after midnight.
The point of this law was to protect people gathered in public places, Yes, that had a detrimental effect of some business aspects of both bars and restaurants. But it should not adversely be affecting businesses who are exempt from the legislation’s major points.
David Barker is the State News opinion editor. Reach him at barkerd@msu.edu.
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Your fault
(07/29/10 6:36am)Report
“Can’t they get an exemption or something?”
No they can’t thanks to overreaching, poorly thought out legislation. But hey, if a few small mom-and-pop shops are forced out of business, no skin off your nose.
This has always been my concern with the smoking ban, its absolutist and simplistic scope. There was lots of room in the middle between smokers and non smokers, however people like you just weren’t having it…it had to be all or nothing…
So…this is what you get with that mindset. How’s that working out?
SIGP226
(07/29/10 1:43pm)Report
Your stated preference for a “second route” is a poor argument. Businesses wanted to control their own environment, and did so by NOT banning smoking. So, you preferred for the goobermint to make that choice for them.
Clearly, your second choice was never really a choice at all.
“Do it, or we’ll do it for you.“
SIGP226
(07/29/10 1:46pm)Report
And you end with this beauty:
“The point of this law was to protect people gathered in public places,”
Further proof that you don’t understand what this is really all about.
dgr
(07/29/10 11:38pm)Report
All government regulations lead to unintended consequences. Usually far more severe than any one will ever admit. Government regulation will always overstep. If it is a true health hazard, with no benefits, the free market will weed it out. The problem is that no one wants to be responsible. There is no problem that the government cannot make worse!!!!!!!!!
WP
(07/30/10 2:09pm)Report
I smoke those new Crown7 electric cigarettes wherever I want. I bought mine from a local bar and it seems to be helping keep their regular customers. I think this is a great idea for businesses hit by the smoking bans…
Alex
(07/31/10 1:44am)Report
“So, you preferred for the goobermint to make that choice for them.”
No, legions of people who were tired of smelling like smoke and having their lungs basted in carcinogens told lawmakers to make it so.
It was “goobermint” that de-segregated schools, created Title IX, and made EoE, ADA, and fair housing laws – all because businesses couldn’t get their heads out of their asses. Sometimes it takes people in force acting through legislation to get what’s right into society. Deal with it.
harleyrider4freedom
(07/31/10 5:59am)Report
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.
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’Shttp://knol.google.com/k/second-hand-smoke #
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 9×20 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 timeThe 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!SIGP226
(08/02/10 9:50am)Report
Alex,
Thanks for mentioning a plethora of bad decisions. You’re almost doing my work for me.
Title IX: A joke with a whole host of unintended consequences. The latest cheerleader case is proof of that.
ADA: Also known as the “Full Lawyer Employment Act”. If you’ve ever administered parts of the ADA, you know what I’m talking about.
EO: Poorly-crafted, misused and abused (by both sides), and anybody smart enough to get around these laws can. Deal with it.
I’m curious as to whether or not you’ve ever administered any portion of the laws you mention, because you’ve given a list that practically makes the case against government involvement and legislation.
It’s a shame you didn’t mention the FMLA, so I could laugh at that, too.
PD
(08/10/10 9:59am)Report
More power to the government
=
less power to the people.
If there was a demand for a smoke-free restaurant, then there would be smoke-free restaurants. Oh, wait . . . there already were smoke-free establishments. Funny how the ban supporters are up in arms about how they cannot EAT THE FOOD THEY WANT AT A BUSINESS THAT OPERATES ON THE BASIS OF SMOKING. Hypocrisy and liberalism at it’s finest. Time to think differently about the government. It does not have your best interests in mind.
PD
(08/10/10 10:02am)Report
SIG:
I doubt Alex has any idea as to what Title VII or the such really involves. It involves government power, not people’s rights.