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Archive for Tuesday, June 6, 2006

Smoking ban upheld

June 6, 2006

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A Douglas County District Court judge has again rejected arguments that the city's smoking ban is unconstitutional.

Judge Jack Murphy has issued an order denying a request by Lawrence bar operator Dennis Steffes to suspend the city's smoking ban while he wages a lawsuit alleging that the ban is unconstitutionally vague and illegally oversteps the state's laws.

Murphy had ruled in late December that the smoking ban was constitutional, but Steffes - who operates Coyotes and Last Call - asked the court to reconsider. Murphy again rejected Steffes arguments and said that there was no evidence to support a suspension of the ban, nor was their evidence that the ban was unconstitutionally vague or had overstepped state law.

Comments

jayhawks71 7 years, 10 months ago

agnostick, nicely done. I like the logic on the "we all pay" whether one has insurance or not. I hadn't thought much about that issue, but your response seems quite logical and valid.

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jayhawks71 7 years, 10 months ago

that's why drinking AND driving are against the law; the same logic applies with smoking; no one is "banning smoking" it is banned in certain situations; urinating in public is forbidden, urinating is not. yelling fire is forbidden "in a crowded theater" and then ONLY when there is no fire.

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RichardCory 7 years, 10 months ago

I'm not a fan of bans at all, and I certainly wasn't a fan of this one, but . . . I will say that it IS very nice to be able to go spend time with my friends at a bar and not reek when I get home. I was also rather surprised to notice how much better I feel the next morning - I always attributed all of the gross feeling to the alcohol or lack of sleep. I also expected that I'd end up driving to KC more often, as I didn't expect my KC smoking friends to want to drive up to go to the bars anymore, but this hasn't been the case. A lot of the bars have provided outside areas for smokers, and a few have even been kind enough to provide heaters or fire pits. And it's not so bad bouncing between the table inside and the smoking crowd outside - kinda forces you to get up and bump into a few new people (and if I get sick of someone at the table, it's a great excuse to leave for a while). And I suspect that those that at least some of those that work in the bars appreciate it. So . . . never thought I'd say this, but I'm okay with the ban sticking.

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Agnostick 7 years, 10 months ago

Read my previous post, jayhawk. Again. And pay attention, this time.

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jayhawk72 7 years, 10 months ago

OK...what I dont understand is if they are going to ban smoking for the effects it has on innocent by-standers, then why dont they make a ban for drinking alcohol? Sure, if I'm drinking, the person next to me doesn't get drunk, but if I take off and start driving aren't I putting innocent lives in danger because of the choice I made. (just for the record....I'm not a drinker)

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Agnostick 7 years, 10 months ago

Sandman makes a nice effort:

"1. You down half a bottle of tequila, then leave and hit a van full of kids. Your drinking affected them, right?"

No, the alcohol did not affect them, because they did not get drunk. What affected them was the driver's conscious choice to climb behind the wheel of a car while intoxicated. Before that driver ever even shifted the vehicle into first gear, a crime was being committed. The charges were escalated when the van was hit. The driver of the vehicle will, at the very least, be charged with assault and battery; "vehicular homicide" if one or more of the van occupants die as a result of the injuries.

Apples and oranges. Nice try, though! :)

"2. You go to McDonald's three times a day and have a heart attack. You lack of insurance means I pay."

"Going to McDonald's" and "not having insurance" aren't even remotely connected. A rich man could eat Eggs Benedict with Hollandaise Sauce for breakfast every day, followed by a lunch of Fetuccini Alfredo & Creme Brulee, and a dinner of Porterhouse Steak, Twice-Baked Potato and Cheesecake for dessert. Eat that three times a day for a month, and never exercise. Same result as McDonald's?

Big differences between food and tobacco, though are that:

1) Food offers nutrition--even Fetuccini Alfredo offers necessary carbs, proteins, and fat. Can't say the same about tobacco.

2) Occasional heavy, fatty meals won't make much difference to the average person's well-being, especially if they eat healthy and exercise the other 18 meals during the week. I challenge you to find a doctor who will publicly proclaim that the occasional cigarette or cigar has a negligible effect, or even offers health benefits. And I'd prefer a doctor not on the tobacco industry's payroll, please. ;)

And finally, an uninsured, smoking lung-cancer patient makes the rest of us pay through higher taxes; an insured smoking lung-cancer patient makes the rest of us pay through higher health insurance rates. When a deadly product like tobacco is not properly contained and controlled (smoke at home, please, or at smokers clubs/lounges), we all pay, one way or another. Second-hand smoke is like the stray-bullet in a drive-by shooting. It's deadly, indiscriminate, and usually kills totally innocent victims.

Nice try, Sandman... but I'm afraid you're several grains short of a full bag. :)

Agnostick agnostick@excite.com

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Kline 7 years, 10 months ago

Here is an article that summarizes a report that will be released from the CDC:

Second-Hand Gas Kills 130,000 Americans A Year (AP)

Federal health officials are expected to soon issue a report warning the public about the dangers of second-hand gas. Human gas, that is. "Second-hand gas, if inhaled on a regular basis, can cause headache, irritated eyes, emphysema, asthma, bronchitis and in many cases, heart attack," says a physician with ties to the Centers for Disease Control.

"Each year, approximately 130,000 Americans die from second-hand gas -- and many others suffer serious ailments as a result of long-term exposure.

"Gas-passers and non-gas-passers alike must realize the extent to which it damages everyone's health."

According to the soon-to-be-released CDC report, each year second-hand gas causes:

800 heart attacks 250 strokes 30,000 asthma attacks 50,000 cases of earache

Due to poor dietary habits, there is now an "epidemic" in America, the report warns. The average American produces a staggering three pints of gas through 14 to 23 evacuations per day.

Now, put that in your pipe and smoke it.

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Liberty 7 years, 10 months ago

Jayhawk71,

The problem of the ban on smoking is not really about smoking. It is about a city making a ban, when it does not have the authority to do so from the people. It is trying to take a subject that 'who could be against this' and use it to set an example of how the city has a history of making bans and how it is not rejected by the people. The danger is that maybe you are against smoking and this ban is great for you, but what about the next ban that they decide to pick on you. You should like it because you supported the city in the ban before, so you will have to accept it now, even if you don't like what it is doing to you this time and every time thereafter.

Personnally, I don't like smoke, but I would rather not go to a place that may have smoke than allow a city to make a ban that it has no authority by the people to do. I am not for giving away freedom for temporary security or comfort. Those that are in favor of giving away freedom for temporary security or comfort, deserve and will have neither security or comfort or freedom.

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jayhawks71 7 years, 10 months ago

robin- i would argue that they (the business owners) are not actually the ones pitching a fit. Some have been vocal about it, some have sought litigation, like Steffes. The people pitching a fit are smokers who want to partake in their addictive habit wherever they please. See, they clearly have no concern for the health of others. It is logical that one would preserve one's own life before being concerned about the lives of others (with the exception of perhaps one's offspring); they don't do that; why would they give second thought to your right to life?

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robinrander 7 years, 10 months ago

Am I to assume that those of you who are against the smoking ban are also against health code regulations? Like, if I own a restaurant, it's MY business, and I can run it as I see fit. If I want to blow my nose on a hamburger bun and then serve it to you, you can either eat it or go down the street to the next business that doesn't blow their nose in the baked goods. My kitchen doesn't have to be clean. I don't have to keep my meat in the cooler. Wash my hands after using the bathroom? Not if I don't want. People can take it or leave it. And what about fire codes? Why do business owners need emergency exits? Why can't we block the isle? This is an economic democracy after all. Why not let the customers vote with their dollars?

I don't see a lot of business owners suing to get rid of the health and safety codes? So, why do they allow the health inspectors in, and let the fire inspector in, but pitch a hissy when the smoking ban comes up?

It's really nice to throw around words like "freedom" and "liberty" and all that. But the truth is, the Constitution really only protects our fundamental rights. Those are the only things that are going to invoke the higher levels of scrutiny by a court. Any other infringement need only be reasonable in its goals and acheived through rationale means. The goal: lower health care costs attributed to first and second-hand smoke. Seems reasonable to me. The means: ban smoking indoors. That's about as rationale as it gets.

It's a no-brainer folks. Of course, that may just be the problem.

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jayhawks71 7 years, 10 months ago

Solomon, Just a guess, but one would be a fool to own a bar and not incorporate. Perhaps an accountant or lawyer reading these posts could enumerate the benefits of incorporating (or not incorporating if there are any.). The liability issue and protecting one's personal assets seem to be a compelling reason to incorporate.

Just as you take issue with the perspective that government intervention implies the rightness of an ordinance (which I agree with), I take issue with the perspective that the degree of difficulty of enforcement implies that "wrongness" of an ordinance.

Although a bit of apple and orange mixing, laws against murder are difficult to enforce (enforcement ultimately includes trial and conviction); consider the amount of time, money, effort, and people involved in trying the case of the KSU professor who was convicted of murdering his wife. Yet we take life seriously (and believe that it is important to protect life, which is laid out in our consitution (and in the national mindset) and treat it as being of ultimate importance.

That said, you have used an analogy that misrepresents the issue. Ultimately, the employee of an establishment does not actually enforce the ordinance as you contend; they report it. I would have a problem with the bartender or barrista serving as law enforcement. The employee plays the role of witness, just as one would would, at the scene of an accident, report that "the driver of the red car ran the stoplight" ("that man was smoking" in concert with the available evidence (perhaps a cigarette butt on the floor?) would result in the ticket for failure to obey a traffic signal being written. Police have authority to write tickets for many things for which they do not actually observe (agree or disagree, this is the system). Also if you believe that you have been charged in error, your case will be heard by the municipal court judge; you have your "day in court" to defend yourself.

Finally, I would have a problem with you pulling me out of my car, for speeding. Even a police officer should not "pull" me out of my car for the offense of speeding alone.

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Eybea Opiner 7 years, 10 months ago

Jayhawk, I don't know the answer to how many sole proprietorships there are, but I imagine there are quite a few in Lawrence. Maybe none that are bars, maybe quite a few.

I clearly understand that no business operates completely unfettered (after all, they do have to collect tax for the ferderales/city/state, account for it, bank it, and send it off to the governing "authority." That this is a fact doesn't necessarily make it right. After all, the stamp act, the tax on tea, and the whiskey tax were all "legitimate" regulations imposed by the governing authority.

I guess I must accept the judges' ruling, but I don't have to agree with it, and I don't.

By the way, you didn't address the enforcement issue, though I guess that you have no problem with the city drafting baristas as pseudo-cops and empowering them as law enforcement officers. How would you like it if I pulled you over and pulled you out of your car because you were speeding?

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justsomewench 7 years, 10 months ago

Dennis Steffes talks like Mr Mackey on South Park, m'kay?

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jayhawks71 7 years, 10 months ago

"The other problem I have with the ban is placing the enforcement on the business owner; sort of like making a driver responsible for enforcement of traffic laws."

Solomon, kind of sad that you can't trust people enough to let them do "whatever they want", huh? Not only will they not "enforce" traffic violations, but they won't even abide by the laws when society has adopted a law. Even worse is that there is a need for a law in the first place, given human nature! There are those who take advantage of others, who push their beliefs and harmful habits on others. It is for these reasons that men in socieites live by the rule of law.

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jayhawks71 7 years, 10 months ago

Liberty, H.L. Mencken also said the following:

"The educated Negro of today is a failure, not because he meets insuperable difficulties in life, but because he is a Negro. His brain is not fitted for the higher forms of mental effort; his ideals, no matter how laboriously he is trained and sheltered, remain those of a clown."

Let's not put the words of a news reporter on such a pedestal.

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jayhawks71 7 years, 10 months ago

Solomon- Been down that road before. Let me address your issue. No business owner opens a business with the expectation that he/she will be able to run the business "as he/she sees fit" (i.e., free from regulation) By opening a business in the context of businesses having rules to operate by, one implicitly agrees that one does not have absolute freedom to run your business in any way that you see fit.

Further, business owners typically form corporations and other "legal" entities in order to gain benefits and protections (e.g., the LLC) afforded by government. You can't have it both ways; that is, I want the benefits of government intervention, but I do not want to bear any costs or be subject to any regulations. For example, an LLC provides various protections regarding lawsuits against the "business owner." With that benefit comes the submission to regulation.

Further, corporations, by virtue of existing only as legal entities, do not have inalienable rights of life, liberty, and property. Even if that were the case, property comes last in statements of these rights. These are endowed in "men" and not LLCs, etc.

I wonder if Steffes has incorporated his business, I bet he has. The Constitution does not provide for the rights of corporations and legal entities (if I have missed this in the constitution, please point me to the Article.), therefore, the ordinance is not unconstitiutional. Steffes was really out of gas before this came to court. He should be happy it went as far as it did; perhaps he made a few dollars out of it This lawsuit and business owner's crying foul is a case having one's cake and eating it too.

I would be interested to know how many businesses in Lawrence and actually OWNED by a human (rather than an entitity that only exists on paper).

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Sandman 7 years, 10 months ago

Hey Agnostick,

What about this?

1) You down half a bottle of tequila, and everyone else in the room gets drunk along with you, even though they didn't drink any booze

  1. You down half a bottle of tequila, then leave and hit a van full of kids. Your drinking affected them, right?

2) You go to McDonald's three times a day for a month, and the people you leave behind at home get fat along with you, even though they don't consume a single french fry or cheeseburger

  1. You go to McDonald's three times a day and have a heart attack. You lack of insurance means I pay.

We live in a society where almost anything we do affects other people. It is legit to ban certain things, but it is also legit to argue where to draw the line.

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kris10p4 7 years, 10 months ago

Dennis just needs to stop spending all of his money on this case and just build a deck for Coyotes (and get rid of the 80's neon paint inside of his bar)

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Eybea Opiner 7 years, 10 months ago

I'm a former smoker--quit 13 years ago after 41 years of smoking. I'm happy to have a non-smoking environment, but I am against the ban.

I think that a proprietor should have the right to operate his business how he sees fit. Non-smokers have the right to boycott any smoking establishment they want.

The other problem I have with the ban is placing the enforcement on the business owner; sort of like making a driver responsible for enforcement of traffic laws.

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Agnostick 7 years, 10 months ago

Smokers: Consider that you give up maybe 10% of your annual income to the tobacco companies. Consider that maybe, just maybe... these fine people owe you a favor. You're all loyal consumers, right?

How about lobbying for one of these in Lawrence:

http://www.smokerswelcome.com/MAR/dtclogin.jsp?brand=MAR

http://centerstage.net/bars/marshall.html

I'll bet the local commission would support it!

Agnostick agnostick@excite.com

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Agnostick 7 years, 10 months ago

00jester whines:

"Let's ban drinking and fast food as well. Same principle."

Not even close. If I'm in the same room as you, and you're smoking like a chimney, I end up taking the same impurities and cancer-causing agents into my lungs as you do. Apples and oranges.

Now, the moment that:

1) You down half a bottle of tequila, and everyone else in the room gets drunk along with you, even though they didn't drink any booze

or

2) You go to McDonald's three times a day for a month, and the people you leave behind at home get fat along with you, even though they don't consume a single french fry or cheeseburger

When you can demonstrate these kinds of things, then I'll believe you.

Until then... please enjoy your cancer-causing tobacco at home, or any other place that exclusively welcomes smokers. Thank you. :)

Agnostick agnostick@excite.com

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Centrist 7 years, 10 months ago

Oh boy, here comes the "liberty" paranoia ...

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znsh18 7 years, 10 months ago

This guy Dennis Steffes has got some serious nerv to wage a lawsuit against the city. His bar is creating all kinds of issues, half the people here are talking about shutting down "Last Call." And he goes on challenging the city on smoking ban!!

Oh yes, I like going out & I cant stand the smoke either. So, I shouldnt have to pay for your stupidity. You chose to smoke & only YOU should pay its consequences. Not me. It's doesnt matter if thats in a bar or out on the street. It is that simple.

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Sandman 7 years, 10 months ago

Quote:

"if you are an anarchist, which you seem to espouse, then start your own village of anarchists."

If a village is full of idiots, how can you have a village idiot?

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cms 7 years, 10 months ago

Yea! Life is good in Lawrence!

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Liberty 7 years, 10 months ago

A quote from H. L. Mencken

"I believe that liberty is the only genuinely valuable thing that men have invented, at least in the field of government, in a thousand years. I believe that it is better to be free than to be not free, even when the former is dangerous and the latter safe. I believe that the finest qualities of man can flourish only in free air that progress made under the shadow of the policeman's club is false progress, and of no permanent value. I believe that any man who takes the liberty of another into his keeping is bound to become a tyrant, and that any man who yields up his liberty, in however slight the measure, is bound to become a slave."

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gaiapapaya 7 years, 10 months ago

Uh, how many people go to the bird just for some drinks?

I saw a show recently as it was so nice to not have the smoke. And I didn't mind stepping out with friends who were smoking outside. I like being able to stop at any coffe shop with my kids and grab a drink and not have them wait in the outdoor seating area. Not sitting above the bar full of smokers at free state is great.

Go ahead, put it to a vote. I think most people like going out about town without the smoke. Lots of people who smoke do it outdoors anyway because of roommates or kids.

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macon47 7 years, 10 months ago

NO PROBLEM just more business for the bird and the girls like it

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Luxor 7 years, 10 months ago

They're keeping the smoking ban and passing on the cell phone ban. That makes about zero sense.

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KSChick1 7 years, 10 months ago

someone needs to call Steffes and tell him the 80's wants their Miami Vice look back

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Centrist 7 years, 10 months ago

NO, "00jester" ... it is DIFFERENT.

I can CHOOSE whether or not to eat junk food. I CANNOT choose when people are smoking in my space.

I love it - keep this ban!!

Smoking is the single dumbest thing anyone can do to themselves (except trust Robert Richardson) >:)

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Dorothy Hoyt-Reed 7 years, 10 months ago

The reason they dropped the petition to bring it to a vote was because they knew the ban would be voted in. I signed the petition,but told them I was in favor of the ban. When you drink alcohol, I don't get drunk. When you eat fast food, I don't get fat. If you could smoke and hold all the smoke in your body, then smoking in public would be the same, but until they invent a nicotine fix like that, you're argument doesn't stand.

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jayhawks71 7 years, 10 months ago

"Of course, do you expect a judge to deny this power to his employer and not uphold the system of control that they want to implement?"

The judge works for the State of Kansas, not the city of Lawrence. The ordinance is a city ordinance.

http://www.kscourts.org/dstcts/

The city derives its power from the people. They represent the people. Liberty, if you are an anarchist, which you seem to espouse, then start your own village of anarchists.

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fletch 7 years, 10 months ago

Can we ban Dennis Seffes? His clubs have contributed in a few deaths and multiple injuries. Let's ban him to Topeka.

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Liberty 7 years, 10 months ago

Of course, do you expect a judge to deny this power to his employer and not uphold the system of control that they want to implement?

Or do you expect a judge to be honest and just by operating under the constitution? It is pretty clear that there is nothing in the Constituton that authorizes a city to ban anything. It is clear that any ban from a city is operating beyond the authority that we gave them to operate the city with. The authority given to a city was certainly not ever intended to be used against the people, but to serve the people and protect their freedom, not steal it.

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Gabe Hoffman 7 years, 10 months ago

Let's ban drinking and fast food as well. Same principle.

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just_another_bozo_on_this_bus 7 years, 10 months ago

Judge Murphy is a smoker, too. (pipe, anway.)

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prospector 7 years, 10 months ago

'Nuff said, turn out the smoking light.

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