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Smoking Ban Lawsuit Shows Bar Owner Hypocrisy

The redoubtable Mr. Rosenthal challenges the respect for democracy and the Constitutional consistency of the lawsuit filed to overturn South Dakota's smoking ban:

I am not sure that they care that not only did the people's Representatives (the Legislature) but the People themselves had (at their request) the Final Word.

While I believe this lawsuit attempt won't succeed. I also don't believe the barkeeps will acknowledge they operate their businesses with the authorization of the Government. Until they acknowledge this I am not sure the legal shenanigans will stop [Joel Rosenthal, "Legal Shenanigans," South Dakota Straight Talk, 2011.03.07].

The main plaintiff, Big Booze Republican Rick Law, has made these pages previously for failing to live up to a consistent grasp of his name. His frivolous lawsuit against the smoking ban continues that streak. Law complains that the smoking ban creates a special class of business owners by allowing smoking in cigar bars and tobacco stores. As Rosenthal points out, Law and his fellow bar owners already benefit from their designation as a special class of business owners permitted to run video lottery machines. The smoking ban grumblers want government to giveth, but they can't stand it when government taketh away.

Perhaps Mr. Law should stop playing lawyer and start playing businessman. Industry cries wolf about regulations all the time, but the real businessmen find ways to adapt and thrive in the changing market.

By the way, KJAM just ran an online poll on the smoking ban. They even tried to skew the results negative by mentioning that those nefarious liberals in the People's Republic of Minnesota like their smoking ban. KJAM clickers still came out in favor of our new smoking ban 71% to 29%. But I'll bet Law and the bar owners who referred the smoking ban to a democratic vote now like to say that we're a republic, not a democracy... as Republicans are wont to do when the people reject their bad ideas.


  1. larry kurtz 2011.03.08

    As someone who believes that no lawsuit is frivolous, Mr. Heidelberger, this action will force AG Jackley to defend clumsy voter-initiated law. Watch for a motion to dismiss.

  2. Wayne B. 2011.03.08

    During my undergrad & graduate days at USD, the cloying stink and sting of smoke in the bars kept me out (and kept money in my wallet... $4 drinks add up fast!). Now the expenses of a home, home business, and living keep me out of bars.

    I confess I'm wrestling with the inconsistency of advocacy - Cory, you're shouting very hard for the government not to interfere with a woman's decision in who to consult prior to seeking an abortion, but here you're okay with government interfering in the choice of business owners and citizens to interact?

    If HB 1217 gets referred and the voters of SD vote in favor of it, will you accept the will of the people and be quiet? I doubt it, and honestly I'm not sure I'd want you to be. It would offend my Libertarian leanings. The tyranny of the masses, no matter how well-intentioned, is something we must prevent with great vigilance.

    It isn't as though there are any doubts about the effects of smoking or second hand smoke. It's not a hidden public health risk - it's overt, and it's limited. This isn't a petro-chemical company selling BPA-free plastic water bottles and secretly dumping millions of gallons of weird sludge into our rivers, preventing us as consumers from taking into account all factors in our decision to interact with the company.

    All the decision points are on the table. People know cigarettes kill. People know secondhand smoke is bad for you. People can make the decision what to expose themselves to, where to shop, where to drink, etc.

    Didn't Madison have a thriving smoke-free bar pre-ban to cater to those who wanted to drink without smokers around? Seems like an elegant solution to those who wanted a smoke-free experience.

  3. caheidelberger Post author | 2011.03.08

    No inconsistency here on HB 1217: the state's unconstitutional intrusion on a woman's personal autonomy is much more profound than the state's regulation of commerce.

  4. Wayne B. 2011.03.08

    What about the personal autonomy to associate with like-minded individuals in private places? Why does the regulation of commerce trump that autonomy and not the factors surrounding a woman's decision making process? Both are engaging in economic activity.

    At least when it comes to smoking in private places, it's activity between consenting adults. There isn't the competing interest of the unborn to worry about and gum up the rights debate.

  5. Eve Fisher 2011.03.08

    Cigarettes are legal. There's a hefty tax on them nowadays to pay for... whatever the state wants to pay for. So why is the use of a legal product illegal? Doesn't make sense to me. (I quit smoking six months ago; I don't have a personal dog in this fight.) You want to ban smoking? Make cigarettes illegal. Then I'll listen to you.

  6. caheidelberger Post author | 2011.03.08

    Let's back up: we don't have to work this hard to resolve the difference between abortion and cigarettes. Women's rights to privacy and medical autonomy exist on a plane entirely separate from bar owners' actions in the marketplace. Commerce is interaction among equal citizens. Fetuses are not equal citizens. Commerce is a privilege accorded by our economic system. Deciding whether or not to bear a child is a much more fundamental right.

    Eve, as for cigarettes, they are also a regulated toxic product I can't use them anywhere I like any more than I can use a pistol anywhere I like.

    The point is the hypocrisy of Rick Law's argument. He says the smoking ban creates a "special class" of businesses, although I'm sure he happily defends the gambling statute that admits his bars to a special class of businesses allowed to have video lottery. We regulate and restrict commerce all the time with rules about the pollution they can emit, the licenses they must purchase, and so on. The smoking ban opponents lost in the Legislature. They lost in the general election. They will lose in court.

  7. larry kurtz 2011.03.08

    Cory, here's my read: voter initiated law cannot be adequately defended in the courts because it's nearly ethereal; a motion to dismiss will force a judge to decide whether it goes to the legislature to be amended in the next session or it will be struck down.

    Jackley would much rather litigate the abortion legislation after it becomes law because he can defend the moral high ground where his electablily to whatever throne is grandstanded.

    Welcome to red state failure.

  8. Wayne B. 2011.03.08

    So it's okay to tell a business they can't allow X, Y, Z, and must jump through E, F, G regulations created by the state, even though it infringes on the right to assemble?

  9. mgmonklewis 2011.03.08

    Oh, for Pete's sake.

    Businesses do not exist in the wild. The state allows them to be created. The state licenses businesses, which grants them certain privileges and responsibilities. As such, the state is free to regulate them as it sees fit.

    Conversely, people who have uteri were born with them; they didn't form a corporation to obtain said uterus. The state does not issue you a license to bear a uterus. Reproductive freedom is a human right, as is the woman's autonomy to make her own medical decisions.

    Why is this so hard for some people to understand? Is it that important to make other people breathe their smoke, or are they that invested in making The Wimmins into second-class citizens and/or property?

  10. mgmonklewis 2011.03.08

    So Wayne B., it's also illegal for the state to tell a business that it can't say "No Blacks Allowed" or "No Irish Need Apply"? The business gets to benefit from public infrastructure, but doesn't have to obey any pesky rules in return?

  11. mgmonklewis 2011.03.08

    Re: "infringes on the right to assemble" -- No citizen's right to peaceably assemble is being infringed.


  12. Wayne B. 2011.03.08

    Legality is the concept of State to Citizen interaction, Mgmon. It's inappropriate to use here. We can talk about what's ethical for the state to require, and what's constitutional for the state to impose.

    Using the benefit of public infrastructure is a terrible argument. My house is connected to a public road. I enjoy public water utilities. That doesn't give the State the ability to infringe upon my right to choose who goes into my house and what we consent to do in there.

    I'm not a smoker. I actually get pretty sick if I'm exposed to it. So my skin in this argument is purely on understanding the intricacies of freedom versus regulation and responsibilities.

    It's not about repressing "wimmins" or turning them into second class citizens.

    It's about understanding why regulating one activity between two consenting adults is okay (a business owner and his customer) but regulating another activity between two consenting adults is not (a woman and her abortion provider). Both are commercial activities. Both have underlying freedoms behind them.

    I don't accept that the right to choose to end a pregnancy is any more paramount than the right to choose where to go and what to do. They both stem from the right to self determination. Convince me otherwise, preferably without insulting my intelligence or my ethics.

  13. mgmonklewis 2011.03.08

    No, the public infrastructure argument is perfectly germane. I could search out places in the internet where this apples-and-oranges argument about private homes versus public businesses has been thoroughly discussed before, but I'm not interested in going down that rabbit hole. I'm also not terribly interested in spending time trying to convince you otherwise, because I suspect it's not possible. Fair enough. (And I say that without any intent to insult your intelligence or ethics. I've never met you, so I have no knowledge of, or ability to judge, either of those.)

    But back to the glibertarian argument about absolute individual liberty: So if I walk into a bar stark naked, and I'm arrested and hauled away for public indecency, is my "right to peaceably assemble" being infringed upon? If not, why not? I'm merely exercising my right to chose where to go and what to do. What if the business owner likes the smell of benzene, and wants to use it as an air freshener? Does he have the right to do so, and make his customers and employees breathe it?

  14. mgmonklewis 2011.03.08

    For the record, public infrastructure argument makes perfect sense unless:

    1) Your home is fully open to the public, like a shopping mall; or
    2) Your business is closed to the public, and people can enter by invitation only.

    If one of those two is true, then maybe there's a discussion about the state unfairly regulating one or the other. If not, comparing a private home to a public business isn't just apples to oranges; it's apples to cucumbers.

  15. Wayne B. 2011.03.08

    I accept that there are limits to our freedoms, especially when people don't get all the information about the choices they make, or others will be harmed by our actions. But I want to make sure our government infringes only when absolutely necessary... not when a majority of people think it'd be nice not to have to put up with something they don't like.

    If a business owner uses noxious chemicals without patrons knowledge or consent, that's easier for me to accept the interference of the state.

    But when both business and patron want to do something, and it's in a private place, and nobody but consenting adults are present... I don't see the impetus for the state to regulate it. You may not agree with me, but I'll hold this argument constant for legalizing illicit drugs, prostitution, and homosexual activity. I'd hold it true for abortion if there wasn't a fetus in the mix. To be clear - I don't support HB 1217 either. As that stands, I'll accept what the Courts have decided. It's about as good - or bad - a stance to take for dealing with those conflicting rights as any.

    If you walk into a bar stark naked, there may well be consequences. If you walked there naked, you violated public decency laws. If you disrobe in a private establishment, that should fall under the purview of the business whether to allow it or not. Otherwise strip clubs, massage parlors, and other institutions which cater to nudity would be in a heck of a quandary. And they shouldn't be.

    It isn't just "can the state regulate this behavior?" - it's ~should~ the state regulate this behavior. I content we shouldn't be regulating this behavior, no matter how repugnant the majority of us find it. We shouldn't be scuttling for a nanny state. We shouldn't be making it easier and easier for social conservatives to legislate their morality upon us under other guises.

    If women should be able to make their own decisions about who to counsel or not counsel before seeking abortions without interference of the state, smokers and bar owners should be able to make their own choice to associate together and enjoy tobacco without the same interference.

  16. Gary D 2011.03.08

    Let's see, if you have a bar and also serve food. Doesn't the health department inspect your kitchen and issue you a license? Is that not the government telling you what to do? So what if people get sick from food in your establishment, you don't have any responsibility to them. They just need not visit your establishment for food any more. It's the same arguement isn't it?

  17. larry kurtz 2011.03.08

    The state taxes tobacco making this whole issue a conflict of interest. Motion to dismiss.

  18. Wayne B. 2011.03.08

    I don't own a bar or an eating establishment, so I can't say what all goes into that, Gary. My assumption is there are indeed health inspections.

    Just because a health inspector issues a licence to serve food doesn't absolve an establishment of its liability for preparing bad food that makes customers sick.

    Health inspectors give ratings and publish those ratings, which allow us potential patrons to make better informed decisions about whether to go eat at a place.

    Health inspectors give ratings and publish those ratings, which allow us potential patrons to make better informed decisions about whether to go eat at a place or not.

    Gary, my argument isn't that governments shouldn't interfere and regulate businesses. It's that we shouldn't do it unless there's a compelling need. People eat food expecting it to not kill them, having fingers in it, or have a higher-than-FDA-allowed percentage of vermin parts in it. Turns out there's a compelling need to regulate what people put in our food, and how they prepare it.

    But the government should only make sure establishments prepare food that won't give me salmonella or botulism. I'm even okay with requiring establishments to tell me the nutritional content of what I eat. However, I don't think the government should prohibit establishments from serving me food that's bad for me. I want to eat that heart attack on a bun. The business wants to make it and sell it to me. It's our choice. That choice should suffer as little infringement as possible.

  19. Eve Fisher 2011.03.08

    My argument is that, yes indeed, you can control where cigarettes are smoked: you can ban it from hospitals, restaurants, chuck-e-cheese. BUT, since cigarettes are legal, it must be legal for someone to set up a bar/restaurant/venue that caters directly to cigarette smokers. (Where, basically, you know that this is a smoking bar, and if you go in, you're gonna inhale cigarette smoke.) Thus a ban on smoking in EVERY public place is ridiculous. And wrong. And violates the right of people to get together and do their favorite legal toxic substance. After all, we have bars, where people can drink alcohol...

  20. caheidelberger Post author | 2011.03.08

    Oh! That's fine, Eve: SDCL 34-46-18 and 34-46-19 allow exactly those exceptions to the current smoking ban for cigar bars and tobacco stores. Is that sufficient?

  21. Eve Fisher 2011.03.09

    Yep. I'm still trying to figure out why no bar in Madison has declared itself a cigar bar - but I understand that some are setting up smoking booths outside... American ingenuity at work!

  22. Wayne B. 2011.03.09

    It's because you have a burden of proof to get 10% of gross sales from cigars, not just tobacco products. There are, near as I can tell from searching, only four cigar bars in all of South Dakota... looks like 2 in Rapid, and maybe 2 in Sioux Falls. Hardly friendly for people who want to smoke and drink.

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