Smoking Bans, The Return (one day later)

Update: Billy Beck thinks I'm an idiot punk. Oh well, I still like him. I'm getting the impression this is more of a smoker/non-smoker thing than a libertarian/non-libertarian thing, but that doesn't matter to anyone's argument because it would be an ad hominem fallacy.

Balko notes that it's fairly easy to switch jobs in the bar and restaurant field but concedes that regs may reduce the number of bars opened. The market certainly was moving in the direction of no smoking in Los Gatos, the town I grew up in that was the first in the area and one of the first in California to require separately ventilated areas for smokers.

There's actually a huge barrier to making truly separate smoking areas in bars or restaurants: ADA. This isn't a problem for large or chain restaurants that already must comply, but it's a serious problem for smaller restaurants and bars. An exemption for smoking area construction would be better than requiring their construction, but ADA is another force that prevents the market from doing its work.

My whole argument hinges on the non-competitiveness of these places in terms of employees' and customers' choice about where to go, incidentally, which is why I'm much more interested in fixing the HORRIBLE permitting process that's in place in most of California, making construction unions less parasitic, fixing or eliminating building codes (which are really just protections for expensive, traditional construction techniques), and rewriting ADA. Since that's not gonna happen soon, maybe at least local smoking bans will help alleviate people's health concerns in some places.

I strongly oppose any Federal ban on smoking, and I even oppose the California state ban. City or county bans I'm not gonna get worked up about. And I don't think one could argue that local laws are a slippery slope to Federal laws because that's exactly what the Federal system is supposed to prevent, and if it's not we should focus on fixing that. The same with the slippery slope argument about tobacco becoming part of the drug war. That slippery slope argument is on a slippery slope in the other direction: one can easily say that about just about any control. WHAT? You can't drink alcohol while you're driving? What will they do next, outlaw alcohol entirely? Of course, in my fantasy world you *could* drink while you were driving, but you'd be fully responsible for the consequences, up to the (privately-applied) death penalty if you killed someone. This ain't my fantasy world, though.

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"And I don’t think one

"And I don’t think one could argue that local laws are a slippery slope to Federal laws because that’s exactly what the Federal system is supposed to prevent, and if it’s not we should focus on fixing that."

What's that mean? Is that a pro-federalist, or libertarian centralist, comment? Are you saying the federal system keeps one state's law from being applied nationally... or are you saying the federal system is supposed to stop states from passing such laws?

I'm saying the Federal

I'm saying the Federal system is supposed to prevent the Federal government from doing things that are in the purview of the states. Not that it works that well. I'm also saying that we should focus on fixing the Federal system so it does actually work rather than preventing states or localities from passing laws just because we think it will make the Federal government interested in passing similar laws.

Of course, in my fantasy

Of course, in my fantasy world you could drink while you were driving, but you’d be fully responsible for the consequences, up to the (privately-applied) death penalty if you killed someone.

I assume that in your fantasy world, as in mine, roads are privately owned. I suppose that there might be a niche market for roads that allow drunk driving, but I suspect that the in most cases the profit-maximizing strategy would be to prohibit it, since imposing only ex ante punishments would tend to provide insufficient disincentives to dangerous behavior for those with low time horizons. Do you disagree, and if so, why?

I suspect that the in most

I suspect that the in most cases the profit-maximizing strategy would be to prohibit it, since imposing only ex ante punishments would tend to provide insufficient disincentives to dangerous behavior for those with low time horizons. Do you disagree, and if so, why?

I don't disagree, but I think it would probably be enough to focus on impaired driving behavior rather than on the act of consumption. There are plenty of substances, behaviors, and conditions that will impair your driving without being easily detectable. The road owner has his security dudes pull over people who are driving erratically and threaten to ban them from the road and/or sue them for trespass.

I think in general public executions of people who kill others in auto accidents would lead to safer driving all around. Just the thought of the guilt of having killed someone on the road keeps me driving slow where people might potentially come out from behind a parked car, but I think most people don't think about this, while public, in-your-face reminders like executions should get them to.

For the record, I don't

For the record, I don't smoke.

Never have.

And yeah, it does irritate me a little when people do.

I'm also a nonsmoker, and as

I'm also a nonsmoker, and as far as I can tell the essence of your argument is that the freedom to do things that you personally don't feel like doing doesn't matter much. How can you possibly claim to be a libertarian while mainitaing that it's okay to prevent a business owner from smoking on his own property?

I don't maintain that it's

I don't maintain that it's ok to tell someone they can't smoke on their own property, as long as their smoke isn't bothering someone that's not on their property. However, it's also not OK to tell someone they have to provide wheelchair access or allow blacks in or check whether someone is in the country legally or that they can't employ someone for less than a certain amount or that they have to withhold taxes and provide health insurance, but we do. It's also not ok to tell someone what building materials or construction techniques or which workers to use or how much to pay them, but we do. Sometimes the existing restrictions produce situations that are harmful to people, and in the absense of the ability to get rid of those restrictions, sometimes a minimal additional restriction that balances out the situation a bit might be ok.

Of course, I'm not claiming that smoking bans do this in all cases, but it's possible that sometimes they do.

Billy Beck is a perfect

Billy Beck is a perfect example of why dogmatic libertarians don't zero in on better solutions by a process of trial and error. I don't get all worked up by people floating trial ballons. Shakes the cobwebs out of my brains. The totally non-flexible attitude of some people does not allow them to think out things from other directions. Libertarianism is hardly a perfect solution with all the details worked out. The real world is more complex.

I had thought about smoking bans before. I understood the concerns. I wasn't happy with the old norm and I am not happy with the new. Sean's post knocked the cobwebs around and now I think that I have a solution that I am happy with.

Non-smoking should be the convention, with any smoking permitted policy made explicit and well advertised. That is you can have a smoking policy in your establishment so long as you get prior consent from all parties. All advertising and customer contacts must make a smoking policy clear before any resources are expended by the customer. Same goes for employees. They should not so much as have to fill out a employment form before the smoking policy has been communicated.

This policy would not apply to places where the establishment category has by convention made it clear that smoking occurs. For instance, a "Smoking lounge" would not have to have a non-smoking policy by convention. Nor would a "Smoke Shop", "Cigar Shop" or "Cigarette Shop".

Should a non-smoker show up at an establishment that has not properly advertised its smoking permitted policy then that customer should have the right to sue the establishment into compliance.

The other exception would be establishments that are of a nature that people have to use them in emergencies. That is, where they have no choice but to use the service. This would include places like emergency rooms in hospitals, public bathrooms, government buildings, etc.

Any libertarians object to that smoking policy? Any smokers object? Any non-smokers? Any strippers?

Note to strippers: I not asking if you object to my ideas. I'm just asking if any strippers are reading my post.

Should a non-smoker show up

Should a non-smoker show up at an establishment that has not properly advertised its smoking permitted policy then that customer should have the right to sue the establishment into compliance.

Seems rather harsh. Market mechanisms do work, you know. If you don't like a restaurant's food, service, failure to state its smoking policy, sexual harassment of customers, etc. etc., you are free to stop frequenting the establishment and go elsewhere. That does work. This is why businesses are usually a lot more nice to their customers than government offices are.

I'm not a stripper, but I

I'm not a stripper, but I object. Caveat emptor is a perfectly acceptable default. If a non-smoking environment is important to you, call ahead and ask. If this ends up being too big a hassle for a lot of people, non-smoking establishments can advertise the fact that they don't allow smoking, and/or third parties can compile lists. Same deal with people seeking employment. I don't see any need to force establishments that allow smoking to advertise this fact explicitly, nor why non-smoking should be enshrined in law as the default. At best, this isn't very useful, and at worst it sets the stage for frivolous lawsuits.

For anything government-owned, I think no smoking, or smoking only in designated areas, is probably a good policy, especially since the government doesn't own many bars. But I don't see what emergencies have to do with anything. A bit of smoke isn't going to kill anyone---if whatever it is they have to do is that important, they can deal with it for a couple of hours. Maybe if it a few hours of exposure to secondhand smoke really did kill people, you might have a case. But laissez-faire should always be given the benefit of the doubt. In the absence of a compelling case for regulation, the government should leave well enough alone.

"Seems rather harsh" Why?

"Seems rather harsh" Why? If I objected I'd have to produce the advertisment and prove it did not inform me, that I had to drive out there. What are my damages going to be, a tank of gas? It's the injunction that will be a pain for him should he not comply. If he doesn't advertise then a sign at the door is sufficient.

Brandon, But isn't then the

Brandon, But isn't then the policy of "a little smoke doesn't hurt anyone" forcing me to constantly ask the question over and over. Why should I have to constantly ask if people are going to trespass against me. Shouldn't the people who want to do the trespassing have to do the asking?

Going with the joke. It seems that your arguement is analogous to: "A little pinch to the behind of a stripper isn't going to hurt her either. If most guys want to do that shouldn't that be the default rule, and if she doesn't want that then she should post a sign on her ass." Why isn't that the rule in general, and not just for strippers? Especially in Alaska where men outnumber women. The market would naturally settle on pinching allowed establishments. If a woman happens to show up for her drivers course forgetting to ask what the policy is and gets pinched well tough luck for her, she should have called ahead.

“A little pinch to the

“A little pinch to the behind of a stripper isn’t going to hurt her either. If most guys want to do that shouldn’t that be the default rule, and if she doesn’t want that then she should post a sign on her ass.”

That can be fixed without resort to courts. The establishment itself sets up rules about how customers are to behave. The rule at the strip clubs I've been in say touching is extra. Looking is a hell of a lot cheaper than touching. And the kind of touching is strictly controlled. No courts involved. And that's my point: no courts involved.

If he doesn’t advertise

If he doesn’t advertise then a sign at the door is sufficient.

I don't understand. You think a sign at the door is sufficient? If a sign at the door is sufficient, then surely opening the door and smelling the smoke is sufficient.

Constant, Isn't your

Constant,

Isn't your position no legislators involved not no courts involved. Even under anarchy there are courts.

No the smell of smoke is not enough. Why should the non-smoker have to flee at every sign of smoke. Using your rules the way smokers would determine whether smoking is allowed would be to light up and see what happens. There might just be someone inside violating the rules with no sign.

I've experenced this stuff with the old way. Even when there were smoking and non-smoking sections the smokers would always light up and test the waters in the non-smoking section. Often the waitress would be intimidated. Furthermore if it is always against house rules these obnoxous jerks can go from place to place with no penalty other than being kicked out. If the rule are no smoking it is a trespass and the non-smoker has been violated, criminally whether it is against the law or not. Your method does not recognize this fact. Smelling smoke isn't fair notice it's already a violation.

Isn’t your position no

Isn’t your position no legislators involved not no courts involved. Even under anarchy there are courts.

I didn't mean that courts shouldn't be involved in anything at all, only that courts shouldn't be involved in the particular thing under discussion.

No the smell of smoke is not enough. Why should the non-smoker have to flee at every sign of smoke. Using your rules the way smokers would determine whether smoking is allowed would be to light up and see what happens. There might just be someone inside violating the rules with no sign.

My rules, as I thought I made clear, is leave it up to the owner, keep the courts out. If indeed the hypothetical is a serious problem and if the owner doesn't want to lose the business in your hypothetical he'll put up signs saying no smoking is allowed and if you smell smoke somebody's just violating the rule momentarily and will be kicked out so please come in anyway despite the smoke and feel at home. Of course the sign won't say all that, but it'll mean that. The sign might just say: smoke free establishment, strictly enforced.

So what do I do under your

So what do I do under your system. I walk up to an establishment and there's no signs indicating any dangers or trespasses that the owner might subject me to. So I have to go up to him and start querying him as to what to expect. Presumably if he can allow others to trespass against me in one way in his establishment he can allow it in other ways. Whatever makes him a buck.

So perhaps he's in an area frequented by travelers and the locals get their trills pinching women who are new to the area. I am not aware of this because I don't expect such a ridiculous customary rule of "anything goes". The sign says "Eat at Joe's". I go in and ask if smoking is allowed and get the satisfactory answer, "No". We sit down and are now officially customers. We eat, pay the bill and start to leave. My wifes ass ends up getting pinched repeatedly on the way out and I have no recourse because the owner happens to allow such trespass in his establishment. I should have asked.

What else do I have to ask the owner? Do I have to ask him if he allows people to discharge weapons, spit, throw food, set off fireworks, etc? There are many ways to trespass against me.

Using your principles then why can't an owner of a property allow men to rape women there. He doesn't put up any indication of this but posts a big sign, "Ladies night. Free Drinks!" A woman walks in doesn't ask the right question and gets her free drink. Bam! Ten guys grab her and take her upstairs to gangbang her. When they are done with her they eject her from the premises, or perhaps they trespass in another way and turn her into a slave. Not the owner mind you, just the other customers. One after another new male customers come in and keep the deal going. The owner collects a fee and of course since it's in his business interest he feeds the woman. I would have said victim but after all she should have asked what the rules were. Too bad.

Now my way of doing things you could have such an establishment. One where women come in to get raped if they like that kind of thing. You just need some sort of proper notice. Of course because the trespass is much greater your going to need more than a sign at the door.

I really don't care if it's the other way around either but I think the transactions costs are going to be higher. The presumption can be that anyone can trespass against you on private property unless a sign indicating otherwise is displayed. I just don't think this is right. Why should being invited onto someones property open me up to trespass.

Using your principles then

Using your principles then why can’t an owner of a property allow men to rape women there.

Laws against rape defend women against rape. Let me try to clarify your position, then. You think that people who subject other people to second hand smoke are like rapists: they are committing an assault and can rightly be taken to court for assault. I'm basing this on your analogy.

For my part, I don't think that smoking in the presence of someone else rises to the level of physical assault. But never mind that. Let us suppose that you are correct (I am assuming this is your view, because of your analogy). The the courts step in, first of all, between the two individuals in question, the smoker and the non-smoker, just as the courts step in between a rapist and his victim.

A friend of mine was in a jury. The case was rape, and someone had allegedly raped someone else in a motel. After the trial was over he described the case to me and nowhere in the case did the legal status of the motel owner come up. There was really no need. The owner of the motel was not really involved. It was a private matter between the alleged rapist and his alleged victim.

Does the motel have a no-rape policy? No. It has no policy concerning rape one way or the other. Is the motel owner responsible for protecting people against rape? Not especially. He sells rooms, he doesn't necessarily sell personal security. In any case in this particular case he was not held liable for it, and that makes sense to me.

If it were illegal to smoke in the presence of someone else without their explicit permission (just as it is illegal to rape someone else without their explicit permission) then the establishment owner need not get involved one way or the other.

Constant, Sorry, I guess I

Constant,

Sorry, I guess I didn't make it clear.

If the owner does nothing then the dispute is totally between the customers. If the owner does not have a smoking-allowed policy then there is no recourse against him. It's only if he has a smoking allowed policy and poorly advertises it then he can be sued. He is in effect facilitating a crime by doing so. In fact in that case the smoker is off the hook. The smoker is suing for time wasted and/or any actual assault that occurs.

Yes, I think imposing smoke on someone else is similar to assault. It's on the other end of the scale from rape but is in the same category. Have you ever had someone bump into you by mistake? No problem really unless perhaps he knocks you down and you get hurt, in which case, he would be responsible for damages. Well have you ever had a bully bump into you on purpose? What about doing it multiple times. That's harassing and in some cases meant to put you in your social place. It's sending the message that you are inferior.

The default convention with bumping into people is that you don't do it on purpose. There are however things called mosh pits. Those are places where that norm is not respected. One should expect to be violently bumped into repeatedly in a mosh pit. No one thinks they are being harassed, bullied or being trespassed against. They have given consent.

Now suppose the owner of the venue where the mosh pit is does not properly inform people. Someone not having gone to such a concert might see people standing in the front of a concert and move up there. In this case the owner might just be responsible depending on circumstances. For instance, if the person has a condition that where he is overly prone to damage from being bumped into violently then the owner has set up a hazard for him. The person who bumped into him thought he had consent to do so because of the owner of the place. It's not his fault if he bumped with vigor but not enough to harm a healthy person. Of course, he could cross the line even with consent. Certainly no one in the mosh pit is consenting to be assaulted to point of serious bodily harm. So it may be that the mosh pit owner plus the person committing the assault are responsible. But we are talking about the normal case of a normal mosh pit bump.

It sort of like that old gag in the movies where theirs a sheet with holes in it and it says, "Free peep show". When the victim pokes his head through he is actually the target in a carnival pie-throwing contest. The owner knows that he is facilitating an assault in this case, and only he is responsible. This of course was intentional but you can still be responsible for situations you set up that you can reasonably expect to result in the assault. Unlabeled mosh pits being one example. Unlabeled smoking allowed areas another.

There are other ways the owner can get him self-involved. One more example. Assume the owner has not identified a smoking policy, which means the default is in place. Now suppose a smoker assaults me in the middle of my dinner. I now have recourse against the smoker. Perhaps I can try suing him for part of the cost of my dinner. Now suppose this event causes a ruckus and the owner comes out and then throws me out of the restaurant because the other guy is a regular customer. I now have a case against the owner also. He has, in effect, instituted a smoking policy in the middle of the dinner I am paying for. He’s defrauded me because I am paying for an experience he didn't deliver, a dinner enjoyed in a non-smoking environment. Damages may go beyond the cost of the dinner depending on how special the occasion was and how large a party. If he kicks out the person of honor at a birthday party he's going to owe the cost of more than just the price of dinner for the one guy he booted.

Smokers can take reasonable care not to assault others but under the old norms they were not doing that. I've had experiences where in the middle of a dinner someone lighting up a cigar a few tables over ruined the entire atmosphere. It makes my eyes burn, it affects my sinuses, it stinks, and it's bad for my health. In this case I asked politely for him to put it out but he kept it up while smirking. He was using it to bully, and saying to me, fuck you. I actually had to increase the level of assault in order to attempt the remedy. Bastards, like that really enjoy that fact. This is why non-smokers often ask a waitress to relay the message. Proximity. The transaction costs involved in getting redress really were not worth it past that point and he did ruin our dinner. It wasn't just me. Other people in my party didn't like the smoke either.

Correction for above: The

Correction for above:

The smoker is suing for time wasted and/or any actual assault that occurs.

Should read:

The non-smoker is suing for time wasted and/or any actual assault that occurs.

"there's a sheet" and not "theirs a sheet"

"himself involved" not "him self-involved"

When I said I was increasing the level of assault by approaching the cigar smoker I meant that the concentration of smoke was going up.