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Assault with a Deadly Puff

February 12, 1998

In this first of a two part series, I consider the theoretical justification for tobacco regulation and the application of that theory to the current debate over regulation in bars in California. In part two, I will expand on the theory and apply it to the national debate over tobacco settlement legislation.

Tobacco Kills

Tobacco kills. It kills those that use it. It kills those around them. It causes lung disease, heart disease, stroke, spontaneous abortions, stillbirths, SIDS, and cancer of the mouth, larynx, esophagus, kidney, bladder, pancreas, and uterine cervix. Almost 180,000 Americans die each year from cardiovascular disease caused by smoking. Cigarette smoking is responsible for more than 65,000 deaths each year due to chronic obstructive pulmonary disease (COPD), which includes chronic bronchitis and emphysema.

Personal Choice

The libertarian point of view is that it is a personal choice whether you damage yourself with tobacco. What you do in private is your own business. The government has no business being involved. I agree! If you want to use tobacco in private, and if you are willing to pay the cost for the damage you do to yourself, that is your business. That right ends, however, as soon as your smoke reaches somebody else.

Assault with a Deadly Weapon

If you smoke tobacco, and your smoke is inhaled by a child or by an unwilling adult, that is assault with a deadly weapon. Tobacco kills. Second hand smoke kills. From a theoretical standpoint, an "ideal" law to regulate tobacco would say that you go to jail if you smoke and your smoke assaults someone. In fact, maybe existing assault laws are all we really need! A Los Angeles court has ruled that an employer can be sued for assault and battery for subjecting an employee to tobacco smoke. After that ruling, the case was settled out of court. The 1st Ohio District Court of Appeals ruled in January, 1994, that cigar smoke is more than obnoxious to a nonsmoker and can be used to commit battery. A court in Georgia has also upheld plaintiffs right to sue smokers for battery.

This harsh treatment of smokers could certainly be justified. On the other hand, it really would not be fair to either smokers or non-smokers. It would not be fair to smokers because it would be hard to know in advance where the smoke would go. Even smoking in private could get you in jail if your smoke is allowed to wander uncontrolled. And it would not be fair to non-smokers because the law would only be effective after the damage is already done. It would be so much better if smokers could know in advance where they may and may not smoke and if non-smokers could know in advance where they are and are not safe from smoke.

Regulation

A model in which we say that smoking is forbidden in certain places is not perfect. The prohibition will sometimes infringe on personal rights even when it is not strictly needed to protect others. In exchange, though, we give smokers greater rights by allowing them some places that they can smoke without fear of arrest even though their smoke may assault others. Most important, we create a fair law which allows individuals to know in advance what actions are proscribed and which are not.

California's regulation of smoking (Labor Code Section 6404.5) follows this model. It prohibits smoking in all enclosed workplaces. There are some places that some people would call workplaces that the law specifically excludes from its definition of enclosed workplace: private residences even if there are employees there, up to 65% of rooms at a hotel, up to 50% of a hotel lobby, tobacco shops, trucks, large warehouses, etc. In some cases, employers with five or fewer employees can be exempt.

The California law could be better. I am just as damaged by the smoke I breath from the guy sitting next to me at Dodger Stadium as I am by the guy at the next desk at the office. I would like to see the law cover some areas which are not "enclosed" but where people are in close proximity. The law is also weak in lacking real teeth. It requires employers to put up signs prohibiting smoking in areas where non-employees have access, but they are not required even to ask a non-employee to stop smoking. Even so, the law is a good model for regulating smoking and reducing assault by smoke.

The Current California Debate

When the California law first took effect in 1995, it contained one provision I consider odd. Among the places considered not to be workplaces were casinos and bars. By comparison, restaurants were workplaces. A portion of a restaurant used as a bar was not a workplace. Pretty much any place you can go for dancing, karaoke, etc., has called itself a bar; so many non-smokers are completely left out of those kinds of entertainment.

The exemption for bars and casinos was first set to expire at the beginning of 1997. In 1996, the legislature and Governor amended the law to keep the exemption for one more year. The exemption finally ran out on January 1, 1998. Bars and casinos are now workplaces, and smoking is prohibited there.

Many bar owners and patrons are furious. Many are flagrantly violating the law. Bar owners are complaining that their business is suffering (nobody says anything about how business at bars benefited when smoking became prohibited everywhere but bars 3 years earlier). The legislature has stepped in. The Assembly has already passed a bill to reenact the exemption from January 1, 1999, to January 1, 2001. (A two-thirds vote is required to have any law take effect sooner than the following January 1, so the smoking ban in bars and casinos would still remain in effect for the rest of this year.) Prospects for passage in the Senate are uncertain.

The law as it stands is a good law (if anything, it is too weak). It does not need amending to give bars and casinos a break. Certainly there is no rush to amend it since the amendment won't take effect for 11 months anyway. Let's give it a chance. Let's see if the brouhaha over smoke-free bars passes just as the brouhaha over smoke-free restaurants did three years ago. Regulation of public smoking is well justified as being in the public interest.

Richard M. Mathews

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