Blowing smoke on our freedom to choose?

Written by Byron Williams

Thursday, 03 March 2011

I have often opined that a part of our democracy demands that we sometimes must support issues with which we may fundamentally disagree because the specifics of the issue can be trumped by the overall impact of what is proposed.

Senate Bill 575 may very well fall into this category. Introduced by State Sen. Mark DeSaulnier, D-Concord, SB575 claims that it would close loopholes in California law that exposes workers to secondhand smoke.

SB575 states:

"The Legislature finds and declares that regulation of smoking in the workplace is a matter of statewide interest and concern. It is the intent of the Legislature in enacting this section to prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state."

In the spirit of full disclosure, I enjoy cigars. I have written on numerous occasions the esprit de corps that occurs at a tobacconist is practically universal. The camaraderie cannot be duplicated.

SB575 not only includes places where smoking is already prohibited such as public common areas, if passed, it would expand to private clubs.

This would essentially make it difficult for such establishments to remain in business. Supporters of SB575 would argue they are trying to protect employees from the dangers of secondhand smoke. But to accomplish this goal they ignore existing laws and a fundamental value of our democracy.

At a time when California faces a $25.4 billion deficit it seems nonsensical that anyone would use their time in the Legislature to enact laws that would add to the unemployment roles, put entrepreneurs out of business, not to mention loss of revenue generated from excise and payroll taxes.

I don't deny the potential impact of secondhand smoke, but rarely are the findings qualified. How much secondhand smoke, for how many hours, days, months, and years does it require to increase one's risk for cancer?
How much Coca-Cola, which has been linked to cancer, must one consume to increase their risk?

In addition to the myriad laws passed by local municipalities, California has banned smoking in all enclosed workplaces since 1995 -- restaurants and bars (bars were excluded until Jan. 1, 1998).

Proponents of SB575 suggest they are closing a loophole in the California's Smoke-Free Workplace law.

But loopholes are generally understood as a mechanism to circumvent a system or law through ambiguity or omission in the text.

That was not the case in Section 6404.5 of the current Labor Code. The so-called loophole is clearly stated in the law.

Factoring that laws cannot simply be made for the majority, but also the minority, certain exemptions were made including workplaces with five or fewer employees (as long as all workers consent and persons under 18 are prohibited from the smoking area), retail or wholesale tobacco shops and private smokers lounges (i.e. cigar bars).

Moreover, Proposition 65, passed by voters in 1986, requires that all business must post if potentially cancer-causing agents are on the premises.

I realize an overwhelming majority would support SB575 at first glance. I might as well if I did not know the facts. But one's position for a law cannot be based on the specifics, if we agree or disagree with a particular issue.

Are there larger ramifications to consider?

Given that the California Highway Patrol subjects itself daily to cancer-causing fuel emissions, to follow the logical thread of SB575 would be to either require that all CHP wear hazmat suits or ban all cars from the highway.

But don't stop there: Why not ban all pedestrians from walking in San Francisco between 9 a.m. and 5 p.m. to protect them from breathing emissions.

To ban private clubs from participating in a voluntary act seems counter intuitive to American democracy -- rendering all behaviors at the mercy of the feelings of the majority.

When has prohibition been good for America? Did it stop the consumption of alcohol or did it create an underground market that could not be taxed?

For the good intentions it proposes, support for SB575 ultimately appeals to the self-righteous impulses that we all possess. The problem with such desires is that they are always directed toward the behavior of the "other" person.

The only way one can support the spirit of this legislation is to assume they will never have a freewill choice that a majority will one-day find objectionable.