Where There's Smoke ...

I don't usually address purely local topics here, since the internet famously reaches out to pretty much everywhere. But I think smoking bans are kind of like the internet, in that they are also nearly ubiquitous, at least in the United State. And, in my area, we're acquiring a fairly restrictive one.

A disclaimer is probably appropriate here, since the nicotine seems addictive enough that when the addict writes or speaks, it's often reminiscent of that giant talking cigarette that Garry Trudeau used to draw in "Doonesbury." So, in the spirit of full disclosure: I do not smoke; I have never smoked, not the tobacco, not the ganja, not the crack, not the whatever-else-there-may-be that can be smoked, not even experimentally, not even one time, unless you count "secondhand" exposure; I positively hate smoke, and will go far out of my way to avoid it. Having spent my childhood in a small house in which the parents were enthusiastic smokers, I never for a moment had the slightest interest in doing that to myself. End of disclaimer.

From the local news story:

Starting this summer, Fort Wayne residents will likely have far fewer places to light up.

After nearly two hours of debate, the Fort Wayne City Council overwhelmingly supported stricter citywide restrictions on smoking but provided an exemption for tobacco stores.

The council voted 7-1-1 to support an almost complete ban on smoking in public places throughout the city. The council will take a final vote on the issue next Tuesday, but preliminary votes are almost always an exact indicator of final votes. If the ban is approved next week, it would take effect June 1.

Councilman Tim Pape, D-5th, said the decision over smoking restrictions should come down to whether the rights of businesses to choose how they do business outweigh the rights of people to breathe clean air. He gave a presentation listing the numerous health problems, and deaths, caused by smoking and secondhand smoke.

“Tobacco is an extremely dangerous, dangerous product,” he said. “One of the best ways to reduce smoking is ban smoking in public places.”

Quite apart from questions of smoking -- both first- and second-hand -- and health, the ongoing dispute interests me in terms of logical consistency and as it illustrates the changing meanings of the terms public and private. We frequently describe ourselves as being "in public" even though we occupy private property (property not owned by a unit of government); in that sense, any place that presumptively admits all or most people, or even any place from which a person can freely be seen from "public" places, itself becomes a "public place." (Mother to improperly-dressed child: "You can't go out in public that way!") The open questions, it seems to me, are: (1) what are the rules or criteria by which we can distinguish between "public places" and "private property?" and (2) what is the legal effect, if any, of such a distinction?

I take it that everyone this side of absolutist anarchism would probably agree that the applicability of some laws should not depend on the location of the offense. If murder, rape, and robbery are to be proscribed by law, presumably the proscription applies in my kitchen just as it does in the center of Main Street. Similarly, I take it that everyone this side of absolute totalitarianism would agree that the law must recognize and account for some private vs public distinctions: the fact that the Board of Health has something to say about how cleaning supplies may be stored in a school cafeteria shouldn't mean that its minions can breeze into my kitchen for a snap inspection. Is there some generally agreed-to principle to which we can refer and appeal in evaluating proposals between these two extremes? I don't think there is one that is generally agreed to and consistently applied; I do think that our failure to think these matters out systematically has put us where we are today: a situation in which raw power and the loudest voices substitute for that missing principle, and in which folks like 5th District Councilman Tim Pape furrow their brows and set about "weighing" competing sets of alleged "rights." That's a little troubling to me, purely from process considerations. Do we have any reason to think that our city councils are populated by accomplished moral philosophers? Next month, will Mr. Pape begin to balance my "right" to speak freely against his "right" not to have to hear things that he finds uncongenial? Which way will his pointer incline?

They say (just who are "they," anyway?) that the devil is in the details -- but sometimes, I think, a little humor is in those details, too. You see, this isn't the first smoking restriction that the government of Fort Wayne has imposed; a few years back, the philosopher-kings of the Fort decreed that eateries inside the city limits had to either forbid smoking, or provide completely-enclosed, separately-ventilated areas in which the smoking could occur. Those restaurant owners who chose the second way incurred substantial remodeling costs. Under the new regime, those costs are purely wasted. But the P-Ks may have a remedy:

Crawford, the author of the outright ban, said granting exemptions and grandfather clauses would create an enforcement nightmare. Under the ordinance, enforcement of the law will be handled by the health department, city fire department and city police department.

Didier also said many restaurants spent money to comply with the city’s existing laws, and it was unfair to ask them to make changes now, less than a decade later. Pape opposed the amendment but said he would be receptive to see whether tax credits could be given to businesses that invested in separate smoking rooms.

Ah, tax credits! That means less income for the government. Now, it might mean that the local government will spend less money, by the amount of the tax credits. Hey, don't laugh -- it's possible ... and then, too, it's possible, as Wayne Campbell said in Wayne's World, that monkeys might fly out of my butt. More likely, this tax credit would simply be made up by the tax base as a whole; in other words, the city council made a little boo-boo, for which they will graciously force all of us to pay. Why do I describe this as "humor?" Better to laugh than to cry, I suppose; and one or the other seems to be called for.