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Tuesday 21 February 2006 The Non-Smoking Scam! The Founding Fathers created a Constitutional Republic for a free, independent and self-reliant people. One of the key elements of that government was the protection of the people from the government itself, and from what they called the “tyranny of the majority”. Such a tyranny could be perpetrated on any person, or minority group, by a majority, simply by voting away one or more of their rights. In more modern times, this tyranny is more often inflicted by the court system, rather than through the ballot box. The cornerstone of our protection from the government, and a tyranny of the majority; was the Bill of Rights. Private property rights were one of the most sacred rights that the Founders wished to protect. As part of the Bill of Rights, the Fifth Amendment states: “…. nor shall private property be taken for public use, without just compensation.” This so-called “Takings Clause” is at the heart of the present controversy. In earlier times, when our Constitutional Republic still existed, and we were a free, independent and self-reliant people; most Americans instinctually knew the importance of private property rights, so they would never presume to tell a property owner what he could, or could not do on his property! In such a world, individuals or organized groups, who did not like smoking in places such as restaurants, bars and night clubs, would do one or more of three things: They would tell the owner they did not like the smoke in his place, and that they would stop patronizing his establishment, if he didn’t ban smoking. They would try to persuade the owner that if he converted to a non-smoking establishment, he could serve a niche market of non-smokers, and in so doing, increase his profits. Non-smoking individuals, or groups, would use their own, or pool their capital, to open and establish restaurants, bars and night clubs, where smoking would not be permitted. In a Constitutional Republic, these three choices would be the only ones that would exist for non-smokers, and their groups. They would have no right to do anything else! Before I go any further, ask yourself why this country no longer exists, and why the non-smoking groups have not pursued these avenues if what they REALLY WANTED were smoke-free businesses that they could patronize! Think about it. Since we do not live in the world of The Founders, any longer, I am forced to press the issue beyond the obviously simple answer that a non-smoking ordinance, effecting private property, is blatantly unconstitutional under the Fifth Amendment, since any restrictions on the use of private property, lowers it’s value, without paying the owner just compensation! Ask the taxpayers of Galveston if they want to pay for the losses that these businesses will suffer, due to a smoking ban, and see how far this ordinance gets! Who are these enemies of private property rights; why are they REALLY doing this; and who is funding them? Is this a legitimate concern about second-hand smoke, or is it a scam? I know that there are individuals who are genuinely bothered by smoke in our local restaurants, bars and night clubs, because my wife and I are two of them! However, we would never presume that we have any right to try to dictate the environment that the owners create, or tolerate, in these businesses, outside of telling them what we like and don’t like; or ending our patronage. Most of the agitation for non-smoking ordinances is coming from three groups: The American Cancer Society, The American Heart Association and The American Medical Association. At first glance, these would seem to be groups that are concerned with people’s health, so their unconstitutional efforts to usurp other people’s property rights could be attributed to their uncontrolled idealistic zeal. However, a little research turns up an interesting fact. Most of their funding, for this crusade, is coming from the pharmaceutical industry! Now why would the pharmaceutical industry care about smoking in restaurants, bars and night clubs? They don’t. They are funding a movement to outlaw tobacco in favor of “smokeless nicotine delivery systems”! Guess who makes these! If tobacco is outlawed, the billions of dollars in profit that the tobacco industry currently enjoys will move into the coffers of the pharmaceutical industry! Get the picture? The first step in their plan was to outlaw smoking on government-owned property and airplanes. The next step is to ban it on private property that is open to the public. After that, it will be outlawed in many residential settings, using a variety of deceptive arguments, until smokers take the hint that if they don’t want to be hassled everywhere they turn, they need to switch to “smokeless nicotine delivery systems”! The sinister forces behind this money grab create all sorts of Red Herrings to confuse those who don’t understand, or care about individual freedom or property rights. For example, if you argue that customers don’t have to enter businesses with smoke levels that make them uncomfortable, they counter with, “Yes, but the employees don’t have a choice”. Of course they do; they can quit! I know; that’s much too simple a solution. Life has risks! Most people accept some kinds of risks as part of the conditions of the business or profession that they pursue, or the employment that they choose. Will these same groups insist that coal miners must work without going into coal mines? If they didn’t have to go into mines, they wouldn’t have to face the risks of cave-ins. Thinking that a coal miner would not actually have to go into a coal mine, or that a bartender would not have to go into a smoke-filled bar, to do their work, would seem to be nonsensical. But, not in today’s world! What will happen if property rights suffer another defeat at the hands of the Galveston City Council? Studies in California and Canada show about a 20-25% loss in revenue in restaurants, bars, and night clubs, after smoking bans are implemented. Anecdotal evidence from many other locations is about the same. In addition, since the value of real estate is ultimately based on the revenue it can generate, the values of the properties where these businesses operate will drop in value. Owners will take a hit on their income, and their real estate will decline in value, too! Eventually this will affect other properties, and reduce property tax collections. California Study Canadian Study Article from Lincoln Nebraska If restaurants, bars, and night clubs find their revenues down 20-25%, what will that do to their employees and to the food, beer and liquor wholesalers, and all of the other vendors that service these operations? Can you picture the ripple effect through the local economy? What recourse do businesses have if the non-smoking ordinance passes? They can individually, or collectively form a group to sue the City for their lost revenue, and the decline in their property values; although some owners will probably not have the funds available to do so. There isn’t any evidence, that I can find, that business owners have had success taking this route in other cities, but Galveston could be the first. If a lawsuit, or lawsuits were decided for the plaintiffs, what is the limit of the City’s liability insurance? Could Galveston be forced into bankruptcy? There are many property-rights groups forming around the country with the goal to stop the erosion of the Fifth Amendment. They have recently suffered a set back with a loss in a Supreme Court case. These groups, lead by the Cato and Von Misses Institutes, need a new test case to try to reverse this trend. Could Galveston, and its non-smoking ordinance, provide a national platform on which to fight this battle? If so, libertarian and conservative legal organizations might be persuaded to fund federal lawsuits, and to lead the fight to restore Fifth Amendment rights in the City of Galveston. Congressman Ron Paul is a strong advocate of property rights and may lend a hand, too. In addition, the owners who suffer losses will certainly attempt to defeat the politicians who vote for this ordinance. When the damage to the local economy becomes obvious, they will have plenty of support. Legal research is also underway to find the best precedents to use to try to pierce the immunity politicians hide behind, so that they can be held personally liable for “recklessly ignoring property rights, when they were aware of the almost certain damage that they were going to inflict upon the owners”. In its most basic form, the choice before the Galveston City Council has nothing to do with smoking. The most fundamental principle at stake is whether or not we will yield to the sinister forces that wish to control everything that we do. If the City Council supports these forces, then they should not stick it to us in dribs and drabs. They should just seize control of all of the restaurants, bars and night clubs in the City, and then dictate what will be allowed to be served in them, and every facet of the environment inside of them from the dress code, to whether or not you can wear perfume or after shave, whether or not you can chew gum, the type of music that can be played, and every other aspect of their existence. This has worked very well in the former Soviet Union, East Germany, and Cuba, and is obviously the best solution for Galveston. Government ownership of these establishments will make us a much safer and healthier city! Secondly, will the City Council allow itself to be scammed by the various special interest groups that claim to represent health interests, but actually are the pawns of the pharmaceutical industry that wants to force smokers to switch to “smokeless nicotine delivery systems”? These same groups are already starting crusades to pass laws to tell us what we can and cannot eat, using funding sources that have similar conflicts of interest. Finally, are we going to stand idly by and give up our property rights a piece at a time because someone else doesn’t like what we do on our own property? It may be of little interest to many in the City whether or not they can smoke in Whisky’s or Poor Michael’s or Fish Tale’s or Beno’s, but a smoking ban in these places will have an effect on the local economy that will have a very negative impact on everyone’s lives! In addition, if this assault on property rights is not stopped, dead in its tracks, someday the City may decide to take your house; and there will be absolutely nothing that you can do about it! It is already happening in several areas around the country, where they have ignored early warnings, such as this crusade against smoking in privately-owned establishments. Mayor Lyda Ann Thomas Phone Number: 797-3510 lydaannthomas@cityofgalveston.org lydaannthomas@aol.com Patricia Bolton-Legg District 1 Phone Number: 762-6544 Fax Number: 762-1247 Address: P.O. Box 779, Galveston, TX 77553-0779 patriciabolton-legg@cityofgalveston.org Cornelia Harris-Banks District 2 corneliaharris-banks@cityofgalveston.org Joe Jaworski District 3 joejaworski@cityofgalveston.org Barbara Roberts District 4 Phone Number: 797-3510 barbararoberts@cityofgalveston.org Danny Weber, Sr. District 5 dannyweber@cityofgalveston.org Jackie Cole District 6 jackiecole@cityofgalveston.org $$$$$$$$$$$$$$$
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