Florida Dopers: Smoking Ban Amendment

Great Debates
41

Then how far can a customer expect the business to obligate him? If a restaurant owner has separate smoking and non-smoking sections, and a super sensitve person cannot be seated in the non-smoking section without being bothered anyway, what more can the business do? Eliminating the smoking section compromises his obligations to those customers who may smoke, correct? Doesn’t the customer bear some responsibility to make sure s/he is not bothered by the smoke, either by not eating in the restaurant in the first place or asking to be moved further away from the smoking section?

I’m trying to understand where the customer’s self-responsibility ends and the business owner’s accomodation begins.

42

Ivylass, it’s not at issue here (probably). My posts were attempts to knock out this silly issue of “rights” from the discussion.

With minor variance from jurisdiction to jurisdiction, the affirmative duty of the occupier of a premises to invitees is to inspect the premises for hazards and warn the invitee of the hazard/eliminate the hazard.

The question that then arises is whether second-hand smoke constitutes a hazard. On current evidence, it does not - at least not in a legal sense.

Sua

43

Hmmm, I don’t consider the Restatement (Second) of Torts equivelent to a cereal box, but if you do…

Man, I hope you didn’t write any of that on your Torts final when you were a 1L. First of all, the traditional invitee/licensee/trespasser distinction was used only in determining what obligations the landowner had to the person upon his land. Yes, the store owner would be liable to an invitee for failure to warn of existing hazardous conditions (providing that failure was negligent, B<PxL, invitee status just voids the immunity that would normally apply.) FYI, very many jurisdictions have abandoned that model and no longer use those classifications.

However, being treated as an “invitee” for purposes of tort liability in case of injury to the person having entered upon the land does not alter the fact that the entry is still a privileged trespass. The analysis of the injury involves a different set of rules and terminology than does the analysis of the intentional tort. “Trespasser” in the case of landowner liability is different than “trespasser” in the case of an action for trespass to land. I know my Torts professor would have cut me down in class if I’d attempted to mix those two distinct uses of “trespasser” together.

If I tell you to hit me over the head with a spatula and you do it, it’s still a battery even though I gave consent, it’s just a battery that happens to be privileged. In terms of the intentional tort, trespass to land, you commit that tort when you intentionally enter upon my land. My consent doesn’t change the fact that you committed a trespass.

44

I only asked because if there was a law against smoking in a public place, that’s all. Or, say the actress didn’t want to actually smoke the thing.

Me, I’d get one of those herb sticks and light it-Smoker’s Option? Or something like that.

45

::sigh:: Rexdart, my definition of “invitee” - “a person with an express or implied invitation to enter or use another’s premises” - was a direct quote from Black’s Law Dictionary. My grade in Torts was not in jeopardy (full disclosure: I only got a B+ in Torts).

As for the rest, it is hairsplitting at best. The simple fact is that a business owner who brings a cause of action in trespass against an invitee would have his/her case dismissed upon a motion to dismiss (and his/her attorney would likely be sanctioned) - he/she cannot state a cause of action upon which relief could be granted.

In any event, you ignored the larger criticism - your overly narrow definition of “rights.” Rights are not only those that are provided by the government - individuals and corporations can grant rights to other individuals and corporations. Here, a restaurant/bar/store owner has indeed granted individuals the right - subject to whatever conditions the owner or the law imposes - to enter the premises.

Sua

46

Check that–it’s a filthy, disgusting addiction perpetrated by…well, the amount of offense I take at the implication that I am “weak-willed” or “some moron” just because I choose a vice which is detrimental to my health is not worth elaborating on this side of the pit. Go find yourself an insulting pit rant, as vicious as they come, and assume it’s between us. There. I’m done.

And this isn’t a debate on what smokers are or are not.

However, I am a smoking Floridian. No need to say how I’ll vote.

My mother is extremely allergic to cigarette smoke. If I see her within two hours of having had a smoke, her eyes water, and she has a hard time breathing (and yes, I take extraordinary measures to avoid this). She will go into any restaurant and have no problem whatsoever with sitting in the non-smoking section.
When I go out, I’m stuck in the cubicle reserved for evil pariahs who pollute their own bodies. The wait for a seat is longer in many restaurants; often fewer than ten percent of the tables are in the smoking section, heavily walled off from the rest.
If cigarette smoke bothers you so much that it can ruin your meal from across the room, god help the cook who burns your toast! What about people who wear excessive amounts of perfume or cologne? If I’m in a restaurant and I’m sitting near someone wearing patchouli (without a doubt, the most offensive odour I can imagine), I move. If there were a non-patchouli section, I’d request it, and consider myself lucky to have that option. I wouldn’t try to refuse the right for people who choose to smell that way to enjoy a meal at a restaurant.
Here’s a scenario: Smoking is banned from all restaurants (which is really what we’re talking about. AFAIK, the only other workplace that allows smoking might be a garage. And the amount of exhaust in the air puts tobacco to shame); all smokers have to smoke outside. The logical place for us to burn our butts is right in front of the door. Ask yourself: would you rather catch an occasional vague, errant whiff of tobacco from across the room? Or have to walk through a cloud of it just as you’re entering the building?

The amendment to the constitution is just one step closer to a complete prohibition on cigarettes. And I think we know how well prohibitions work.

Oh, and andros, you said,

Speak for yourself, Sparky–the stuff has made me sick ever since my sister proudly announced at the dinner table that tofu was “bean crap.” :wink:

47

I think the other side is couching this as a health issue, trying to protect the poor children and the elderly from those evil clouds of toxic fumes.

So, I guess the next step is, if you are a smoking parent with a young tot, you must immediately quit your (legal) habit or risk losing custody of your child. After all…“it’s for the chilllllddddrreennnnn.”

I don’t smoke, and sitting in the non-smoking section is fine enough for me.

48

Drinking in moderation has been shown to have a salutory effect on health, and not everyone in a bar drinks to excess. Smoking, on the other hand, has only one possible health benefit (delayed onset of Alzheimer’s).

This is not an argument for allowing smoking in bars.

49

Not everyone in bars minds cigarette smoke, either.

50

Not everyone likes it, either. Just because someone drinks alcohol doesn’t mean they want tobacco smoke in their lungs, now does it?

Any perceived “right” you have to smoke ends precisely at my nostrils and mouth. Period. You do not have the right to put smoke into my lungs and air passages. Period.

If a business owner decides he wants to allow smoking on his premises, well, that’s his prerogative. I’ll vote with my dollars.

51

I’m with pldennison

I’m a californian who loves the anti-smoking laws. Cigarette smoke, quite literally, makes me want to vomit. I’ve tried exactly one cigarette in my life (and several clove cigarettes), and I almost hurled. To this day exposure to cigarette smoke gives me the dry heaves. I have several friends who smoke and all respect my wishes and smoke outside. No problem.

What is so hard with stepping outside for a moment to grab a smoke? People do it all the time here. Smoking is invasive, obnoxious, and most importantly, dangerous. Should I be allowed to smoke my Mustard Gas Slims next to your table?

52

Because you’re asking the gov’t to handle something that should be handled by society. If I’m sitting in the smoking section, then, no, I should not be upset that the smoke from your cigarettes is drifting over to my table. If I’m in the non-smoking section and it still bothers me, I can ask to move. If I’m suffering from a bad cold, then I will find a restaurant without a smoking section.

If I’m a restaurant owner and the majority of my customers are non-smokers, then my smoking section will be smaller. If it gets to be so small as to be insignificant, I can eliminate the smoking section all together and advertise as a smoke-free restaurant.

If I see that restaurant A is now smoke-free, I can set aside a smoking section for those customers who no longer want to dine in Restaurant A.

See how I did all that without the force of law?

53

Which sounds more fair:

Alternative 1: Nonsmokers who cant tolerate cigarette smoke are not allowed to go to any establishment where people smoke. They are confined to the few entirely non-smoking establishments that exist (and just out of curiousity, what percentage of establishments under your Invisible Hand Of Smoking theory are non-smoking?).

Alternative 2: Everyone can go anywhere. If you want to smoke, step outside.

Door #1 sounds great for you because you don’t have to do anything. I, on the other hand, like going out, and would be rather sad if I found out that 90+% of the places I want to go to I have to inhale toxic fumes to do it. Door #2 sounds like the most fair, sensible way to handle it.

54

Smokers: America’s lepers.

55

Speaking of fairness, then, which sounds more fair:

Alterative 1: I’m a business owner who wishes to allow people to smoke in my business. If you don’t like the smell of cigarette smoke, go somewhere else (the pldennison approach, which works fine for me).

Alternative 2: Because some of my customers who need not choose to frequent my business decide that they don’t like the smell of cigarette smoke, they get the government to ban it, thus trampling all over my property rights and inconveniencing those people who wish to both frequent my business and engage in their perfectly legal habit.

I mean, Christ, no one is forcing you to breathe cigarette smoke; you’re choosing to do it by frequenting a place that has it! They don’t have a right to make you inhale it, but by the same token, when you put yourself in a situation in which you should expect to inhale it, it’s your own damn fault if you do, and I’ve no sympathy for you.

In a non-smoking section of a restaurant, of course, you should reasonably expect not to breathe the vile stuff, yes, agreed. I just don’t think this remotely approaches a reasonable justification for banning smoking sections entirely when there must be other possible alternatives. For instance, one could give tax credits for smoke-free restaurants to encourage their proliferation. Or we could enforce more separation between smoking and non-smoking. There are bound to be solutions which serve the purpose of keeping your nostrils from being offended without inconveniencing the smoker.

And as blessedwolf points out, even if you do ban smoking inside, the smokers will just congregate near the door, thus making you retch before you even get inside; I’m not seeing how this is really helping. Of course, you could just make them congregate by the dumpster or something, but really, this is ridiculous; door #2 is an asinine way to handle the problem, and only looks good when compared to door #1.

Actually, tully, where DO the smokers in California go when they’re at a bar and decide a cigarette is in order?

56

I know of at least two restaurants in my small town that are smoke-free. If the demand were there, I’m sure there would be more. But this ban would create an artificial demand, something that should be handled by the marketplace.

Basically the proponents are asking the gov’t to solve an issue that should be handled by society.

57

g8rguy, ivylass: How do you feel about public masturbation? Aren’t laws that prohibit public masturbation just creating an artificial demand for masturbation-free public places that wouldn’t otherwise exist?

Nobody forces you to watch people masturbate. If you’re offended by other people masturbating, don’t go to places where people do that.

We have lots of laws relating to public masturbation. And the harm from public masturbation is a lot more speculative than that from public smoking. If we can ban masturbating in public, we can certainly ban smoking.

58

“Cannot state a cause of action upon which relief could be granted”, you say? You think he’d get a 12(b)(6) motion to dismiss granted on that? First Torts, now CivPro. If he brings a claim stating the common law elements of trespass to land, that would have to survive a 12(b)(6). It does state a cause of action. The privilege of consent is an affirmative defense. As such, it has to be proven through depositions. Once pretrial motions have been completed, and depositions are taken, if there is no question of material fact as to the issue of consent then summary judgment could be entered. Once that all happens, if a judge thinks the suit was clearly in error and frivolous, perhaps a Rule 11 sanction could be brought. If the storeowner produced ANY evidence at all that the person didn’t have consent then summary judgment couldn’t be entered. The definition you use of invitee is correct (though quickly becoming archaic), but is irrelevant in an action for trespass to land, in which consent is the issue.

Individuals could grant rights to other individuals and corporations via contract. I didn’t claim that only government could grant rights, simply that it was the body which did so in respect to proper use of government land.

The owner of the restaurant/bar/store does not grant the customer a “right”. He gives the customer a “privilege”, and that privilege is called “consent”, and that’s what makes the trespass non-actionable. A privilege can be revoked at any time for any reason, as long as the reason isn’t in violation of the US Constitution or federal law. He couldn’t terminate consent to people based solely on their race or ethnicity, because that would violate the Civil Rights Act of 1866, and it’s 1964 descendant. Since it’s a privilige, he could terminate for any other irrational reason he wanted, even something like not liking the customer’s hairstyle (so long as he didn’t do it systematically in a way that had a disparate impact on one ethnicity.) If it were a right, it would only terminate under specific circumstances.

Until there is a contractual relationship, there are no rights between two people. If John says I can come onto Blackacre to hunt deer, then I have a privilege to enter Blackacre. It is not within the power of any court to force John to allow me onto Blackacre if he changes his mind at any time. If John says I can come onto Blackacre to hunt deer if I pay him $50, and I accept, then I have a right. A court has the power (it wouldn’t do it, but it could) to force John to allow me onto the land. If it can’t be enforced by the court system, it isn’t really a “right”, it’s merely a privilege.

59

Most smokers are considerate people. I don’t smoke in a friend’s house unless he himself is a smoker and says it’s ok. If I’m out with my friends and they insist on the non-smoking section, I oblige. If we sit in smoking, I don’t smoke while anybody at the table is eating. It’s called manners, and most smokers do have them.

If I go to a smoker’s house, and he says “go ahead, light up, here’s an ashtray,” I light up. If other guests in the house don’t like it, they can leave. The host can decide between having me as his guest and allow me to smoke, or to tell me not to smoke for the sake of keeping his offended guests around. It’s up to him. I see nothing wrong with that.

So if I go to a restaurant or bar and the owner says (either personally or through store policy) that I can go ahead and light up, I will. If other patrons don’t like it, they can leave. The owner can decide between having me as his customer and allow me to smoke, or to tell me not to smoke for the sake of keeping his offended patrons around. It’s up to him. I see nothing wrong with that.

Having to step outside can be rather inconvenient sometimes. If I go to a non-smoking establishment, or to a bar with friends who insist on sitting in the non-smoking section, then I deal with it. I shouldn’t have to go outside otherwise. In those rare cases in which someone nearby would actually be put into danger by my smoking, asthmatics or severely allergic people, I would consider that. Still, those people should consider not frequenting the establishment. People going to a smoking establishment and/or sitting in the smoking section consent to exposure to each other’s smoke. We all want it that way. So if you don’t like it, don’t come to our place.

60

This is precisely my point, ivylass. The demand is not there. And I am forced to inhale smoke because almost every bar that doesn’t have a ban is filled with cigarette smoke. You say: “Fine, don’t go to bars then if you don’t like smoke.” But I like bars. I like drinking, socializing, etc. I don’t want to have to stay home every night just because some people are too lazy to walk 20 feet outside to smoke a cigarette.

Cmon, g8rguy, surely you understand the difference between walking through a smoke cloud and sitting in a room filled with smoke. Its not even close.

I sympathize with the proprieter who feels his property rights are being taken away. I just don’t believe making smokers go outside to smoke is much of an intrusion on anybody’s personal freedom.

Outside, and nobody seems to have a problem with it.