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Old 04-06-2011, 10:15 AM
243 posts, read 197,278 times
Reputation: 166


Originally Posted by TexasReb View Post
LOL Well, I appreciate the compliment and return it with the belief of the same on your part. Or perhaps we are just talking past each other here. That happens too, sometime.

I can across a website which does a great job on presenting both sides of the argument we seem to be having. I am going to post a few excerpts below in reply to some of your points, then provide the link to the whole treatise at the end...

Let's take this one at a time... First of all, you are correct that the history of the definition and interpretation of public accomodations well precedes the Civil Rights Act of 1964. I never said different. However, as you also acknowledge, it is NOT seperate from the same as concerns this discussion/debate. Regardless, it is not a matter of you misinterpeting that actual statute one way or another. I don't think I brought up the CRA in that way (and if I did, then I didn't intend to).

No, what I am/was really getting at is that if you were merely trying to point out the difference in ones private home and a place open to the public (i.e. one of public accomodations), then you are not saying anything original at all and that we were not already aware of:

A "public accommodation" is a private entity that, unlike a home, is open to the public and is therefore limited in its right to exclude.

A simple definition and one that is obvious, has been cited before, and did not require your explanation. As to the limited ability to exclude segment? And too, relevent to the issue at hand, is that no one is being excluded from the said private property open to the public on a voluntary basis.

Which leads into that I am surprised that you would have the gall to bring up a failure of comprehension here. Because, it is you that, either thru obtusness or whatever, still fail to see obvious difference between truly public property (i.e. government buildings, hospitals, libraries, etc) and property which may be subject to public accomodations consideration but are still privately owned and operated. Too, the ever broad interpretation of the ADA act. And therin lies the danger many of us are trying to impart.

And by extension, that while there isn't much of an issue on prohibiting smoking on the former premises, for government to ban it within private business establishments -- regardless of the owners wishes -- may be prefectly legal and constitutional (since, yes, there is no "right to smoke"), but it also goes strongly against what many of us see as traditional notions of private property rights and classical freedoms in this country.

Too -- with trends the way they are -- there is no logical reason why restrictions now placed on said businesses should not eventually take in much more than smoking and even ultimately extend to ones home (see the article). And all in the name of "public health" to when taking into account that (whether it be you or somebody else...usually a lawyer out to make money) there is a deliberate desire to blur the lines between public safety and public health.

And see above. I come back at you with the same accusation. All this has been explained countless times before, so either we are talking past each other, or you really can't see certain distinctions, the dangerous precedents involved, etc...or refuse to acknowledge them. Or simply don't care about them (which it seems HTL is willing to admit).

Here is the main article, by the way; it seems fairly balanced. And it addresses the point many of us are trying to make. Which is -- again --that regardless of intent, that the path is there to use it to stomp out private property rights in a way that that goes against traditional notions of freedom.


Public Accommodations Laws and Smoking Bans - Property (http://www.law.upenn.edu/blogs/polk/property/2009/10/public-accommodation-laws-and-smoking-bans.html - broken link)

The controversy over smoking in public places is primarily a question of property rights. Do smokers have a right to the air around them or do non-smokers? Do owners of restaurants, bars, and movies theaters have the right to make this decision or do state and federal governments? Multiple property related theories have been used to justify or refute the implementation of smoking bans, from nuisance and negative externality to due process and equal protection clauses (Lambert 34, 35). Public accommodations laws provide a less common but potentially effective way to approach instituting a smoking ban. In this post, I will discuss a movement under the Americans with Disabilities Act (ADA) to use public accommodations laws to ban smoking in privately owned public areas.
What about enforcement? In Austin, the bartender can be fined if someone lights up in his bar, even if signs are posted.

I was once in a bar where someone was smoking out of sight of the bartender. The bartender had no idea that anybody was smoking.

What's the legal basis for that? I don't have to report a car speeding when I'm driving. It's kind of Big Brotherish to require an employee to report on the patrons.

There are a number of bars in Austin where the bartenders intentionally ignore the smoking ban but I am still wondering the legal basis for requiring workers to do a police officer's job.

Apparently the police don't want to patrol the bars looking for smokers so they've pushed enforcement onto the workers. Since many bar workers are not in agreement with smoking bans, they have to be fined to force them into agreement.

BTW, in Texas, health dept workers can not issue tickets. Only the police can do so.
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Old 04-06-2011, 02:05 PM
10,167 posts, read 15,825,473 times
Reputation: 5584
Originally Posted by getmeoutofhere View Post
It is completely and utterly separate from the CRA. It is a legal classification of property that falls between "private property" and "public property".

However, I've done everything from try and explain in it layman's terms to posting legal cases and articles that clearly explain the difference.

In light of the fact it appears I missed a post of yours earlier (No. 200), such could explain some of our failure to communicate. So let me do a bit of clarifying.

First of all, it seems we posted the same article. As I didn't see your earlier post, I did not know it was duplicated. No matter though, it still bears looking at again.

From your summation on the article (earlier) it appears we take different things away from it in terms of future possibilities and such. After careful re-reading, it seems fairly clear to me that the author indeed regards use of the ADA and public accomodations precedents as not being in the spirt of original intent (which was a main point of mine from the first time you introduced all this) and that they are indeed enroaching on private property rights as traditionally understood. Also (- the writer is less clear on this one concerning his personal stance) but at least somewhat appears to acknowledge that using "public health" as the justification to ban smoking in businesses can concievably be used to extend into private homes.

In a nutshell, once again, what I am maintaining is that your posting of definitions explaining that places of public accomodations fall (in a sense) between private homes and truly public places (i.e. belonging to the public at large) is not something that most of us were not already previously aware. Neither is the question of does government have a "legal/constitutional right" to ban smoking in private establishments open to the public under certain acts, statues, etc. which fall under certain statutes/acts applicable to places of public accomodation.

I get the impression that you seem to think that the above are the main points of contention, when in fact we already know all of it. It is just we consider legal definitions to pale in comparisson to the larger issue of just how far should government go in regulating what a business owner does on his own property. It is much more a principle revolving around traditional notions of freedom than any superficial quoting of the law. From another angle, we all know it CAN be done, but is it justified to actually do it? And what are the potential consequences if so? Several have been spelled out:

1. It is important more than ever to keep public safety and public health somewhat seperate in definition. One involves hazards within a public establishment that a person cannot be expected to discern for themselves. Or, exposure to obviously dangerous external elements (such as factory pollution, waste, etc) over which one has no control. And yes, of course, public health would naturally blend in with the above examples.

On the other hand, "public health" is dangerously broad. Thus, increasingly is being used to justify government intrusions in what have historically been taken for granted as simple matters of personal choice and business decisions. Smoking within a privately owned business being one of them. The key difference between the two terms is the question of whether or not the customer can avoid exposure to the said health hazard by way of personal responsibility and decision making (it is no wonder many lawyers love this blurring to line their own pockets).

Anyway, this is the real concern here. Regardless of whether or not a good case (and it can) be made for that second-hand smoking poses more of a threat than too much perfume, or using trans-fats, or too much salt, if public health is not carefully limited in scope, then there is absolutely no logical reason why they cannot be banned and regulated as well. TexasHorselady has posted several examples of this, in fact. And it appears at least one poster has no problem with any of this; believing that government has a "duty" to be nanny; and even a personal duty to save people "for their own good."

So I hope this might clarify a few things. At least to the point that even if we disagree, we are on the same general page.

Well, better get back to work. Rare is it so slow around here I have any time at all to read and reply from work.

Last edited by TexasReb; 04-06-2011 at 02:58 PM..
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Old 04-06-2011, 04:24 PM
Location: The Lone Star State
8,032 posts, read 6,808,865 times
Reputation: 5027
Originally Posted by TexasHorseLady View Post
Yes, contact your legislators about any pending legislation that you think contradicts what Texas (and the United States, for that matter) stands for.

Our founding fathers must be rolling over in their graves.
Yeah, and for a lot more than just this.
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Old 04-11-2011, 06:56 AM
Location: Philadelphia
607 posts, read 456,332 times
Reputation: 376
I haven't read the 33 pages of comments, but I skipped through a few and didn't see a particular point made so I'll try it here. If it's already been dealt with just tell me to go look for it! :>

Smiled wrote, "what do you all think of companies that refuse to hire nicotine users - and terminate existing employees who refuse to quit?
Are they within their rights?"

Technically I think in about half the states there's a "hire at will" law that lets employers dictate just about anything that's not "protected" under the state or local Constitutions. So in those states employers could not-hire smokers or fire them for refusing to quit, not hire fat people or fire them for refusing to slim down, not hire people who refused to wear pink underwear on their heads at all times (including at home if they're publicly visible) or fire them if they are caught sans pink underwear.

In the other half of the states there are laws about not being able to fire people for performing otherwise legal activities (e.g. smoking) at home, although I don't know if such laws cover weight and pink underwear.
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Old 04-14-2011, 04:00 PM
1 posts, read 986 times
Reputation: 10
Default Getting Practical Change

Recently I was not aware that similar bills had failed in the Texas legislative process in the past. Seems like a lot of people have a bit more understanding than I do on HB670/SB355. My question, especially for those opposed to the bills is

-What is the likelyhood of the success this year (is it really gonna make it?)

-How do you go about determining this when it seems so much goes on behind closed doors

-What strategies are you guys using to advocate for your position in an impactful way? (Or what are others doing that makes a difference in a political environment where smaller voices get drowned out by powerful interest groups)

Thanks for shedding a little light on this!
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Old 04-14-2011, 09:40 PM
Location: San Antonio
3,853 posts, read 3,941,151 times
Reputation: 4301
I'm all for it, as are most Texans. No one has the right to pollute a fellow human being's air. It's about time Texas caught up with the rest of the country.
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Old 04-14-2011, 10:04 PM
Location: Central Texas
19,052 posts, read 34,139,026 times
Reputation: 18830
How long have you been a Texan, thenewtexan? Most of the Texans I know are for personal freedom and individual responsibility first. It's sort of a tradition in this state.
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Old 04-15-2011, 03:41 AM
Location: Philadelphia
607 posts, read 456,332 times
Reputation: 376
New Texan, have you eaten at a McWhopperie lately? Read the article and check out the ten second video I took out here in PA showing how much you yourself are "pollut(ing) a fellow human being's air" if you have:

The Smokers Club, Inc. - BBQ is toxic and will kill you

and then think a bit about how handy it will be for PETA activists to walk down the path you've laid and use the gate you've opened.
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Old 04-15-2011, 11:13 PM
2 posts, read 2,757 times
Reputation: 20
Hey non-smokers!

Tell ya what: I'll give up my cigs when you give up your cars.

You don't poison me with your noxious fumes, I won't poison you with mine. Deal?

So lets get the TX Legislature to pass a bill banning smoking, but also banning cars, buses, trucks, etc. Then EVERYONE gets to enjoy clean air, not just the whiny non-smoking lobby.

If we all want clean air, we must all sacrifice, right? So they keep telling us. If you're still driving, you're part of the problem more than some guy having a cig inside an enclosed structure.

Anyone who has lived in Austin more than 10 years remembers how good our air quality USED TO BE. With so many new people moving here (and bringing their cars, of course), the air over downtown at 4pm is BROWN, folks! And guess what? that ain't cigarette smoke hovering over the city.


Use your noggins people. That's all I'm saying. Before you judge others so harshly, demanding that they give up their bad habits for the sake of public health, ask yourselves what have YOU done lately to improve air quality for your children and future generations? Have you given up your bad habit of driving an automobile yet?

Still paying almost $4/gallon for your fossil fuel fix? Heck, why don't we just raise the price of gas to $6/gallon (that's what smokers now pay per pack, thanks to the gov't "sin taxes.") and see if that might convince you to let go of the pollution-mobile.

Hey, it worked for smokers....raising the cost per pack made a lot of folks give up the habit. Yet some of us still grouse and pay it because we're hooked. How hooked are you on that car? Will you still be willing to keep polluting the air WE ALL BREATHE when gas is $12/gallon?

And what about my right not to have YOUR exhaust in MY lungs?

My offer still stands, non-smoking auto owners: You buy a bicycle, I'll quit smoking. It seems the only fair and reasonable solution for all Texans who want clean air.
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Old 04-16-2011, 09:34 PM
Location: Greenville, Delaware
4,726 posts, read 9,485,024 times
Reputation: 2561
I always wonder if they're still flouting the city ordinance in the bar at El Rancho Grande. Long after the no-smoking ordinance was adopted, they were still letting people smoke in the bar there. Only place in Austin I knew of where that was happening, though I'm sure there were other places (not the sort doctorjef would go to, however ).
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