Monday, February 22, 2010

Tell the Government

I was reading some of the anti-smoking stories from around the state and I kept coming across the same theme. It is captured in this quote I found in the Standard Times: "They can't say that the government is telling them what to do because they are telling them what to do, the voters themselves, its by the people. The people are the ones that are going to say whether it goes smoke free. Its the voters of San Angelo," by Carol Kahutek of Smoke Free San Angelo. This is a total misrepresentation of this petition and the governments roll here.

To begin with, this initiative is a request from a small committee for the local government to regulate smoking city wide. The signed petitions are the procedure needed to put the measure on the ballot of an election so the city government can get voter reaction. If a majority of those voters favor the petition, the government will turn the proposal into an ordinance and assume the authority and responsibility for this new law, just like they do with every other ordinance on the books. They will use the new law to tell people what to do.

At every step in this process, the government has been at the center. This is not the government not telling us what to do. This is one small group of people trying to convince a majority of voters to force the government to impose their will on another group of people. This is all about trying to force the government to tell an unpopular minority what to do.


  1. Actually this is a health issue supported by the majority of San Angelo’s population. Rather than taking a vigilante approach they are petitioning their elected officials to protect them, their families, their employees and their businesses from the ill effects of tobacco smoke.

    If tobacco smokers respected the right of non-tobacco smokers to enjoy a smoke free public environment non-smokers would not need to ask their elected officials to intercede.

    However I do not support the way San Angelo City Council is handling this issue. It is my opinion that the petition has not met the requirements laid out in the San Angelo City Charter.

    It is my opinion the San Angelo City Council has shown favoritism and the San Angelo City Clerk has shown favoritism by attempting to expedite the process and disregaring the rules set out in the San Angelo City Charter.

    I am in favor of banning cigarette smoking in public places but I am not in favor of the San Angelo City Council or San Angelo City Clerk “bending the rules” to pass an ordinance they favor.

    The San Angelo City Council and San Angelo City Clerk are required by the nature of their positions of trust to treat all issues impartially and to follow the rules set out in the San Angelo City Charter.

  2. Just a few errors Anon

    It has yet to be determined that this measure is "supported by a majority of San Angelo's population". All we know now is enough people support something like it to obtain the required signatures. I can say with confidence very few of the signers, or anyone else has read the entire 12 page proposal.

    I dissent from your allegation that Council and Clerk has "shown favoritism". Were Council to support it, the petition would be superfluous, Council may enact such an ordinance anytime it has 4 votes in favor. As to Clerk Ramirez, she was legally allowed to take longer to review the signatures, that she managed it in four days is only testament to her efficiency.

    Actually Ramirez' initial ruling was that petition had failed as it did not have voter registration #s as required by Charter. Petitioners responded with case law exceptions close enough to "on point" to be viewed as a possible threat of litigation. Looking at it from that point of view, I quite understand the reversal and validation. To be sure, petition did NOT meet the black-letter requirements of Charter or of Election Code Chap. 277, but case law is close enough to justify avoiding a pricey lawsuit.

    You support a legal ban on "smoking in public places". I contend this 12 page proposal redfines "public places" in ways not everyone understands.

  3. You missed my point. I have seen a number of the signed petitions which do not have the voter’s registration number as clearly required by the San Angelo City Charter.

    The San Angelo City Clerk does not have the authority to override the San Angelo City Charter. Accepting a petition which does not meet the rules laid out in the charter is unacceptable.

    While watching the tapes of the San Angelo City Council Meetings the city manager, the city clerk, San Angelo’s mayor and council members have referred to the city charter numerous times.

    My point is that all petitions must meet the requirements of the city charter. Not just the petitions the city bureaucrats and elected officials support. All the rules laid out in the city charter must be followed, not just the rules which favor their views.

  4. As per your comments about the efficiency of the San Angelo city clerk’s office I contend the rush to judgment showed favoritism, lack of proper procedure and a lack of professionalism.

    As per bowing to case law there has been no public disclosure of this “fact,” as the claim is probably exaggerated or false.

  5. A further thought comes to mind, the San Angelo City Charter is still intact and shows no evidence of being struck down in any part by the judicial system.

    I doubt the “anti-smoking committee” has the financial resources or the cohesive will to engage the city in a legal battle. However I believe the handling of the petition by the city clerk’s office leaves the door open for those who oppose an anti-smoking by-law to pursue legal action against the city.

    The “legal” definition of “a public” place contained in the proposed ordinance is more offensive to a tobacco smoker than a non-smoker.

  6. You are correct, our Charter has not been "struck down" by the judiciary. A good way for it to be would be to encourage litigation directed at the City: litigation that would be a) expensive; and b) unlikely to prevail.

    You say, "I doubt the “anti-smoking committee” has the financial resources or the cohesive will to engage the city in a legal battle." Let's see; the smoke-nannies are backed by the American Cancer Society, a well funded group, which may regard San Angelo as a test case. The affected businesses don't have so much as an ad hoc organization supporting their interests. If I had to bet a paycheck on which side is more likely to litigate, my bet goes to the smoke-nannies.

    Then: "The “legal” definition of “a public” place contained in the proposed ordinance is more offensive to a tobacco smoker than a non-smoker." The author of the article to which you are responding, Jim Turner, has never smoked. I doubt the average smoker has delved into the legal hair-splitting much more deeply than "Ya' mean I got to go out in the rain to smoke at MY beerjoint?".

    I find this redefining of a "public place" to be offensive to the rights of the OWNER of any business, whether that business allows smoking or not. Were I objecting on the non-existent "smokers' rights", I would have jumped up and objected way back when truly public places such as all gov't buildings, hospitals, etc. banned smoking many years ago. I did not do so. I viewed that decision as the prerogative of the business owner/manager, and I was free never to darken their door if smoking were that important. I must add, the smoke nannies have that freedom now. I am still waiting for someone to name a single place a non-smoker must go which allows smoking under current practise in San Angelo.

    San Angelo voters are a contrary lot. The fact we are one of the last cities to elect, rather than appoint, a Police Chief has not changed their minds at all. They seem to revel in it, be quite proud to tell the world, "we don't care how Austin does it, this is OUR town".

  7. There is a difference between public places and public property. Hospitals banned smoking because of the health issue.

    Defining public places as a place where the public gathers is not new. Businesses must provide a safe environment for customers.

    Taxes and other regulations imposed on local businesses are far more harmful than a tobacco smoking ban.

    San Angelo needs a full time mayor rather than having the daily affairs of the city in the hands of a tax and spend happy bureaucrat who has no respect for local tax payers or business owners.

  8. Public places are indeed different than public property. They are also not the same as private businesses. Redefining every private business with employees as a public place is not right.

    The smoking ban might be somewhat less egregious than high taxes or bad regulations and somehow that makes it Okay? Bad shouldn't get a pass just because it is not quite as bad.

    I also fail to see how a strong mayor system has any relevance here.

  9. "I also fail to see how a strong mayor system has any relevance here."

    The same relevance as a statement concerning an appointed police chief.

    “Redefining every private business with employees as a public place is not right.”

    The bylaw has not been approved yet, no doubt this issue will be hotly debated. However the business owner and employees are entitled to safe and healthy tobacco-smoke free environment.

  10. Two basic issues:

    First, let's look as San Angelo's voting record. Last week, 11,225 people in Tom Green County took the ten to fifteen minutes it takes to vote in the primary elections.

    If the smoking-ban ordinance had been on the ballot, it would have taken only 5613 votes in favor to carry the ordinance.

    San Angelo's "registered" population for last year's mayoral election was just a little over 65,000 people. Simple math: 5,600 of 65,000 means it would have taken only eight percent of registered San Angeloans to force their will on the other 92%.

    That is what small activist groups of people do. They will not take personal responsibility for their own lives. Instead, they use the force of government to make others change their behavior to satisfy the activists.

    Second, the ordinance clearly states that any business, even a HOME BASED BUSINESS, would come under the ban if it had more than one non-family employee. It does NOT provide for 'working hours'. Thus, an individual who works from his own home would not be allowed to smoke there, even in the middle of the night. A man's home is NOT a PUBLIC PLACE.

    I suggest you go to your favorite smoke-filled sleezy bar that you want to patronize, and ask the owner to ban smoking there. It should be his/her decision; not yours. If enough people want it smoke free, it can happen. Even zentner's Daughter is smoke free.

    Take responsibility for your own life. If you are afraid of second hand smoke, don't go to places where smoking is allowed. That's where YOU have the power of choice. Don't use the force of government. You may not like what they ban next.

  11. First of all a home based business is not permitted to employ non-family members.

    Perhaps the silent majority (92%) of voters agree with the actions of the few who have stepped forward to speak out against the ill effects of tobacco smoke.

    The history of civilization has been led by small groups of individuals or single individuals who have had the courage and the audacity to challenge the status quo.

  12. The proposed ordinance is some twelve pages long. It's an interesting read, especially for those who can't be bothered with the details. This isn't about smoking; it's about the intrusive power of government into private lives.

    The ordinance clearly states: "A private residence is not a "place of employment" unless it is used as a child care, adult day care, health care facility, or home office with one or more employees not related to the owner of the residence." [Sec 2. Para 11.]

    I wonder why they would say that, since "home based business is not permitted to employ non-family members."

    History is repleat with individuals and small groups using the force of arms to coerce others to bend to their will. It wasn't just their "courage and audacity."

    Most people want less government, not more.

  13. “CHAPTER 1


    Article 4
    Specific Use Standards

    Sec. 412. Home Occupations
    In order to provide peace, quiet and domestic tranquillity within all residential neighborhoods within the City and in order to help all residents gain freedom from excessive noise, excessive traffic, nuisance, fire hazards and other possible side effects of commercial uses being conducted in residential areas, the following standards shall apply to all home occupations.

    A. Criteria

    1. No person, other than members of the family who reside in the dwelling where a home occupation occurs, may engage in such occupation, profession, domestic craft, instructional or economic enterprise.”


    The issue is a health issue.

  14. It only took a few minutes to find an exception to the San Angelo Code quoted above.

    Under Sec 406, a Bed and Breakfast is "allowed as a special use in residential zoning districts where transient lodging is not ordinarily allowed, subject to the following standards.

    1. The operator of the Bed and Breakfast is a full-time resident of the dwelling in which the Bed and Breakfast establishment is housed.

    2. No more than one person who is not a full-time resident of the dwelling shall be employed by the Bed and Breakfast establishment."

    Also, in the proposed Smoking Ban ordinance,
    "Employee" doesn't specify if the person is a member of the family or not. Thus, if I have a home office, and per the San Angelo code legally employ my two sons, I cannot smoke in my own home. Since the ordinance doesn't specify working hours, that means never.

    The main point of the ordinance that scares me (and should scare any citizen) is: "Sec. 17. Liberal Construction. This Article shall be liberally construed so as to further its purposes."

    And I thought that liberals wanted the government OUT of our homes.

    This is an issue of liberty.

  15. Well, we have at least two readers for sure. interesting last couple of posts; from Anon, "The issue is a health issue." and from Smoke-n-Shadow, "This is an issue of liberty".

    Clearly, it is an issue where people see the concerns of health and liberty to be in conflict.

    The reason I come down on the liberty side is simple. The health concern is eminently avoidable. The number of businesses allowing smoking is small and decreasing of its own volition by market forces. None of the places allowing smoking are such that anyone HAS to go there.

    Other hand, if this smoking ban by ordinance is imposed, the business owner and his presumably smoking customers have no refuge, no option.

    A number of construction businesses operate out of a residence. The work is done wherever the jobsite is, but tools, trailers, office and records are at a residence. I can too easily see the "smoke-nannies" seeking to "liberally construe" their pet ordinance to harrass such owners in their own homes, many of them are quite open as to their ultimate goal of stamping out the wicked weed entirely.

    Good luck there, it has worked so well with marijuana. Oops, that's right, it hasn't worked at all. I've had kids tell me that under 18,it is easier to find pot than cigarettes. The tobacco stores have expensive licenses to protect and are very strict these days, not so much the neighborhood pot peddler.

  16. I am all for getting rid of tobacco smoking in public places but what I do in the privacy of my home or office is my business.

    This ordinance will not pass as written. I will not vote for it.

  17. Anon II; Thank you and it reminds me: I am still waiting, on gosanagelo and here, forsomeone to tell me which "smoking" premises they HAVE to go to so urgently that their desire to be there overrides the owner's right to make that call.

  18. I deserve equal rights!

  19. Anon, I agree that accommodations such as those the ADA requires, can be made. Even the ADA exempts businesses below a certain size and number of employees.

    Big clubs like Grahams can realistically have separate smoking and non-smoking areas, where smoke really is kept out of the smoke free areas. Small bars and clubs don't have the space or resources for separate areas, although a smoking patio might work in some cases. Same can be done with restaurants. Cheddars is set up that way right now if I remember correctly. I know that a lot of the "non-smoking" areas in restaurants today are a lame joke as you often have to walk through the smoking area to get to your "non-smoking" table.

    I think that after the smoke clears, we can have a set of regulations where non-smokers can go out dancing, business owners still have control of their businesses, and smokers won't have to hide at home to smoke.