Magnifisyncopathological: Austin Smoking Ban in Effect Today

June 01, 2004

Austin Smoking Ban in Effect Today

First, they came for the smokers...

In Austin, "they" have been coming for the smokers for over a year.

Austin Considers a Smoking Ban
Austin Smoking Ban Passes, Kinda
Austin Smoking Ban Finale
Austin Smoking Ban Considered Today
Austin Smoking Ban Passes
Individual Rights & Collective Rights: Smoking
Why Society Must Change First III
Austin Smoking Ban Update
Austin's Smoking Ban, Revisited

The Austin Smoking Ordinance goes into effect today. News8Austin: Smoking ordinance effective June 1

Almost 100 bars and venues have received permits. Businesses that violate the ordinance could face a Class C Misdemeanor and fines up to $2,000.

The Alligator Grill in South Austin made changes for a restricted permit, but the request was denied.

Mangers say the city never mentioned specific guidelines for the separate ventilation system.

"The ordinance now between the lines says 'we want an air exchange rate of so many molecules per hour' and the only way to comply with that is to put in totally new units and have the thing completely re-engineered," manager Doug Foreman said.

Alligator Grill believes the playing field isn't level between restaurants and bars. And he says his business depends on live music to attract people to the bar as well as to the restaurant menu.

"They [bars] don't have to comply at all; it's not a fair ordinance," Foreman said.

[...]

Alligator Grill will have to spend $200,000 to meet permit requirements.

Copyright ©2004TWEAN News Channel of Austin, L.P. d.b.a. News 8 Austin

The City of Austin webpage regarding this ugly invasion of property rights is here. The "lowlights" of the regulation are here. They are:

Smoking is now prohibited in all enclosed public places and enclosed places of employment, with the following exemptions:
- A dwelling unit or private residence.
- A hotel or motel room designated as smoking.
- A retail tobacco shop.
- A private or semi-private room in a nursing home or long term care facility.
- An outdoor area of a workplace.
- An enclosed meeting room used for a private function.
- Bingo facilities with proper non-smoking area.
- Bowling alleys which meet the required criteria.
- Facilities operated and controlled by a private fraternal organization.
- Permitted establishments which meet the required criteria.
How Do I Get a Permit:
- Contact the Austin/ Travis County Health and Human Services Department at 972-5600 for an application and application instruction page.
- Submit the completed application with the permit fee of $300/year and follow the instructions.
- There are two types of permits; an Unrestricted permit for stand alone bars, which maintain at least 70% alcohol sales and do not allow anyone under the age of 18 into the establishment; and Restricted permits for designated smoking areas in a restaurant/bar, if the smoking area is fully enclosed with an approved HVAC system, and no one under the age of 18 is allowed into the smoking area between 2pm and 6am, when smoking is allowed.
- Smoking is not permitted until the permit is approved and issued.

Permits are revoked when "the permittee is convicted of three or more violations of this chapter or the permitted premises is the location of three or more violations."

Penalties:
- Penalties for noncompliance have been added to the ordinance for clarity, and enforcement capability has been strengthened.
- Violations of the ordinance are a Class C misdemeanor, punishable under Section 1-1-99 (Offenses; General Penalty) by a fine not to exceed $2,000 for each offense.
- The Health Director may suspend or revoke a permit issued to the operator of a public place, where repeated offenses occur.

Smoking is also banned at, in, or around public swimming pools. The owners of public places (defined as "a space that is enclosed on all sides by solid walls that extend from the floor to the ceiling, exclusive of windows and doors" and "that is used by the public or that is a workplace") will be held liable if they don't "take reasonable steps to prevent or stop another person from smoking in an enclosed area in a public place." It's now illegal to smoke "within 15 feet from the entrance or openable window of an enclosed area in which smoking is prohibited." The only exemptions to this are if:

the entrance is not the primary pedestrian entrance to the premises; or
the distance between the entrance and the adjacent roadway is less than
15 feet.

Live music venues laughingly defined as a "Unrestricted Smoking Facility" are now forced to "provide not fewer than 52 two-hour long live music performances each year during which smoking is not permitted" and document the availability of those performances as the director of Health and Human Services Department requires it. Clubs defined as a "Restricted Smoking Facility" must now "provide not fewer than two hours of a live music performance each week during which smoking is not permitted" and document to the HHSD director, yadda yadda. The ordinance demands that all ashtrays and smoking accessories be removed from nonsmoking public places. I'd like to test this one by bringing my own in and waiting to see what happens.

At taxpayer expense, the City of Austin will now:

develop a comprehensive tobacco education program to educate the public about the harmful effect of tobacco and its addictive qualities;
conduct informational activities to notify and educate businesses and the public about this chapter;
provide information about smoke-free activities, including smoke-free live music performances; and
coordinate the City's tobacco education program with other civic or volunteer groups organized to promote smoking prevention and tobacco education.

The City of Austin will also further engage in the propaganda business by allowing the city manager to "publish and distribute educational materials relating to this chapter to businesses, their employees, and the public." The ordinance explicitly outlaws smoking in taxicabs, though the "holder of a taxicab service franchise may designate one or more of the taxicabs operated under the franchise as smoking." Provided a sign is posted "conspicuously."

It is now illegal if someone "discharges, refuses to hire, or retaliates against a customer, employee, or applicant for employment because the customer, employee, or applicant for employment reports a violation of this chapter." Thus, employees to help injure the business for which they work are protected from being tossed out on their asses as they so very much deserve.

There are also specific signage requirements with which to comply.

The whole mess can be read here in PDF. Mayor Pro Tem Jackie Goodman and Council Member Brewster McCracken sponsored this legal sewage. Those who voted for the amended regulation were Mayor Will Wynn, Mr. Goodman, Council Members Raul Alvarez, Betty Dunkerley, and Mr. McCracken. Daryl Slusher and Danny Thomas voted against the ordinance. Unfortunately, Mr. Slusher is the prick who asked for the permit fee to be increased to $300. Mayor Wynn and Mr. Thomas voted against the increase but everyone else voted for it.

I view this to be petty nanny state authoritarianism at it's worst. It's a gross violation of private property, self-ownership, and the freedom to associate. It says that within the city limits, you don't actually own your property because the Austin City Council can simply vote to say what can and cannot happen on your grounds. It says people cannot be trusted to make decisions on their own and the government must step in to fix things. It says all this and it gives a big Fuck You to the principle of personal responsibility.

Government has no right to interfere in most matters concerning private individuals and certainly no right to impose restrictions on behavior because a subset of citizens don't like being exposed to tobacco smoke when going out or when working. This ordinance should be repealed and the Council should apologize for ever considering it.

UPDATE 2/24/2005 4:34pm
I feared this would happen. The health Nazis are coming back for something stronger. Fight the Austin Smoking Ban

UPDATED 5/9/2005 9:03am
The Additional Tyranny - The New Austin Smoking Ban Passes

UPDATED 8/30/2005 1:49pm
Deadline for the Austin Smoking Ordinance

Posted by Drizzten at June 01, 2004 10:59 AM

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Comments

The fact is that there are different kinds of people in the world and different kinds of bars. Some bars happen to cater to a predominantly smoking crowd, as much as 90%. It would be politically incorrect to assume that because the majority of Americans are nonsmokers, there should be nowhere to cater to the minority who prefer to smoke and socialize. Democracy should enable diverse people to live in harmony.

Think also about this, if the majority of people are nonsmokers, why haven't they opened bars and restaurants to cater to the nonsmoking majority? It can't be that only smoke hungry libertarians have that entrepreneurial spirit. The most notable voluntarily nonsmoking bar to open in Austin was the Acoustic Cafe on Sixth Street which closed within 3 months. Currently, Mean Eyed Cat and Opal Divine's are smokefree inside with smoking on their patios. (Few bars and restaurants have patios, by the way.)

But it is important to note that there is a bar culture that is predominantly supported by people who associate smoking with their experience. People who don't consider themselves smokers may smoke the occasional cigar or cigarette while out on the town. And many avowed smokers go out to avoid smoking in their homes or around their children or spouses. The majority of people in most bars are at least occasional smokers. People who frequent bars know that. And it is true that nonsmokers do drop less coin at bars and restaurants. Smokers tend to linger.

And finally, it should be noted that, statistically, people working or visiting smoking venues make a free choice. There are 46,000 businesses in Austin, and over 99% of them are smokefree. There are over 2000 restaurants in Austin, and less than a dozen offer smoking sections (which, by the way, must be enclosed from the nonsmoking areas and separately ventilated in a manner to keep any smoke from entering the nonsmoking sections.) There are over 550 mixed beverage permits in Austin, and 200 bars allow smoking. No one under 18 is allowed anywhere that smoking is permitted. The reality does reflect that more places are available exclusively for the safety of nonsmokers and children than the freedom of smokers.

In reference to the idea that businesses are forking over thousands for the right to provide goods and services to smokers, it would be justified, if true. It costs $300 per year to attain a smoking permit under Austin's current smoking ban. The two local anti-ban coalitions, Keep Austin Free PAC and Save Austin Jobs Alliance, have raised some money from less than 20 local business owners, employees and citizens. Neither receive money from tobacco companies. Meanwhile, Onward Austin is rumored to have have received upwards of $500,000 from the American Cancer Society to push this ban into the last 211 smoking venues in this town. Petitioners were paid $9 an hour to collect signatures. They were not all concerned volunteers as we would be led to believe. They had training and supervisers. The move to ban smoking in public places is hardly a grassroots campaign. Rather, it is big business. Glen Maxey is their campaign manager and he is not free. He offered to pay $1 per signature when he took over the job. Makes you wonder what he must be getting paid.

But hopefully, what will prevail is the right for diverse people to open diverse businesses, employing diverse staff, catering to diverse customers. A few of these people may wish to participate in a legal activity in the presence of one another. That's what happens now and the people who are going to these diverse places are showing with their choices and their pocketbooks that they don't really mind the status quo.

Posted by: randall on February 28, 2005 03:18 AM