Comment: Bill allowing smoking permits for bars stomped, business rights trampled

Jamie Winpenny

HONOLULU—A Senate bill that would allow bar owners to obtain a permit to allow smoking in their establishments was effectively, and predictably, killed in committee on Tuesday, February 8. The Senate Committees on Health and Public Safety and Government Operations and Military Affairs deferred the matter, leaving little hope for a vote to advance Senate Bill 708.

The bill was submitted by Sen. Mike Gabbard (R) and supported by, among others, the Hawaii Bar Owners Association (HiBOA). HiBOA contends that bar owners suffer the undue burden of lost revenue caused by the smoking ban in its current form.

To read Senate Bill 708, click here

“It’s a tyranny of the majority,” said HIBOA president Bill Comerford.

Sadly, he’s right. The moral hegemony that the anti-smoking lobby enjoys is likely to prevent any change to legislation already passed regarding smoking. That reality is precisely what Alexis de Toqueville had observed when he coined the phrase in his 1835 treatise Democracy in America.

The issue, however, is not whether smoking is bad for you. It is, and demonstrably so by hard science. But there is hardly a consensus within the scientific community about the potentially harmful effects of second hand smoke. In fact, in 2003, the British Medical Journal published a study of 35, 561 Californians who never smoked but had smoking spouses. It found no statistically significant association between second hand smoke exposure and lung cancer or heart disease rates among nonsmokers in the study.

Whether or not second hand smoke is harmful is immaterial to the fact that populist legislation based on dubious science and equivocal data is cancerous in any democracy. 

“The anti-smoking lobby wants Hawaii to have the strictest smoking laws in the country,” says Comerford. Himself a nonsmoker, he is keen to keep the dialog about the smoking ban about business and revenue and away from moral and scientific arguments.

“These lobbying groups are seeking government money from sin taxes, and they’re not generating any revenue for the State,” says Comerford. “I’m willing to pay [for the right to allow smoking].”

To read full testimony by Bill Comerford, click here

The bill calls for a graduated fee for permits, based on the type of liquor licensed possessed by the establishment applying for a permit. It also calls for signage in those establishments clearly stating that smoking is allowed by law.

The bill does not roll back the smoking ban in any other place affected by the current law, public or private.

The amount of testimony opposing the bill far outweighed that of proponents of the bill. The Hawaii Department of Health and Hawaii Department of Taxation both opposed the bill, for reasons of public health and bureaucratic concerns. The American Lung Association and American Heart Association were in strong opposition to the bill, as was the Local 5 labor union.

Much of the public testimony against the bill came in the form of two pieces of electronic chain mail, a verbatim plea to defer the bill received from dozens of residents, presumably created by the anti-smoking lobby. One person who testified via the letter even added a paragraph calling for sanctions against Comerford’s E&J Lounge, which operates Kelley O’Neil’s, O’Toole’s Irish Pub, and the Irish Rose Saloon—bars the sender says have been observed to permit patrons to smoke in spite of the smoking ban.

Those who testified in favor of the bill were bar owners, bar and restaurant industry workers, and average (and, in several cases, nonsmoking) citizens wary of laws that impinge on personal freedoms and liberties.

While the issue will continue to be debated along moral and medical lines, the fact remains that many businesses are being affected by falling revenue due to the smoking ban. Hawaii bar owners are already faced with oppressive taxation and regulation. In 2009, published an article bringing to light flawed studies that exaggerated the economic benefits of smoking bans while downplaying the negative economic impacts.

Proponents of Senate Bill 708 sought only to exempt certain establishments from the smoking ban, those that have been affected most adversely by the smoking ban, and not to repeal the smoking ban.

Indeed, there are other bills in the Senate and House that seek to further the smoking ban’s reach into private residences, public housing facilities, motor vehicles, and the lanais, balconies, patios and terraces of multi-family dwellings and hotels.

Clearly, the smoking ban will expand. This may be a good thing for public health in the long run, but the benefits of continuing to ban smoking in bars that would prefer to allow patrons to smoke does not outweigh the loss of revenue suffered by those establishments and the loss of State tax revenues paid by those businesses.