Cigar Bars and Government Paternalism

PatBorchers01This is the first post as a new contributing writer on Leavenworth St. by Pat Borchers. He has written attributed guest columns here previously. You can read his bio in the “Writers” tab above.

I have a good friend who has varied hobbies and one of them is smoking cigars.  I’ve never been a smoker of any sort and allure of cigars is a mystery to me.

But a lot of people enjoy them.  My friend wanted to watch one of the NFL playoff games and invited me to an Omaha cigar bar.  The smoke wasn’t too bad because the air handling system is good, but I don’t really want to go back.

However, as my mother used to say, “that’s why they make chocolate and vanilla.”  My friend enjoys cigars and the comfortable surroundings of his favorite cigar bar.  Nobody’s forcing me to go into a cigar bar.

In Nebraska, cigar bars have gotten to be big news as of late.  The Nebraska Supreme Court, in a weirdly reasoned opinion, held that the exemption for cigar bars to the Indoor Clean Air Act was unconstitutional “special legislation.”  However, the court held that the exemption for hotel rooms designated as “smoking” was constitutional.

The reasoning was bizarre because the function of a legislature is to engage in line drawing.  The Nebraska Supreme Court’s opinion read as though it was acting as a second house of the legislature by second-guessing the policy rationale for cigar bars, even to the point of quoting from legislative debates.

State Senator Tyson Larson is sponsoring a bill to reintroduce the cigar bar exemption and the bill goes to considerable lengths to spell out the rationale for it, and I believe that if it’s enacted it will withstand a constitutional challenge. 

Good on Senator Larson.

As should be clear, I don’t have a personal dog in the fight.  But my generally libertarian instincts cause me to chafe at government paternalism.

Debates about the political legitimacy of paternalist behavior by governments date back at least to Plato.  Paternalistic laws are those that the government imposes on you because it believes that certain behaviors are harmful to you, but not necessarily anyone else.

It’s sometimes hard to classify laws as paternalistic.  Very few laws are purely paternalistic. Laws requiring the use of seat belts were decried as paternalistic when they began to be enacted by states, and there’s no doubt that there is a large degree of paternalism in them. 

But failure to use a seat belt runs a significant risk of imposing burdens on others.  Injuries in car accidents are undeniably more serious on average if the occupant isn’t wearing a seat belt.  Consequently, costs are imposed on other people through increased insurance premiums, increased numbers who need government assistance through disability payments and the like.  Besides that, the burden imposed is trivial.  All you have to do is take 3 seconds to put on a seat belt.

But the burden in not allowing cigar bars is much more significant.  Of course, there’s nothing that prevents my friend from smoking a cigar at home.  But likely the air handling isn’t as good there and he’d miss out on the opportunity to be with others who enjoy cigars.  Denying someone a significant pleasure is not a small cost.

Of course, there are some external costs involved.  I haven’t looked into it, but probably there are health risks associated with cigar smoking, so in theory there might be costs that the rest of us would assume.  But unlike seat belt laws – where the burden is trivial and the risk significant – with cigar bars the reverse is true.

The biggest experiment in paternalism in the United States – Prohibition – was rife with unintended consequences.  It created a huge black market for liquor that made gangsters like Al Capone rich.  The covertly brewed alcohol that was consumed during Prohibition – moonshine as it was called – was dangerous, because it often included more than the alcohol (EtOH) that we associate with drinking, leading often to blindness.  Moreover, it turned the United States into a nation of hard drinkers (rather than consuming mostly beer), because the smaller volume and higher potency of hard liquor made it easier to smuggle.

Of course, all of this has implications for other behaviors that are prohibited or heavily regulated, such as gambling and the use of controlled substances.  The calculus for each one varies.

But I’m quite confident that banning cigar bars is unjustified government paternalism.

22 comments

  1. What’s Freedom ask a young man to the old fart conservative??? It’s lining my pockets with cash, that’s what freedom is says the greedy old man. Ok well I guess, whatever old fart, I just got a job working as a cook at the old folks home, lol, can’t wait for you all to join us, I’ll make you all something special to eat for dinner

  2. The Grundle King says:

    Wow, for the life of me I can imagine why more people didn’t vote for that Elworth guy. How can you call yourself a libertarian whilst simultaneously complaining about people who, through means that are none of your business (right libertarian?) have amassed personal wealth?

    In all seriousness, while I understood the reason for (and supported) the indoor smoking ban, I believe that the cigar bar exemption was sensible legislation. When you go into any other bar, you don’t go there to smoke tobacco…you go there to have a few drinks and maybe a bite to eat (if they serve food). Those who think that wandering through clouds of toxic smoke all evening is just part of the ‘bar experience’ seem incognizant of the fact that the vast majority of bars don’t sell any tobacco products.

    The cigar bar exemption is okay with me, because it makes patrons and employees aware of the risk they assume (upon which I disagree with Borchers on the significance) by entering the bar. Add in the fact that cigar bars have typically invested the money in air purifiers, and aren’t havens for chain-smoking barflies, and you end up with a totally different situation that what we used to have in bars.

    FWIW, I can’t stand cigarette smoke, but I likes me a cigar when fishing, camping, etc.

    Now, to really piss people off…I wish someone would introduce a bill that makes smoking with minor children in the car a primary offense. While I’m not so sure it should be considered child endangerment or child abuse (though I think it could be), I think a $100-$200 ticket is not out of line. No conservative, libertarian, progressive, etc. can defend subjecting a child to secondhand smoke in light of the mountains of research showing how dangerous it is. If you believe that smoking is a matter of personal choice and freedom, I would agree with you…but where is the personal choice and freedom for that child?

  3. to the Grundle King, even though you slammed me a bit, and I know that’s all this site is good for. I do think you have a really good idea about fining people smoking while having kids in the cars. Those kids shouldn’t have to breath that garbage in. And to people who think I didn’t many votes. I got 19,001 and all I spent was $500. I did really well. I’m not talking bad about the candidates I ran against, they where both quality candidates, but they did spend $25 to $40 a vote. If you think I planned on winning the governors race your wrong. I did exactly what I wanted, I got my name out so I can keep running and keep building my support base. I’m showing people you don’t need big money to compete, you just need to put in the effort.

  4. Save The Children says:

    If we’re going to make laws to protect other people’s children, I want to put my vote in for a law that will make it a felony to use a cell phone while driving with children in the vehicle.

    Several times I’ve seen women driving, talking on a cell phone and using the rear view mirror to put on makeup all at the same time. When they’re transporting children I wonder if it’s better to jail them or just let nature take it’s course and improve the gene pool by allowing them to kill their own children. The problem is that more times than not it’s someone else’s child they wound or kill.

  5. Save The Children says:

    One more,

    As a life long chain smoker I’d like to see some restaurants replace those old smoking sections with areas that are child free, since parents these days don’t seem to feel any need to restrain their children and make them act in a civilized manner. It’s probably a safety issue. These little monsters get on my already stressed nerves and at times I get dangerously close to wanting to smack them myself.

  6. The Grundle King says:

    Well seeing as distracted driving is already something the police can pull you over for, I don’t really think having children in the car would matter, because they’re not just endangering their children’s safety, but the safety of every other driver/cyclist/pedestrian they encounter, as well.

    As far as the kids in the restaurants go, I would agree that too many people’s kids are out of control these days. I’m not sure the remedy is banning them from the restaurant, but maybe a good smack upside the parents’ heads should be legalized.

    And Elworth, I wasn’t really trying to ‘slam’ you, but c’mon…even you gotta see the irony.

  7. The Grundle King says:

    Here’s a little sampling of Mark Elworths’ post from this morning:

    “Lincoln Sucks, Go Omaha”
    “OLD ASS NEWS, you blow ass Burke Bulldog”
    “Oh baby Jesus, Mary Lauritzen, your writing blows, I hope your not getting paid for this”
    “Maybe he’ll (Street Sweeper) breathe in the chemicals and get sick and leave us all alone for good.”

    What are you, like 12 fricking years old? I was inclined to give you the benefit of the doubt, but after reading some of your musings, I’m rather dismayed and terrified that there are 19,001 idiots who found you deserving of a vote.

    Oh yeah, go Omaha…the city that gave us Ernie Chambers and Brenda Council. F’n awesome.

  8. Save The Children says:

    Grundle,

    I understand that there are already distracted driving laws. I want to make it a felony! I’d prefer an open season sort of law that allows anyone to just shoot the moron with the cell phone, but don’t think it would get by the lobbyists that own the Legislature.

  9. TexasAnnie says:

    Smoking in a hotel room (designated for smoking) is like smoking in one’s home. Yet smoking in a cigar bar is like smoking in any public space. Borchers ‘rationale’ about which burden is trivial (seat belts) and which is significant (public smoking) is irrelevant. Borchers should have given more thought to the problem of special legislation.

    When folks in similar circumstances are not treated similarly, the court properly steps in to re-draw the crooked line-drawing that has been established by the legislature. Rather than create new legislation permitting smoking in cigar bars but not every bar, don’t y’all think it would be better to amend the Indoor Clean Air Act to permit smoking in every type bar, where posted? Or do y’all think cigar smokers are the elite of the smoking population?

    And what about drinking in cars? Why do limousine riders (but not bus riders) get to drink while riding?

  10. repentinglawyer says:

    Texas Annie has you Pat, you missed the point of the special legislation provision. As for paternalism, what provision of Neb Constitution forbids that even with the continuance of economic due process in NE.

  11. Brian T. Osborn says:

    I confess to having been a cigar smoker in my youth. While serving in the Navy, I had a habit of smoking up to ten cigars a day, and I inhaled. I eventually quit “cold turkey,” although I’ll admit to still having an unsatisfied hankering for one from time to time.

    If a business’ primary purpose is to provide tobacco products, much as a liquor store’s primary purpose is to provide alcohol, why shouldn’t customers be able to sample the products in the same manner as wine connoisseurs can during wine tastings? People entering the business know what they are getting themselves into and, as adults, can weigh the consequences to their own well being.

    What gets me is the hypocrisy of having alcohol and tobacco legal while cannabis remains on the FDA list of Schedule I drugs. The criteria for inclusion on that list are:
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has no currently accepted medical use in treatment in the United States.
    (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

    Sen. Tommy Garrett has a bill (LB643) before the current Legislature that would legalize the medical use of cannabis. This is a drug that has been used for centuries, around the world, to alleviate pain and to lessen the neurological symptoms of some very debilitating diseases. Does it possess a high potential for abuse? Just as much as any other drug that is legal, particularly prescription pain pills and anti-psychotics. It definitely does have accepted medical use and accepted safety in other countries and 23 of the United States. Alcohol and Tobacco? Hmmmm, not so much!

    While the decriminalization of recreational marijuana is still a very socially questionable topic in this state, the legalization of cannabis for medical purposes should not be. Many strains of cannabis are high in cannabinoids and low in THC. Users such as Mr. Elworth evidently enjoy those strains that provide a sense of silliness, much like the consumption of alcohol does. Those strains contain significant quantities of THC. The strains proven to have medical benefits usually do not. Why should we continue to demonize a very useful, inexpensive remedy for a variety of serious ailments just because some people might abuse it?

    One of my brothers is a pharmacist. He has told me so many stories of people that legally abuse prescription drugs. Be aware that many of the most dangerous people you meet on the highway are coming at you in the other lane while higher than a kite on what was legally prescribed by a medical doctor. Why should cannabis be treated any differently than those dangerous drugs that a pharmaceutical corporation has produced – a drug that costs a lot of money and generally has a long list of serious side effects. Just listen to the end of practically any TV ad for drugs. Hell, they’ll make you knock-kneed, cross-eyed, and make your fingernails itch at a minimum; thoughts of suicide and death are more likely!

  12. NotChuck says:

    a. I like the new look of Leavenworth Street!
    b. I’m not a smoker, but I think cigar bars ought to be free to use their premises as they see fit.
    c. With regard to smoking in general, I’d just as soon see it banned outside one’s home, vehicle, or cigar bar. People should be free to smoke INSIDE their residence or vehicle with the doors and windows CLOSED! If they need to smoke elsewhere, they ought to “vape.” In fact, I think proposing laws to ban “vaping” is counterproductive. But generally, smokers are inconsiderate a$$holes who pose a danger to themselves (about which I don’t care) and other people’s property (about which I do care), and need to be more heavily restricted than they currently are.
    d. Save The Children, “open season sort of law that allows anyone to just shoot the moron with the cell phone,” and “little monsters get on my already stressed nerves and at times I get dangerously close to wanting to smack them myself.”? Dude, have you like got violence issues? Maybe you need some help!

  13. TexasAnnie says:

    About 45 years ago I took a course called ‘Effective Thinking’ which has proved as useful herein as it has been throughout my adult life. Among the cardinal “mistakes” presented was ‘Appeal to Authority.’

    Rather than argue your position on its merits, here you appear to rely on your ego for vindication Patrick.

    Some of us, especially libertarian-leaning egalitarians (you know, Libertarians who have not been corrupted by their own egos) want government to function the SAME for everyone. We want to pay the same taxes for the same government benefits and services. We want to be treated the same in courts of law, and we want our laws to be understood and applied in the same way. We don’t want “special” laws for cigar smokers or limousine riders. It’s too bad you’re not on the same page with us, Patrick.

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