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July 11th, 2011
Freethought San Marcos: Thinking about regulation of public alcohol, tobacco use

Freethought San Marcos: A column
by LAMAR W. HANKINS

City of San Marcos council member Fred Terry has written a commentary opposing a ban on public smoking in San Marcos and a ban on the use of alcohol in city parks. Terry did not reveal whether he has any personal conflicts with these proposals, that is, whether he drinks or smokes, so we can’t judge his comments with those potential conflicts in mind. I neither smoke nor drink alcohol, and I arrive at conclusions on the public smoking ban that are different from Terry’s, and I believe that reasonable people can differ on both of these issues.

Regarding the proposed alcohol ban, Terry argues that alcohol in the parks should be allowed because it is fun to drink while eating BBQ and there are other laws that control excessive alcohol use. While it is true that for some people alcohol use is fun while eating BBQ, others are able to have fun without it. But I don’t consider alcohol use by another an activity that necessarily impinges on my freedom to enjoy the parks. However, it is not clear to me that the use of alcohol will be tied to eating, so Terry’s example may not be completely on point. I assume that people will be allowed to drink alcohol in the parks whether or not they are also eating food.

Terry’s points about drinking alcohol in the parks seem well-taken to me, provided that we have adequate enforcement of the laws against public intoxication, underage drinking, and disorderly conduct. Perhaps the city could adopt a volunteer police auxiliary system or volunteer park friends program to patrol the parks to discourage and report alcohol abuse so that families are not burdened with responsibility for enforcing the laws against alcohol abuse. Someone who makes a report of alcohol abuse in a public park should not be required to provide a name or any other identification and none should be sought or recorded. This anonymity would prevent the possibility that the offender would learn the identity of the person reporting the unwanted behavior and retaliate. As long as families are not bothered by undesirable alcohol-induced behaviors, the use of alcohol in the parks should not be a health and safety problem, and regulating against it seems unnecessary.

Further, the fact that some people are personally offended by alcohol use is not an actual impingement on their right to use and enjoy the park. For example, some people may object to the odors of some foods that others are eating, but that personal objection should not give the offended person the right to control what foods another person chooses to eat. Allowing people to drink alcohol in the public parks may decrease my enjoyment of the parks, but it would not necessarily affect my health, safety, or welfare.

The same cannot be said for smoking in public, however. The dangers of second-hand tobacco smoke to health–it can cause cancer and respiratory problems–are well documented by scientific evidence. While those who drink alcohol in public parks do not compel me to drink, smokers in public places compel me to inhale second-hand smoke. At that point, another’s right to inhale noxious substances impinges on my right to be free of those same substances. I have many times had to walk through a cloud of tobacco smoke to get in or out of buildings where smoking was not permitted. The same is true of just walking down the sidewalk and involuntarily breathing in some other person’s smoke.

This is the most significant way smoking is different from drinking alcohol. It is not possible to smoke and not share that smoke with those around you. In a public place, my right not to inhale dangerous substances against my will should take precedence over the right of another to smoke. As has been pointed out many times, it is impossible to maintain a section of a swimming pool for urinating without subjecting all users of the pool to the urine. Likewise, it is not possible to isolate smoking sections of public places, including places of public accommodation (restaurants, bars, stores, hotel lobbies, workplaces, etc.), from people who do not wish to breathe tobacco smoke. The only successful public policy that protects the health and safety of everyone, including the employees of local businesses, is to prohibit tobacco smoking in public places.

Terry’s libertarian philosophy appeals to me in many respects, but it should not prevent the citizens and their public officials from deciding the quality of life we want to enjoy in San Marcos. Public alcohol and tobacco use are quality-of-life issues, but they each affect us differently, which is why I arrive at a conclusion about public tobacco use that is different from Terry’s, and I have different reasons for not opposing public park alcohol use, as long as families are protected from its potential undesirable consequences.

There should be no question in anyone’s mind that tobacco use is a health and safety problem. As such, it is appropriate for government to regulate it. The same can be said for the public abuse of alcohol. As long as alcohol is used responsibly in public parks, there is not a need for further regulation because it will not create a health and safety issue, but the City Council should make sure that alcohol abuse can be adequately controlled in the city’s parks.

Terry’s comments about government restriction limiting freedoms, which then “slows down economic growth opportunities,” causing businesses to choose not “to do business” in such communities is pure libertarian philosophizing, unsupported by evidence. It could be true, but I am not aware of any studies that show this to be the case. We can all exchange anecdotes to support both sides of that discussion, but anecdotes are not the best way to make public policy. The two public policy issues at question–a public smoking ban and a ban on alcohol in the parks–exist in many communities that have robust local economies, as well as in communities without the bans that do equally well. To me, these issues are a matter of local preference and values, unrelated to the economic health of San Marcos.

© Lamar W. Hankins, Freethought San Marcos

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15 thoughts on “Freethought San Marcos: Thinking about regulation of public alcohol, tobacco use”

  1. ” my right not to inhale dangerous substances against my will ”

    I ride a bike through town and have to breath carbon monoxide from all your cars. Therefore, using Lamar’s logic, no one is allowed to drive cars anymore on public roads.

  2. The alcohol can decrease the enjoyment of the parks. I’ve on four different occasions seen people assaulted in the Rio Vista park. I’m not against alcohol consumption, but Its gotten out of control. Maybe they could allow it for events, such as the Summer in the Park, where there is extra security on hand.

  3. @NannyStater
    Your comparison between car emissions and 2nd hand tobacco smoke is ridiculous. Unfortunately, cars have become an essential component of modern life. Less pollution from cars would certainly be a plus. But tobacco use has no redeeming value whatsoever. And it harms both smokers and non-smokers.

  4. To NancyStater:

    There are several reasons why your comparison between second-hand tobacco smoke and car emissions is not apt.

    Car emissions are regulated. The amount of emissions discharged has been deemed to be at a level not dangerous to health. When this changes, alerts are issued to advise people with respiratory problems to stay indoors.

    No level of second-hand smoke has been found to be not dangerous.

    There are no cars now on the road that do not emit noxious substances. Even all-electric cars cause emissions in their manufacture and in the production of the electricity they use. As long as people must get around to get to work, school, and to shop, they will need to use cars. No one needs to smoke in public.

  5. For the record, short term exposure to second hand smoke is no more dangerous than breathing in a little car exhaust. Which is to say it’s not healthy, but not really dangerous either. Smog alerts are for the overall air quality, not the quality someone like cyclist would be exposed to while vigorously breathing much higher concentrations for longer periods. A bike messenger in a place like NYC probably has a at least as much chance of respiratory cancer than someone living with a smoker. Not that it matters though.

    I personally tend to take the libertarian view that government should stay out of people’s lives in all but the most essential situations. I initially opposed indoor smoking bans when they were proposed in Houston and other places, even though I don’t smoke, but after attending a lot of events after those bans were in place I’ve come to appreciate the smoke free environment and found it to be little inconvenience on my smoker friends.

    The alcohol ban I think is stupid. The river is a tourist attraction that draws a lot of money into San Marcos. Our parks don’t have a monopoly on that traffic though. Banning alcohol just pushes those visitors to other towns that’ll be more tolerant.

    This is not an alcohol issue. It’s a law enforcement issue. Either put the law enforcement resources in the parks to deal with behavioral problems using existing laws or accept the environment. If you don’t have the law enforcement resources to enforce existing laws, how can they enforce an alcohol ban? It’s the wrong way to address the problem.

  6. “As long as people must get around to get to work, school, and to shop, they will need to use cars.”

    Lamar, they do not NEED to use cars. I get around perfectly fine to work, school (when I was a student) and the store by bike or walking and I know many people who do the same – young and old.

    Your assumption that automobile emissions meet some magical safe number that is healthy is wrong too. As a non-car commuter I regularly deal with things like a cloud of diesel smoke from an enormous truck that decides to floor it next to me or thick smog from an old beater that is running too rich and permeates the entire block with the stench of unburned gasoline.

    I am for the smoking ban, but don’t pretend that car emissions aren’t hazardous to human health just because you rely on one.

  7. Lamar you say in your article “my right not to inhale dangerous substances against my will should take precedence over the right of another to smoke.”

    People driving in PUBLIC and poisoning the air I breath is valid compared to a PRIVATE business allowing people to smoke INSIDE. I can choose to enter and spend money there.

    I hate smoking more than you and am allergic to it, but property rights have to be enforced. Just because the PUBLIC can enter a PRIVATE PROPERTY, does not give it the right to dictate the actions of everyone inside the building.

    As far as smoking on the sidewalk, you can see the smoke and walk around them or hold your breath for a few seconds as you pass through, not the same as car exhaust which is almost invisible now but it still makes me cough.

    Yes it is an inconvenience for you but the FREEDOM of one person to slowly kill themselves is as important to some of us as assisted suicide is to you.

    I fart in general direction sir !

  8. None of my comments can be fairly interpreted as pretending ” that car emissions aren’t hazardous to human health.” Obviously, if car emissions are regulated, the basis for the regulation is that they are a hazard to human health, at least potentially. The reality is that commerce would grind to a halt without the ability to travel and ship goods by motorized vehicles. That could be an interesting society in which to live, but it is not the focus of this discussion, nor is it the society in which we now live.

    As to private property, freedom, etc., the commerce clause of the Constitution has been interpreted by the Congress and the courts, rightly or wrongly, as giving the authority to regulate certain behaviors, behaviors which restrict our private property rights, freedom, etc. I am trying to deal with present-day reality, not some imaginary system in which we do not live. The U.S. Code provides the following expansive definition for public accommodation, whether or not it satisfies anyone’s political preferences. It does provide the basis for regulation of such public accommodations:

    “The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—
    (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
    (B) a restaurant, bar, or other establishment serving food or drink;
    (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
    (D) an auditorium, convention center, lecture hall, or other place of public gathering;
    (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
    (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
    (G) a terminal, depot, or other station used for specified public transportation;
    (H) a museum, library, gallery, or other place of public display or collection;
    (I) a park, zoo, amusement park, or other place of recreation;
    (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
    (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
    (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”

  9. Future reality is what we are talking about. Right now reality in San Marcos says people have certain freedoms with regard to their private business’s and wether or not they have smokers in them. You are wanting to take a vote to change that reality into something you would prefer.

    Trying to give government authority to control more of our behavior makes us CONTROLLABLE.

    Is there any behavior you would not like controlled by your precious authority figures ?

    I want more freedoms, not less. I want to enjoy life and not worry I might get a ticket for farting in a Lamar Hankin’s approved pure air sanctuary sidewalk.

  10. If you knew me, you would know that my views tend toward libertarian positions. In fact, I have accused of being anti-authority. However, since the government is “we, the people,” I am happy to have its intervention when some people in our society do not respect my right to not inhale their second-hand smoke.

    Please let me know if you are ever around me so that I can take steps to avoid the foul odors you evidently like to share with others. However, unless your methane production is beyond normal human limits, I won’t worry about being blown up by your emissions.

  13. Lamar Hankins wrote, “No level of second-hand smoke has been found to be not dangerous.”

    That’s quite true Lamar. And exactly the same thing can be said about sunshine. So, just to be consistent with “protecting the workers” in bars and restaurants from any exposure to secondary smoke, we should also protect them from radiation poisoning — as there is also no level that has ever been scientifically determined to have no risk.

    This of course will mean an end to patio dining, since, just as with ventilation/filtration and tobacco smoke, no amount of sunscreen or awnings can provide the proverbial “complete protection” from malignant-melanoma-causing sunshine (UV radiation) — at least in the daytime. After all, why should young waiters and waitresses have to choose between their life and a paycheck just so you can bake your squamous cell carcinomas under the big sun lamp in the sky while sipping a marguerita?

    Of course when these workers are out of a job and they and their families are suffering from economic hardship the statistical deaths they’ll suffer will be FAR greater than the statistical deaths from traces of smoke or sunshine, but that’s something no one ever seems to think about in this little social engineering experiment. Fred Terry made some very good points in his commentary: they’re well worth reading.

    – MJM

  14. Lamar, I just noticed you pointing out, ” As has been pointed out many times, it is impossible to maintain a section of a swimming pool for urinating without subjecting all users of the pool to the urine.”

    That’s quite true Lamar, but there’s a very big difference between a pool and bar. A swimming pool changes its water about once a year. A bar changes its air about 50,000 times year. Notice the difference? Also: If you really think you can hop into a public pool full of screaming six year olds and be sure that there’s NO piss in the water then you’re living in a fantasy world.

    – MJM

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