HomeMy WebLinkAboutCOM 0013.017 2002-2004 TESTIMONY IN OPPOSITION TO BILL 260, NO SMOKING ORDINANCE, FOR
COMMITTEE MEETING SCHEDULED FOR 2/4/03, FRED HOLSCHUH. CHAIRMAN
(From William Jennings, Concerned Citizen, PO Box 11458, Hilo, HI 96721, 808-93"7-2311)
Mr. Chairman, RECENptl'
The Highway to Hellish Governance is paved with good intentions. Qgto_... ~`~r.'.~ _
C.OUn uncY JP.N
This proposed law is legally flawed on several accounts; I will highlight a few. ~ ~ r, '
1. Public Comment is effectively quashed and made illusory by the justification laid out in the
bill's language found in Section 1. The stated purpose asserts, that,
"The County Council finds that [here is a compelling public health and safety reasons to protect
nonsmoking employees and the general public from the hazardous effects of environmental tobacco smoke
(ETS)_.ETS has been determined to cause a number of adverse health effects, including lung cancer,
childhood asthma, and lower respiratory tract infections, according [o studies by the U.S. Surgeon General,
Environmental Protection Agency, and [he National Research Council."
This bill is based on a nebulous assertion and finding of the Council that lends itself to be
unanswerable. How can the public submit intelligent comment when the Council does not
specify what it is specifically basing its justification on? [s there a study that the public may
refer that shows a causal connection between ETS and the adverse health effects? Does not
fairness in the legislative process compel a duty on the Council to specify more precisely what it
is basing it's finding on? How has ETS been determined to cause the stated adverse health
effects and, importantly, under what conditions? What were the parameters of testing? Was
testing done closed spaces with no ventilation? What were the dimensions of such enclosures?
Do studies assert that the threshold of hazardous effects occur in very large enclosures, such as
bowling alleys or apartment building lanais open to fresh air?
This is important, because the public needs to know under what conditions ETS reaches the
threshold of being "hazardous" in order to examine whether or not the Council's proposal
exceeds reasonable restrictions on smoking in specific places and under specific conditions.
Without knowing the specifics of this very broad and general finding, the public is stopped in
presenting viable comment that might reveal that the assertions are either false, pat1ially false,
and/or based on speculative science, which has been the charge from other legitimate sources.
Moreover, and most importantly, without knowing the specifics, the public is unable to judge
and make comment to the Council regarding its proposed action to enforce restrictions, which
may be unreasonable or overly excessive. Isn't this important in the interest of fairness?
Moreover, 1 /3 of the Council has not heard from the public in oral testimony as three of its
members are newly elected. In a proposal such as this that could potentially impact on a
significant number of our citizens personally, smokers who comprise about 23% of'the Big
Island's adult population, isn't it in the interests of fairness that the new Council members hear
directly from them? (Transcriptions of public testimony misses a key ingredient of live, oral
comment and should not be considered as a legitimate substitute if the spirit of citizen
participation is an important element to the legislative process.)
The ~ronosed bill is unconstitutionally broad and vague rendering public comment meaningless
and nonexistent It should be re-written with specific references and better defmvmed~t No.
F41e No.
Ref. o:
Ref. Date ~ 4 2003
2. Enforcement. If a law cannot be enforced reasonably and fairly across the board, it should
not be enacted If it is, it adds to a growing dissension amongst citizenry weary of intrusive
governmental action and breads contempt for the law. Our police force is expected to enforce
this smoking ban as well as "an officer or employee of the County." There will have to be a
systematic implementation of this law in order to prevent capricious enforcement. This is
overtaxing of our police force and an unmanageable bureaucratic provision subject to legal
challenge.
3. Reasonable accommodation. There is no reasonable accommodation in this proposed bill
that takes due consideration of the rights of citizer~to smoke a legal substance nor due
consideration to the property rights of citizens over their private property and establishments.
Current law and societal changes on smoking have already evolved to the point of obviating
government's intrusion into the affairs of the citizenry. Think for a moment all the places where
one may not smoke. Think of the few places where they may; they are few. Intruding into the
private business operations of bars, restaurants, hotels, apartment complexes with common areas,
bowling alleys are best left in the hands of those who are capable of making those kinds of
judgments. The heavy hand of government going too far - without a substantive, legitimate, and
compelling reason - is not just. After all, does the County pay tax dollars for risk capital in
establishing a successful business? Will the County compensate private businesses for losses?
Is it the proper business of government to interfere so far and deep into these private matters
based on justifications that may be dubious at best or speculative science? (See 1 above.)
The primacy of our Constitution -its very existence - is based on freedom, first and foremost.
Freedom is at the top of all considerations in the legislative process. Of course, freedom is not
absolute and reasonable restrictions are permitted and desired "in order to form a more perfect
union, establish justice, and to insure domestic tranquility." "Promoting the health and general
welfare" was not meant to "Mandate" the public health and general welfare. Using the power of
law to mandate health issues -especially when the justification may be based on speculative
science and/or when the proposed "remedy" may be excessive and contrary to principles of
freedom and tolerance for fellow citizens - is wrong and not the business of legitimate
governance.
"Perhaps one of the most important accomplishments of my Administration laas been
minding my own business. " -Calvin Coolidge
I respectfully request that this current bill be scrapped, rewritten, and resubmitted for public
comment based on findings that are addressable and not nebulous.
Mahalo and Aloha!
Respectfully Submitted,
G'
William ni
Conce ed Citizen
Volcano, Hawaii