Friday, January 13, 2006

I Need to Kill This Before It Makes Some Good People Look Really Bad

QUESTION: What is the most effective way to hurt your own cause?

ANSWER: [CAUTION: RUN-ON SENTENCE ALERT!] By bloviating about something you know very little about in the course of which you generate a thesis based on faulty and incomplete research that looks convincing on it's face and is readily accepted by those whom passionately share your view (and lack of knowledge in the area), [breath] creating an illusion of seemingly unstoppable momentum for your cause until your "argument" is rolled out into the public, where, within minutes, someone who actually knows what he or she is talking about nukes your "argument" out of the water in less than three sentences, thereby stripping you of any cred you may have had.

While I am a strong opponent of laws banning smoking in bars, I need to nip this in the butt (pun intended):

Smoking Bans are and should be ruled unconstitutional in Minnesota.

***

The Minnesota Clean Indoor Air Act (MCIAA) was enacted in 1975 to protect public health by restricting smoking in public places and workplaces. The act is enforced by the Minnesota Department of Health (MDH), which delegates enforcement activities to some (city or county) health departments. At this time, the law permits MDH to prohibit smoking in hospitals, public schools, and day care facilities. MDH may limit smoking-permitted areas in other workplaces such as offices, factories, warehouses and similar places of work, restaurants, bars, retail stores, lodging establishments, and other public places.

According to the Minnesota Department of Health, local units of government may enact ordinances that are more restrictive than the MCIAA. I am not sure I agree with that assumption and here I will attempt to produce my argument that they are wrong. Clearly, the provision in the ordinance of the city that prohibits designated smoking areas conflicts with the provisions of section MS 144.415, which allows such designation.

*Ahem*

[Yelling]Local smoking bans in Minnesota bars are NOT preempted by state law. [/Yelling]

And what's funny about this is that he quoted the statutes, but apparently never read them. And then in a headache-inducing move, goes on to cite case law from Iowa, interpreting a statute that is written differently than the MCIAA.

The nub of the argument presented is that since the state statute provides for designated smoking areas, local governments are prohibited from promulgating ordinances that prohibit them (ie any local government law in conflict is "preempted" by the state law). However the plain language of the MCIAA makes it explicit that local governments do indeed have that power. The passage of the statute that this guy apparently didn't read is emphasized:

Smoking areas may be designated by proprietors or other persons in charge of public places, except in places in which smoking is prohibited by the fire marshal or by other law, ordinance or rule.

It doesn't get much more explicit than that.

In fact, it's so uncontroversial, that the only thing remotely resembling authority on the preemptive effect of the MCIAA is a 2000 Attorney General opinion, which says the exact same thing I just did:

The above provisions establish a general prohibition on smoking in public places with an exception for designated smoking areas in restaurants and certain other facilities if proprietors wish to have them and if they satisfy the requirements of both Minn. Stat. § 144.415 and of the Health Department rules. This exception, however, can be overruled by fire marshal action, or by other law, ordinance, or rule. In other words, a local government can by ordinance negate a proprietor's ability under the CIAA to designate smoking areas in a restaurant.

In light of this express legislative direction and the well-established power of municipalities to regulate smoking under their police powers, we do not believe there is a need to engage in a preemption analysis to determine whether state law "occupies the field" or implicitly prohibits conflicting or inconsistent local regulation. See Mangold Midwest Co. v. Village of Richfield, 274 Minn 347, 143 N.W.2d 813 (Minn. 1966). That analysis need only be employed when the intent of the legislature as to local regulation of the same subject must be inferred from the context of the legislation. In this case, the legislature, by enacting Minn. Stat. 144.415, has expressly preserved the power of local governments to prohibit smoking in those public places which the CIAA otherwise leaves open for proprietor-designated smoking areas.

Yeah, it's Mike Hatch. But in this case, he's right.

This is why I have maintained from day 1 that this is a public policy / moral issue, not a constitutional one. Despite the scars on jurisprudence inflicted by the Warren Court that considerably shrank the universe of laws that would be considered constitutionally valid, the universe remains large. What some politicians - like the drooling morons on St. Paul's city council - don't get is that just because a law can be passed doesn't mean it ought to be passed. Governments have wide latitude to pass imbicilically improvident laws. The place to fight those laws are at the ballot box, in meeting chambers and with your pocketbook.

But you do yourself and your cause no favors by framing your argument in an untenable milieu.

Now go get 'em - the right way.

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