Tuesday, March 2, 2010

Ex-landlord jailed over smoking ban

Nick Hogan was no rabble-rousing weirdo,
Just a businessman, as any fool could see
Until one day a trial judge lost his patience
And sent Hogan off to jail, no longer free

'Cause the law is for protection of the people
Rules are rules and anyone can see
We don't need no freedom-loving mavericks
Corrupting decent folk like you and me . . . no siree
(With apologies to Kris Kristofferson)

Many people believe that the law should be respected. Rules are rules, they say; and the law is the law. Break the law and you must suffer the consequences.

But what should happen when the law is used as a weapon to control the personal behaviour of citizens? What happens when the law encourages the blatant discrimination of a minority group? When the law, in fact, becomes an ass? And, no, I'm not talking about grievous illegal behaviour such as assault, theft or other activities of a criminal nature.

I'm talking about the use of a legally sold and highly taxed consumer good: tobacco. It's sold legally, in convenience stores, gas stations and a host of other locations. But, it may be legally consumed only in a rapidly diminishing number of places. There are laws, you see.

Nick Hogan is a Brit. A year or two back, he owned a couple of pubs in Bolton, England. And, when England brought in their smoking ban in 2007, Hogan, a non-smoker, protested. Believing he was a citizen of a free country, he took exception to laws which declared his private business establishment public property.

He objected to laws which dictated the personal behaviour of his clientele on his premises. He believed that it was his right to set the rules of conduct in his pub. He objected to being pressed into service as an unpaid policeman; to enforcing laws with which he disagreed; because they violated his private property rights.

So, he obliged the government and conformed to all material aspects of the law. He dutifully posted “No Smoking” signs in his pubs. He removed the ashtrays from the tables, and he placed notices, advising customers that the law did not permit them to smoke inside, on the tables in his pub.

But, he refused to act as an enforcement officer as required by law. According to the law, bar owners and landlords are obliged to enforce the ban or face fines of up to £2,500 if they fail to do so.

And, that got Hogan in deep shit with the powers that be. He was cited by the Smoke Police and slapped with thousands of dollars in fines. He incurred additional costs in legal fees for his many court appearances. He was hit with a bill for the court costs incurred by the government to prosecute him.

Hogan no longer owns his pubs. Some accounts say he went bankrupt. His wife claims that, following the conviction for allowing people to smoke in his pubs, he lost his job and was unable to keep up with the £125-a-week fine payments, presumably arranged by the court.

And, when he wouldn't or couldn't pay the £10,000 in fines and court costs, they threw him in jail. Six months for allowing people to smoke in his pub. Uh-huh. The law's the law.

But, the real question is whether the law is reasonable or just. What is really expected of a bar owner? Are they expected to physically remove anyone who lights up? Call the police? Should they hire private security to enforce the smoking ban?

A recent US court decision, handed down Feb. 19 in Ohio, found that by fining bar owners $5,000 each time the state caught an individual smoking, the state was unfairly enforcing the law.

Said Judge David Cain, “Placing the (onus) of enforcing the Smoke-Free (Workplace) Act against individuals completely on property owners is ludicrous and defies basic notions of fairness. Property owners . . . have no control over whether someone rips out a cigarette and lights up.”

Is this English law reasonable or just? Should the State mandate that bar owners become law enforcement officers? If smoking bans are legislated by the State, then is it not the responsibility of the State to enforce them?

If the Smoke Police witnessed Hogan “allowing” people to smoke in his pub, then they also witnessed people smoking. Why then, did they not approach the transgressors and demand that they butt out? Why was Hogan the only one charged with a violation? Selective enforcement?

Hogan was among several landlords who were public in their strong opposition to the smoking ban. And, by all appearances, he was singled out. A target for the anti-smoker crowd who wanted to “make an example” of him.

The ways and means of protecting non-smokers from the alleged hazards of secondhand smoke exist. Compromises were/are available. The smoking ban was/is unnecessary. And, like punitive levels of tobacco taxation, it is turning otherwise decent, law-abiding citizens into criminals.

Edmund Burke said, "When the law becomes the enemy of man, then man becomes the enemy of the law". I would add only that right-thinking men (and women) should oppose unjust, discriminatory laws.

Six months in prison for "allowing" people to smoke? Do these laws really warrant the public's respect?

1 comment:

Penelope said...

This is outrageous! If a passerby witnesses an attack on a member of the public, he cannot, under UK law, be held responsible for not taking action against the attacker. To use a Landlord as a law enforcement officer is untenable in my view. Pub landlords are struggling to make a living as it is without have to alienate their customers further by 'spying' on them and removing them from private premises that are often the licencees'own homes.

The Government maintains that only 30% of the public now smokes and, therefore, the remaining 70% have to be protected. They fail to understand that the 30% are those who most frequently use pubs! (information from an ex-landlord).

Many bar/pub/club owners sell e-cigarettes to their customeers in an effort to make their stay more comfortable (not driving them outside to smoke). Following the proposed ban on the sale of all nicotine products due on June 21st '10, with the notable exception of Nicotine Replacement Therapy products and tobacco, yet one more freedom of the individual will be removed!

What next?

Penny Roberts