get em vets!!-challenge to smoking ban

[lincoln8740]

From freep:

Michigan veterans fight for right to smoke

VFW post in Baraga defies state's new ban, files lawsuit







BARAGA -- The veterans at the American Legion Post 444 see it as pretty straightforward.
Smoking tobacco is legal. They own, run and risk failure at their post's tavern in tiny Baraga at the base of the Keweenaw Bay in the Upper Peninsula.
So they get to decide whether patrons get to smoke.
That wasn't an issue before May 1, when a statewide ban on smoking in places of employment took effect [[with a few, minor exceptions and one major one: Detroit's three casinos).
Now Foucault-Funke Post 444, where the ashtrays never came off the tables and smokers line the bar each afternoon and evening, is at the center of what could be a decisive showdown for the new state law and -- as the vets see it -- for the individual liberty and self-government they fought to defend.
Earlier this month, the post sued the Western Upper Peninsula Health Department to strike down as unconstitutional the department's order to end indoor smoking.
"It's not about the smoking," said post spokesman Joseph O'Leary. "It's about the right to choose to allow the use of a legal substance on our property."
Smoke looks like freedom on a Baraga afternoon

At least for the time being, smoking is good for business at the Baraga American Legion post.
On a recent perfect August afternoon, nearly two dozen patrons took shelter from the sun at its U-shaped bar to toss back brew, banter and [[for about half the group) brazenly blow smoke into the indoor air.
The way one of those smokers, Baraga resident and auxiliary post member Anita Shepard, sees it, that smoke is what freedom looks like.
"People walk in, stop and see the ashtrays and they're blown away," she said. "They say, 'Awright,' turn around and go back to their cars to get their cigs."
The new state smoking ban, Shepard said, is just one more encroachment on personal freedom, a decision handed down by out-of-touch politicians 500 miles away. She likens it to restrictions on gun rights and creeping government intrusion generally.
"We're not a communist country yet, but we're only one step away from it," she said.
The leaders of the Baraga post said they didn't go looking for a confrontation with the state or local health authorities. But when the new law was signed, they decided it was time to take a stand.
"These are guys who put their lives on the line for their country," said O'Leary, an honorary member of Post 444.
"They said, 'Wait a minute. This is our property. This is not heroin. Nobody in the world who doesn't like smoke has to walk through that door.'
"They just decided, enough is enough."
When May 1 came, Post Commander Rick Geroux issued a notice to members and employees that, until ordered by a court, the new restrictions would not be observed on its premises.
During the next two months, several citizen complaints were filed about the post's noncompliance, and local health department officials sent notices of violation. Geroux responded with a news release July 16 that described the new law as unconstitutional and un-American.
Further, the exemption for Detroit's casinos [[which was based on their need to compete with American Indian casinos not covered by the state law) is "wildly unfair" to the Baraga post, which lies within a mile, and competes for customers, with two alcohol-serving, smoking-acceptable tribal facilities, Geroux said.
After getting a cease-and-desist order from the health department July 20, the post decided to sue.
Guy St. Germain, director of the western Upper Peninsula health department, said the post's take on the law is "strictly speaking, irrelevant to how we do our job.
"We're obligated to enforce public health statutes the Legislature passes. This is a valid law until a court says otherwise."
St. Germain said the Baraga post is alone among establishments in the five-county region that have chosen to ignore the law. He said a "small handful" of complaints about other violations were mostly technical in nature and easily resolved. A spokesman for the state Attorney General's Office said she was unaware of any other lawsuits over the smoking ban.
Post spokesman O'Leary, also the Baraga County prosecuting attorney, believes noncompliance with the law, especially in the libertarian-leaning Upper Peninsula, is more widespread than health officials acknowledge. The legion post has been targeted, at least in part, because it is openly defiant, he said.
That high profile has helped in some ways, as well, generating donations to a legal defense fund and drawing support from all over the state.
St. Germain and the health department have asked Michigan Attorney General Mike Cox to defend the smoking ban in court. A response to the post's lawsuit is due soon.
For now, however, Post 444 keeps serving and its patrons keep smoking.
The front door is decorated with a bumper sticker, notifying customers: "We believe in Life, Liberty, and the Pursuit of Those Who Threaten It!"
Inside, the barkeeper distributes another to visitors, "Say yah to da U.S. eh!," a patriotic variation on the green stickers that became ubiquitous in northern Michigan in the 1980s -- "Say yah to da U.P. eh!"
The vets at Post 444 said they don't think of smoking as an act of patriotism [[although several of the elder statesmen point out the government provided the smokes and hooked them on the habit when they were in the service).
But there isn't any question they view a government order to stop as an affront to liberty.
"No foreign enemy has ever taken away any of our liberties or our property," O'Leary said. "Now those guys in Lansing are doing it."

[bailey]

I will never understand all the crying over this law. It's a violation of individual liberty and freedom to have a no smoking rule inside the building...one is still free to go smoke out on the sidewalk, but no one seems to question why a 20 year old veteran of a foreign war can't get a drink in the bar legally or, for that matter, anywhere in the entire united states or even on military bases abroad?

[Meddle]

There is no 'right to smoke'.

[Searay215]

I say take the American Legion Post's liquor license away for violation and then they can have water with those cigs.....poor them.

[1KielsonDrive]

They should be spending their money and energy on quitting smoking. At the VA Medical center, I see many vets sitting in wheelchairs, hooked up to oxygen bottles, smoking cigarettes, exercising their whatever Constitutional Amendment rights. I suppose this protest, legal challenge, is about fascism, communism, socialism or whatever.

[Johnlodge]

I bet if they hadn't made a whole bunch of indignant noise, nobody would have noticed/cared about smoking in a little VFW hall in Baraga.

[Meddle]

I say take the American Legion Post's liquor license away for violation and then they can have water with those cigs.....poor them.

If the law provides for it, that's exactly what should happen.

[lincoln8740]

There is no 'right to smoke'.

ahh but there is equal protection under the law--no?

There would be no way this lawsuit would have any traction whatsoever if it was not for the casino exemption.

The great part about it is that the court cannot just invalidate that part of the law--they have to invalidate theWHOLE thing.

[lincoln8740]

I say take the American Legion Post's liquor license away for violation and then they can have water with those cigs.....poor them.

does not and cannot involve the liquor license

it does affect their ability to serve food--eventually with enough violations the health department could stop them from serving food.

[Gistok]

Baraga County has Michigan's tallest hills... 1980 ft Mt. Arvon and 1979 ft. Mt. Curwood, and the county is mainly forested.

So what is the demographic of Baraga County??.....

[jerrytimes]

What would all of you think if they banned liquor in public places, after all, it is a greater health risk to everyone than smoking.

[1KielsonDrive]

ahh but there is equal protection under the law--no?

There would be no way this lawsuit would have any traction whatsoever if it was not for the casino exemption.

The great part about it is that the court cannot just invalidate that part of the law--they have to invalidate theWHOLE thing.

Are you speaking as an attorney? An expert on smoking and the law? Or, is this just your opinion?

[1KielsonDrive]

What would all of you think if they banned liquor in public places, after all, it is a greater health risk to everyone than smoking.

Somehow or other, I seriously doubt it.

[Meddle]

What would all of you think if they banned liquor in public places,

I believe they tried that once.

[Papasito]

There is no 'right to smoke'.

Nor should there be a politician who can tell you you have no right to smoke. I find it amazing that so many people who want to see pot become legal take issue against others smoking tobacco.

Also, you may hear the politicians crying about how evil tobacco is, but at the same time, they are not complaining about all the tax money it hauls in for them. Maybe all the outcry is intentional - the more evil they make it look, the more they can overtax it.


I am not a smoker, for the record.

[lincoln8740]

Are you speaking as an attorney? An expert on smoking and the law? Or, is this just your opinion?

as an attorney and I do not think anyone can be an expert on the smoking law because it is so new

[mjs]

Also, you may hear the politicians crying about how evil tobacco is, but at the same time, they are not complaining about all the tax money it hauls in for them. Maybe all the outcry is intentional - the more evil they make it look, the more they can overtax it.

Maybe the more liberal politicians will complain about the tax. Sounds regressive to me.

Overtaxed? Nah, if smoking was banned outright, the savings to the government would far exceed its lost tax revenue. Remember the lawsuits over smoking health care costs to the states? I'm not saying smoking should be banned. Just quit crying about the taxes already. If it costs too much, people an smoke less!

[1KielsonDrive]

as an attorney and I do not think anyone can be an expert on the smoking law because it is so new

That's why I asked.

[Danny]

You all might want to look at the people who are suffering from lung cancer, emphysema and asthma. Their rights have to be protected, too. I'm for the NO SMOKING inside public places. YAY! victory for non-smokers.

WORD FROM THE STREET PROPHET!

Thank you for not smoking for Neda's sake.

[rb336]

Nor should there be a politician who can tell you you have no right to smoke.

There aren't any pols i know of who are calling for a universal ban on smoking, and as numerous precedents have shown, actions that are harmful to people can be banned from places where the public gathers.

I find it amazing that so many people who want to see pot become legal take issue against others smoking tobacco.

totally different issue, and they AREN'T saying it should be allowed in bars, the workplace, etc.

[lincoln8740]

There aren't any pols i know of who are calling for a universal ban on smoking, and as numerous precedents have shown, actions that are harmful to people can be banned from places where the public gathers.



.

ahh and that my friend is the crux of the whole lawsuit

100% ban-- no problem

a ban on one business and granting an exemption to another for non-health reasons--big problem

And don't even get me started about the ban on smoking OUTDOORS.

[jt1]

I say let them smoke. The sooner they kill themselves the less burden there will be on the VA hospitals, Medicare/Medicaid, etc.

[Papasito]

YAY! victory for non-smokers.

YAY! Keep pot illegal too! We don't want to foul the air!

[1KielsonDrive]

ahh and that my friend is the crux of the whole lawsuit

100% ban-- no problem

a ban on one business and granting an exemption to another for non-health reasons--big problem

And don't even get me started about the ban on smoking OUTDOORS.

Please, get started. After all, you're an attorney. Attorneys have opionions like everyone else, whether educated in the law, or not.

[checkraisej]

as an attorney and I do not think anyone can be an expert on the smoking law because it is so new

I'm calling bullshit.