Kansas' attempts to reverse smoking ban - Could Become Case Law if Won

Kansas' attempts to reverse smoking ban. If they win, it will become Case Law for other states to follow.

Here's a little something a bar owner has put together to help in their fight against a smoking ban in
Kansas. This man is not new to smoking ban fights (or other states bans) & he's done his homework. His (and his lawyers) contact information is at
the end.

NEW COURT ARGUMENTS:

Smoking ban lawsuits:
I've been following these suits now for several years hoping to find the
final argument. So far, all I've seen are the same arguments over and
over. You'd think people would learn. Court arguments using
constitutional vagueness, First or 14th amendment violations, and other
rather vague arguments do not seem to get far. With good reason, it's a
tough argument to make. Freedom of the press is provable, there usually
is some trail or evidence. Not so for the arguments often used in smoke
ban cases. I've also seen arguments claiming the ban violates state
statutes, as is the case here in Kansas. In many cases, not enough
research was done. Kansas has a statute allowing communities to create
their own regulations as long as they are not more lenient than the
state's statute. I've spent considerable time poring over court cases
involving similar situations, the imposition of contrary or damaging
rules or regulations and I believe I may have come up with some more
substantiative arguments.

First, I found this case out of MO.
http://www.ca8.uscourts.gov/opns/opFrame.html (search on Larson,
William). Basically, an inmate sued the state claiming impairment from
exposure to second hand smoke and that the prison officials did nothing
to move him away from it. The points I found of interest are:

1: That the courts decided he did not, could not, prove any negative
effects from smoke exposure. Something similar to this could be used in
this way: the community in question did not conduct prior testing to
determine if there was in fact a health risk hence an ordinance
detrimental to business was passed without proper determination of need.
They did not question local health boards as to whether there had been
any complaints of individuals falling ill immediately after having been
in a local bar or restaurant from second hand smoke. The ban proponents
themselves could not prove a clear and indisputable need either.

2: The 8th district court and the Appeals court declined to hear
testimony from the plaintiffs witness, a Dr. Wells. This is significant
because Dr. Wells is responsible for the figure of 53,000 second hand
smoking deaths yearly. In the courts words: "The district court excluded
the testimony of Dr. Wells after determining that Dr. Wells did not have
the education or training in any field that would permit him to testify
about second-hand smoke." Dr. Wells is a physical chemist, not a doctor.
The courts decision could be used in another court to invalidate the
data from the ban proponents. Note that the ban proponents use his
figures as part of their argument with towns and counties voting
partially based on that. There is plenty of info invalidating the
doctor's conclusions, all from reputable sources. Note too that quotes
from any EPA study can also be called into question based on the Osteen
decision, the Congressional Research Service testimony, the General
Accounting Office, and other sources.

3: I did some math and came up with some interesting figures:
Ban proponents often quote a figure of 400,000 smoking related deaths
yearly which I'm sure you've heard. Well, break that down a bit. Look at
what percentage of the total population that 400,000 is. It's only
.0013%. Let's break that down even further into how many deaths per
hundred thousand: 1.3. So for the metro(Kansas City) area that works out
to 6.5 (5 x 1.3) people likely to die of smoking related causes. Using
the probably more accurate figure from researchers Sterling, Rosenbaum.
and Weinkam of only 150,000 deaths then we're at .0005% or .5 deaths per
100,000.

Now, let's take the 53,000 deaths allegedly claimed for second hand
smoke, that one breaks down to .00018% or .9 people per 100k. So 4.5
people if you believe the 53,000 figure. Which has been lambasted both
by peer review and by the Congress. Using the EPA's 3,000 figure
estimate for second hand deaths, the deaths per 100 thousand drops to
non-existence: .05. In Kansas City that means a quarter of a person
could die.

Putting that in perspective, you are far more likely to die at work than
from smoking related causes. The employee death rate per 100k among, for
example in “safe” Apparel & Accessory stores, is 3.7. The death rate for
all occupations is 6.1 per 100k statewide so 30.5 people will die in the
metro area. That means working is nearly 5 times more dangerous than
smoking. So maybe we should be banning work instead. (Occupational
statistics from the NIOSH for Kansas). In the case of Kansas City metro,
you are 129 times more likely to be murdered than die of second hand smoke.

4: I've re-read the original 1992 EPA report that is the ban proponents
bible. I also read a California EPA version of the same study done in
1997 and re-released this 12/05. This time I ignored the results and
looked at the methodologies, how they got those results. Here is what I
found that I feel is quite important:

IT IS NOT POSSIBLE TO ACCURATELY DETERMINE ETS EFFECTS:
PAGE 2-5 (5)
In order to investigate the health effects of ETS exposure,
epidemiologists characterize the exposure level of their subjects to
determine the extent to which exposure is correlated with an adverse
health effect. Given the extreme spatial and temporal variation of ETS
concentration in indoor and outdoor environments, it is not feasible,
technically and economically, to accurately determine the long-term ETS
exposure history of an individual. Yet often times it is the long-term
exposure to ETS that is of interest in
examining health effects, such as developmental effects and cancers.
Epidemiologists
Exposure Measurement and Prevalence
Page 2-6
circumvent this difficulty by using questionnaires or interviews to
determine the status of the subjects with respect to long-term exposure
to ETS and then classifying the subjects into categorical groups of ETS
exposure (e.g., none, low, medium, or high). In this way, they make the
best use of the semi-quantitative exposure information available without
compromising the validity of the study results. One drawback of this
approach is that it decreases the sensitivity or power of the study,
i.e., a study will not show a positive association when ETS exposure and
an adverse health effect are only moderately related.

EXTERNAL VARIABLES INVALIDATE RESULTS:

PAGE 2-10 (10)
2.3.5 Indoor Air Concentrations of Other ETS Constituents
Numerous field studies have been conducted to assess the contribution of
smoking to indoor air pollution. Data for select constituents of public
health concern, including N-nitrosamines, benzene, benzo[a]pyrene and
total PAHs, carbon monoxide, formaldehyde, and toluene are presented in
U.S. EPA (1992: Table 3-3 and Figure 3-3), as are references to the
literature (U.S. EPA, 1992: Section 3.3.1). An extensive compilation of
data from measurements of a variety of ETS-derived constituents is also
given in Guerin et al. (1992). Because sources other than ETS exist for
many of these constituents, it has been difficult for studies to
consistently demonstrate elevated concentrations in smoking
environments. For example, formaldehyde, which is present in a number of
consumer products and building materials, is emitted from these sources
at rates usually exceeding those from smoldering cigarettes. Carbon
monoxide (CO) is also released from other sources, including gas stoves
and heaters, and may be found indoors from air exchange with outdoor air
contaminated by vehicle exhaust; thus, it is often difficult to
ascertain the contribution to indoor CO levels due to cigarette smoke
(Guerin et al., 1992).

DESPITE CONCENTRATION OF CONTAMINATES BEING HIGHER FOR SMOKING
ENVIRONMENTS, THEY ARE STILL INSIGNIFICANT:
PAGE 2-12 (12)
Personal monitoring air concentration samples of benzene and
para-dichlorobenzene were also higher for persons in homes with “any
smoking” and those with "heavy smoking" compared to homes with no
smoking. However, for both the indoor and personal air measurements,
these differences were not statistically significant at the p = 0.05
level, as determined using pairwise t-tests (Sheldon et al., 1992a).

FLAWS in the MEASURING METHODOLOGIES:
PAGE 2-24 (24):
In a study by Leaderer and Hammond (1991), measurable concentrations of
nicotine were detected in 13% of residences reporting no smoking in the
home, while nicotine was not detected in 28% of the households with
occupants who smoked. For the latter, smoking could have occurred in
rooms other than the primary activity room in which samples were taken.
In summary, studies have consistently shown that subjects are
misclassified with regard to their ETS exposure status when the sole
basis for classification is the smoking status of other household members.

WHAT ALL THIS MEANS:
I don't know how you will read this but what I see is that the EPA, by
it's own admission is stating that the results of the study are
basically speculation, estimation, and approximation. While some of the
data is solid, for example types of particulates, the conclusions
reached are not. The EPA publicly declared ETS a carcinogen before it
even began any research. Its subsequent efforts failed to find evidence
to back its position however—despite fudging its analyzes with
statistical contortions that evoked condemnation from the Congressional
Research Service, the General Accounting Office, an investigation by the
U.S. House of Representatives, and America’s best known scientific
journal, Science. Rather than admit it was wrong about ETS being a
carcinogen and had wasted taxpayers money for two years trying to prove
it, EPA simply “deviated from generally accepted scientific standards”
and “deliberately abused and manipulated the scientific data,” as the
U.S. Congressional Investigation put it.”

5: Nuisance suits against ban proponents. While I'm still working
through this, just filing a suit could have a chilling effect on their
efforts. To date they have lied and exaggerated with impunity and not
suffered for it. While businesses have. Unlike government figures,
councilors and commissioners, they are not immune to lawsuits. Arguments
could be used such as interference in lawful business practices,
manipulation of data, lying to government bodies, etc. I imagine others
out there could come up with more. I feel for the filing fee of
$150-$250 (depending on your state), do it yourself, pro-se, this could
prove a useful tactic. It's certainly one they wouldn't hesitate to use.

Thanks if you read this far,
Joseph T. Bolduc
PJ's Sports Bar and Grill
Shawnee, KS.
pjs@pjssportsbarandgrill.com

It would be relatively easy to disprove these claims. Most of the supporting documentation has already been invalidated, the EPA 1992 report, Dr.Wells claim of 53,000, the 3,000 estimated deaths, already disproved in court and by congress, the GAO, and the Congressional Research Service among others.
Then there is the fact that despite years of exposure by millions of Americans, there is not the epidemic their figures would lead you to believe. Note that the American Cancer Society conducted a 38 year long, 118,094 subject study with an emphasis on 35, 561 never smokers who had a smoking spouse. Conclusion? "The results do not support a causal relation between environmental tobacco smoke and tobacco related mortality, although they do not rule out a small effect. The association between exposure to environmental tobacco smoke and coronary heart disease and lung cancer may be considerably weaker than generally believed." (published this past fall).
And unless I'm mistaken, a community has to prove a definitive cause and effect in order to justify regulations that may have a financial impact on a business. For example, kitchen health codes. Unsanitary kitchen equals food poisoning which equals illness or death, quickly. Very clear cause and effect.

Marc Levin, Esq.
Potts & Reilly L.L.P.
401 W. 15th St., Suite 850
Austin, TX 78701
(512) 469-7474 office