Enforcing The No-smoking Law

Larry Price
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Wednesday - November 22, 2006
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The state’s newly enacted law SB 3262, Act 295, related to health, specifically smoking in public, is officially in effect as of Nov. 16, 2006.

It is an amazing piece of hopeful legislation. To begin with, it is 20 pages long. It has the longest web site address I have ever seen: http://www.hawaii.gov/health/healthy-lifestyles/tobacco/Smoke-Free.htm.

The intent of the law is to discourage smoking, especially to thwart the effects of second-hand smoke. Gone are “smoking” break rooms. The law gets very specific, naming prohibited areas within 20 feet of doorways, windows and ventilation intakes of enclosed or partially enclosed places of employment.

As to smoking in a fully open-air work-place like an outdoor construction site, the owners of the establishment have the legal right to declare them nonsmoking establishments simply by posting a sign that reads, “Smoking is Prohibited by Law.” It goes on to point out that a “No Smoking” symbol must be posted at the entrance to every public space and place of employment where smoking is prohibited by this new law.

The comical part of the law points out that the Hawaii Department of Health is tasked with enforcement of the law, but police may be called to issue a citation. The fines are stiff: up to $50 for individuals and up to $500 per violation for establishments, which may also have any permit or license suspended or revoked for the premises where the violation occurred.

It’s like the Department of Health does-n’t have enough trouble enforcing all the laws dealing with health and safety. Complying with the smoke-free law is serious and, in point of fact, ambitious when you consider the police have not been very successful in prosecuting individuals recently caught with stolen copper wiring.

If the DOH had specially trained under-cover smoking agents, this law might be enforceable. It would be like the vice or narcotic squads. They would have special tools to handle the culprits, things like video surveillance, wiretaps and special detention cells where they could grill the accused, knowing the addicted smokers couldn’t go for more than 30 minutes without a drag on a cigarette - maybe even special K-9 units that could sniff out illegal smokers hiding out in dark corners.

The real comical part of this new law is that the fines are right up there with other laws we have in Hawaii, but are for the most part unenforceable. The violation of the High Vehicle Occupancy (HOV) lane is $200. Same for the Zip Lane and the vaunted Litter Law. To date I have never seen any violators of these laws cited. I could be naive; however, I believe there is strong and convincing evidence that a mere sign by itself cannot enforce a law.

It seems strange that the law doesn’t use its clout to impose non-smoking education as remedy. It could have a provision like anger management for a spouse abuser, driver education for DUI infraction and rehabilitation programs for chemical addiction. Just a levied fine seems judicially naive.

No, I’m not a smoker or remotely suggesting that the law is unwarranted. Quite to the contrary, I believe if smokers could take a look inside their lungs and see the damage inhaled smoke causes to the human body, they would think twice before they took a drag on a cigarette. Of course, this is a free country. If you want to slowly kill yourself because it is your right to do so, then at least consider the innocent bystanders who respectfully disagree and don’t want to inhale secondhand smoke.

As if to prove the merit of the law, there is a place where it does allow smoking at any time, any place. Ironically, it is in state prison facilities, probably the only place where a sign warning of severe punishment for violating a law has any significant impact.

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