Oklahoma Smokers

During March, 2006, Jacob Sullum of “Reason” magazine penned two fine articles on smoking and its relationship to government.

In the first titled, Clean Air Calabasas Sullum refers to the Los Angles suburb of Calabasas,which basically outlawed smoking everywhere including outdoors, as a “smoke-free, family-friendly atmosphere of moralistic intolerance”. Sullum’s assessment is right on the money. Sullum further points out, and rightfully so, that supporters of the “smoke free city” mentality predict that this intolerance will spread to the entire state of California and ultimately the nation.

Owing to our nation’s habit of adopting every idiocy which arises in California, such dire predictions may not be without merit. Oklahoma smokers must be vigilant, otherwise similar smoking bans will surface, first at the local and ultimately at the state level. The best protection against this type of idiocy is best expressed in the smoker’s rights motto which states, “I smoke and I vote”. We must make that message very clear to those at all levels of government.

Sullum’s second article, State Cigarette Mob Can’t Kick the Habit he touches upon the mutual “protection racket’ existing between the states and big tobacco. A scandal which has arisen as a result of the Master Settlement Agreement between the big tobacco companies and the states.

This agreement between tobacco companies and the states while encouraging all parties involved to mumble platitudes of “smoking is bad for your health and you should not smoke” in reality links the financial interests of state government and tobacco companies in a ‘common cause’.

Sullum hammers his point home with the words of Colorado Treasurer Mark Hillman:

Because the settlement payments are tied to cigarette sales, Mark Hillman notes, states are sending “a mixed message to citizens that ‘We want you to stop smoking’ because it’s terrible for your health, but ‘We need you to keep smoking’ to pay for government programs.” Nowadays the states rake in more money from smokers than the cigarette companies do. Big Government and Big Tobacco have not just joined forces; they’ve become synonymous.

As we pointed out here in “Tobacco’s Double Addiction“, the state of Oklahoma is so addicted to tobacco money that the Attorney General is in panic at the thought that Oklahoma’s kickback from tobacco companies might be reduced. So much so that he has hit up the state legislature for funds to hire more attorneys, just in case.

Who knows whether the Attorney General was motivated to enter into the Master Settlement Agreement for the potential health benefits of Oklahoma smokers or if he was simply in it for the money. There is no doubt where his motivation now resides. One needs only to follow the money to understand what is important to Oklahoma Attorney Drew Edmondson today.

Few, if any, would argue that nicotine is not addictive. It is not only a very addictive substance it is also a ‘pleasurable substance’ for a lot of people. There is however one aspect of tobacco that is much more addictive than nicotine and that is tobacco money. It may even be more pleasurable to politicians than nicotine is to smokers.

While estimates are that twenty-five percent of Oklahomans are smokers, it appears that practically all of Oklahoma’s elected and appointed officials are tobacco money addicts. So much so that the federal government might wish to require some type of warning on the tobacco money flowing into the Oklahoma treasury.

The amount of tobacco dollars estimated to be sucked into the Oklahoma treasury from both tobacco taxes paid by consumers and ’settlement’ money paid by tobacco companies this year is $361 million. This while the estimated state spending on Medicare/Medicaid costs for treating smoking related illness is $201 million. This results in an apparent $160 million dollar net ‘profit’ for the state from tobacco companies and consumers.

So where do you reckon that $160 million gets spent? If you said tobacco use prevention and cessation programs, you would be only slightly right. This year Oklahoma is spending $8.9 million on such programs. This about 40 percent of what the CDC recommends Oklahoma spend annually for such programs, ranking Oklahoma 21st in the nation in spending to get its residents to refrain from using tobacco products. Of course this is better than last year when Oklahoma spent about half that amount and ranked 32nd in the nation.

Once stop-smoking programs are funded, what’s left, approximately $150 million, is split between the Tobacco Settlement Endowment Trust Fund and the general fund. Originally the split of ’settlement’ funds was fifty-fifty with half flowing into the old tobacco trust fund and half into the general fund, from which the legislature could spend the funds as it saw fit. Owing to a constitutional amendment in 2000 the split will by 2007 become seventy-five percent of the annual ’settlement’ take to the trust fund and twenty-five percent to the general fund.

Oklahoma politicians have become so ‘hooked’ on tobacco money that Oklahoma Attorney General Drew Edmondson is hitting up the legislature for a half-million dollars extra to hire new attorneys to insure that Oklahoma continues to slop at the money trough of the tobacco companies. Under the provisions of the ‘tobacco settlement’ between the big tobacco companies and forty-six states the companies party to that settlement can reduce their annual payments to the states, if their market share decreases, and decreasing it is.

As various states have increased their tobacco taxes, as Oklahoma did in 2005 becoming one of the states with the highest tobacco tax rates in the nation, tobacco users rather than eliminating their use of tobacco have been increasingly moving to ‘cheaper’ brands. These are products of companies not subject to the ‘tobacco settlement’ of 1998. This market realignment is decreasing market share for those companies that are subject to the settlement and under whose provisions the companies can and are decreasing their annual payments to the states.

Oklahoma politicians, and especially the Attorney General, are in a panic that the big tobacco companies will not only lower their annual payments but might also sue to have the settlement itself nullified, owing to the rapidly changing economic picture for ‘big tobacco’. The Attorney General claims he needed the extra half-million worth of attorneys to prepare for just this eventuality. If you get the impression that the Attorney General is ’stocking up’, akin to how some tobacco users stock up just prior to a huge tobacco tax increase, you would be right.

Addictions are like that…

Last week was a bad one for one McAlester, OK restaurant. The owner of What About Bob’s says he feels targeted and apparently that feeling is justified, judging from news media reports which indicate that the restaurant had been visited by the Health Department officials six times within a few days and on one inspection officials informed the owner of deficiencies in his smoking section. The restaurant owner says he fixed them.

The next afternoon, March 22, Health Department officials swooped down upon the restaurant again and shut it down because they say the building’s smoking section is not in compliance with state law. Evidently they did not wish to bother with re-inspecting to determine if in fact the changes made by the owner resolved their concerns.

That same afternoon the owner faxed a letter to the State Health Department promising he would not allow smoking in his establishment until his smoking room is deemed compliant. The restaurant was closed half a day on Tuesday and all day on Wednesday, as its owner awaited permission from the state Health Department to reopen. He was finally allowed to reopen on Thursday.

News media reports quoted the restaurant’s owner as saying:

This is all about strongarm tactics. They continually make new rules. It’s just nothing but wrong. My whole beef on this is there is no hearing, no judge, no due process. I mean if the bank wanted to foreclose on your house, you go before a judge before that foreclosure happens.

He also went on to explain his frustrations with not only the smoking police but their effect upon his business and the lives of those that work for him.

It’s a separate room with its own heat and air system. The exhaust vents outside. We comply with all that. I can’t afford to be closed, even for a couple of days. I’m a small business guy. I got people who work here with kids, man. People depend on this place.

Pittsburg County Health department Administrator Mike Echelle says that the department of health isn’t trying to ruin businesses. This statement rings hollow however in light of the fact that if the department was concerned about the effect of their tactics upon business they could have simply ‘cut a deal’ on the spot to permit the restaurant to remain open while prohibiting smoking until the facility passed their inspection. This rather than keeping the business closed for a day and a half while a bureaucrat in Oklahoma City shuffled a fax making the very same promise.

This type of punitive action on the part of the health department should be expected by those restaurant owners that have created the special ’smoking rooms’ mandated by the smoking police. It has been obvious since the anti-smoking law was enacted that the State Health Department is going to make it as difficult as possible for restaurant operators to accommodate smokers. These strong armed tactics are likely a message being sent to those restaurant owners that choose to exercise their rights under the law. A message saying we are going to make it as difficult and costly as we possibly can if defy our wishes and if you go out of business, tough luck.

The State Health Department has set up a toll free number. One which they encourage people with complaints against smoking optional restaurants to call. That toll-free number is 1-800-ONLY-AIR, or 1-800-665-9247. While they probably do not wish to hear from smokers complaining about the strong arm tactics of the smoking police, it is the right of everyone to do so. Besides, every call made to that number comes out of the State Health Department budget. What better way to make your voice heard? Smokers might wish to call now, and call often just to insure their message gets across loud and clear.

It seems that Governor Brad Henry and his cohorts in the state capitol never learn. Just days ago a federal judge in Tulsa ordered binding arbitration between the State of Oklahoma and the Osage Nation, this over a Tax Commission rule approved by Governor Henry and which violated the tobacco compact between the Osage Nation and the state.

Just yesterday the Oklahoma Senate passed and forwarded to the House Senate Bill 1950 by Sen. Cal Hobson, D-Lexington which is Governor Henry’s latest attempt to ‘fix’ his flawed compacts with Indian nation smoke shops.

This ill-advised bill seeks to alter the relationship between the State of Oklahoma, the Tax Commission, tribal smoke shops and their wholesalers and is just as much a violation of the compacts between the state and the Indian nations as was the Tax Commission rule over which the federal court ordered binding arbitration.

One would hope that Governor Henry and his ‘friends’ would eventually learn that once the compacts between the State of Oklahoma and the Indian nations were signed that it is too late to go back and try ‘do overs’ just because Henry’s compact negotiator blew it and left tribal smoke shops with a distinct tax advantage over non-tribal retailers. Evidently both Governor Henry and his ‘friends’ is the Senate have a steep learning curve. A steep learning curve that will result in more federal lawsuits, more discord between the state and the Indian nations and more expense for the taxpayers of Oklahoma.

Governor Henry, it’s time to wake up and smell the coffee. A deal is a deal and you can not go back for ‘do overs’ just because your designated negotiator was not smart enought to get it right the first try.

For those unaware, Oklahoma’s numerous tribal casinos do not fall under the Oklahoma smoking ban. Whether a tribal casino with dining facilities offers a smoking section or not is entirely up to the tribe/nation itself and many of them do.

This past weekend my family had the pleasure of brunch in the Wild Potato Buffet in the Cherokee Casino located at I-44 and 193rd E. Avenue in Tulsa, or more accurately Catoosa.

The selection of food, both breakfast and dinner fare, was outstanding as was the option to ‘light ‘em up’ after our meal. The buffet is ‘all you can eat’, the food is great and the price is reasonable at $10 per-person. If a buffet is not your style there are four other dining facilities within the casino proper, and the BBQ restaurant also has a smoking section.

After brunch we made the grand tour of this truly remarkable facility, enjoyed playing the slots and even took home more money than we spent for dining in a smoker friendly restaurant. The gaming area of this remarkable casino also welcomes smokers with ash-trays right at the various gaming machines and smokers are free to wonder from area to area without having to worry about ‘offending’ someone.

Those Oklahomans looking for a smoker friendly place to dine might want to check with their nearest tribal casino, they just might be in for a pleasant surprise. And if you decide to patronize one of the many tribal casinos in Oklahoma keep in mind that smoke shops are often found adjacent to the casino proper. In practically any tribal smoke shop in Oklahoma you will enjoy a significant savings on tobacco products.

On February 27, U.S. District Judge Terence Kern in U.S. District Court in Tulsa ordered the State of Oklahoma to enter into binding arbitration with the Osage Nation which maintains that Governor Brad Henry’s emergency rule applying to tribal smoke shops violates the 2003 tobacco compact between the Osage Nation and the State of Oklahoma.

The Oklahoma Tax Commission argued that before the new rule was implemented, cigarette taxes were being avoided by retailers who were using the lowest-rate tax stamp but who were not entitled to them. The tax commission proposed a rule to to limit the number of ‘low tax’ cigarettes which wholesalers could sell to tribal smoke shops to their 2004 sales volume plus ten percent. Governor Henry signed the rule, giving it the effect of law and imposing the restriction upon wholesalers rather than the smoke shops themselves, over which the Oklahoma Tax Commission has no authority.

The compact between Oklahoma and the Osage Nation says issues that are not resolved by “good-faith negotiations” within 30 days are subject to binding arbitration. Oklahoma refused to enter into negotiations with the Osage Nation which then filed suit seeking binding arbitration. In binding arbitration the state and the Osage Nation each name one arbitrator. Those arbitrators then name a third arbitrator, one upon which they can agree.

The Osage Nation named as arbitrator Kevin Gover, who served as a U.S. assistant secretary for Indian Affairs from 1997 to 2000, is a law professor at Arizona State University’s College of Law in Tempe and teaches courses in federal American Indian law. Gover also serves as an associate judge of the Tonto Apache Tribal Court of Appeals and of the San Carlos Apache Tribal Court, both in Arizona. He is originally from Lawton and a member of the Pawnee Nation.

The State of Oklahoma named as arbitrator Michael Burrage of Durant, who is the state’s arbitrator in a tribal compact dispute with the Cherokee Nation, retired in 2001 as chief judge of Muskogee federal court and as a district judge in Tulsa federal court.

The ruling by Judge Kern is a clear win for the Osage Nation and one certain to be causing worry in the Governor’s mansion, where a second ruling attempting to regulate interstate commerce between the Indian Nations and their wholesalers awaits the Governor’s signature.

Late last year, in an internet forum, I had occasion to engage in a debate of sorts regarding the Oklahoma smoking ban. My position was that restaurant owners should be free to choose for themsleves whether their establishment is non-smoking, smoking or a combination of the two. In that way customers could vote with their dollars, patronizing those establishments which best meet their needs and desires.

The gentleman with whom I engaged in debate on the issue opposed the existence of smoking only establishments and spoke out in support of the current smoking ban under which all restaurants are non-smoking with the option of maintaining an environmentally isolated ’smoking room’.

I pointed out that, according to the Oklahoma State Health Department, the vast majority of Oklahoma restaurants were already non-smoking. Health Department press releases claim that seventy percent of Oklahoma’s restaurants were totally non-smoking prior to the ban and estimates are that after the ban ninety-seven percent will be totally non-smoking.

I asked, “So what’s wrong with permitting all-smoking restaurants? Why should restaurant operators that want to operate a smoking only establishment be denied that right?” After all, with ninety-seven percent of the restaurants catering to no-smokers wouldn’t it be fair to have a few just for smokers, if their operators so desired?

His reply was somewhat surprising and very revealing.

His contention was that since he did not wish to dine in the presence of tobacco smoke, the existence of any smoking only restaurant would deny him his right to dine where he wished. He based the argument on the remote possibility that an all-smoking restaurant just might be the only establishment which served the food he desired and therefore must be required to adhere to the smoking ban otherwise he would be unable to dine there.

And that my friends, is simply a matter of greed.

Greed goes a long way toward explaining the mentality of the anti-smoking zealots and why they simply refuse to consider how the rights of restaurant owners are infringed by the smoking ban. In their mind their rights trump those of everyone else, even those who operate restaurants they may never patronize.

Restaurant operators get to choose where to locate their establishment, what to call it, what to offer on their menu, when their restaurant is open and when it is closed and to which segment of society it caters. In other words, restaurant operators get to choose for themselves the nature of their business venture. Or at least they did. Oklahoma restaurant operators no longer have the option to choose to operate an establishment which caters exclusively to smokers. That option was eliminated by the smoking ban which took effect on March 1st, 2006. From that day forward anyone opening a restaurant in Oklahoma has only one option, non-smoking. That is not an option, it is simply a government mandate.

If one is willing to spend extra money to construct an environmentally isolated ’smoking room’ as an adjunct to their non-smoking establishment they are free to do so. That however does not equate to a choice. A choice would mean that each and every restaurant operator in Oklahoma had the ability to opt for non-smoking only, smoking only or a combination of smoking and non-smoking. In that way customers could choose for themselves which restaurants they wished to patronize on the basis of their preference for non-smoking or smoking.

The smoking ban while encouraging restaurant operators to opt for non-smoking only also provides a means to accommodate smokers, albeit an expensive means. This fact gives rise to the question “Why no choice for restaurants to be smoking only?”.

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As the Oklahoma smoking ban has shifted into high gear we have been following news media reports from across the state to learn ‘what the locals are saying’. Throughout these reports over the course of the past few weeks comments from restaurant operators have fallen into three generalized categories.

Some are happy with the smoking ban in that it provides them the excuse to go non-smoking, a move they have wanted to make for some time but were afraid to make individually.

Others have paid the price to provide accommodations for their smoking customers and we salute them and will patronize such businesses in our area and encourage our fellow smokers to do likewise.

The third group is that which is taking the ‘which way the wind blows’ approach, waiting to see how the smoking ban will affect their individual business. With the smoking ban now in effect they are watching closely to determine how their smoking customers react. If they still patronize the business odds are it will remain non-smoking. If smokers abandon the business they will likely make the minimal investment necessary to provide a smoking section. The great unknown is whether non-smokers will fill any void created by smokers abandoning the now ’smoke free’ restaurant.

While smokers have no control or even any infuence in the actions of non-smokers patronizing these establishments, they most assuredly do have the ability to refrain from patronizing any business which has thus far refused to provide accomodations for smokers. Smokers have both a right and a duty to make their views known to business operators. If smokers refuse to act, make their voices heard and simply fade into the woodwork, they have no one to blame but themselves.

Welcome to oksmokers.com - news and information for smokers in Oklahoma.

Today, March 1st, 2006 marks a milestone for smokers in Oklahoma. As of today, smokers are no longer welcome in the vast majority of Oklahoma restaurants. It is a sad day, for not only have Oklahoma smokers lost a right which existed since statehood but so have the operators of thousands of private businesses in our state.

While smokers have lost the battle to enjoy an after meal cigarette, cigar or pipe in the vast majority of Oklahoma restaurants they have not yet lost the war. And make no mistake about it, there is a war going on. A war against an enemy whose ultimate goal is to outlaw smoking altogether.

Oksmokers.com is about fighting back, providing news and information to Oklahoma smokers on who is waging war upon your rights, how they are doing it and what you can do to about it. We will also be providing information on how to reduce the ‘tax bite’ when purchasing tobacco products, how to ’shop around’ for the best prices and how to fight back against big government and those that support it.

Our first project is to provide a list of those few restaurants in Oklahoma which still welcome and provide accomodations for smokers. As of today, there are very, very few such businesses in our list. If you are aware of an Oklahoma restaurant that does welcome smokers and which is not on our list, please let us know so that we may include it.

Thanks for spending some time with us.