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# The rule of law on puffing away
- URL: https://www.smdp.com/the-rule-of-law-on-puffing-away/
- Published: 2007-11-30T16:00:00.000Z
- Updated: 2026-10-25T01:18:38.000Z
- Author: Guest Author
- Tags: Opinion, Downtown, #archive-import

AS THE BUSH ADMINISTRATION HAS sought to unilaterally redefine the scope of its authority without regard to statutory, or even Constitutional restrictions, a common theme raised by myself and other Bush administration critics has been the need to reestablish the rule of law. That is because tyranny begins where law ends and, as Cicero noted during Roman times, “we are in bondage to the law so that we might be free.”

This issue resonated with me this past weekend as I read the Sunday papers, not because of anything I read but because I was reading it at a downtown restaurant that showed little regard for the one-year old Santa Monica smoking ordinance, which is one of nearly 700 such ordinances throughout the country restricting outdoor smoking.

My wife and I were having a leisurely brunch on the patio area of Ma’Kai, when a tourist at a nearby table began to smoke. My wife, who is very sensitive to cigarette smoke — to the point that it can trigger a debilitating migraine headache — correctly assumed the patrons were unfamiliar with the ordinance and handed them a brochure on the law in asking that they stop smoking. When they hesitated, my wife spoke with our waitress, who in turn spoke with her manager before speaking with the patrons. The waitress explained that (1) it was true that there was an ordinance, (2) but that the restaurant had no duty to enforce it and therefore (3) the patrons were free to do as they pleased (although they could be ticketed).

I was shocked by the restaurant’s nonchalance and disregard both for the law and for the legitimate expectation of their patrons — the ordinance’s intended beneficiaries — that the law be enforced. I was not shocked to hear, however, that the city had received several complaints about Ma’Kai.

I imagined restaurant owners being as cavalier with the public accommodations provisions of the Civil Rights Act of 1964 — allowing their wait staff to decide whether or not to serve African-American patrons. If that had been the case, we might still have segregated restaurants in the South today. That is precisely what happens in the absence of the rule of law — people’s rights are no longer certain but rather are subject to the capricious whim of whomever is “the decider.” Granted this debate is not about domestic surveillance or racial discrimination — but the principle is the same.

Next week, the City Council will consider amending the ordinance to fine noncomplying establishments. I whole-heartedly endorse such an effort and also believe that compliance with the ordinance should be part of the establishment’s Health Department rating.

This amendment should not be a huge issue, since all it requires is that restaurants apply the same rules on their patio which they already are obligated to apply inside. The amendment imposes a marginal additional burden that is unlikely to have any material impact on the business community — especially when the Center for Disease Control (“CDC”) and the Surgeon General’s Office have found indoor smoking bans to have no negative impact on restaurants.

These laws, however, do have very positive health effects. A CDC study found that that the presence of nicotine substances in non-smokers fell 70 percent over the past decade and were higher in locations with indoor smoking bans. This will help reduce the $10 billion in direct and indirect costs caused by exposure to second hand smoke.

More importantly, it sends a signal that the law matters. Restaurants, patrons, smokers and non-smokers are all bound by the same social compact that depends on our adherence to the laws that govern us. To paraphrase Montesquieu, liberty is the right to do as the law permits and to enjoy the benefits the law provides. Amending Santa Monica’s outdoor smoking ordinance to strengthen its enforcement ensures both the health and the liberty of its citizens by allowing them to enjoy the protection of the ordinance that some businesses have callously denied them.

*Originally published in the Santa Monica Daily Press print edition on November 30, 2007.* [Read the original PDF.](https://s3.us-east-1.amazonaws.com/smdp%5Fbackissues/113007.pdf?ref=smdp.com)