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California Prohibition Could Finally End

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On his Facebook page, California State Senator Scott Wiener announced he will be introducing legislation that would allow cities to establish the hour of “last call” for local bars and restaurants.

Under current California law, it is illegal for bars and restaurants to serve alcohol past 2 a.m. Wiener insisted that local communities deserve “more flexibility” from the “one-size-fits-all 2 a.m.” last call. “Nightlife matters a lot, culturally and economically,” Wiener said.

Cognitive dissonance, thy name is government.


Culture and Economics

Wiener is right. This would bring economic benefits to businesses in major cities like San Francisco and Los Angeles. For many bars and nightclubs, late night is peak business hours, and alcohol is a top seller.

The reason we say “it’s 5 o’clock somewhere” whenever we drink before 5 p.m. is because we identify drinking as an evening ritual.

It is culture plus economics that is driving all this.

Consider Starbucks recent “Evenings” promotion. Starbucks wanted to introduce beer and wine to its menu, starting in the early evening. The company tested “Evenings” at 400 stores, but discontinued the concept in January. Some suggest “Evenings” did not work because Starbucks was forcing two business models into one. Evening table service for food and drinks clashed with their traditional counter service model.

But many bars and restaurants have counter service only. Perhaps “Evenings” did not catch on because it forced together two cultures. Coffee shops and pubs might have some common ground, like casualness, community, conversation, and even music. Combining the two can be done, and has been done. But it requires a transformation around evening time where alcohol is introduced, the music is turned up, and the mood shifts. For Starbucks, transforming 25,000 successful stores at 5 p.m. probably did not make sense, economically.

But notice, while Starbucks found common ground for coffee shops and pubs, it did not attempt to transform itself into a dance club. If you want dancing, you don’t go to a pub, a wine bar, a dive bar, or a microbrewery. Each of these models has its own culture. And yet, each of these cultures shares a common ritual: alcohol consumption. Not surprisingly, they also share some peak hours: evening and nighttime. For Starbucks coffee drinkers, peak consumption is before noon. For clubbers, the party starts at midnight.

It is culture plus economics that is driving all of this.

That is why L.A.’s Koreatown has become a center of post-2. a.m. speakeasies, while Starbucks voluntarily closes around 10 p.m. A Koreatown bar sees enough potential income in the post-2 a.m. hours that they risk getting busted by LAPD. Starbucks sees no reason at all to serve coffee in the middle of the night. They don’t need a law telling them when to stop serving coffee – their customers make this decision obvious.

Smoking Bans

But Weiner’s eminently sound reasoning also works in, oh, about 9 billion other instances where the State has declared “one size fits all.”

In 1995, California made it illegal to smoke in most indoor workplaces. The law – California Labor Code section 6404.5 excludes the following from the definition of “place of employment”: 20 percent of hotel guest rooms, tobacco shops, and private smokers’ lounges, cabs of motortrucks, truck tractors, theatrical production sites “if smoking is an integral part of the story,” medical research or treatment sites, private residences except residences licensed as family day care homes, and patient smoking areas in long-term care centers.

Weiner’s eminently sound reasoning also works in, oh, about 9 billion other instances where the State has declared “one size fits all.”

And yet, section 6404.5 says this all “constitutes a uniform statewide standard.” So, one size fits all, except here, there, sometimes, and maybe.

Many of the bars and restaurants that may now be permitted to serve alcohol after 2 a.m. will still be subject to the smoking ban. Supporters of the smoking ban will say the health risks to employees working in bars is too great. Indeed, the law is designed “to reduce employee exposure to environmental tobacco smoke.”

Sure, but there is also health and safety policy behind setting the last call at 2 a.m., rather than later. The 2 a.m. rule is intended to limit sexual assaults and drunk driving (which is a health and safety risk to everyone driving a car). Opponents of Wiener’s proposed bill have been quick to point out that relaxing the 2 a.m. law will just mean “more drunks at 4 than there were at 2.”

And yet, Wiener thinks cities can be trusted to determine their own health and safety policies when it comes to late-night drinking. So why can’t they also decide where, when, and how people smoke?

What about Non-Aggression?

Perhaps this would not be fair to employees, or renters who wish to avoid the risks of secondhand smoke. And perhaps it is also not fair to people who need to drive at 3 a.m. (perhaps for work?) that they should have to travel on roads with potential drunk drivers.

However, the regulations are redundant of existing disincentives to bad behavior that causes harm: criminal penalties and civil lawsuits. A drunk driver who harms someone has committed a crime and may be fined or jailed. They can be sued by victims and their families. Dramshop laws in most states permit victims of drunk drivers, or their families, to sue the bar owners that served the drinks. You can also sue for damages if you allege harm caused by secondhand smoke – perhaps as a nuisance to your property, or maybe it is a violation of your lease or CC&Rs. An employee can sue for breach of duty of care to provide a safe work environment.

It is not enough to say “just don’t work in a smoke-filled bar,” or “don’t drive around after the clubs shut down.” If my employer runs through the office shooting a pistol for kicks and giggles, he is committing 10 different civil torts and quite a few serious crimes. This is aggressive behavior. And yet there is no special law in California on running through the office shooting a pistol – before or after 2 a.m.

Somehow, we manage.

Localize It

Not every classical liberal would favor eliminating all government regulation. But a preference for localism in setting health and safety rules is a good starting point.

City laws can already be stricter than State laws. Some California cities prohibit smoking in condos, apartments, and multi-unit housing complexes.

But by bringing these decisions closer to the people (and businesses) affected, the most sensible, most efficient regulations can prevail. Instead of one rule for 39 million Californians, these 39 million people can come up with their own local rules that work best in their separate communities.

Robert Coleman

Robert Coleman

Robert Coleman is an alumnus of Berkeley and Pepperdine Law, and a corporate attorney.

This article was originally published on FEE.org. Read the original article.

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