Chili's Part III

I have now spoken to your local “AD” and with Mr. Bill Himey (sp?) (214) 755-6835 regarding my recent experience with Chili’s.

Most recently Mr. Himey indicated to me the as far as Chili’s concerned vaping and smoking were “the same.”  I find this position troubling from several perspectives.

Most importantly vaping and smoking are not “the same” - not in terms of definition or physics, not in terms of treatment under the law, and not in terms of health.

To “smoke” obviously you must A) involve combustion and, if you extend “smoke” to mean “smoke cigarettes,” B) use tobacco in some form.

The device which I use, which is not an “electronic cigarette,” does not involve either, nor does it involve nicotine.  It “vaporizes” by heating, not burning, and uses the same ingredients that you find in the cake frosting served in Chili’s (see http://lwgat.blogspot.com/2015/01/ejuice-in-indiana-criminalized-frosting.html).

If I wish to use my device under your current policy I am relegated to the area where people are using combustion cigarettes so I can inhale their second hand smoke.  If I am there with my young grand children they would have to accompany me.  This is both unfair and counterproductive to everyones health.

My device is no different than an inhaler in terms of function and uses the same ingredients, save for any prescription medicines which I am forced to inhale from the inhalers of others, as inhalers which are not banned within your establishments.

Next is the issue of the law.

Smoking cigarettes where I live is in fact banned in establishments such as the Chili’s near me.  As this is the law its perfectly acceptable.

On the other hand, there is no law of any kind related specifically to vaping where I live.  So vaping is in fact a perfectly legal activity.

The problem I see here is this: anyone smoking where it is legally prohibited can reasonably be asked to leave. In the case of vaping, however, there is no legality involved so the question becomes very simply: by what authority am I being asked not to engage in a legal activity?

Equating smoking and vaping outside a legal context is merely a fiction or excuse, and also, I believe, a mistake.

It seems obvious that here the “Pennsylvania Human Relations Act” (see http://www.phrc.pa.gov/Resources/Law-and-Legal/Documents/PA%20Human%20Relations%20Act%20(1).pdf) would address this, but it doesn’t.

What is more appropriate to consider is that smoking cigarettes is a disease.  There is a long and detailed Constitutional history of persons having the right to “treat their own disease” (see http://www.rbs2.com/rrmt.pdf).

Tobacco use is a disease - clearly the DSM (http://www.theravive.com/therapedia/Tobacco-Use-Disorder-DSM--5-305.1-(Z72.0)-(F17.200)) indicates it as such and it kills people, some 440,000 a year.  

Vaping, according to many reputable sources, is an effective treatment (see https://www.rcplondon.ac.uk/projects/outputs/nicotine-without-smoke-tobacco-harm-reduction-0).

Federal Courts have, over many decades, repeatedly indicated that you do have a right to "treat your own disease" in numerous of decisions.

So while its possible to pretend “smoking is vaping” and “vaping is smoking” the legal fiction created simply prevents me from addressing my personal health issues in public accomadations.

Finally, a legal fiction is problematic from the perspective of the “Pennsylvania Human Relations Act.”  

While anyone in authority in a given establishment can ask me to leave if I use my vaping device the question is whether that is an actual policy reason or simply a “catch all” reason to discriminate against me based on some other attribute(s).

Here there should be a requirement of rationality.  If, for example, “gang colors” are banned then it seems obvious that the decision to ask someone to leave is based on the science of color, that is, the actual color the person is wearing falls within the definition of a particular gang color.

If “red” is banned then it is questionable that someone would ask an individual to leave who is wearing “green.”

Yet here, by defining “vaping as smoking,” the requirement of rationality is cast aside; am I being asked to leave because I am black, or too old, or is it really because I am simply vaping?

I think you should also consider there is clear evidence (see this: http://www.seattlepi.com/national/article/Flavoring-additive-puts-professional-cooks-at-risk-1259353.php) that merely operating a commercial kitchen may be as or more “dangerous” than vaping.

So what does all this mean?

I think very simply that if I am in your establishment discretely vaping I am causing no harm to anyone else.  I am doing what Chili’s kitchen and other patrons are already doing, basically generating harmless aerosols.

Does Chili’s have the right to ask me to leave if I am a nuisance?  Of course.  Just like asking anyone who is too loud, or too scantily dressed, etc. to leave.

While your organization is certainly free to do whatever it likes I feel obligated to bring these facts to your attention and to no longer patronize your restaurants so long as you continue policies which I consider counter to common sense and my personal well-being.

Thank You

Todd Kueny