“It is about more than the smoking ban”

Interview with innkeeper Birgit Netzle-Piechotka about her interception lawsuit, a controversial study, legal ways out and experiences abroad

Since 1. Since January 2008, health laws protecting non-smokers in restaurants and beer tents have been in force in a total of eleven German states. Affected landlords fear massive turnover robberies, exploit loopholes in the laws and organize resistance in numerous popular initiatives. Now the law has also been challenged

Munich restaurateur Birgit Netzle-Piechotka invokes the right to free choice of occupation and violations of the principle of restraint in her appeal. The landlady of the "Asam castle" has been a non-smoker for 27 years. In your restaurant 80 percent of the seats are reserved for non-smokers.

Ms. Netzle-Piechotka – You went before the Federal Constitutional Court because of the smoking ban in Bavarian restaurants: What grounds did you put forward there?

Birgit Netzle-Piechotka: In my complaint and in my appeal, which I filed as a private person and not as a member of the association, the ie is that the state did not observe the principle of proportionality and did not apply the mildest means, as was required by the rule of law. Instead of imposing a general ban on smoking in all restaurants, it would have been sufficient to impose on restaurateurs that smoking be permitted only in separate, specially marked areas and, where this is not possible or reasonable, that the restaurant be designated as a "smoking establishment" if it is marked as such. One-room establishments such as village inns and small pubs would then have had the opportunity to identify themselves as smoking or non-smoking establishments according to their clientele. The fact that a health protection law was brought on the way, was naturally for a long time necessary – but that it fails with such a hardness, was completely unnecessary. Our government in Bavaria has thus passed the most stringent non-smoker protection law in all of Europe. Without ifs and buts. Even at the Wies’n, in beer tents, where up to 10.000 people in one tent. How this can be solved without conflicts is a mystery to me. Which alternative would you have preferred??

Birgit Netzle-Piechotka: A "soft-entry" at the Wies`n with smoke-free boxes and a 50/50 regulation would have been a fair and tolerant solution. Someone who does not know the biggest folk festival in the world cannot imagine what it is like. The crowd is not to be bandaged at all if someone lights up a cigarette. Many innocent people will be affected after drinking a lot of alcohol – and there we were already at my next point.Do not die every year 50.000 people die as a result of alcohol consumption? The state has limits for its legislation which must stop where my personal freedom begins. Which way of life I have – healthy or unhealthy – is my free decision. To put it provocatively: the catch also protects the right to self-harm – otherwise there would be no dangerous sports such as boxing, skiing, racing, etcetera. Living in city centers had to be forbidden because of fine dust pollution. Tobacco, alcohol, fatty foods and coffee had to be banned, the use of condoms had to be made compulsory by law and a body weight above the body mass index had to be made punishable by law. This list can be continued at will. Now smokers harm not only themselves but also others…

Birgit Netzle-Piechotka: A visit to a restaurant is a voluntary leisure activity. I have to go to the authorities and to the hospital – a general ban on smoking can also be seen there. On the other hand, I can choose which restaurant I go to. If I want to dine in peace, I will certainly not go to a child-friendly restaurant where I know that there are many families with small children. And so I, as a non-smoker, also choose my restaurant and will certainly not sit in a separate smoking room or in a one-room restaurant that has marked itself as a smoking establishment. If smokers smoke only in segregated rooms and, where this is not possible, in specially marked smoking establishments, then it is no longer possible to speak of "body injury". If a non-smoker goes to such a place or space, it is his free will. Professor Romano Grieshaber, head of prevention at the Food and Catering Employers’ Liability Insurance Association, strongly doubts the seriousness of a study according to which in Germany 3.300 people die from passive smoking. Grieshaber concluded, among other things, that three quarters of the dead are people over 85 years of age. Also argue with this?

Birgit Netzle-Piechotka: I have heard about the study and I do not consider it serious either. Because if from 3.300 people 2.500 people who die at the age of 85 or more, neither the midwife nor too much nicotine is the reason for their death. Professor Grieshaber is absolutely right to doubt this study and I can only agree with him. The real reason for this "actionism" is that people want to suppress the fact of certain death. They don’t want to believe that only one thing is absolutely certain: we are all going to die. Even those who have fulfilled all the requirements for a "healthy" life will die. This study only shows again clearly that man suppresses the fact of his supposed death by trying to become master of his death by a supposedly healthy and supposedly reasonable life. A goal, which he will hardly reach. This is like the rabbit and hedgehog race. If a person overcomes one statistical cause of death, the next one is already waiting for him. On the one hand you can read that the law does not provide for smoking rooms in pubs, on the other hand smoking will be allowed at the "German Film Ball" – which is even under the patronage of Minister President Beckstein – at the Bayerischer Hof. Does this offer a way for smaller landlords to let smokers be smokers in the future??

Birgit Netzle-Piechotka: The core of my complaint is ultimately one thing: As an innkeeper, I consider it my duty to show my hospitality to every burger. No matter whether this young or old, small or coarse, already or hateful, healthy or disabled, smoker or non-smoker is. Mutual respect and tolerance would solve many problems in the field of smoking by itself. I don’t know any smoker who doesn’t like to give up smoking during a meal if he is allowed to smoke afterwards in a warm room (and not in front of the house in sub-zero temperatures). With a democratic and meaningful health protection law also no loopholes are looked for, in order to evade the law skillfully. The Film Ball in Munich is, like club draws and closed events, a legal bypass. Only through a personal invitation is it possible to participate – like when you were hosting your wedding. In this case, there is an exemption that excludes a smoking ban by allowing the right to smoke on the premises. In Germany, the experience of smoking bans in other countries has been mostly positive. Which national implementation model would they prefer?

Birgit Netzle-Piechotka: A moderate solution, like the one adopted in Switzerland two months ago (and in many European countries as well), would have been sufficient for a democratic and tolerant Bavaria. The northern Italians, by the way, have found it very difficult to come to terms with the smoking ban. In a climate as harsh as ours, it was not uncommon for sales to drop by up to 20% – and in the south, the climate is simply better for implementing a smoking ban. The Austrians are clever enough to wait for the Bavarian repercussions first, so that they can then introduce a more moderate smoking ban. The 600 km long border belt to Austria becomes a tourist battle mile between Germany and Austria. In the future, even more tourists will prefer Austria as a vacation destination, not only because of the reduced VAT rate in gastronomy and cheaper gasoline. Nice future prospects for the Garmisch and Berchtesgaden region. I consider myself a mouthy burger and I consider it a great democratic good to be able to give my guests (still) the free choice whether they are smokers or not, where they want to sit and where not. In the same way, I give my guests the choice of selecting from my additional organic menu or the conventional food and beverage menu. Also in this case I would not want to patronize my guests – and I will therefore never open a pure organic restaurant, even if this corresponds to my personal attitude. We in Bavaria are known for tolerance and "live and let live". The word tolerance, however, only earns scorn and loses meaning if it is applied unilaterally or demanded only unilaterally. I hope that you can understand that I do not simply accept this interference in the exercise of my profession and the encroachment on my personal freedom. Because here it is no longer only about smoking or non-smoking! We now live in a prohibitionist society, where the state disenfranchises burghers and deprives them of their personal responsibility. What is the word freedom worth if the state decides on everything that is freedom?? At the latest, when the beer in Bavaria and the wine in Italy is served limited, we will see that it is about more than just the smoking ban. (Reinhard Jellen)

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