MEIER: Keep an open mind about property rights

Posted by on February 22, 2015
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Smoking-BanIn a recent Op-Ed, the author, Brent Cooper, who no doubt had the purest of intentions, asked us to support proposed legislation that would institute a statewide smoking ban. One must keep in mind, however, that like Newton’s third law of motion, such a request for one particular action necessitates an equal and opposite reaction.  In asking us to open our mind to a smoking ban, he is also asking us to close our minds to the property rights of others.

Don’t get me wrong. Smoking is dirty, smelly, aggravating, and I generally do what I can to avoid being around it.  And I can’t say that I’m thrilled to sit here and publicly defend a practice that I personally detest.  But I nonetheless feel compelled to.  FA Hayek said that “[t]he freedom that will be used by only one man in a million may be more important to society and more beneficial to the majority than any freedom that we all use.”  You see, on the surface, this is a smoking issue…but at its core, this is a liberty and property rights issue.  What I’d like to ask you in this article is that you open your mind to the personal rights of others.

As I said, I do not enjoy being in smoky places. But I’m sure there are a lot of things I do or own that other people don’t like.  And I bet you (the reader) do or own something I or others don’t like.  Right now, we are talking about smoking.  Next week, we might be talking about banning or further restricting something you enjoy.

It might be a firearm or accessory you keep in your safe. Maybe you like craft beers that have a 13% ABV.  Maybe you have raised a loving family dog that has characteristics of a breed often misused by bad owners.  Maybe you like to start the day with a 44 oz caffeinated soda.  Maybe you want your growing child to have the option to buy a school lunch with more than 800 calories to get them through the school day and their after school athletic practice. These are just a few examples of things have been banned or further restricted in some form or another.

It has been said that “Men fight for freedom, then they begin to accumulate laws to take it away from themselves.” (author unknown).  This proposed legislation is simply one of the latest attempts to pass a law to further chip away at that freedoms we enjoy as Americans.

Now, that is not to say that the author (and others) have not made some very compelling arguments as to the benefits of such a ban, but let’s discuss some of those points.

First, data is presented on the dangers of secondhand smoke.  Now…I love data.  Before making any decision, I try to gather all of the data I can.  But I also do my best to objectively weigh the reliability and applicability of such data to how it relates to my decision. Why?  Because data can be skewed and manipulated to support a desired outcome or result. I am not a medical doctor and cannot opine on the true dangers of secondhand smoke.  But even if I was a medical doctor I would have a hard time coming to a definitive and accurate conclusion as to the dangers of secondhand smoke.  This is because correlations are spurious at best in most cases.  And any true dangers of secondhand smoke are likely caused by prolonged exposure (spouse who smokes in the home), not the occasional meal in a smoky diner.

But for the sake of argument, let’s accept that data on the dangers of secondhand smoke as true. Here is some more data that may surprise you–100% of people will die of something.  And there are a lot of other activities that are much more likely to cause our death, so let’s put the risk in perspective.  A recent op-ed advocating for the smoking ban stated that Kentucky incurs $1.92 billion a year in healthcare cost treating (first-and second-hand) smoking-related illnesses costing the average household $1,164 annually. Perhaps that is true, but as of 2013, Kentucky spends about $2.4 billion on treatment of obesity related illness, and projections have that number growing to over $6 billion by 2018, which is expected to cost each adult $1,836 annually (again we are comparing all smoking treatment cost per household vs. obesity related cost per adult).  What this means is that when you walk into a restaurant that allows smoking, you are significantly more likely to die of what you eat, not what you breathe, especially in the mere 40 minutes you are there.

And I’ll concede that there is a difference between what YOU put in your mouth and what SOMEONE else exhales and YOU breathe in.  That’s why I would support a smoking ban anywhere you HAVE to go or HAVE to work.  I support smoking bans in publicly owned buildings and property.  Places you HAVE to go to conduct business. But restaurants are not publicly owned and some restaurant owners have made a business decision that allowing this legal activity to take place on their premises affects the bottom line.

I’ll also concede that a privately owned restaurant open to the public is subject to different legal requirements than a privately owned residence.  When you open a business to the public, those patrons are treated as “invitees” and are owed certain legal duties different than when inviting someone to your personal residence. A business owner must exercise reasonable care to make the land safe for the invitee’s entry and protect invitees from conditions that can result in injury. There is a duty to warn of dangerous conditions to allow patrons to ascertain the risk and decide intelligently whether or not to accept the invitation to the premises.  But when a “dangerous” conditions is patent (open and obvious) like smoking and not dangerous per se (“do not feed the lions”), there is not a duty to warn. Although I would not oppose legislation that required a sign on the outside of restaurants indicating that it is a smoking establishment, it’s not legally required (absent a statute/ordinance) nor is it really necessary.

Also, the author and many others often cite other health and building codes as support that we already regulate business for safety issues that used to be ‘free-market’ decisions.  I support those health and building codes but not a smoking ban because there are important distinctions.

I support laws that require construction to meet certain building codes because once built, I can’t see behind the walls to ensure homes or buildings were safely constructed.  I support laws that regulate how many people can safely be seated in a facility because most people, including myself, are not able to walk into a place and ascertain on the fly how many people are in crowded place and whether there are a number of sufficient number of exits strategically placed to allow for quick and orderly exit in the event of an emergency.  I support laws that regulate hand-washing and sanitary food preparation because I can’t see how my food is prepared or the microbacteria that might be sitting on the counter where my food is prepped.

However, when I walk into a restaurant, I can smell the smoke, turn around, and walk next door to a restaurant that offers a non-smoking environment.  I can vote with my feet and I have all the available information needed to make that decision intelligently.

It is also argued that bartenders or servers shouldn’t be forced to work in a smoky environment.  But it’s important to remember that they are not forced to be employed in that establishment. They chose to work there.  Coal miners choose to work in coal mines.  Race car drivers choose to drive cars at 200 MPH.  Lion tamers choose to work in the circus.  They do this under the “assumption of risk.” doctrine.  People who accept these jobs have wiling done so after conducting a cost-benefit analysis.

And I can certainly sympathize with folks who are unemployed and have to choose working in a smoky bar or nothing. But people do many jobs that are more dangerous for a lot less.  The median salary for a fisherman is $25,590 and it has a fatality rate of 127 per 100,000. Or how about truck drivers and traveling salespersons—last year there were 748 fatalities in these professions.  And I get that in these jobs, the danger is directly relevant to the success of job itself…but these business owners that allow smoking have made the business decision that smoking is directly relevant to the profit and viability of their business.

In sum, I’d like to make it clear that I am not “pro-smoking”.  Mr. Cooper and I both want the same thing—we just have different ideas on how to get there.  I personally do not favor the approach of using a ban to compel behavioral change.  Rather, I’d prefer to use education, along with positive and negative incentives to achieve such results. If the Chamber of Commerce wants help tourist and residents find non-smoking restaurants and bars in NKY, perhaps it should help create a smart phone app that directs those people to smoke free establishments—I’d certainly use it.

Instead of a one-size-fits-all statewide ban, I’d prefer to see any government intervention efforts narrowly tailored to achieve specific results, and enacted at the local level. If a county or locality wants to have smoke free entertainment districts, perhaps it should consider making a change in their zoning maps to establish smoke free entertainment districts. This would allow new developments in that area to be completely smoke free and established areas to move to smoke free over time as businesses change ownership.

Perhaps localities could even pass a higher restaurant tax rate for establishments that allow smoking or discount tax rates for those that go smoke free.  This would give them an incentive to go smoke free without taking away their rights as property owners to make that decision. Proceeds from restaurant taxes must be used to promote tourism—thus, if we are concerned that smoking hurts tourism, this is a direct way to address it.

Similarly, localities could require a differing fee structure for smoking vs. smoke free business licenses.  Proceeds from the smoking business license fee could be used to promote health…perhaps to build a new playground, offset higher city health care premiums for its employees, or fund a smoking education program in a local school.

In sum, let’s keep our minds open to the property rights of others.  We are not gun-grabbing, big-gulp banning New Yorkers.  We are respectful, liberty-minded Kentuckians.  Let’s not jump to ban an unpopular but legal activity taking place on private property simply because we don’t like it. Let’s get creative and find common ground on ways incentive and empower business owners to choose to provide more smoke-free options for people like Mr. Cooper and myself who would like to patronize them.

Adam Meier is an attorney licensed in Kentucky and Ohio and a member of the Fort Thomas City Council.


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Adam Meier

Adam Meier is an attorney licensed to practice in Kentucky and Ohio, and current member of the Fort Thomas City Council.

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