Statewide Ban an Attack on Property Rights

Posted on January 23, 2004 | Type: Op-Ed | Author: Mark Brnovich
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Arizonans Concerned about Smoking is pushing a statewide smoking ban in Arizona's private restaurants and bars. Smokers and nonsmokers are up in arms, debating which group's rights should triumph.

Both groups miss the point.

When it comes to private property, one person's rights matter-the right of the owner to say how his property may be used. America's founding fathers understood the value of private property, and the U.S. Constitution, including the Bill of Rights, contains numerous direct and indirect provisions for the protection of property rights.

Similarly, the Arizona Constitution provides that our state and local governments "are established to protect and maintain individual rights."

Thus, even if a majority of the people wants to create government restrictions interfering with the enjoyment of property rights, those restrictions should be subject to the strictest scrutiny.

The rules with regard to public property are more complicated, and a tightly constrained smoking ban might be justified. But that's not what this ban is all about.

The statewide ban is a product of social engineering, without any sense of restraint, without grounding in science or common sense, and without an appreciation for the principles that nourish a free society.

Arizona restaurant and bar owners have invested time, money and energy building their businesses, and they made those investments because they expected government would respect their property rights.

If our society is to remain free and productive, government cannot arbitrarily take away people's rights to use their property as they wish.

For those advocating a ban, the rights of property owners are not as important as the health of the public or employees. However, much of the research regarding the dangers of second-hand smoke has been discredited.

As Cato Institute senior fellow Robert Levy explains in a recent Goldwater Institute report, environmental tobacco smoke does not pose substantial health risks. Levy cites a 1998 study published in the Journal of the National Cancer Institute that acknowledged that the increased risk of cancer from workplace exposure was not statistically significant.

Levy also reports that the oft-cited 1993 Environmental Protection Agency study on environmental tobacco smoke was discredited by federal judge William L. Osteen.

Even if environmental tobacco smoke were proven to cause substantial health risks, there would be no cause to regulate it in a private establishment. When you walk into a smoky restaurant or bar, you can tell immediately that smoke is present, and you can choose to stay or leave.

For comparison, it is infinitely more difficult to detect the presence of salmonella in a chicken sandwich, so a much stronger case can be made for regulating the cleanliness of restaurant kitchens.

Today, most restaurants choose to have separate smoking and non-smoking sections, if they allow smoking at all. That is the product of the free market: over the last 40 years, as smoking has declined in America, non-smokers have demanded smoke-free restaurants, and restaurant owners have supplied them.

Admittedly, bars have yet to catch up with restaurants. But if a bar is too smoky for you, go to another one, or open your own bar and cater to non-smokers. Either way, it's your choice-and it should remain your choice. That's the way freedom works.

--Mark Brnovich, J.D., is Director of the Goldwater Institute Center for Constitutional Government.

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