The Locker Room

Not really the point

Posted by John Hood at 08:14 AM

Rep. Hugh Holliman, a Davidson County Democrat and sponsor of a bill to ban smoking statewide in all restaurants, has provided another statement of his views on the matter. Having parsed his previous one, I find this one equally cringe-inducing:

"I think everybody in North Carolina who wants to smoke has the right to smoke," Holliman said. His bill, he said, is "about people's right to not smoke."

But what the bill actually affects directly is the rights of restaurant owners. It takes away their right to decide what their smoking policies shall be. Both smokers and nonsmokers already enjoy the right to decide whether to enter a restaurant that allows smoking.

An email correspondent, Robert Calvert of Charlotte, makes a good and related point:

Your article on smoking in restaurants was on point. However, there is a more serious issue here. Legislation banning smoking on private property would be an unconstitutional "taking."

Here's what I mean. Suppose I own a restaurant with gross annual revenues of $1,000,000. Some 10 percent of my patrons are smokers. If the State or County outlaws smoking in my restaurant, I will lose 10 percent of my patrons -- and thus 10 percent of my revenue. (We can quibble about whether all smoker patrons would stop eating at my establishment, but that does not affect the principle.)

I have suffered financial damage as a result of the Government's action. Who will make me whole? Will the State or County reimburse me $100,000 for my lost revenues? Will they reimburse me for my lost profit (less than gross revenues?) How would this differ from a situation in which the Government seized part of my building without reimbursing me? The State could just as well seize 10 percent of my restaurant to use the space as an office. Would they not have to pay me 10 percent of the value of my property if they did so?

So a law prohibiting smoking on my private property is unconstitutional unless the State paid me damages. Do you think the politicians will be willing to pay? This proposed legislation is just another sneak attack on our constitutional rights.

I am not a smoker.

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