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Restaurant owners should decide whether to welcome man's best friend

JLF legal expert says proposed N.C. dog rule would limit property rights

Contact: Daren Bakst
919-828-3876
dbakst@johnlocke.org

May 11, 2010

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RALEIGH -- Restaurant owners, not government bureaucrats, should make all decisions about admitting pets in their restaurants. That's the conclusion the John Locke Foundation's top regulatory expert reaches in a new Spotlight report.

Click here to view and here to listen to Daren Bakst discussing this Spotlight report.

If regulators decide to limit restaurant owners' rights by restricting pets to outdoor dining areas, the rule needs to be clear, said Daren Bakst, JLF Director of Legal and Regulatory Studies.

"Restaurant owners are much better suited than the state to determine whether pets should be allowed in their restaurants," Bakst said. "The state of North Carolina should leave this issue completely in the hands of those restaurant owners. But if regulators decide to move forward with a proposed rule setting new restrictions on pets' access to restaurants, the proposal now on the table needs to be fixed."

The N.C. Commission for Public Health will consider soon a proposed rule governing pets and restaurants across the state. The proposal, first published Feb. 1, could take effect as early as this summer. It would ban pets from indoor dining areas. Its impact on pets' access to outdoor dining areas is unclear, Bakst said.

Bakst's report examines the negative impact any new pet restrictions would have on property rights in North Carolina. He also recommends changes to the current proposal.

"Before addressing the specifics of this rule, it's important to note that this is a property-rights issue," Bakst said. "Just as a homeowner can decide whether a dog can enter his house, the restaurant owner has the same right with respect to his restaurant. A property owner does not lose his property rights just because that property is a business open to the public. It's still private property."

As in the case of North Carolina's recent ban on smoking in restaurants, supporters of new restrictions on pets are relying on a faulty argument linked to "health rights," Bakst said. "This is a red herring," he said. "There is no conflict between property rights and health rights. Restaurant patrons can see for themselves whether a restaurant welcomes or bans bets. Those patrons can make informed, voluntary decisions about whether they want to dine at those restaurants. No one else is putting their health at risk."

In addition, it's not clear that pets in dining areas generate any legitimate health risks, Bakst said. "The state Division of Environmental Health has been unable to provide even one example of restaurant patrons becoming ill due to the presence of pets."

If regulators wish to ignore the property-rights argument and the health evidence, at least they should fix the rule they've put forward, Bakst said. "While the proposed rule attempts to allow pets access to restaurants' outdoor dining areas, the rule is drafted in a way that would discourage most restaurant owners from allowing pets even in those limited outdoor settings."

Bakst turns to existing state law in Tennessee to help draft clearer language for North Carolina's proposed rule. "My alternative language is consistent with what the Division of Environmental Health is seeking to accomplish," he said. "My proposal would give restaurants a clear, bright-line requirement with easy compliance. Restaurant owners would provide clear instructions to employees and patrons about what they can and cannot permit pets to do."

Fixing the current rule represents the bare minimum step regulators should take, Bakst said. "The rule clearly should allow pets in outdoor areas," he said. "But the Commission for Public Health should take another step that's even more consistent with a respect for property rights. The commission should adopt a rule with language allowing restaurant owners to decide whether pets are permitted both in indoor and outdoor dining areas."

This type of rule would not represent a mandate for or against pets in restaurants, Bakst said. "Instead the rule would allow restaurant owners to make the decision that best meets their needs and the needs of their patrons," he said. "Creating a one-size-fits-all pet ban is inconsistent with a respect for property rights and personal freedom."

Daren Bakst's Spotlight report, " Let the Dogs In: Restaurant Owners, Not the State, Should Decide Whether to Allow Pets," is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or dbakst@johnlocke.org. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or mkokai@johnlocke.org.

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