May 4, 2009

RALEIGH — A smoking ban proposal under consideration in the N.C. House and Senate would create a “major threat” to personal freedom and property rights. That’s the assessment a John Locke Foundation expert offers in a new Spotlight report.

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

“The proposed ban is being sold as a way to protect people from secondhand smoke, but this is a dangerous slippery slope,” said Daren Bakst, JLF Legal and Regulatory Policy Analyst. “There are many things, other than exposure to secondhand smoke, that the government could ban under this ‘nanny state’ mindset, from diet to sexual behavior.”

Bakst’s report analyzes competing versions of House Bill 2. The House approved H.B. 2 with a 72-45 vote April 2, while the full Senate could address a different version of the bill this week.

Both versions would prohibit smoking in “public places” and “places of employment” that serve or allow entry to minors. This includes restaurants and even for-profit private clubs. The House bill would include a “very narrow exception” for businesses that do not serve or allow entry to minors, Bakst said.

“The proposed ban would violate property rights by prohibiting private property owners from being able to use their properties for legal activities, such as smoking,” Bakst said. “Private property does not somehow get transformed into public property just because the public is permitted to enter the property.”

Property owners have the right to let people smoke or to prohibit smoking, Bakst said. “Smokers do not have a right to smoke on someone else’s property,” he said. “Similarly, nonsmokers do not have a right to a smoke-free environment when that environment belongs to someone else. Smoking ban proponents actually want to create a new right: the right to be able to go anywhere they want, including for-profit private clubs, and not have to deal with smoke.”

Bakst rebuts the argument from the ban’s proponents that “health rights” trump property rights. “There is no conflict between property rights and health rights,” he said. “All citizens have the freedom to decide whether they want to go to a place that allows smoking.”

Some of Bakst’s criticism applies to any government-mandated smoking ban. He also takes aim at specific proposals included in the House and Senate versions of H.B. 2.

One example involves the House bill’s “minor exception,” Bakst said. “The current Senate bill is so extreme that it does not even include the very narrow exception of permitting smoking in ‘places of employment’ and ‘public places’ that do not serve or allow entry to minors.”

Some House legislators might have thought they were creating a major exception to the smoking ban by including their “minor exception,” Bakst said. “Practically, though, most restaurants are going to choose serving minors over allowing smoking. Only a rare business will deem allowing smoking to be more beneficial than serving families with minors.”

The “minor exception” also fails to take into consideration when smoking is allowed, Bakst said. “Since the concern allegedly involves secondhand smoke, it would be logical for the ban to prohibit smoking when minors are in the establishment,” he said. “The ban in H.B. 2 would prohibit smoking even when minors are not in the establishment. As a result, a restaurant could not serve families during the day if it allowed smoking for its late-evening bar business when minors would not be around.”‘

Bakst also notes concerns about enforcement of the House version on H.B. 2, along with provisions that ban smoking in unenclosed areas and limit the percentage of hotel rooms in which smoking is permitted.

The report notes five unique problems with the Senate bill. “The Senate legislation would prohibit truck drivers from smoking in their trucks, prohibit smoking in any ‘company car,’ prohibit a business owner from smoking in his business at any time, prohibit smoking in a workplace even when all employees smoke, and prohibit smoking in a home-based business if the business is located in a building that’s outside the actual private dwelling,” Bakst said.

Both the general problems associated with smoking bans and the specific problems tied to both versions of H.B. 2 should prompt senators to think twice about moving the legislation forward, Bakst said.

“Smoking ban proponents may hate smoking, but that does not justify imposing their personal preferences over the fundamental rights of property owners,” he said. “The rights of North Carolinians should not be discarded at the whim of some legislators.”

“When rights are seen as having such little value, every personal action could be prohibited simply because it is popular among legislators,” Bakst added. “Smoking-ban proponents may cheer on passage of H.B. 2, but they may soon find that their own actions could be subject to prohibition. The legislature should respect all rights, including property rights, and stop trying to make choices for its citizens.”

Daren Bakst’s Spotlight report, “The Smoking Ban Bill: Make no mistake; it’s an attack on property rights,” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].