Legislative update: Statewide smoking ban is an assault on private property rights

By Rep. David Floyd
50th District State Representative

REP. DAVID FLOYD

Wednesday, Feb. 20, 2013, 9:30 a.m. – Again we face a decision on whether or not to ban smoking in all public places and in all places of employment in Kentucky.  This year, we have HB 190, which has passed out of committee and waits (as of this writing) a vote on the floor of the House.

The case for the smoking ban is for public health; the costs to society that result from medical treatment of those who smoke or inhale second-hand smoke.  Advocates for the measure say that HB 190 will protect workers in businesses where smoking is currently permitted.  In addition, they insist that customers have a right to clean air when they shop or dine.

As I have said repeatedly, even if we embrace all arguments for banning smoking, there is one crucial consideration that we cannot ignore, and that is our constitutional right to private property.  No one denies that right exists in America.

Understand that the air inside a business is not the same as the air outside.  While outside air is common property, inside air is essentially “owned” by the business owner, who is responsible for any decision he/she makes with regard to indoor air quality.

For example, as the business owner I will bear the cost if I lose too many customers due to my smoke policy.  But those who patronize my business might accept a certain level of smoke if I offer in return a tradeoff: for example, low prices on food and drinks, good ventilation, or good entertainment.  I bear the cost of my decision about my property’s indoor air quality by having to lower my prices, install expensive equipment, or pay for musicians.   In so doing, I have compensated my patrons for my decision about indoor air quality, and they accept those terms by becoming my customer.

I must also compensate my employees for what they might perceive as unpleasant or demanding working conditions.  Workers have control over this by demanding higher pay and/or benefits to compensate for higher risk, for what they perceive as unpleasant indoor air quality.  The contract between employer and employee requires that I manage my indoor air quality at an acceptable level to satisfy the terms of that contractual relationship.

Smoking Ban advocates don’t deny the undeniable – Americans have a constitutional right to private property, but they say that right is subordinate to the public interest.  They don’t “get” that protecting liberty is the superior public interest.  And note: advocates don’t give up any rights under this proposal, because they agree with and abide by it; only OTHER people – people who disagree – are forced to surrender their rights.

This begs a question; which of your constitutional rights are you willing to surrender?  If I joined those who want to limit your rights – in the public interest, of course – then I could justify inspecting your home to make sure you don’t smoke around children or any guest in your home; that you only eat “healthy” food (no fast food, no potato chips, plenty of vegetables, no red meat, no bacon); or that you don’t own dangerous weapons.  If I thought your church was homophobic, would you mind if I closed it?  Some believe that inflammatory, anti-government radio programs disturb the peace, so would you mind if I banned them?  Hip-hop music uses graphic, violent images; the public would be best served if we banned or censored music for content.  And so on.

We should be careful to personalize the consequences of HB 190.  Walk a mile in the shoes of someone whose life savings are on the line in the business they built.  We’re talking about the legal use of a legal product inside their business; what constitutional argument do I use to deny them their constitutional right?  Thomas Jefferson would defend them.  So would Abraham Lincoln and Jack Kennedy.  Shouldn’t you?

The best part of my job is hearing from you.  Call me at home, or leave a message at 1-800-372-7181.  Saturday’s “Coffee with Dave” will again include Senator Jimmy Higdon, and we will be at Culvertown at 10 a.m. where we’d be pleased to talk with you.

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