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October 9, 2002, 9:15 a.m. Bloomberg Smokes Out Property Rights A crusade trumps freedom. By Robert A. Levy

ireworks are expected at the City Council hearing scheduled for October 10, as New Yorkers wrangle over Mayor Michael Bloomberg's plan to ban smoking in all restaurants and bars. For now, smokers and nonsmokers have been debating which group's rights should trump. Actually, both groups miss the point. So does Bloomberg, businessman extraordinaire, whose proposal proves that he hasn't the foggiest notion of what private property is about. Smokers have no right to light up in my restaurant. Nor do nonsmokers have a right to prevent smokers from lighting up in my restaurant.

To put it bluntly, the owner of the property should be able to determine — for good reasons, bad reasons, or no reason at all — whether to admit smokers, nonsmokers, neither, or both. Customers or employees who object may go elsewhere. They would not be relinquishing any right that they ever possessed. By contrast, when a businessman is forced to effect an unwanted smoking policy on his own property, the government violates his rights.

That's the controlling principle. Private property does not belong to the public. Employing a large staff, or providing services to lots of people, is not sufficient to transform private property into public property. The litmus test for private property is ownership, not the size of the customer base or the workforce.

According to the mayor, business owners have no cause for concern. "All of the evidence suggests," he says, that "patronage of restaurants and bars … goes up, not down" after smoking is banned. That assertion is dubious at best. Many restaurants don't enforce smoking bans, or switch to exempt outdoor cafes, so before-and-after comparisons are highly suspect. More important, each business is unique; each deals with a different clientele. Who but the owner is best able to determine the effect of a smoking ban on profits? If he is wrong, he will soon adjust, or go out of business.

A second argument for smoking bans goes like this: Rules against smoking are analogous to regulations that protect against impure foods and unsafe premises. Bloomberg notes, for example, that employers are held accountable if they "allow their employees to work in a place with asbestos in the air." Surely property rights do not absolve restaurateurs of health and safety infractions. If a restaurant owner engages in acts that injure his customers or workers, the law should afford appropriate legal remedies. What, then, is different about the regulation of smoking? The answer is straightforward: Restaurant patrons have no advance warning of contaminated food or "asbestos in the air." That's not the case with secondhand smoke. Customers are aware of the risk up front, and can easily avoid the risk by leaving.

Finally, what about the civil-rights laws? Don't they limit the rights of private property owners, who may not discriminate based on, say, race — even if they'd like to. True enough. But there are important distinctions between racial discrimination and "smoker" discrimination. First, bigots might exclude members of a particular race, but smoking restaurants do not exclude nonsmokers — except in the same sense that seafood restaurants exclude customers who prefer beef, or nonsmoking restaurants exclude customers who prefer to smoke. Second, discrimination by race — an immutable characteristic — raises moral concerns that do not attach to discrimination against those who voluntarily expose themselves to cigarette smoke. Third, America fought a civil war over the race issue. The outcome included three constitutional amendments that prohibit racial discrimination by the state. There are no constitutional provisions that relate to smoking.

In a restaurant, a nonsmoker who wants to escape unwelcome tobacco fumes can move to the nonsmoking section. If the air still isn't sufficiently pure, he can shop or work at another establishment. Many restaurants in New York voluntarily choose a smoke-free environment; all others are required under state law to offer nonsmoking areas. Mostly, customers rely on common courtesy and mutual respect in adjusting to different surroundings. But nosy, intrusive government has exacerbated the problem. As a result, venom has replaced respect and obstinate behavior has replaced common courtesy. It is government, not secondhand smoke, that has poisoned the atmosphere.

Indeed, Mayor Bloomberg's proposed ban is about unrestrained government — an anti-tobacco crusade against 13,000 private businesses without grounding in fairness or common sense, and without an appreciation for the principles that nourish a free society.

— Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.