Smoking Bans Limit Freedom and Prosperity

Smoking ban legislation (HB 9 by Rep. Myrna Crownover and SB 386 by Sen. Rodney Ellis) has been introduced in Texas.  Here are some key provisions of this onerous bill:

1) it authorizes any local or state agency to revoke any license of an establishment where a violation occurs.  That means bars could have their liquor license or occupancy permit revoked for a single incident of someone smoking, even if the owner or an employee was not negligent and only the smoker was cited, and even if the smoking occurred outside within 15 feet of a door or window.
2) it creates a criminal offense for both the smoker and owner/operator/manager of the premises for which a person can be arrested and, if they fine is not paid, sentenced to county jail.
3) it does not exempt VFW or American Legion posts
4) it includes private clubs that have employees
5) except for hotel rooms, it does not exempt separately ventilated smoking areas, even though ventilation systems can remove over 99% of smoke
6) it does not exempt cigar bars
7) there is no provision to compensate business owners for regulatory takings - lost revenues due to this measure
8) it does not preempt even stronger local ordinances, if that is possible
9) this ban includes the smoking any substance, including incense and herbal cigarettes that do not contain tobacco

Smoking bans violate property rights.  The proprietor of an establishment should have the right to set policies for the use of his or her property.  This is fundamental to our economic system.  Smoking bans tell bar and restaurant owners that the government will determine how they run their businesses.  Aggressive government regulations on the use of private property constitute partial takings of that property without proper compensation, and affront to the U.S. Constitution.

Smoking bans reduce consumer choice and violate free market principles.  Consumer protection is not an adequate justification for smoking bans.  Unlike health and sanitation regulations that protect consumers, smoking bans stop an activity that is clearly visible to consumers who can make their own informed decisions.  To the contrary, allowing proprietors to determine their own smoking policies has been successful, with restaurants offering separate smoking and non-smoking sections for customers. The observation that non-smoking-only establishments have tended to have poor business is an indication that consumers do not want them.  Smoking bans that ban smoking by governmental fiat are against the interests of consumers.  We believe consumers should have choices, and markets allow that. 

Smoking bans are a reckless expansion of government and set a dangerous precedent.  While the science of second hand smoke is still highly disputed, even if it is dangerous exposure is voluntary.  Smoke is visible and avoidable.  With worker shortages across many industries no employee who wants to avoid smoke is forced to take a job in a bar or restaurant. 

The real motivation behind smoking bans is not secondhand smoke but smoking itself, and all supposedly unhealthful behavior.  The public health establishment wants to use the coercive power of government to prohibit smoking, by continuously expanding the scope of smoking bans.  Non-smokers are threatened too because the implications of this push have already extended to things like New York City’s ban on trans fats, and there is no logical stopping point short of criminalizing every voluntary behavior that may have adverse health consequences, at enormous cost to both freedom and prosperity.

Smoking bans cause real economic damage.  Bars and restaurants in smoking ban jurisdictions have seen significant declines in their businesses.  A 2004 study conducted by Ridgewood Economic Associates found that the New York bar and tavern industry suffered 2000 jobs lost at a total loss of $37 million to the state economy.  Adding in related businesses raised these totals to 2650 jobs and $71.5 million in lost economic output.  Other studies have found similar economic losses in places ranging from California to Maryland to Ontario, Canada.

Americans for Prosperity and AFP Foundation
807 Brazos St, #210, Austin, TX   78701-9996
phone: 512/476-5905; fax: 512/476-5906
email: pvenable@afptx.org; website: www.americansforprosperity.org