ON MONDAY, Maryland joined a growing number of states in a decision to ban smoking in restaurants and bars across the state. The decision prompts an interesting debate: On one side, restaurant or bar owners feel they have a right to allow an otherwise legal activity on their property. Opposing this view, some individuals feel they have a right to not be exposed to the dangers of secondhand smoke. In this situation, that right is not being violated and demand must come from the consumer rather than the government for a smoke-free environment.
The restaurant and bar owners have the most convincing argument based on the protection of rights. The owner's establishment is the owner's property, which is why restaurant owners can establish codes of conduct such as dress codes for their patrons. Since cigarette smoking is only illegal for minors, it stands to reason that a restaurant can allow any degree of smoking except for minors. Government regulation should only come into play if the rights of other individuals are being trounced upon by restaurant policy.
The primary motivation for regulation through state legislation is the concern for public health. In public areas, smoking is often banned to prevent the potential health risks associated with secondhand smoke. Since nonsmokers did not make the decision to expose themselves to secondhand smoke in a public situation, they should not be put at risk. The nonsmoker has the right to not suffer a threat to health imposed by a smoker in the area.
Extending this train of thought to the restaurant issue leaves out an important detail. In the restaurant setting, the customer does choose to attend a particular venue and should understand the consequences of that choice including the potential impact of the house's smoking policy. Smoking in the restaurant is not violating a nonsmoker's rights because the nonsmoker chose the environment by choosing a restaurant that allows smoking. The choice to smoke and the choice to attend a restaurant or bar that permits smoking are very different, but the ultimate responsibility rests with the consumer, not the state government.
The recent Jaberwoke affair provides an excellent analogy for how individuals concerned about their health should go about ensuring a safe and comfortable dining atmosphere. When the Jaberwoke dress code was released, Jaberwoke was exercising its right to set rules for people who chose to eat there. Though the motives may have been impure, nothing about the dress code was illegal. Since the consumer population vehemently expressed its opinion and nearly boycotted the restaurant, Jaberwoke was forced to rescind the undesirable dress code or to lose considerable income. Predictably, it chose to avoid losing customers and terminated the new policy.
If consumers care enough about smoking to merit a push for legislation, they should certainly care enough to avoid restaurants where smoking is pervasive. The possibility of legislation implies a significant number of voters want to see an end to smoking in restaurants and bars. Owners would then be faced with a demand for smoke-free facilities that they would meet due to the economic incentive. Smoke-free restaurants and bars would then be available as a result of consumer tastes.
Legislation may bring about the same end but does so at the expense of individuals looking for a place to smoke and owners who wish to allow smoking in their establishments. Though a good number of people would enjoy a smokeless atmosphere, some may desire an environment in which they are free to smoke. Owners should be permitted to cater to either group, or to both by establishing well-separated smoking and nonsmoking areas.
Smoking and secondhand smoke are health hazards. People who do not wish to smoke or suffer a health risk due to secondhand smoke are acting rationally. Avoiding smokers when possible and expecting laws prohibiting smoking in public areas are reasonable means of protection. This does not mean that the government has an obligation or a right to legislate on the issue. Smoking in a private restaurant should be controlled not by laws but by market forces. It is the responsibility of the consumer to demand quality services.
Jason Shore's column appears Fridays in The Cavalier Daily. He can be reached at jshore@cavalierdaily.com.
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