News: CJ Exclusives

Friday Interview: N.C. Government Overreaches With Smoking Ban

JLF vice president Cordato pans state's restriction on use of private property

The N.C. Court of Appeals has upheld the state’s ban on smoking in most bars and restaurants, rejecting a challenge from a Pitt County operator of for-profit clubs that sought to avoid the ban. Dr. Roy Cordato, John Locke Foundation vice president for research and resident scholar, says the smoking ban represents just one example of government overreach into our daily lives. Cordato discussed the issue with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Martinez: Briefly explain what the case was about with this Pitt County operator of a for-profit club.

Cordato: Yes, as I understand it, some for-profit clubs — the law carves out an exemption for nonprofit clubs and apparently country clubs also — said this was uneven treatment and that because of that, it [the law] was unconstitutional.

Martinez: But the Court of Appeals disagreed and said the state of North Carolina has the right to do this and that it fits within the law, so this Pitt County club is going to have to comply.

Cordato: That’s exactly right. I guess there were three clubs who challenged the law — three private clubs. My concern is that they’re private clubs, and, the fact is, I don’t see why or how the state legitimately can or should be able, in a free society, to tell people what they can and cannot do on their private property.

So my view is that if the owner of a private club, restaurant, anything that’s private, truly private — if an owner wants to allow smoking or not ban smoking, or say you’re a restaurant and have a smoking section and a nonsmoking section like we had for many, many years with most restaurants, that should be their prerogative. Basically they will be responding — because they’re for-profit businesses — they will be responding to what their customers want. And I argue that’s what they should be doing. That’s what we want businesses to do.

Martinez: However, the state of North Carolina, the argument from the state is: Well, we have a role in protecting public health, and because smoking is bad for you, therefore the state has the right to step in and say we’re going to make this decision for you. Is that valid at all? That’s embraced by a lot of people.

Cordato: Oh, of course, and from my perspective, no. That argument then can be applied to your house. I mean, what if somebody came into your house — you invited them over for dinner or whatever — and you’re a nonsmoker, and you don’t allow smoking in your house — as I don’t, for example — and they lit up a cigarette? And you said, “Well, I’m sorry, could you either step outside or put out the cigarette? I don’t like people smoking in my house.” And they said, “Well, I have smoker’s rights.” Or the opposite — someone comes in, and you’re a smoker, and they ask you, as the owner of the house, “Could you please put that out? I have nonsmoker’s rights. My health is at risk here.” Well, I think most people would say, “Fine. Leave. It’s my house.”

Well, this principle is exactly the same in a restaurant. It’s not like there is a shortage of restaurants. And it’s not like the restaurants are like Duke Power, where we can only buy our electricity from one person. There are restaurants everywhere and all different kinds.

Believe me, restaurants are dying to cater to special niches, to special desires. And there will be smoking restaurants and nonsmoking restaurants, smoking bars, nonsmoking bars, or restaurants and bars that allow nonsmoking and smoking under the same roof. So these are the decisions that should be made by the people who, in fact, are taking the risks associated with running those businesses.

Martinez: Why is it, then, that such a high percentage of the public is very willing to say, “Sure, I support this smoking ban”? Is it just smoking itself? Why is it people are willing to give up that freedom of choice?

Cordato: Well, I think because most people don’t smoke, they’re perfectly happy to impose their preferences on others, unfortunately. I don’t even think it’s a pro-smoking/anti-smoking question. It’s a private property question. It’s a property rights question. And I don’t think it should matter whether it’s a for-profit or a nonprofit or a country club or whatever. It’s a property rights issue, not a smoker’s rights issue. And I think we confuse this issue.

Martinez: So for you it’s more about government controlling behavior?

Cordato: Well, yes. Look — neither smokers nor nonsmokers have rights on my property. They want to have rights on that property? Buy it from me. Otherwise, I get to say how it’s used, or I should get to say how it’s used. Unfortunately, we live in a society where somehow the government sees a private restaurant, or a privately owned restaurant, and they actually call it a public facility.

Well, no. The convention center might be a public facility, but a McDonald’s is not. And until the government wants to take the risks associated with running the business — getting customers, not getting customers — I honestly don’t think it’s their business to tell private owners of anything what they should do on their property, so long as they’re not violating the same property rights of others.

For example, if I run a bar and lots of people are smoking at the bar and for some reason the smoke spills out of the bar and onto my neighbor’s property, or into my neighbor’s house, well, then my neighbor should have a complaint about that because that violates their property rights. But if my bar is full of smoke — and by the way, I was a musician, a jazz musician, for many years and came home reeking of smoke very often — I never thought once to tell the owners of the establishments, “Well, you shouldn’t have smoking here because of my nonsmoker rights.” It was their bar. If I didn’t want to be a musician there, I didn’t have to be.

And the whole point here is that we have very little respect for property rights anymore. Going from the Kelo [v. City of New London] decision a number of years ago — which basically said governments can take, literally take, away people’s property and give it to other private owners for whatever tax purposes — to things like smoking bans on private property of any kind, I think there tends to be very, very little respect for private property on the part of governments. And I think that’s where the focus should be. It’s not a smoking issue.