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Monday, February 23, 2015

OPINION: Keep an Open Mind about Property Rights

President of C Forward and Fort Thomas resident, Brent Cooper, recently wrote an article advocating for a state-wide smoking ban. You can click on that article here. Fort Thomas City Councilman, Adam Meier, provides a response. 

By Adam Meier

In a recent Op-Ed, the author, Brent Cooper, who no doubt had the purest of intentions, asked us to support proposed legislation that would institute a statewide smoking ban. One must keep in mind, however, that like Newton's third law of motion, such a request for one particular action necessitates an equal and opposite reaction.  In asking us to open our mind to a smoking ban, he is also asking us to close our minds to the property rights of others.

Don't get me wrong. Smoking is dirty, smelly, aggravating, and I generally do what I can to avoid being around it.  And I can’t say that I’m thrilled to sit here and publicly defend a practice that I personally detest.  But I nonetheless feel compelled to.  FA Hayek said that "[t]he freedom that will be used by only one man in a million may be more important to society and more beneficial to the majority than any freedom that we all use."  You see, on the surface, this is a smoking issue...but at its core, this is a liberty and property rights issue.  What I'd like to ask you in this article is that you open your mind to the personal rights of others.

As I said, I do not enjoy being in smokey places. But I'm sure there are a lot of things I do or own that other people don't like.  And I bet you (the reader) do or own something I or others don't like.  Right now, we are talking about smoking.  Next week, we might be talking about banning or further restricting something you enjoy.

 It might be a firearm or accessory you keep in your safe. Maybe you like craft beers that have a 13% ABV.  Maybe you have raised a loving family dog that has characteristics of a breed often misused by bad owners.  Maybe you like to start the day with a 44 oz caffeinated soda.  Maybe you want your growing child to have the option to buy a school lunch with more than 800 calories to get them through the school day and their after school athletic practice. These are just a few examples of things have been banned or further restricted in some form or another.

It has been said that "Men fight for freedom, then they begin to accumulate laws to take it away from themselves." (author unknown).  This proposed legislation is simply one of the latest attempts to pass a law to further chip away at that freedoms we enjoy as Americans.

Now, that is not to say that the author (and others) have not made some very compelling arguments as to the benefits of such a ban, but let’s discuss some of those points.

First, data is presented on the dangers of secondhand smoke.  Now…I love data.  Before making any decision, I try to gather all of the data I can.  But I also do my best to objectively weigh the reliability and applicability of such data to how it relates to my decision. Why?  Because data can be skewed and manipulated to support a desired outcome or result. I am not a medical doctor and cannot opine on the true dangers of secondhand smoke.  But even if I was a medical doctor I would have a hard time coming to a definitive and accurate conclusion as to the dangers of secondhand smoke.  This is because correlations are spurious at best in most cases.  And any true dangers of secondhand smoke are likely caused by prolonged exposure (spouse who smokes in the home), not the occasional meal in a smokey diner.

But for the sake of argument, let’s accept that data on the dangers of secondhand smoke as true. Here is some more data that may surprise you--100% of people will die of something.  And there are a lot of other activities that are much more likely to cause our death, so let’s put the risk in perspective.  A recent op-ed advocating for the smoking ban stated that Kentucky incurs $1.92 billion a year in healthcare cost treating (first-and second-hand ) smoking-related illnesses costing the average household $1,164 annually. Perhaps that is true, but as of 2013, Kentucky spends about $2.4 billion on treatment of obesity related illness, and projections have that number growing to over $6 billion by 2018, which is expected to cost each adult $1,836 annually (again we are comparing all smoking treatment cost per household vs. obesity related cost per adult).  What this means is that when you walk into a restaurant that allows smoking, you are significantly more likely to die of what you eat, not what you breathe, especially in the mere 40 minutes you are there.

And I’ll concede that there is a difference between what YOU put in your mouth and what SOMEONE else exhales and YOU breathe in.  That’s why I would support a smoking ban anywhere you HAVE to go or HAVE to work.  I support smoking bans in publicly owned buildings and property.  Places you HAVE to go to conduct business. But restaurants are not publicly owned and some restaurant owners have made a business decision that allowing this legal activity to take place on their premises affects the bottom line.  

I’ll also concede that a privately owned restaurant open to the public is subject to different legal requirements than a privately owned residence.  When you open a business to the public, those patrons are treated as “invitees” and are owed certain legal duties different than when inviting someone to your personal residence. A business owner must exercise reasonable care to make the land safe for the invitee’s entry and protect invitees from conditions that can result in injury. There is a duty to warn of dangerous conditions to allow patrons to ascertain the risk and decide intelligently whether or not to accept the invitation to the premises.  But when a “dangerous” conditions is patent (open and obvious) like smoking and not dangerous per se (“do not feed the lions”), there is not a duty to warn. Although I would not oppose legislation that required a sign on the outside of restaurants indicating that it is a smoking establishment, it’s not legally required (absent a statute/ordinance) nor is it really necessary.

Also, the author and many others often cite other health and building codes as support that we already regulate business for safety issues that used to be ‘free-market’ decisions.  I support those health and building codes but not a smoking ban because there are important distinctions.

I support laws that require construction to meet certain building codes because once built, I can’t see behind the walls to ensure homes or buildings were safely constructed.  I support laws that regulate how many people can safely be seated in a facility because most people, including myself, are not able to walk into a place and ascertain on the fly how many people are in crowded place and whether there are a number of sufficient number of exits strategically placed to allow for quick and orderly exit in the event of an emergency.  I support laws that regulate hand-washing and sanitary food preparation because I can’t see how my food is prepared or the microbacteria that might be sitting on the counter where my food is prepped.

However, when I walk into a restaurant, I can smell the smoke, turn around, and walk next door to a restaurant that offers a non-smoking environment.  I can vote with my feet and I have all the available information needed to make that decision intelligently.

It is also argued that bartenders or servers shouldn’t be forced to work in a smokey environment.  But it’s important to remember that they are not forced to be employed in that establishment. They chose to work there.  Coal miners choose to work in coal mines.  Race car drivers choose to drive cars at 200 MPH.  Lion tamers choose to work in the circus.  They do this under the “assumption of risk.” doctrine.  People who accept these jobs have wiling done so after conducting a cost-benefit analysis.

And I can certainly sympathize with folks who are unemployed and have to choose working in a smoky bar or nothing. But people do many jobs that are more dangerous for a lot less.  The median salary for a fisherman is $25,590 and it has a fatality rate of 127 per 100,000. Or how about truck drivers and traveling salespersons—last year there were 748 fatalities in these professions.  And I get that in these jobs, the danger is directly relevant to the success of job itself…but these business owners that allow smoking have made the business decision that smoking is directly relevant to the profit and viability of their business.

In sum, I’d like to make it clear that I am not “pro-smoking.” Mr. Cooper and I both want the same thing—we just have different ideas on how to get there.  I personally do not favor the approach of using a ban to compel behavioral change.  Rather, I’d prefer to use education, along with positive and negative incentives to achieve such results. If the Kentucky Chamber of Commerce wants help tourist and residents find non-smoking restaurants and bars in Kentucky, perhaps it should help create a smart phone app that directs those people to smoke free establishments—I’d certainly use it.

Instead of a one-size-fits-all statewide ban, I’d prefer to see any government intervention efforts narrowly tailored to achieve specific results, and enacted at the local level. If a county or locality wants to have smoke free entertainment districts, perhaps it should consider making a change in their zoning maps to establish smoke free entertainment districts. This would allow new developments in that area to be completely smoke free and established areas to move to smoke free over time as businesses change ownership.

Perhaps localities could even pass a higher restaurant tax rate for establishments that allow smoking or discount tax rates for those that go smoke free.  This would give them an incentive to go smoke free without taking away their rights as property owners to make that decision. Proceeds from restaurant taxes must be used to promote tourism—thus, if we are concerned that smoking hurts tourism, this is a direct way to address it.

Similarly, localities could require a differing fee structure for smoking vs. smoke free business licenses.  Proceeds from the smoking business license fee could be used to promote health…perhaps to build a new playground, offset higher city health care premiums for its employees, or fund a smoking education program in a local school.

In sum, let’s keep our minds open to the property rights of others.  We are not gun-grabbing, big-gulp banning New Yorkers.  We are respectful, liberty-minded Kentuckians.  Let’s not jump to ban an unpopular but legal activity taking place on private property simply because we don’t like it. Let’s get creative and find common ground on ways incentive and empower business owners to choose to provide more smoke-free options for people like Mr. Cooper and myself who would like to patronize them.

Adam Meier is an attorney licensed in Kentucky and Ohio and a member of the Fort Thomas City Council. The views and opinions expressed here in this opinion editorial do not reflect the views or opinions of Fort Thomas Matters, it owners, writers, or editors. These are solely the ideas of the author.


  1. I agree, whole-heartedly, Adam! Now, let's use this logic against Breed Specific Legislation.

  2. I am for a smoking ban but I appreciate the well-reasoned and thoughtful position Mr. Meier has taken. As a lawyer, I can tell you his interpretation of the law is correct. Business owners have a limited duty to invitees. And if you don't believe the data regarding second hand smoke, I believe that is the most logical argument against a smoking ban. But there is no medical consensus that asbestos causes mesothelioma or that working in a coal mine causes black lung disease. Some don't believe that pollution aggravates asthma in children. The data is always debatable but as a precaution laws are created to protect the welfare of others. Waiting for the science to be conclusive is not how it works. The medical standard is a reasonable degree of medical probability. That is to say, more likely than not second hand smoke is harmful to one's health. Based upon that standard, I do believe a smoking ban is appropriate. In addition, there is no such thing as "coming to the nuisance". This is where Mr. Meier is incorrect. A property owner, residential or commercial, is not legally protected for acts which can be considered a nuisance, even if people knowingly enter the premises aware of the nuisance. An act which can be construed as being harmful to others is considered a legal nuisance which can be regulated to the detriment of property owners.

  3. very informative and articles that are constructive and trying to teach the freedoms we should all enjoy are well worth reading.

  4. I am a former resident of Ft. Thomas (Go Birds). I enjoyed the logic used in making the case to let people have choices. I have to say that I have lived in the Lexington area for over a decade and all but a few eateries are smoke free and have been for some time. That does not bother me. However, if I choose to go to a bar I would choose one that allowed smoking....and drinking. I think Adam is correct. Private business owners should have the right to make the choice to go smoke free and private citizens should have the right to patronize smoking establishments if they choose. What's next water bars where you can only get bottle water because it's good for you?

  5. I agree with this logic also, and while were at it I want to see Adam Meier stand up for owners rights when it comes to nude dancing. I would go to The Pub more if they had exotic dancing....oh yeah and drinking and smoking. I should also be free to solicit money for sex. Adam, why didn't you promote these other freedoms that aren't questionably killing anyone?

    1. Right on!! I guess keeping an open mind only applies to smoking but not restrictions on immoral behavior.

    2. Nice try. But I think Mr. Meier's article addressed both your points, albeit indirectly. Soliciting money for sex, last time I checked, is not a legal activity in Kentucky--but smoking is--hence the difference. Second, on your desire to see nude dancing at The Pub. Such establishments are not banned in Kentucky but rather regulated via zoning--often delegated to industrial districts. Fort Thomas does not have such areas so it's doubtful that Mr. Meier or any other council member would approve such an establishment in a Fort Thomas business district. You may have missed the part in the article where Mr. Meier suggested using local zoning measures as a less restrictive alternative to an outright statewide smoking ban--if you did, read it again, you might learn something, I certainly did.

    3. Oh I get it now...The issue is taking away an existing freedom sort of like pro-lifers trying to take away a woman's right to choose. Any other distinctions without a difference you care to draw?Please -- all that is being asked is that people step outside to smoke as a consideration for others. It's sad that a ban even needs to be considered to get the loaf sitting at the bar off his oversized irregular to enjoy his cancer stick outside. You're not protecting the rights of business owners -- you're protecting the loaf at the bar. It is his freedom that concerns you and the 6 drinks that get sold to him night after night is what concerns owners because they fear losing Billy Joe loaf and most of all change. The constitution will not come crumbling down with a smoking ban. And if a business depends on smokers to survive it isn't much of a business. Though I will say an unintended counsequence of a smoking ban is that people will actually discover how lousy the food is. Nice try, indeed.

    4. The Constitution may not come crumbling down right now, but bit by bit our rights are being taken away. This doesn't happen over night, but it's the attitude like yours, that put our rights in danger. Billy Joe loaf has just as many rights as me, whether I like his habits or not. I want to be able to choose whether I sit next to him at a bar or not.

    5. Gosh! Immoral..who is taking away my right to choose now? Just because you see sex for money or nude dancing as immoral does not mean other patrons would. Just as I see smoke filling the air, and my lungs, in the bar as offensive and others see it as freedom. What you should really learn from this article is that HOPEFULLY majority will rule and we should have the right to vote on such restrictions. I can't shoot guns or grow marijuana or raise livestock on my property either. You keep learning from articles like this and I will choose free will.

    6. I agree with the original comment why not stand up for owners rights on fire code, liquor license, what time i need to open and close my bar, how clean my kitchen needs to be... etc. the list goes on and on. I am not sure why people can't see that this is already going on and to ask someone to walk outside for 10 min isn't a big deal. This isn't about the rights of business owners this is about smokers.

    7. I agree. The issue is all about smoking and little to do with property rights or the interests of business owners. Those for the ban don't want to be exposed to smoke by other customers and those against the ban support the rights of customers to smoke. Liberals don't care how a ban might hurt a business and conservatives pretend to stand up for the rights of owners when they are only concerned about the freedom to smoke -- and not the property restrictions that really impact a businesses bottom line. We got opinions from the red and the blue but the white (i.e. the business owners) don't seem to have a voice. Maybe FTM can survey some business owners on their position. How do business owners feel about the bans in other counties? Maybe owners would gladly accept a ban in exchange for the lifting of other restrictions. Everyone says they learned so much from this article but it didn't change their position because they were against a ban to begin with. If you really want to learn something ask the business owners. You'll learn more from them than a couple of politicians writing editorials pretending to be the voice of the rights of property owners.

    8. I have actually met this politician and I can tell you he is no politician. He believes in research and the constitution and he is spot on on this one.

  6. Well done Adam. I would like to encourage the readers here to think of liberty first, and safety/security second. We keep giving up things to the government, and one day we will realize that the government controls too much.