Second-Hand Smoke

Khorbin has recently raised the issue of second-hand smoke. He asserts, inter alia, that the science behind the claimed harms of second-hand smoke is bad science. So, since science is his area, I’ll move on to the more practical questions in relation to second-hand smoke.

First, I don’t think that there is any reason, under the Constitution, that local governments can’t outlaw smoking in public places or anywhere. Of course, the right to privacy may be another concern, but I don’t think that’s a very good constitutional doctrine anyway. And regardless, it wouldn’t affect businesses that cater to the public. This wouldn’t be any different even if there was irrefutable proof that second-hand smoke does not kill.

Lincoln, Nebraska, where I live, has a city-wide ban on smoking in public buildings. This includes bars. This went into effect about a year ago. In the next three months, bars reported something like a 50% decline in revenues, and waiters reported even worse drops in tips. People were all over the map on the issue (many approved, many didn’t), but I suspect that the people it actually affects were the people unhappy about it. In other words, most people who are happy about the ban are people that don’t go to bars anyway because, let’s face it, most people who consider themselves non-smokers will become smokers when they’re drinking.

Is there any way to allow voting on this issue only at the bars, so that only those affected have a say? By way of analogy, should we let people who were born blind regulate optometrists, or people who drive everywhere decide the path of the city’s bike trail?

I’m a little more familiar with Norfolk, Nebraska, a town close to where I grew up. It has the only Burger King and McDonald’s of which I am aware that allow smoking. You read that right: smoking in Burger King and McDonald’s. There are quite a few bars there too, and almost all of them allow smoking. One that doesn’t is the Sports Den (I think there may be one other non-smoking bar in Norfolk). I went to the Sports Den a little over a month ago, and, you know what? It was packed. The other bars weren’t even close to having that kind of business.

So, in effect, the market is how people vote on the issue in Norfolk. And it makes everyone happy, because smokers can go to smoking bars and non-smokers can go to non-smoking bars. The market should regulate itself, because if there is more demand for (non)smoking space, then the bars will respond. And it caters to the views of only the people who use the service.

Is there any reason we can’t allow the market to regulate smoking in bars?

Would a better solution be to put businesses to a forced choice? By that I mean this: you can either be a smoking establishment or a non-smoking establishment. You can’t have a smoking and a non-smoking section. This way, people can’t complain about the smoke entering the non-smoking section (we’ve all heard of peeing and non-peeing sections in a swimming pool), and the market should effectively regulate it.
Of course, the expected argument against this goes like this: “I’m a non-smoker, and I want to go eat the food at restaurant X. I shouldn’t be forced out because of the smoke.” My response? It’s part of the atmosphere. If a restaurant has a poor atmosphere, then you won’t go there, whether it’s because of smoke or loud, annoying music.
And of course, you could limit smoking establishments to bars only. The problem with that is assessing whether a restaurant is indeed a “bar” or a “restaurant.” This involves complicated monitoring of income from various sources in the bar, and it’s easily manipulated (e.g. they can give you a cheaper meal if you order X# drinks).

Is there any moral reason we should (or shouldn’t) allow the bar owner to decide whether he/she wants to allow smoking? Isn’t individual freedom and choice a core American value?

Are there other, more palatable, alternatives? Such as taxing smoking bars at a higher rate than non-smoking bars, in order to sway the market in one direction? “Sin” taxes have long been accepted in society, and it seems to make sense to tax one “sin” because of another related one.

What do you guys think?