Private Property Principles Can Solve Casper’s Smoking Ban Dilemma

by Wyoming Liberty Staff

Core property rights principles can help resolve Casper's ongoing debate about smoking in bars better than some one-size-fits-all regulatory regime. The right to exclude others can empower individual bar owners to sort out how much or little smoking occurs in bars across Casper. Therefore, Casper does not need a citywide ban on smoking in bars to ensure smoke-free facilities are available—so long as the City is willing stand with the individual bar owners who want to prohibit smoking in their own bars. The City of Casper can help ensure the market meets the needs of all bar customers and owners by protecting private property rights instead of banning smoking citywide.

Even majority opposition to smoking does not justify a citywide smoking ban. My own story shows how enforcing private property rights and protecting liberty will help resolve Casper's smoking quandary without additional regulation. Personally, I detest cigarette smoke. It makes me feel sick for the rest of the day if I even smell it on someone's clothes. I am especially careful to navigate my children away from other people whom I see smoking. Worst of all, my paternal grandfather's decision to smoke tobacco deprived my family of his presence much too young. My three other grandparents who did not smoke outlived my only smoking-grandparent by more than a dozen years. Therefore, I do not willingly patronize bars or restaurants where smoking is allowed if I have a non-smoking alternative. None of these issues, however, justify Casper's citywide ban on smoking in bars. They do show the incentive for individual bar owners to exclude smoking without a government no-smoking mandate.

The answer to Casper's smoke-free bars dilemma lies in private property rights. Award-winning law professor Thomas Merrill argues in Property and the Right to Exclude, 77 Neb. L. Rev. (1998) that the right to exclude others is more than just 'one of the most essential' constituents of property (as often stated by the Supreme Court)—it is the very essence without which property does not exist. This basic principle of traditional private property rights ensures each landowner's freedom to invite customers to drink and socialize at a bar. At the same time it also ensures the right and freedom to later force those same customers to leave if the landowner so desire. This property rights rule also allows a landowner to decide what conditions to impose on other people as part of allowing those people on the landowner's property. Therefore, enforcing the right to exclude ensures that each bar owner is able to decide whether to allow customers to light up while in the bar or to forbid smoking entirely.

Casper city government's proper role in a property-rights based public smoking solution will then be to assist those bar owners who establish a "no smoking" policy for the bar, then face stubborn customers who choose to smoke but refuse to leave the bar premises to do so. Under the property-based system, smoking in a non-smoking bar will constitute trespassing against the property rights of the owner. Because property rights principles mean each individual bar owner can choose whether to establish a "no smoking" policy the City of Casper must be ready to help defend the property of those bar owner from trespassers. In so doing, Casper will avoid creating additional laws and regulations. At the same time, another bar owner someplace else in town can simultaneously satisfy marketplace demand by welcoming customers who light up with open arms.

Instead of debating whether individual bar owners in Casper should be allowed to permit smoking on private property, Casper's residents and city council members should focus on defending the right of each bar owner to prohibit smoking on the bar premises by customers. Property rights and market forces can sort out the details without additional local regulation.