Outdoor patio smoking bill would restore some lost rights

While we aren’t terribly optimistic about its passage, former Oakland County commissioner and current state Rep. Tim Melton (D-Auburn Hills) has put forward a common-sense piece of legislation that would let bars and restaurants decide whether to allow smoking on their outdoor patios. And although the proposal doesn’t go quite as far as we would like it too — allowing bar and restaurant owners have the final say on whether people can light up in their establishments or not, period — the measure takes the first step in the fight for the private property rights of business owners.

House Bill (HB) 4447, which has been referred to the state House Regulatory Reform Committee, would modify the Dr. Ron Davis Smoke Free Air Act, which prohibits smoking and the use of all other tobacco products — including non-cigarette smoking tobacco and smokeless tobacco — in all public places and food service establishments throughout the state. Melton’s bill would carve out an exemption for outdoor patios and let business owners decide whether to let people light up there.

Besides protecting patrons from secondhand smoke, the law was designed to protect employees, including those working in a restaurant or bar, from the effects of secondhand smoke.
The act was officially passed by the state Senate and House on Dec. 10, 2009, before being signed into law by then-Gov. Jennifer Granholm on Dec. 18, 2009.
Places that are exempt from the smoke-free law are cigar bars, tobacco specialty retail stores, and the gaming floors of casinos, as well as motor vehicles. Only cigars can be smoked in cigar bars, with all other tobacco products prohibited.
We’ve been wary of the smoking ban in the past, not because we want people breathing in secondhand smoke, but instead because private property rights of business owners were erroneously infringed upon. The state

While the Michigan Restaurant Association hasn’t taken an official stance on the legislation, in the past they have argued against exemptions in the smoking ban because it would create an uneven playing field for certain establishments. That’s not a bad argument, and we can sympathize. However, bars and restaurants with outdoor patios and dining areas already have a leg up on their competition simply by having the patio — prime wining and dining areas, particularly during the warmer Michigan months — in the first place, leaving us less concerned about creating an unfair disparity between establishments that have outdoor patios and those that don’t.

In addition, it seems as though Melton’s bill would allow those bars and restaurants with outdoor patios to continue to ban smoking from those areas, as well, if that was their choice. Therefore, the decision would be left up to the individual business owner, not state fiat. That aspect of the legislation is particularly important, and one we appreciate, particularly given that some bar and restaurant owners have no qualms with the smoking ban. Letting them continue to ban smoking from their outdoor patios if they so choose is the right way to go.

But some bars and restaurants have taken a significant hit to their bottom lines in the nearly one year that the smoking ban has been in place, which is one of the reasons why lawmakers need to reconsider the smoking ban. But even more than that, the ban goes to the heart of private property rights. Within reason, businesses should be able to determine what goes on within it instead of having the state deciding for them what should or should not be allowed.

So while this bill is a welcomed first step in the battle that some groups are waging to protest and hopefully repeal the smoking ban, we hope legislators in Lansing will consider it just that — an initial effort, and a good one, to restore private property rights of business owners while also hopefully increasing the patronage those bars and restaurants receive.