BAC Legislation not Comparable to Smoking Bans

In response to my recent column suggesting that if local municipalities are going to pass smoking ban ordinances, they should reimburse bars and restaurants that are damaged by such laws just as they must do when property is taking via eminent domain, a critic of my position made the comparison between smoking ordinances and the recent lowing of the legal Blood Alcohol Content (BAC) for operating a motor vehicle to .08.

Do taxpayers have an obligation to compensate the establishments for the revenue they might lose as the result of a smoking ban, no. Recently, the state passed a lower BAC limit of .08. This is an effective law which research has shown prevents many alcohol-related deaths and injuries and will save the state millions of dollars. Because of the law, people will drink more responsibly, i.e. less. This means the bars/restaurants will sell fewer drinks and will see a reduction in revenue. Given the overwhelming gain for all of society, including the bar/restaurant owners, I just don’t believe you could argue there is an obligation on the part of the taxpayers to make up for the lost revenues.

Although I disagree with the .08 BAC legislation because I don’t believe it’s effective (and I view it as the federal government blackmailing the states to do something the federal government has no constitutional authority to do itself), I certainly don’t question the legislation’s legitimacy. The state can go as far as a BAC of ZERO and need not concern itself with reimbursing anyone.

Here’s the difference between the BAC legislation and a smoking ban.

The BAC legislation may “impact” the liquor industry, but it does not “target” the liquor industry. (All laws impact someone) It does not take from the industry any right that it previously had. Nor does it take away any individual right. An individual does not have the right to drink anywhere he damn well pleases and endanger others. Smoking bans target specific businesses. They take away a property right that the business previously had. And while individuals do not have a right to smoke anywhere they damn well please (I don’t oppose smoking bans in legitimate public buildings), they do have that right on private property with the consent of the owners.

Further, let’s apply criteria for public intervention to the BAC legislation. First, the legislation (assuming it's effective) protects citizens from a risk to which they did not consent -- driving on roads with people too intoxicated to handle an automobile. Second, drunk driving affects the community at large. There are no posted “Drinking” and “Non-Drinking” roads. A drunk driver might be found on any Minnesota road. Third, There is no reasonable way I can protect myself from drunk drivers other than choose not to drive or walk near roads. (No, that’s not the same as not being able to go to a specific restaurant or type of restaurant or bar.) A person cannot reasonably function without driving or utilizing roads.

And finally, the public is paying for the benefit of a lower BAC through extra tax dollars spent for enforcement and conviction of violators. There are no “free riders.” Smoking ban proponents, on the other hand, feel they can inflict economic damage on one group of people without themselves paying for the expected benefit.

The “overwhelming gain” to society has nothing to do with compensation. Compensation is due because society is taking away a right from an individual. That is not the case with the BAC legislation; it is with the smoking ban. That’s the bottom line that smoking ban proponents won’t address.