Wrong Answer

By my own conscientious choice, I am a lifelong non-smoker, but I am nonetheless disturbed that Virginia must now live with its freedom-eroding law to ban smoking in restaurants.

While the arguments for and against the legislation, which was negotiated by Governor Tim Kaine and Speaker of the House William Howell during the General Assembly session that just ended, focused largely on the effects on bars and restaurants with a broad-based clientele, there is (as with all new laws) an unintended consequence that affects a particular group of business owners.

I have earlier written about the financial losses incurred by restaurants in other jurisdictions that imposed a smoking ban. What those studies may have overlooked, however, is the extra burden taken on by restaurants that fill an unusual cultural niche.

What I mean is, among the casualties of this misguided legislation are various establishments that cater to ethnic groups (mostly, but not entirely, Arabs) and adherents to the Muslim faith (who are generally teetotallers) by providing facilities for hookah smoking.

As Brigid Schulte reported in the Washington Post just after the General Assembly voted for the "compromise" (what kind of blanket ban is a "compromise"?):

The vote left some, like Ramzi Iskandar, owner of Tarbouch Mediterranean Grill in Arlington County, wondering whether they could survive.

For three years, Iskandar struggled to run a Lebanese food takeout restaurant. Last year, he brought in hookahs, and business has never been better. Day and night, the air in his place is thick with smoke from the hookahs smoked by his mainly Middle Eastern clientele. To them, he explained, smoking hookah after a meal is as natural as Italians having a glass of wine with their pasta. "If hookahs go away, there's no reason for me to operate, for sure. I've already decided on that," he said. "The reason people are eating here is because I have hookah."

An article in the Washington Times several days later found more restaurateurs in situations similar to Iskandar's:

Maher Elmasri put little stock in talk that Virginia - a state with historic ties to tobacco - would ban smoking in bars and restaurants.

However, he now worries that his livelihood could be wiped out. Mr. Elmasri's restaurant, Lebnan Zaman, in Vienna, owes its popularity to the hookah, a water pipe popular in Middle Eastern culture. Virginia's newly passed smoking ban, which awaits the governor's signature, unlike some others across the country, makes no exception for hookahs.

He says the ban kills an old cultural tradition.

"It's not just about the smoking," said Mr. Elmasri, a Palestinian immigrant. "It's about people getting together, getting a sense of back home."

The fact that other jurisdictions that have imposed smoking bans have made exceptions for hookah bars raises the question of whether ethnic or religious prejudice is behind the legislation in Virginia, and whether Governor Tim Kaine's stubborn insistence that he will not amend the bill to allow the exception for restaurants whose clientele is largely Arab or Muslim is also motivated by bigotry.

Charlottesville is not untouched by the cultural blinders of this anti-smoking legislation. At least two local restaurants will be adversely affected once the law makes it to the statute books. Brian McNeill reported on the front page of Saturday's Daily Progress:

Two Charlottesville establishments may be forced to extinguish their hookahs once a statewide restaurant smoking ban goes into effect later this year....

As a result, hookah lounges in Northern Virginia and Richmond are reportedly in danger of closing.

In Charlottesville, hookahs are available at the Twisted Branch Tea Bazaar on the Downtown Mall and at the newly opened Alhamraa restaurant in the Frank Ix Building.

Gwendolyn Hall, owner of Twisted Branch, said she is investigating the possibility of designating the entire front end of the restaurant as the smoking section, while a small back room would be the non-smoking section. Hall is skeptical, however, that her plan would fly with the state. If not, she said, she might be forced to cease hookah sales.

“It depends on how the regulations play out,” she said. “I’m hoping we can keep [hookahs]. It’s a pretty big part of our earnings here. I wouldn’t want to say goodbye to it. We’ll try to figure something out.”

What I find especially troubling in McNeill's article is the disappointing answer given by Delegate Rob Bell (R-58) when asked why he voted for the anti-smoking bill:

“I personally prefer to let the market determine these sorts of things, but my constituents were very clear that they wanted quicker action on smoking in restaurants,” Bell said. “A lot of work went into crafting a bipartisan compromise and I voted for it. It will require restaurants that want smoking to establish an entirely separate smoking area. It also allows smoking in private clubs and in outdoor areas.”

Bell claims to stand for certain principles, one of which is the superiority of free markets over government coercion (the Virginia Republican Creed says: "That the free enterprise system is the most productive supplier of human needs and economic justice..."), yet he yields to the pressure of his constituents rather than vote according to those principles.

More than half the restaurants in Virginia have already chosen, voluntarily, to go smoke-free. It is clear that the free market has been working in this regard. People who don't want to smoke in restaurants that allow smoking can already choose to eat in restaurants that don't allow smoking, just as vegetarians can choose to eat in restaurants that don't serve meat and those who choose not to drink alcoholic beverages can eat in restaurants (IHOP, for instance) that don't serve alcohol.

Delegate Bell has forsaken the principle of representative government that says elected officials should exercise their own best judgment rather than simply reflect the changing winds of public opinion when they shape and approve legislation. This principle was best articulated almost 250 years ago by Edmund Burke, in his famous "Speech to the Electors of Bristol":

Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,--these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Business owners should be free to decide for themselves whether to allow smoking on their premises or not. Customers should be free to choose whether to buy things from businesses that allow smoking or not. Legislators who claim to stand for free-market principles should choose to act on those principles, and not against them.

Delegate Rob Bell chose the wrong answer.

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