The debate over a ban on smoking in bars and restaurants presents complicated and difficult choices for those who understand and focus on the right concerns: freedom of choice for the owners of private property vs. the right not to be exposed to health hazards caused by the conduct of others. Both rights deserve government protection and their perceived collision forces hard decisions.

First, what this debate is emphatically not about are the rights of smokers and nonsmokers or about job loss at Philip Morris. Cigarette manufacturers produce a lethal product that casuses immense tragedy, heartache and financial loss to far too many. Only the experience of prohibition and the belief in allowing the freedom to choose even if the choice is harmful keeps the enterprise alive. But second hand smoke causes harm to the innocent, and neither Philip Morris nor smokers have the right to do that.

But the owners of restaurants and bars do have rights. The establishments are their private property and at some point their rights should triumph. But at what point?

Therein lies the heart of the matter. With second hand smoke now eliminated from most public places and restaurants and bars now having nonsmoking areas, is there enough remaining risk from second hand smoke to trump private property rights?

 Nonsmoking adults can make choices and patron only establishments that do not allow smoking. My wife and I do this for the most part. We will not patron any establishment where even the faintest whiff of smoke drifts into nonsmoking areas and this usually means we go to nonsmoking restaurants only.

But what about children and restaurant/bar workers? Do they have choices? For children, the answer is no. They go where parents take them. For workers, theoretically yes, but sometimes the need for income and the availability of jobs dictate that nonsmokers work in smoking establishments.

So, what is the evidence, if any, as to the harm caused today to the innocent from second hand smoke? Studies from the past are really of limited value because until recent years second hand smoke was far more prevalent and we were less concerned about it.

This evidence, if it exists, should drive the debate.  Free choice by the owners of private property should enjoy a presumption, at least a slight one, that they decide whether to operate their establishment with or without smokers. But if there is indeed harm to those who have either no choice or too limited choices to avoid exposure to second hand smoke, their rights must be abridged.

This is how I see the issue. Opposition to smoking, concern for Philip Morris or the jobs they provide, or rigid adherence to the rights of property owners regardless of the harm caused by second hand smoke cloud the debate, but miss the point.¬† If the evidence is available that second hand smoke in today’s restaurants and bars poses more than minimal threats to the health of innocents, the ban is justified. Otherwise, free choice by property owners should prevail.

Wyatt Durrette is a Director at DurretteBradshaw, PLC and co-founder of the XDL Group. He served three terms in the House of Delegates and was the Republican candidate for Governor in 1985.

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