Friday, June 01, 2007

Mrs. Scholar's latest column 

On the newly passed smoking ban is up. As one would have predicted, the supporters of the ban are in high dudgeon. My short answer: Treat the ban as a regulatory taking, pay off the bars for the loss of their property rights. If that's too expensive for you, then there's proof that the ban is inefficient.

UPDATE: A discussion broke out over whether one could sue for a regulatory taking. I don't pretend to understand the law that well, but from what I see there hasn't been a case put that looks quite like the Minnesota law yet. There was an Ohio case heard in 2005, D.A.B.E. v City of Toledo, but the 6th Circuit held only that the level of restriction was not enough to meet the requirements of a regulatory taking. Ohio allows a separate room for smokers to bring in their own food and drink (no employees allowed), and while that adds costs to businesses it wasn't in that court's view preventing "beneficial use" of the bar owner's property. The Minnesota law doesn't allow that possibility and thus might be considered closer to meeting the facial test for a regulatory taking. I have not seen a case in California, which has a law closer to the Minnesota law. I wonder if climate matters, so that a complete ban in Minnesota is more a taking than, say, one in Florida.

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