May 9, 2002 -- Why did a rule change made by one of the thousands of co-op boards in this country make national news? The association at 180 West End Avenue in New York recently decided to ban new occupants from smoking in their own apartments. Some would say that residents know ahead of time that co-op contracts give associations the right to make such rules and, in this case, no current resident will be barred from smoking. Others see the decision as a sign of growing political correctness and intolerance. Both sides are in part correct.

The ostensive reason for the ban was that tobacco smoke travels through the building’s ventilation system into non-smokers’ homes. (Full disclosure here: I don’t smoke cigarettes.) This is a legitimate concern, especially for individuals who might be allergic to such smoke. Assuming that it does not violate some explicit or implicit contract right, I suspect that this decision is a proper exercise of the property rights of the association. (The same principle applies to condominiums.) A co-op association is a private club and members agree before joining to abide by the club rules.

One might foresee some enforcement problems with the ban. Will new residents be subject to surprise inspections by co-op cops? A better solution might have been for a private firm like Inflitech in Northern Virginia to install equipment and filters to prevent the smell of smoke, or the kimchi or garlic cooking in your neighbor’s place for that matter, from wafting your way. (Technology solves many problems!)
But while the decision of this co-op association might have been a proper and well-meaning exercise of property rights, rulings of this sort do raise concerns about a growing intolerance that could actually endanger property rights.
The social virtue of tolerance means that individuals might not like one another’s beliefs or lifestyles but leave each other free to believe and live as they see fit. Intolerance means that individuals seek out the nearest government judge, politician, or bureaucrat to impose their vision of a “good society” on one another.
The war against smoking is a classic case of intolerance translating into government policies that run roughshod over liberty and property rights. For example, smoking bans in many restaurants were originally choices by private owners who thought that their customers would prefer a smoke-free environment. Now, governments in many cities ban smoking in all restaurants. But this should be a matter for restaurant owners to decide. If a customer doesn’t like eating in a smoke-filled room, he can simply not patronize that restaurant.
We see government-mandated bans on smoking in office buildings. We saw recently the town of Friendship Heights, Maryland try to ban smoking outdoors on city streets. A few years ago, the Occupational Safety and Health Administration considered a rule that would ban smoking in private homes if owners had home offices and if more than ten individuals—plumbers, delivery men—visited per year. Note that the ban would not have been just for the time the visitors were in the office or during work hours. It would have been at all times in all parts of the house.
Fortunately, that proposal never made it into the rulebooks. But it illustrates that many of our fellow citizens no longer have the tolerant souls and morals of free men and women. They have the souls and morals of busybodies and petty tyrants who want to run their neighbors’ lives.
The danger is that as more co-ops or condo associations exercise their legitimate right to ban smoking, politicians will jump on the bandwagon and steer it in a coercive direction, perhaps first requiring non-smoking sections in buildings, next banning smoking in very large condos, and then, finally, banning it in all of them.
This is not a condemnation of private associations acting in the interests of their members. In a morally healthy society, the act of a co-op banning smoking would be proof that freedom allows individuals to associate with whom they want and on whatever terms they want. It is a condemnation of a political system that gives free reign to politicians who would rather rule than protect our rights. And it is a warning that without the social virtue of tolerance, many citizens will stand by as politicians limit the freedom of others. A non-smoking might reason, “The restriction doesn’t affect me.” But eventually freedoms that one does cherish will be targeted.
Intolerance is more toxic to our republic than the nasty stuff in cigarettes. Property rights and tolerance are both pillars of a free society that should not be allowed to go up in smoke.

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Edward Hudgins

About The Author:

Edward Hudgins is research director at the Heartland Institute and former director of advocacy and senior scholar at The Atlas Society.

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