Out of Control

The discussion at the Belmont city council provides a (many, many hour-long) lesson on how extreme smoking bans are approved at the local level. Tonight Mayor Coralin Feierbach, who has driven the ban from the start, said she took her queue from the neighboring Dublin city ordinance and wanted Belmont to “reach for the sky” and provide a model for other cities to follow—but seven months into the process the level of technical, legal, scientific and even practical knowledge among council members about proposed provisions is surprisingly low. Vice Mayor Warren Lieberman went so far as to say, in an impassioned moment of tonight’s meeting, “I feel incredibly unqualified to be voting on this.” The mayor’s response? “Sometimes we get elected to vote on things that we don’t fully understand.”

One of the most important points that seems less than “fully understood” in these policy deliberations is that fact that private businesses of all kinds, including restaurants and housing complexes, can always set their own policy about smoking—that is, until lawmakers step in and remove that right by passing smoking bans on private property. In fact, protecting the ability of business owners to market a range of options—from smoke-free havens to smoke-filled free-for-alls and everything in between—is the surest way to meet diverse needs.

To design a comprehensive smoking ordinance nuanced enough to provide that same level of service is virtually impossible. Consider one of the most contentious questions in the city council’s discussion tonight: If you smoke a cigarette and nobody else smells it, are you breaking the law? In other words, should the ban include provisions that are only occasionally enforced because they are only occasionally justified?

In a straw poll, the majority of the council opposed banning smoking on all city sidewalks, but each for a different reason: one on the grounds that it was not possible to enforce on a complaint-driven basis, one because people who live in multi-unit housing where smoking may be banned “need somewhere to smoke,” and a third because neither the health risk nor the degree to which exposure is involuntary in that situation was great enough to justify a ban. A ban on smoking in cars, rumored earlier on in the process, will also not be considered at this point. Discussion of a provision to ban smoking in multi-unit housing broke down into confusion and will be brought back, along with other staff recommendations, at a later date for a formal vote.

Overall, Belmont may turn out be a roaring mouse on this particular quest. That’s probably a particular disappointment to Philip Jarosz, one speaker who joined the usual ranks of tax-funded out-of-town anti-smoking lobbyists during public comment to support a strict all-out ban. Jarosz, who serves on the Board of Directors of the Condominium Council of Maui, is on an even more quixotic quest: to make Maui the “first non-smoking island in the world.”

[Additional update: The Oakland committee hearing was postponed to June 26--plenty of time to study up on public nuisance law. A question for the lawyers out there: if a city ordinance includes provisions against persistent secondhand smoke entering a private property, along the lines of a noise ordinance, then isn't that already a public nuisance, with all the legal recourses that entails?]