Thursday, October 18, 2012

San Rafael Bans Smoking on Downtown Sidewalks Unless Smokers are Walking with Purpose

According to an NBC News article, the city of San Rafael (California) has passed an ordinance that bans smoking in all downtown areas unless the smoker is walking with purpose.

Specifically, according to the article: "The ordinance ... makes it illegal to smoke outside in downtown San Rafael, a quaint and affluent city in Marin County, except when the smoker is 'actively passing on the way to another destination.'"

The ordinance states that smoking is prohibited on "sidewalks and other pedestrian areas and public places in Downtown San Rafael accessible to the general public, except while actively passing on the way to another destination. For the purposes of this section, Downtown San Rafael means the area defined by Hetherton Street between Mission Avenue and Second Street, Second Street between Hetherton and the beginning of Miracle Mile, Fourth Street from the beginning of the Miracle Mile to H Street, H Street between Fourth Avenue and Mission Avenue, and Mission Avenue between H Street and Hetherton Street. This prohibition applies to sidewalks along public and private streets, pedestrian alleys, walkways providing access from parking lots and structures to stores or sidewalks, and all other pedestrian paths or areas that are accessible to the general public within and around the perimeter of the area defined ... above."

The Rest of the Story

Now how exactly do they define "another destination?"

Suppose that I am pacing back and forth on the sidewalk between point A and point B. Am I actively passing on the way to another destination? If a cop confronts me and issues me a ticket, I am going to argue that I am in compliance with the ordinance. After all, point A is a "different destination" than point B, is it not? How far does point A have to be from point B to count as a "different destination?" What if it is only one foot from point B and I am merely stepping back and forth?

Well, then, maybe it depends on your interpretation of the phrase "actively passing."

If I am meandering down the street from point C to point D, is that "actively" passing or "passively" passing? What if someone is pushing me? Is that considered passive movement, as opposed to active movement, which would be if I were walking unaided? What is someone is pushing me in a wheelchair? Is that active movement or passive movement? 

What if I stop for a moment to figure out where I am going? Can I be served a citation the moment I stop? What if I am a forgetful person and I have trouble remembering where I am supposed to be going? How long a grace period do you get before you need to make up your mind what your destination is or how to get there?

Now a rather complex enforcement issue is whether or not the purpose with which the smoker is walking matters. For example, what if the sole purpose of the smoker walking is to avoid being served with a citation? Assume that the smoker is passing from point E to point F but has no real desire to go to point F. Is the smoker violating the spirit of the law? Is he skirting the law? Should the cops reason that although he is technically in compliance, his purpose was to violate the law and so he can be given a citation?

Importantly, the law states that in order to be smoking lawfully, you need to be "passing" between destinations. Does that mean that you can be served a citation the moment you arrive at your destination? Can the police follow you, waiting until you arrive at your destination, and then give you a ticket if your destination is within the defined downtown area? And if you are pacing between points G and H, can the cops ticket you the moment you arrive at point H? Can you successfully argue that point H is merely a resting point, and that your actual destination was point I? Thus, you were actively passing between point G and point I, and it only looked like point H was your destination.

Finally, we have the age-old question: What if the smoker is walking in a circle? Does the circle have a beginning? Or an end? Can't the smoker argue that as long as he is walking in a circle, he continues to be actively passing on the way to a destination, because the circle is unending and he can smoke for as long as he wants because he will never reach his destination? Or can the cops argue that he reached his destination the moment he completed walking one circumference? But who are the police to define where a circle begins ... or where it ends?

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