Monday, February 06, 2006

Calabasas Poised to Ban Smoking Just About Everywhere

The Calabasas (California) City Council voted to give initial approval to an ordinance that bans smoking in all outdoors areas of the city, including streets and sidewalks. The ordinance, which is being supported by at least one prominent anti-smoking group -- Action on Smoking and Health (ASH) -- would not allow a person to smoke on any street or sidewalk unless there was no other person within 20 feet who was not smoking at the same time or who consented to that individual smoking.

The expressed purpose of the ordinance is to protect nonsmokers from exposure to secondhand smoke and to "assure a cleaner and more hygienic environment for the City, its residents, and its natural resources, including its creeks and streams." In addition, it is intended to reduce "the potential for children to associate smoking and tobacco with a healthy lifestyle," to protect "the public from smoking and tobacco-related litter and pollution," and to promote "the family-friendly atmosphere of the City's public places."

The prohibition of smoking in public places is quite broad and includes "any public or private place open to the general public ... including, for example, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis and buses." Residential property is not included, nor are 20% of the guest rooms in hotels and motels. But unless specifically exempted, "smoking is prohibited everywhere in the city."

The Rest of the Story

Before discussing the merit of this broad ban on smoking almost everywhere in Calabasas, let's get right to the rest of the story:

The Calabasas City Council is so hypocritical that it is banning smoking on streets and sidewalks in the name of addressing the terrible problem of smoke drifting along outdoors and exposing a nonsmoker transiently, yet it is specifically allowing smoking at a place where hundreds of its residents congregate: The Calabasas Commons shopping mall!!!

This is not a joke! I'm quite serious. The City Council apparently thinks secondhand smoke is so bad that it cannot allow smokers to walk down the street with a cigarette and it is apparently so concerned about kids seeing people setting a bad example by smoking in public that it will not even allow a smoker to light up in a parking lot. However, secondhand smoke is not so bad that people cannot light up at a crowded mall, nor is it such a bad example that the City would want to disallow smoking at its premiere retail establishment.

There's only one way I can think of to explain this hypocrisy. The policy makers in Calabasas are putting on a great show with all their talk about the hazards of secondhand smoke and they're willing to infringe upon smokers in places where exposure to this hazard is low and quite transient. But when it really comes down to it, they don't want to take any risk that the city could lose money if fewer people shop at the Mall. After all, health is really important, but not when it threatens to compete with the city's financial health.

The ordinance, which passed first reading and need only be approved on a second and final reading, allows outdoor smoking areas in common areas of shopping malls, albeit small ones, as long as they are at least 5 feet away from any doorway or opening to an enclosed area and from the parking areas.

Don't get me wrong. I'm not arguing that a smoking area should not be allowed outdoors at a shopping mall. But I certainly think that if the City Council wants to be taken seriously, then it should walk the walk and not just talk the talk.

How could secondhand smoke be so hazardous outdoors that it cannot be allowed anywhere, except for shopping malls? Does the presence of a shopping mall somehow detoxify the smoke? Perhaps it's some special ingredient in Johnny Rockets' cherry milk shakes (which are about the most delicious thing I can think of) that detoxify the secondhand smoke when they waft out of the diner and over to the smoking area.

And what about all those kids going to Johnny Rockets, Gymboree, Barnes & Noble, and M. Fredric kids? Are they somehow immune to the "family unfriendliness" of smokers and to the terrible example set by seeing an adult smoking? And if you were serious about preventing kids from seeing smokers, wouldn't you rather ban smoking at a place where kids congregate due to all these stores that cater to kids (by the way, Gymboree is a kids' store) then in every street and sidewalk, including those where there isn't a kid in sight?

The hypocrisy of this proposed policy is almost too much for me to comprehend.

And to add injury to insult, the Calabasas Commons is described as an "open-air" shopping complex. So it's not like the kids and all the other shoppers are safely tucked away indoors where they won't be exposed to the smoke and won't see the smokers. And presumably, smoking would also be allowed at the Courtyard at the Commons, Creekside Village, Gelson's Village, Calabasas Canyon Center, Calabasas Plaza, Malibu Canyon Plaza, and Plaza Calibasas.

Now to the ridiculousness of the policy itself. If a smoker is walking down the street, she can smoke as long as there is no one within 20 feet. But if someone suddenly enters that 20 foot zone, she must immediately extinguish the cigarette. Unless that person is also smoking. Or unless she quickly asks that person if they consent to her smoking and they say it's OK. But then if another person enters the 20 foot zone, she must extinguish it again.

If a group of 3 smokers are walking down the street but only one is smoking, he must ask the other two for permission to smoke. I suppose that if the companions did not consent, the smoker could simply follow his friends at a distance of 20 feet and be in compliance with the law.

As if this is not bad enough, a smoker who lights up in a parking lot if someone is 19 feet away has committed ... a crime! Not a civil violation, but a criminal offense! A misdemeanor.

And if you run the Cold Stone Creamery and someone lights up a cigarette outside your store and you don't stop them ... congratulations! You've committed a misdemeanor. You have violated section 8.12.060 of the ordinance: "Allowing, Aiding, or Abetting Illegal Smoking."

The ordinance could even be construed as meaning that if you see someone smoking in a parking lot and you don't report it, that you have aided and abetted a criminal action, and therefore, have committed a misdemeanor yourself.

Again, I'm quite serious. Section 8.12.070 of the ordinance states: "No person shall cause, permit, aid, abet, or conceal a violation of any provision of this chapter." So if you conceal the fact that someone has violated the ordinance, you have yourself violated the ordinance. And since "A violation of this ordinance shall constitute a misdemeanor" (see section 8.12.070[a]), you have actually committed a misdemeanor.

I can just see the criminal hearing now: "You mean to tell the Court that you saw someone smoking in a parking lot and you did not report it to the City Prosecutor?"

This ordinance, however, is more than just a joke. It's actually a quite serious abuse of the state's police powers. As Jacob Sullum astutely pointed out, the same reasoning behind not allowing kids to see smokers could lead to policies that bar fat people from public places.

But the saddest part of the story is not the fact that Calabasas is on the verge of taking this action. To me, the saddest part of the story is that anti-smoking groups are supporting this absurd, hypocritical, intrusive, and unjustified policy. One anti-smoking organization - ASH - issued a press release to boast about its support for the policy. And according to that press release, the ordinance is also being supported by 5 other anti-smoking or public health groups: the Los Angeles Department of Health, the American Heart Association, the American Lung Association, SAFE (Smoke Free Air for Everyone), and the Coalition for a Tobacco-Free Los Angeles. If that's true, it's shameful.

The rest of the story is that the anti-smoking movement is on the verge of running amuck. Things are quickly spiraling out of control, and I think there's only one thing that can stop this: and that's if other anti-smoking groups start to speak out against this fanaticism.

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