Yesterday, Nancy Nadel was quoted in the Chronicle complaining about our inability to quell gang and drug violence in a small park north of downtown Oakland. The City was forced to close the park, and a re-opening is nowhere in sight. Tonight, the Council’s Public Safety Committee will meet, but addressing the crime plaguing the city is not on the agenda (PDF!). What is? An ordinance banning smoking in plays and performances, near bus stops, in all outdoor dining areas, outside of bars, public parks and in all newly constructed multi-unit housing (including outdoor areas like patios and balconies), among other places. The ordinance also includes a provision designating secondhand smoke a “public nuisance,” which would permit residents anywhere in the city to sue their neighbors over “drifting” smoke. Nancy Nadel is the Council’s primary backer of the ordinance. I explained the history of the ordinance yesterday on Novometro.
When the City is unable to guarantee even moderately safe streets, passing unenforceable nanny-state legislation restricting behavior inside private property sends a terrible message to the residents of Oakland about the Council’s priorities. The Council cannot provide even a minimal police presence. Few people would consider where I live to be a “bad” neighborhood, but on my downtown street, muggings are a regular occurrence. At this point, I don’t even blink an eye anymore when I wake up on Saturday mornings and walk outside to find my building without a door. I’ve been robbed or assaulted so many times, that now if I’m out after dark, I take a taxi home, even if the ride is only five blocks. It is physically unsafe for me to stand outside my apartment for 10 minutes at night. Yet, for city staff and some members of the Council, telling me that I have to stand 25 feet from any door or window of my building if I want a cigarette is the more pressing public safety issue. I haven’t been behind the wheel of a car in five years, but if I want a cigarette while I’m waiting for a bus, I am apparently a bigger air quality hazard than the 72% of Oaklanders who drive to work alone every day.
The ordinance would also restrict smoking outside bars. Many bars in the city have gone to considerable expense to install special patios for smokers, which would be off-limits under the proposed rules. Outdoor safety at night is a very real issue for bar patrons, and forcing them to stand far away from the door or in the street makes them a target for both annoying nuisances like panhandling and serious problems like assault and robbery.
Oakland already has some of the most stringent anti-smoking measures in Alameda County. (PDF!) Newark recently passed a new anti-smoking ordinance (PDF!), but it is far less restrictive than what our Council is considering.
There are many other serious flaws with the legislation. Among them:
- Oakland would be exposed to lawsuits on both property rights and 14th Amendment grounds. The city does not have the time or resources to become entangled in such a court battle. We are already having to waste resources defending the ill-considered plastic bag ban in court.
- The ordinance proposes changing the definition of “smoking” to include marijuana. Restrictions on private at-home use of marijuana violate the voter-approved Measure Z.
- The report acknowledges that the law is not actually enforceable, and suggests that enforcement would be driven by “peer pressure.” When the city passes laws it knows it has no hope of enforcing, respect for and obedience of all laws is degraded.
- If the Council is serious about addressing environmental air pollution, they should be focusing on encouraging denser housing and transit use. Automobile exhaust is far more polluting the secondhand smoke.
- Targeting secondhand smoke is arbitrary. Incense, aromatherapy candles, and wood burning fires are all commonly used in people’s homes and produce higher levels of carcinogens than cigarettes. Are we going to ban them too?
Last night, I was talking to an acquaintance about the ordinance, and while he agreed that the restrictions are absurd, he shrugged off my concerns about possible passage, saying “The crux of the issue is that it simply won’t be enforced. What will happen is that you’re going to have yet another law on the books that’s never enforced unless they decide they want to harass somebody.” He’s right. But Committee members should seriously consider if this is the message they want to be sending to their constituents.