So here I was, all excited to go on vacation and ready and eager to spend a few days without giving a thought it the world to Oakland, or the City Council, or the budget, or insane civil service rules, or Deborah Edgerly, or any of it.
So last night, I step off the plane in the Electric City, and check my voicemail, since my flight came in early and my hostess isn’t there yet to pick me up. I have one message, from a friend all frantic and irritated about the fact that he had just been ticketed for smoking outside a bar.
I didn’t have nearly so much traffic back then as I do now, so most of my current readers probably missed out on the saga of the smoking ban as it played out here on ABO. Please forgive the lack of links in this post – the internet connection I have here barely exists. I’ll add them when I return home, though. Anyway, this all started back in December 2006, when the Public Safety Committee considered a proposed new ordinance banning smoking pretty much everywhere in Oakland except detached, single-family homes. (The American Lung Association is basically just shopping this exact same law around the every city in the Bay Area.) The Committee rationally responded that the law was was to strict, and gave staff a list of like five places they’d like to see smoking banned. The issue evaporated for a few months, then staff returned months later with an ordinance identical to the one the Committee had previously rejected. Pointing out to the Committee that they had already said no to this made no impact, but eventually they got rid of the ban on smoking in apartments and condos and moved the rest of the issue onto Council.
So when it became clear that the Council was going to pass the idiotic smoking law no matter what, we decided to drop wholesale opposition to ordinance and focus on trying to get rid of one of the worst parts, which would have banned smoking within 25 feet of bars. This would have been a problem particularly for a number of establishments where the owners had, at considerable expense, gone out of their way to install outdoor smoking patios for their patrons. Smoking patios are nice because you get to sit down, smoke while enjoying your drink, and most of all, because they provide a shield between the smoker and the streets, where you can almost assuredly expect to be subject to harassment from vagrants and panhandlers, and risk exposure to more serious offenses, like robbery and assault.
Oakland’s previously existing outdoor smoking law had exempted bars from the section prohibiting smoking within 25 feet of buildings, but for reasons that no one was ever able to explain, it was decided that this needed to be changed. A number of people attended meeting after meeting to ask the Council to retain the exemption for the area outside bars, for the physical safety of smokers as well as to respect the investment of small business owners in their patios.
For a while our requests were ignored, but finally, on October 17, 2007, the City Council amended the proposal after much begging and pleading and public testimony, to say that smoking would be allowed within a reasonable distance of a bar, the intention, as explained at the meeting, being that smoke should not be blowing into the door of a bar. Fair enough.
So now Oakland Municipal Code Sec 8.30.060 reads:
Smoking outside of any enclosed place where smoking is prohibited shall occur at a minimum distance of twenty-five (25) feet from any building entrance, exit, window and air intake vent of the building, except that bars are exempted from the outside smoking requirements of this section, provided the smoke does not enter adjacent areas in which smoking is prohibited by law or by the owner, lessee, or licensee of the adjacent property.
So then, yesterday afternoon, my friend was standing outside a local bar, smoking a cigarette. He says that he was at a minimum of 10 feet away from the door at the time. He was observing the spectacle of two very shaken up young women standing outside of their car, which had just been broken into, giving their statements to the police. He wasn’t 100%, but said that his understanding of the situation was that their car window had been smashed and purse stolen from the backseat while they were inside it. A few moments earlier, a man had been urinating on the sidewalk, only a few feet away from the girls giving the report and the police officers on the scene.
As he’s watching this all unfold, he’s approached by another police officer, who tells him “There’s a law against smoking 25 feet from bars.” My friend, having spent months dealing with the saga and having been sitting in Council chammbers to witness our winning the long sought-after exemption, knew exactly what the law was, and informed the officer that Oakland, indeed, does not have a law forbidden smoking within 25 feet of a bar. He tried to explain to the officer, part of the Alcohol and Beverage Action Team, who, with a partner, was on a Citywide smoking sweep, that bars were exempted from the 25 foot rule. The officer showed my friend his printed instruction paper (although declined to provide him with a copy to keep) which clearly stated that he was to ticket people smoking within 25 feet of every door. Then he wrote my friend a ticket. The officer then went inside the bar, and issued them a smoking abatement warning (basically, threatening penalty if they are caught again allowing people to smoke within 25 feet of their door). The entire process took somewhere between one and one and a half hours.
You know, the entire time we were lobbying for this exemption, all we kept hearing, over and over and over again, from Councilmembers, from Council staff, from City staff, from random people we would talk to about it is that we should just shut up and stop complaining because the law would never be enforced (or, as Barbara Killey explained, it would be “self enforcing”). I cannot tell you how many times I got told “[V Smoothe], relax. Nobody is actually going to be ticketed for having a cigarette outside of a bar.” Barbara Killey stood up there and told the Council, in response to public comment from me and others, that our protests about poor use of resources should be dismissed, because we would never send police officers out just to ticket people for smoking outdoors. The law would only be enforced through peer pressure, and it would work. Over and over and over!
And now this. This is exactly what we said would happen, and incredibly, it’s happening even though we got the damn law amended anyway! So not only are we having our police spending time enforcing ridiculous outdoor smoking laws, we’re having them enforce outdoor smoking laws that don’t exist. Unfuckingbelievable.