OPD issuing tickets for violating non-existent outdoor smoking ban

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.

22 thoughts on “OPD issuing tickets for violating non-existent outdoor smoking ban

  1. Max Allstadt

    Your friend, (who’s identity I have a pretty good guess for), should contest the ticket, and the bar should contest the abatement action. In doing so, they should demand that the enforcement officers have a full copy of Oakland Municipal Code Sec 8.30.060 while on patrol.

    Cards with Oakland Municipal Code Sec 8.30.060 should also be distributed to bar owners, including a URL where they can go to prove to officers that the card’s information is current.

    When your friend gets out of the ticket, he should copy whatever documentation is issued and forward it to bar owners.

    If they issue tickets after that, sue’m.

    Oh you know what else might be useful? A system where bars can text message all other bars within a certain range every time the cops come around. If they can only issue one ticket per evening, maybe they’ll stop trying.

  2. Ralph

    generally i would encourage one not to go gently into that good night, but here i sit with the cop. if people need to smoke that badly let them go stand in the back alley by the trash dump. as a patron of a place i should not have to walk through, around, or near of bunch of kids who have an insatiable need to coat their lungs with tar.

    the irony of course, you can walk down the street with a lit joint, everyone knows it is a lit joint and you can walk on water.

  3. Robert

    I would suggest going to your council member to have this straightened out, but that would be Nancy Nadel, wouldn’t it?

  4. tagami

    My dear freinds,

    I have human waste to clean up every day (both kinds) down town in front of the Rotunda Building. I have a maintenance worker who daily at 6:15 am cleans up what was deposited the night before. On more than one occaision while we were having our entrances cleaned one of our neighbors was messing the other. HMMRPH!!$$#@**&%

    Apparently, we have no public toilets in the public spaces at city hall plaza.
    Our homeless population who attempt to enter city hall to use the facilities are frequently directed away from that building.

    Of the 10-15 homelss persons camping at city hall plaza every night each has to go somewhere some time.

    GOD BLESS THEM ALL, THEY ALL SMOKE.

    TAGAMI

  5. TheBoss

    I think it’s obvious they’re just enforcing it because it will raise money for the city.

    As such, I fully support this. At least the money’s not coming out of my pocket.

    Also, I seriously doubt contesting the ticket will work if, as you say, the ordianace says you have to be a “reasonable” distance from the bar door. The cop will just say your friend was not a “reasonable” distance away.

    Personally, I wouldn’t even bother contesting the ticket. Not worth the wasted time.

  6. m30

    Sometimes it seems like the only thing Oakland is good at is ticketing people. I live in Adams Point near Grand and I get at least one parking ticket a month. It drives me up the wall.

  7. V Smoothe Post author

    Ralph and The Boss -

    You support police ticketing people for things that are not illegal, so long as you don’t like those practices or they raise money? How chilling. Would you extend the same policy to arrests?

    Remember, two Oakland police officers spent an hour and a half issuing this ticket and warning. That is money out of your pocket, Boss.

  8. Joanna/OnTheGoJo

    The ticket for smoking is rediculous and I agree it should be fought all the way up the ladder.

    Speaking of tickets and fighting the fight…

    Did you know that if you get a parking ticket and you dispute it, it goes right back to the person who wrote the ticket? And do you really think that if they gave you the ticket wrongly in the first place that they are going to admit they are wrong – especially since it means that they will probably get in trouble? And then, if you dispute the ticket a second time, it goes to the supervisor of the person who wrote the ticket. Again, do you think the person who wrote the ticket is going to admit they are wrong to the supervisor? No.

    The third time you dispute a ticket is the only time that matters.

    Here are some examples of wrongly issued tickets that were denied, but to be fair the recipients didn’t bother to keep trying to dispute them – easier to pay than argue with the City (who has time?):

    1. No parking from 3am-6am MWF. Ticket issued at 2:30am on a Monday. (before 3am)

    2. Person parks on 3rd Street in 4-hour zone for several hours in the morning, moves the car and parks on the other side of 3rd Street in the afternoon for several more hours. Given a ticket for parking in a 4-hour zone, regardless that they moved their car. These are especially popular with the City.

    I used to have four customers – GREAT customers – that were businesses in our District. All four left the City, not just the neighborhood purely because of parking. They didn’t feel that the City supports businesses – just parking fines. The ticket for parking in a 4-hour zone is $70. The ticket for parking on the wrong side of the street during “street cleaning” (which happens once a month at best on my particular block) used to be $35 (in 2000) and last I saw in late 2007 it was up to $52.

    Ticket money goes to the general fund. Hmmm, the general fund is short, so let’s go ticketing….

    Oh, but there are sheets that enforcement officers get – this is something that seriously pissed me off when I was on the parking task force – that tell the enforcement officers what to specifically enforce and worse, what NOT to enforce. I wish I had been able to get one of these… for example, there were red zones that they were told not to enforce – so why not get rid of the red? Oh, yeah, because the average person won’t know that they aren’t being enforced, but someone(s) in particular will know that it’s okay to park there. Seriously, this is flawed.

    I hope your friend fights the smoking ticket. I’m admittedly not a smoker and I really don’t care for ciggy smoke, but the law is the law. I feel for the cops who are given the wrong info. Sort of like the people who got the wrong info from the City on the Oak to 9th docs.

  9. oakie

    It is a function of who’s ox is gored, doesn’t it? I’m a rabid anti-smoking nazi (responsible for the glorious campaign to shut down Cheaper Cigarettes across from Rockridge library). But this has gone way too far: it’s state nannyism. I don’t like breathing smoke while walking on the sidewalk, but jeesh, let people be. I am grateful all buildings are smoke free.

    I agree that once they start seeing $$ coming in, it will become part of the real City government enterprise: fleecing the public. The size of the trough this city supports with wasted programs is obscene. Yes, that is why a city that can’t do anything does seem to be incredibly competent at issuing parking tickets. It’s not an accident. The unintended consequence is to chase away people who spend their $ in our city. But who, in this city, cares? As long as the pigs at the trough don’t squeal. And we keep re-electing them…..so don’t expect a different outcome.

  10. Max Allstadt

    In the sidewalk cafe section of a particular eatery i like, there’s a chain surrounding the tables. If you’re inside the chain, you can drink beer and wine. If you’re outside the chain, you can smoke. I’ve seen people on many occasions standing outside the chain with a cigarette in one hand, with their other hand keeping a beer on the inside of the chain. Sometimes people even straddle the chain.

    By the way, did anybody see the hillarious footage of what happened when London mayor Boris Johnson tried to ban alcohol on the Tube? People brought kegs in, cases of beer, stereos, and all got tanked in the subway! They formed a conga line and started singing “Boris is a Wanker”. Americans think they’re individualists and revolutionaries, but we’ve clearly been eclipsed. I mean how much effort would it take to get 100 people to light up in a council meeting?

  11. Max Allstadt

    on the topic of disputing tickets: The city owes me 96 bucks after I successfully disputed two tickets. I went to the place where they collect payments on tickets, and they wouldn’t give me my money, and wouldn’t tell me where I could get it. They agreed that they owed me $96, but they could offer no way for me to collect.

    The compromise they offered: next time I get a ticket, they’ll credit me. I’m about to see if that works, probably sometime tomorrow afternoon.

  12. Chris K.

    For the record, I revile the tobacco industry, but do wonder if the officer’s “printed instruction paper” was an OPD Departmental General Order, or official training bulletin of some sort?, a memorandum on City Administrator’s Office letterhead?…a printed e-mail from a city council e-mail address? Wouldn’t you just love to read that e-mail?

  13. Max Allstadt

    My attorney informs me that I should clarify earlier remarks.

    The notion of a 100 man smoke-in Council Chambers was a rhetorical device and not an attempt to incite or condone legal activity. I personally think that doing anything of the sort would be horribly rude. I merely meant to highlight the differences between American and British attitudes toward personal freedoms and civil disobedience.

    I support the right of privately owned establishments to set rules of conduct on their own property, including smoking, drinking, nudity, tossing consenting dwarves, and dueling with cattle prods while singing “I wish I was a little bar of soap”.

    That’s right, you must sing if you want to prod.

  14. Rebecca Kaplan

    Thanks V., for letting us know. This is outrageous. If I am elected to the city council, I will use that position to help solve this. (I hope it will be solved sooner, and I will reach out to people I know within city hall in the meantime, and see if I can learn more about where the breakdown in communication took place, and how to best fix it).

    For me, this is not only about the smoking ticket for a non-prohibited act, it is also about a wider ongoing pattern of behavior, in which the will of the public, and the expressed policy made through our democracy (whether adopted by the city council, or passed by the voters) is ignored — and this is not okay.

    Also, another colleague told me about a large police raid on a bar for smoking, involving many police officers and vehicles — and a huge amount of our taxpayer dollars spent, busting a bar, for allowing cig. smoking. And then, it turned out, that this was one of Oakland’s few owner-operated exempt bars — the bar was NOT breaking the law!!

    I have nothing against laws that restrict smoking in certain areas, so those who choose not to smoke have that right. Cities differ about where, exactly, they draw the line. Oakland came up with a compromise, to try to balance competing needs. While not perfect, the policy that was passed does represent the legally-adopted policy of our city, and the balance they came up with, in the text, is not bad, as political compromises go. The main thing I object to about it was some of the tone of the surrounding discussion, which suggested that smokers are bad people. This is not true, and is not a sound basis for policy-making.

    Also — from a rational standpoint — bars are only patronized by adults. If we push smokers away from the door of the bar — what are we pushing them towards? Over time, certain bars become known as the ones where people smoke. Give bar owners the right to choose to prohibit smoking in their entranceways – and post the prohibition. The smokers will hang out in the places allowed. And people who don’t want to be near it, will know where not to go.

    Finally, this is a public safety issue. People throughout Oakland are calling 9-1-1, and suffering when there are no Police officers available to respond. The fact that we wasted a multi-car police bust (and hours of prior and post- work too) on a bar which was legally allowed to have smoking — this is part of why the Police are not available when we really need them.

    http://www.KaplanforOakland.org

  15. Ralph

    joanna,
    i have not looked at the oakland 4 hour parking law, but i suspect it works like all other zone parking restrictions. In most likely all cities the nasty little secret, the secret no one tells you, the secret that makes the city fistful of dollars when a city institutes zone time parking limitations (4 hours), it applies to the entire zone. Thus moving one’s car from one side of the street to the other side of the street within the same zone does not start the clock anew.

    A number of people get tripped up on this nuance because they think they the restriction applies to the parking space. It doesn’t. The limitation applies to the zone. Without the zone restriction, you essentially limit the ability for new shoppers to come into the shopping district.

  16. Ralph

    V –
    I make no secret about my disdain for laws that allow people to smoke in entranceways. I hate outdoor cafes that permit smokers. If you need to have a cig with your beverage then stay at home. Alternative solution, do it in the back parking lot exhaust fumes / tar really what is the difference. Add to this my growing frustration with measure z, you got a cauldron bubbling over. I am also getting to the point where I am in favor of stopping drivers for minor vehicle infractions – registration, tags etcs. I saw what quality of life laws did in NYC, I am now a belierver. When people stop taking pride in their personal space, it starts to infect their dealings within the city as a whole. (note this last sentence does not apply to smokers. it was a general observation i see in ne’er-do-wells)

    back to the topic at hand, some of what i said may have been in jest. I am normally not in favor of law enforcement, “enforcing laws” that do not exist. But if the officer in question was working under a directive, then I do not fault the officer. I would also hoe that this laws were they to exist would be in the category of sealtbelt laws back in the day. Not wearing a seatbelt was a violation, but law enforcement could not stop you for not being belted. A ticket could only arise as a result of legal stop. Accordingly I would hope that officers would not actively seek out smokers and a ticket would only arise out of some other precipitating event.

  17. Thomas Laprade

    Smoking bans are the real health hazard

    The bandwagon of local smoking bans now steamrolling across the nation -
    from sea to sea- has nothing to do with protecting people from the supposed
    threat of “second-hand” smoke.

    Indeed, the bans themselves are symptoms of a far more grievous threat; a
    cancer that has been spreading for decades and has now metastasized
    throughout the body politic, spreading even to the tiniest organs of local
    government. This cancer is the only real hazard involved – the cancer of
    unlimited government power.

    The issue is not whether second-hand smoke is a real danger or a phantom
    menace, as a study published recently in the British Medical Journal
    indicates. The issue is: if it were harmful, what would be the proper
    reaction? Should anti-tobacco activists satisfy themselves with educating
    people about the potential danger and allowing them to make
    their own decisions, or should they seize the power of government and force
    people to make the “right” decision?

    Supporters of local tobacco bans have made their choice. Rather than
    attempting to protect people from an unwanted intrusion on their health, the
    tobacco bans are the unwanted intrusion.

    Loudly billed as measures that only affect “public places,” they have
    actually targeted private places: restaurants, bars, nightclubs, shops, and
    offices – places whose owners are free to set anti-smoking rules or whose
    customers are free to go elsewhere if they don’t like the smoke. Some local
    bans even harass smokers in places where their effect on others is obviously
    negligible, such as outdoor public parks.

    The decision to smoke, or to avoid “second-hand” smoke, is a question to be
    answered by each individual based on his own values and his own assessment
    of the risks. This is the same kind of decision free people make regarding
    every aspect of their lives: how much to spend or invest, whom to befriend
    or sleep with, whether to go to college or get a job, whether to get married
    or divorced, and so on.

    All of these decisions involve risks; some have demonstrably harmful
    consequences; most are controversial and invite disapproval from the
    neighbours. But the individual must be free to make these decisions. He must
    be free, because his life belongs to him, not to his neighbours, and only
    his own judgment can guide him through it.

    Yet when it comes to smoking, this freedom is under attack. Cigarette
    smokers are a numerical minority, practicing a habit considered annoying and
    unpleasant to the majority. So the majority has simply commandeered the
    power of government and used it to dictate their behaviour.

    That is why these bans are far more threatening than the prospect of
    inhaling a few stray whiffs of tobacco while waiting for a table at your
    favourite restaurant. The anti-tobacco crusaders point in exaggerated alarm
    at those wisps of smoke while they unleash the systematic and unlimited
    intrusion of government into our lives.

    We do not elect officials to control and manipulate our behaviour.

    Thomas Laprade
    480 Rupert St.
    Thunder Bay, Ont.

  18. Andy

    These laws are a waste of resources. The thing that kills me from the original story is the note that someone is pissing on the street, in plain view of the officers, and nothing is apparently done.

    I also agree that these laws are about giving more power to the government.

    Given all the problems in Oakland, this is totally outrageous. I don’t smoke, but people can choose to not go to places where there is smoke. People should be free to smoke if they want too. The police should have much better things to do. The Council should have better things to work on. Passing out tickets cannot be cost effective. I’m sure that with benefits and over head, a police officer costs well over $100/hour. Given that this took 1.5 hours just to write the ticket, and cite the bar, it does not pay. I can only imagine that there is more time involved in filling reports, management, etc.

  19. Oakland resident

    As a former smoker and as a resident who lives in an apartment above a bar in Oakland, I can see both sides to this issue. I’ve lived in my apartment for 3 years, and before the smoking ban, the bar was a nice quiet neighborhood place where folks could go and drink and smoke if they wanted – because the bartenders were also the owners. Since October, when the ban came into effect, I’ve not been able to go to sleep until after 2am when the bar closes, because otherwise, I get awakened every 15 minutes by loud drunks on the sidewalk downstairs who are only obeying the law and smoking outside – but doing it very loudly. I’ve tried to reason with the owners of the bar, asking them to post a sign to ask their patrons to be quiet when they’re outside. I’ve tried to shout downstairs to ask folks to be quiet – all to no avail. Part of why I haven’t really pushed the issue further is because I sympathize with the bar – this law is STUPID and the bar and its patrons are only trying to obey the law. Adults should have the right to choose the venue they want to patronize, without being babied and told where they have the right to smoke, but non-smokers should also be able to go to bars and have a smoke free environment. I like the suggestion that there could be a limited number of bars where smoking is allowed in a city. The city could sell smoking permits like liquor licenses for a million dollars and rake in the money. Then smokers have a few places and non-smokers have a few places and we’re all happy and nobody intrudes on the poor residents who have to live upstairs from the bars.

  20. Jay

    Question:

    I understand your complaints wholeheartedly, but here is another scenario that I currently exist in. I just moved into a recently renovated upstairs duplex in Oakland. Our downstairs neighbor moved in shortly thereafter. Downstairs smokes. I do not. It is a health concern that I am not near cigarette smoke, but I don’t think the new ordinances protect me from anything, do they? The smoke doesn’t come from the outside, but instead seems to creep in through the floor boards. This seems like a clear cut scenario, but I don’t think I have the right to tell my neighbor to go outside. Or do I???

    Please explain. And good luck getting your ticket removed. That seems very silly.

  21. V Smoothe Post author

    Jay –

    That’s something you need to take up with you landlord. If it’s a non-smoking building, then you have recourse to complain. If not, you’re out of luck, I think. Although you may want to try talking to your neighbor. It’s amazing how accommodating smokers can be when you ask them politely.