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Repeal The Santa Rosa Smoking Ordinance

Your help is needed in repealing the Santa Rosa smoking ordinance.
5 of the 7 Council members have failed to understand that this current legislation is not consistent, is unenforceable, is based on research that does not exist, and is not designed to protect the public health or create any public safety.
The law is not consistent with meeting its objective, which makes it unconstitutional.
There are many non-smokers who disagree with this ordinance.
It was a poor attempt to create a positive outcome.
If smoking in public needs to be regulated, then let's get an ordinance passed that makes sense and is practical.
Their effort to grandstand by doing what they think is popular, is evidence they are more interested in being right, than doing right.
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The ordinance was passed on the condition changes needed to be made before it was implemented. This does not show much confidence in the way it was written.

The City Council's contention that this is what the majority of the public wants is false.
At the council meeting re: this issue, 34 people expressed their opinions on this issue. 18 for the ban, 16 against. (Several of the proponents do not even live in Santa Rosa.) Not much of a majority.

There are several non smokers who do not support this ordinance.

Some of the problems with the ordinance are as follows:


Findings
9-20.010 (A)
Numerous studies have found tobacco smoke is a major contributor to indoor air pollution.

Indoor studies, not outdoors.

Intent
9-20.20 (A)
To protect the public health by providing a smoke free environment in public places.

No data to prove the ordinance will acheive this objective. Other cities have passed similar laws, yet not one of those cities have any data to prove the effects of the law actually accomplished anything.


Prohibition of Smoking in Enclosed Places
9-20.040 B
Smoking shall be prohibited within a reasonable distance (minimum 20 feet) from any main entrance into an enclosed area.

Puts smokers in the middle of the street if rule pertains to outdoor seating.

If not, smokers are outside with diners anyway.


Prohibition of Smoking in Unenclosed Places
9-20.050 A (2)
Dining areas, subject to special permit exception (subsection C)
Subsection C states the owner may apply to the City for a one-day special event permit to allow for any event of which the use of tobacco products is an integral part.

How does this work?


9-20.050 A (5)
The City’s downtown Transit Mall located between B Street and Santa Rosa Avenue, except those designated and posted smoking areas within the Transit Mall.

They changed this section without consulting the committee. To do so makes the ordinance null and void.


Places where Smoking Permitted
9-20.060 (A)
Private residential property.

What about private commercial property? Example: Ausiello's 5th Street Grill owns the outdoor area where he allows smoking, not the City.


9-20.060 (B)
50% of guest rooms in any hotel or motel.

If you exempt hotels, you discriminate against the other Santa Rosa dining establishments.


9-20.060 (C)
Any outdoor area in which no non-smoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive.

City Attorney's office stated there is no such time. It is always reasonable to expect non-smokers to arrive. So why is this even in the ordinance?


Violations, Penalties, and Enforcement
9-20.140 (A)
It is unlawful for any person who owns, manages, operates, or otherwise controls the use of any premises subject to the regulation under this chapter to fail to comply with its provisions.

Council has gone on record as stating enforcement is not likely.

So, what liability is the business owner charged with if they refuse to become the "tobacco police"? Businesses are not happy about this.


Failure of the committee to provide improvements on the ordinance were a result of make-up of the committee itself. Members were selected at the discretion of the Council.

  1. Only 2 meetings  We were expected to fix, in two 90 minute meetings, what staff was not able to do in 6 months.
  2. Committee was disparate The first meeting was attended by seven proponents of the ordinance. Three City staffers, two American Lung Assn employees, one Sonoma County Health rep, and a retired OB/GYN. And three opponents of the ordinance. However, no Councilman Pierce.The second meeting was attended by seven proponents of the ordinance,two of which were not at the first meeting, and two staffers from the first meeting, were absent from the second meeting (City Mgr and Public Transportation)
  3. Consensus  It was expected that any resolution to be presented to Council would only be done so by 100% consensus.
Legal concerns the City has failed to anticipate that could result in legal action:

  • Any ordinance or legislation must be closely tailored to meet the objective, per constitutional law.
  • It is not illegal to smoke, and attempts to limits permissible areas to date are based upon studies in ENCLOSED areas, not open areas. 
  • There is nothing in paragraph 3 indicating that CARB's findings were based upon open areas, nor are the statistics provided, let alone the funding authority for those studies
  • The only "evidentiary" support for this proposal is contained in paragraph 2 under Analysis, to wit:  "Staff Members .... all feel..."  This is an inappropriate basis for criminalizing legal conduct
  • This ordinance is not attempting to comply with State law, but rather attempting to go beyond state law.  To do that, there must be reliable data from a proper source
  • It attempts to go far beyond state law to criminalize legal conduct which otherwise has been adequately handled through restaurant seating (smoking or non-smoking areas in outdoor dining)
  • The blind adherence to "staff members' ... feelings" is inviting a lawsuit for violation of the Equal Protection Clause and the Due Process Clause, not to mention the invitation for discrimination based upon the "selective enforcement" referenced in paragraph 5
  • The scope is over-broad as well.  If the Intent enunciated in 9-20.020 is to be effectuated, then all vehicles PARKING at the restaurants in Santa Rosa should be smog tested, since Carbon Monoxide is a far more pernicious and dangerous inhalant than 2nd hand smoke in an open space
  • While most people who can afford the price of a wine country excursion won't balk at a $100 citation, there are quite a few card-carrying ACLU libertarians out there who will raise constitutional issues over this ineptly drafted ordinance, which could result in $$millions in a constitutional challenge to the ordinance.
  • As for the total preclusion in areas around City Hall and certain parks, there will be an uproar from mobility-challenged employees who have a right to maintain their place of employment and a suitable place to have a cigarette -- how many miles must they "walk" to have that break?  
  • Disparate Treatment is a key element to any constitutional attack on a piece of legislation.

    • It is now obvious this is not about smoker's rights vs. non-smoker's rights. And is not about whether or not there should be smoking regulations in the City of Santa Rosa.

    It is about Council passing a law that is badly written, unclear, unenforceable, illogical, and effects everyone in doing so.

    Please help change this situation.






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