We Are Not Criminals

L.A. outdoor ban argued vigorously at City Hall

This report of the "round-table" meeting on Thursday, October 16 is taken from our sister site, CigarCyclopedia.com:

About two dozen advocates on both sides of proposed smoking bans in Los Angeles argued the issue in front of Council member Tom LaBonge at Los Angeles City Hall on Thursday with no specific resolution, but with LaBonge looking for common ground.

At issue were two proposals: a motion by Council member Grieg Smith to ban smoking at all “outdoor dining areas” in the city and a motion by Council member Bernard Parks to essentially ban smoking everywhere in public and in common areas of apartment buildings.

In favor of the proposals was the expected team of about a dozen representatives of various “health advocacy” organizations such as the American Cancer Society, American Heart Association, American Lung Association and others involved in the issue at various levels of activism. A representative for the California Restaurant Association was also present and spoke about the view of the CRA board.

Against the ban proposals were two groups: two representatives of the Koreatown Restaurant Association and eight members of Cigar Rights of America (including this reporter, acting as an advocate in my home city).

LaBonge, council member for the Fourth District and chair of the relevant Arts, Parks, Health and Aging Committee for this subject, called the meeting after an initial hearing on the Smith proposal on banning smoking in outdoor dining areas to get more input from the business community. No decisions were made and LaBonge acted as moderator for the 75-minute session; no other council members were present, although staff representatives for some council members attended as observers.

Highlights:

>> The meeting was quite tense and there were some pointed comments on both sides. However, while both sides vehemently disagreed with the other, LaBonge kept good order and kept the focus on the issues at hand. Given the passion on both sides, the discussion itself was intense, but not raucous or out of control.

>> Most of the health advocates reiterated the standard litany of complaints about smoking, especially how important it is (to them) to avoid second-hand smoke. One speaker went as far as essentially stating that she didn’t want her daughter to even see anyone smoking. Another noted that she should be able to enjoy outdoor dining at any restaurant she wanted, without the presence of second-hand smoke; the implication was obvious that she had no willingness to concede that users of legal tobacco products had any right to enjoy the same privilege of dining outdoors while enjoying tobacco. A third complained that some smoke from the outdoor area might seep inside and be a bother.

More than one speaker emphasized that the percentage of smokers in Los Angeles is very low (about 14%), intimating that such a small population need not be accommodated. (It is worth noting that in terms of minorities, the percentage of smokers in Los Angeles is larger than the percentage of African-Americans [11.2%] or Asians [10.0%] in the City per the 2000 Census.)

>> Andrew Casana, representing the California Restaurant Association, said that the CRA board had instructed him not to oppose this ban and that the association’s posture has not been to oppose such bans after it had been beaten up by the pro-ban side in the 1990s. He was asked by LaBonge to provide the percentage of restaurants in Los Angeles which have outdoor dining areas now and which do not allow smoking in these areas as a crucial item in helping LaBonge to determine what the actual needs for legislation are in this area. Casana emphasized that in any case, however, restauranteurs would not support having any responsibility for enforcement for any ban which is enacted.

>> The Korean restauranteurs noted that after the indoor smoking ban was adopted in California around 1994, many of their members went ahead and built outdoor patios for their smoking patrons. Their view was that an outdoor dining ban is not needed, since people have a choice of sitting in a non-smoking interior section, or in the outdoor area. Some restaurants with outdoor dining patios have segregated smokers and non-smokers on the patio.

>> The Cigar Rights of America attendees included Executive Vice President Jeff Borysiewicz, who traveled cross-country from Orlando, Florida to attend the meeting; Eliot Suied of Kretek International; Pete Johnson, creator of the Tatuaje and La Riqueza brands, whose company is headquartered in Los Angeles; Michael Dougherty, area sales manager for the J.C. Newman Cigar Co.; Victor Migenes, owner of 2nd Street Cigars & Gallery in Los Angeles; Taz Ahmadi, owner of The V Cut cigar shop in Los Angeles; this reporter, and Victor Franco of Ek & Ek, who provided political counsel.

>> Among the points made by the Cigar Rights group:

The California indoor smoking ban eliminated so many places where cigars can be enjoyed that implementing a ban outdoors leaves virtually nowhere to smoke outside the home (and cigar smoking is a social activity).

That there is no substantive public health threat from second-hand smoke in outdoor settings. This was challenged rather loudly, but copies of the two leading studies in this area were produced for the Council member to examine himself.

That high-end restaurants such as the Arnie Morton’s of Chicago chain value the cigar clientele so highly that it is installing - at considerable expense - smoking patios in as many locations as possible to cater to this niche group. Numerous other restaurants have made similar investments in Los Angeles and if the ban passes, those dollars will have been spent for nothing.

That cigar events which raise hundreds of thousands of dollars annually for many charities will be largely wiped out by the outdoor dining area ban and completely eliminated by the Parks proposal banning all smoking in public.

That the total ban proposed by Parks would simply shut the doors of both of the retail shops present and many more in the City.

That there are already such a high percentage of outdoor dining areas that do not allow smoking that no legislation is needed.

That if an outdoor dining area smoking ban is adopted, it will inevitably become an enforcement problem which will require the attention of the Los Angeles Police Department.

In terms of common ground, the health-advocacy side pointed out that the Smith motion intends to allow smoking in outdoor areas of bars (as opposed to restaurants) and that “cigar nights” or special smoking events could be permitted. It was suggested from the cigar-rights side that a measure which declares an outdoor dining area as either all-smoking or all-non-smoking would ensure that no non-smoker would sit in a smoking area . . . and vice versa, and would be enforced by the proprietor rather than having to be enforced by the police.

What’s the outcome?

LaBonge, to his credit, listened carefully and was even-handed with both groups. He acknowledged that as a former smoker himself, he is sensitive to the issue . . . on both sides. He also noted that while a health argument can be made for the ban, the issue of choice for adults to be able to use a legal product is also compelling.

The councilman observed that while anti-smoking advocates have been enjoying a lot of success in promoting and passing smoking bans, the point where the interests of the anti-smoking lobby is now meeting resistance from those who prize their choice to enjoy a legal product - tobacco - has been reached.

Although his opinion is that the “smoking era is over” and that widespread use of tobacco (cigarettes, anyway) may disappear over the next 25-30 years, he was also clear as that as a legislator, that day is in the future and this is 2008 in Los Angeles.

LaBonge would like to find a compromise on the Smith motion for the outdoor dining area smoking ban that is minimally acceptable to both sides represented at the meeting and will be meeting with representatives of both sides over the next three weeks to try to cobble together an agreement. It’s worth noting that he also had the vibe, even from the anti-smoking side, that the Parks proposal for a total public smoking ban was “too overwhelming” for a city the size of Los Angeles in terms of scope, likely adherence and enforcement compared with the relatively tiny towns which have adopted analogous measures such as Calabasas, California.

We will continue to monitor developments on both of these motions.

Status 10/13: Round-table meeting this week

We haven’t had much to say since activity concerning anti-smoking activity in Los Angeles since September, but the wait is over.

The only measure which is on the table now is a motion (no. 08-1544) by Council member Greig Smith (seconded by Dennis Zine) that would ban smoking in "outdoor dining areas." There is also a companion Resolution (no. 08-0002-S93) from Council members Wendy Gruel and Jose Huizar to ask the County of Los Angeles and State of California to approve similar legislation.

The matter came before the City’s Arts, Parks, Health & Aging Committee on September 3 and chair Tom LaBonge (4th District) asked for a meeting to discuss the economic impact of such a measure.

That long-awaited meeting is scheduled for this week, but it is not a public meeting, so please do not ask for the time and place.

Representatives of the anti-smoking crowd will be present, of course and the California Restaurant Association and California Hotel Association are fully informed concerning the issue. The grass-roots Cigar Rights of America group will also attend and is against the ban.

The motion introduced by Council member Bernard Parks to eliminate smoking almost everywhere is not yet at the committee level, as it would also come before LaBonge’s committee. The Smith motion concerning outdoor dining has to be handled first.

Status 9/26: Public calendar continues quiet

The Los Angeles City Council calendar is fairly quiet for the week of September 29-October 3 due to the beginning of the Jewish New Year. That means there will probably be no action this week on any of the smoking ban initiatives currently in front of the Council.

A meeting of the Arts, Parks, Health & Aging committee is scheduled for this week, but none of the smoking matters are listed on the agenda. An expected meeting on the impact of the proposed smoking area in outdoor dining areas has not yet taken place, but is expected soon.

Opposition to the ban has been forming. The new national grass-roots organization, Cigar Rights of America, opposes the ban, noting that events like the recent God of Fire dinner at the Hotel Bel-Air – which raised $228,600 for charities that benefit children – would be eliminated. Other groups, including the California Restaurant Association, are informed on the issue and are considering their positions.

It’s also noteworthy to see that in other cities, a pushback is being felt against anti-tobacco initiatives. In San Francisco, a ban on selling tobacco products in pharmacies has drawn two lawsuits, from Walgreen Co. (complaining that such products can be sold by large retailers such as CostCo and Wal-Mart and supermarkets, even though both have pharmacies) and Altria (complaining that the ordinance blocks a store from selling a legal product). On October 8, a fairly contentious hearing is expected in Boston on proposed new regulations which would ban outdoor smoking, sales in pharmacies and other restrictions.

Status 9/22: Quiet before the storm?

Action on the three anti-smoking items currently in process before the Los Angeles City Council has slowed for the time being:

>> On the Grieg Smith-Dennis Zine motion (no. 08-1544) for the City Attorney to draft an ordinance prohibiting all smoking of tobacco products in "outdoor dining areas," the Arts, Parks, Health & Aging Committee put off voting on the matter for 45 days so that a meeting could be held with the affected industries, notably restauranteurs. That meeting has not been held as yet, although it is anticipated soon.

>> On the Bernard Parks’ motion (no. 08-2123) to have the City Attorney draw up an ordinance to ban smoking essentially everywhere in Los Angeles, no hearings has been held and it has not, as yet, appeared on the calendar of the Arts, Parks, Health & Aging Committee. It’s not likely they will take it up until the outdoor dining area motion has been handled.

>> On the Parks’ resolution (no. 08-002-S5130) that Los Angeles County ban smoking everywhere, the item was referred to the Rules & Government Committee and no hearing on the item has yet been scheduled. The Rules & Government Committee hearing scheduled for Wednesday, September 24 has been cancelled. The next likely meeting date is Wednesday, October 8.

In the meantime, similar measures in Boston and San Francisco are also in the legislative hopper. Hearings in Boston on a measure to ban smoking outdoors will be held on October 8. A San Francisco ordinance similar to the one proposed by Parks was rejected by the County of San Francisco Supervisors and sent back to committee. Among others, a renter’s union was protesting the inclusion of a section that would allow landlords to evict tenants for smoking in common areas!

L.A. City Council bans smoking at Farmer's Markets

To the surprise of absolutely no one, the Los Angeles City Council voted 15-0 on Wednesday to ban smoking at City-permitted Farmer’s Markets.

What was more interesting were the comments from the individual Council members:

>> Wendy Greuel (2nd District), Janice Hahn (15th) and Tom LaBonge (4th) confined their remarks to the issue at hand and said that smoking should be banned at these weekly market events. Importantly, Greuel pointed out that the ban is about the marketplace and that if someone is smoking, they can move across the street or down the street. She did not make any blanket statements about prohibiting smoking everywhere at all times.

>> Herb Wesson (10th) noted that he is the only smoker among the Council members, but supports this ordinance as a way to keep food and smoking separated.

>> Bill Rosendahl (11th) said he was a reformed smoker and quit at age 39 (he’s 63 now), but had some pointed questions for Assistant City Attorney David Schulman about enforcement. While Schulman – clearly an advocate for this policy – insisted that the ordinance will be self-policing (meaning no one will violate it), but he admitted under close questioning that "if push came to shove," the Los Angeles Police Department would have to be involved in enforcement.

>> Greig Smith (12th) is an activist on this issue and made clear his position that smoking should be banned everywhere and at all times, in the U.S. and "across the world." He related a story of family members who were and are long-time smokers and have either died of lung cancer or are suffering from it. Smith also pushed for quick passage of his proposal to ban smoking in outdoor dining areas and is clearly a driver for banning smoking in Los Angeles.

The other nine Council members (including Bernard Parks) did not speak on the issue. If you want to watch the "debate," you can do so on the City of Los Angeles website using this link (jump to item no. 10 in the pull-down menu for the Farmer's Market item).

In response to Smith’s prodding, LaBonge reiterated that the outdoor dining areas ban was being discussed with the "restaurant industry" to gauge its impact.

The approved ordinance will now be sent to Los Angeles Mayor Antonio Villaraigosa for signature, which will be virtually automatic. The ordinance will be effective in a couple of months.

New bans coming to Los Angeles

Sitting and writing about stopping smoking bans is one thing. Sitting in front of a Los Angeles City Council committee and trying to have an impact is something else.

But someone had to stand up, so I did.

On Wednesday, September 3, I attended a meeting of the City’s Arts, Parks, Health and Aging Committee at City Hall. On the agenda were two anti-smoking items which had been working their way through the legislative process:

(1) The first was a draft ordinance (no. 07-1790) banning smoking at city-permitted "farmer’s markets," which had been drafted by the City Attorney following a motion by Council members Wendy Greuel, Jose Huizar and Richard Alarcon in July 2007. The legislative link is here.

The three-member committee – Tom LaBonge (chair), Janice Hahn and Jan Perry – approved the ordinance without objection and it will now be sent on to the full Council, where it will be approved quickly. It will no doubt be signed into law by Los Angeles Mayor Antonio Villaraigosa.

(2) The second item was a request from June made by Council members Greig Smith and Dennis Zine (no. 08-1544) for a ban on smoking in all outdoor dining areas. The committee was being asked to approve the motion to have the City Attorney draw up an ordinance, and then that approval would then have to be agreed to by the full Council to start the drafting process. The legislative link is here.

This was expected to be a more contentious matter and there were 10 speakers. Nine were in favor of the ordinance and I was the lone opposer. My statement to the committee (which Hahn didn’t hear because she was late) included:

I am here today to oppose the proposed, unnecessary ordinances against smoking at Farmer’s Markets and in outdoor dining sections of restaurants.

I am urging you to reject these proposals as unnecessary because they pose no threat to the public health and serve only to demonize smokers.

In the U.S. Surgeon General’s 727-page report on the consequences of involuntary smoking issued in 2006, no recommendations were made concerning outdoor smoking restrictions. In fact, less than a single page in the entire report dealt with outdoor smoking; that report was concerned solely with the impact of indoor smoking. And there are no studies which demonstrate that transient encounters with outdoor smoking create any kind of health hazard.

Because there is no health threat in these outdoor settings, I submit that the City already has an ordinance which covers this issue in section 41.16 of the Municipal Code which reads, "No person shall throw, blow or otherwise scatter on any street, sidewalk, restaurant, cafe, theatre, place of amusement or other public place any snuff, or any substance which injuriously affects the olfactory nerves or which causes sneezing or coughing or otherwise injuriously affects the person."

While it is today fashionable to ban smoking almost everywhere, the proposed ordinance does not address a public health issue and will do nothing to reduce the incidence of smoking in Los Angeles. It does subject smokers, a minority in this community, to additional ridicule for consuming a legal product.

If the City were serious about trying to reduce smoking using Farmer’s Markets or outdoor restaurant sections, it could be promoting smoker’s help programs in these locations. If the City wishes to remove smokers from public view, then it must give them someplace to go which is out of public view.

But for the City to simply continue to ban smoking and then hope it will not have to enforce violations is bad policy and will make a bad law.

The promoters of the ban were the usual suspects: deputies from the Council members who proposed it, the American Lung Association, American Heart Association and so on. Hahn, although for the motion, had questions about enforcement (the Assistant City Attorney present agreed enforcement would have to be done by the Los Angeles Police Department) and LaBonge was concerned about economic impacts to restaurants.

The committee did not approve the motion to have an ordinance drafted, but LaBonge asked for and received a 45-day continuance during which time a "round table" discussion will take place which is to involve all of the stakeholders who would be effected.

But LaBonge had no doubts about the outcome. He said, during the meeting, to the anti-smoking groups, "you’re going to see success eventually" on this item. How much success will depend on how strong the push-back is from restaurants and others during the round-table hearing and then in subsequent hearings when the ordinance is actually drafted.

For myself, I count the continuance and the "round table" meeting as a small win. There is something to the notion that simply showing up is important.

We will post the time and place of the "round table" meeting as soon as we know it. For further information about this meeting, please contact the Fourth District’s legislative deputy, Young-Gi Kim at (213) 485-3337 or by electronic mail at Young-Gi.Kim@lacity.org.

Status 8/29: City Council continues on hiatus

No action at all this week since the Council is finishing its two-week summer break. City Council members will return to business on Tuesday, September 2.

Status 8/25: City Council on hiatus this week

No action this week (August 25-29) since the City Council is on hiatus; Council business will resume on Tuesday, September 2.

Several of the Council members are in Denver for the Democratic National Convention (most are Democrats); it’s worth wondering how many were at the Distilled Spirits Council party last night smoking Rocky Patel cigars?

If you would like to tell Councilman Bernard Parks or other members of the Council what you think of Parks's motion, check out this flyer we prepared for Cigar Rights of America here.

Chief Legislative Analyst files report on Parks Resolution

The City's Chief Legislative Analyst filed a report on the Bernard Parks' Resolution to urge the County of Los Angeles to ban smoking everywhere in the County (Council file no. 08-002-S5130).

The report does not make a recommendation concerning the Resolution itself; it provides background on City smoking bans and on what other cities in Los Angeles County have done on the issue.

The Resolution currently sits in the Rules & Government Committee awaiting further action. The text of the CLA Report is here.

Tracking the Anti-Smoking Measures

The City of Los Angeles has a very efficient tracking system that allows "outsiders" to track actions on each legislative item which runs through the City Council called the "City File Management System" or CFMS.

The two Bernard Parks-introduced, anti-smoking measures can be tracked by using their file numbers:

(1) Motion for a City ordinance against secondhand smoke (introduced 8/8/08): 08-2123

(2) Resolution for the County to adopt a simiar measure (introduced 8/8/08): 08-0002-S130

You can track the progress of these items right along with us by using the CFMS to obtain an RSS feed or daily e-mail alert every time an action is taken on either of these items. Just enter the file numbers in the "Search" list and then choose which feed option you prefer at the top of the page.