After seeing the council's close 4-3 vote in favor of the new ban on Jan. 24., regular Molly McGee's patron and cigar smoker Jim Neal was inspired to circulate a petition in the city's bars in the hopes of swaying at least one member of the City Council to change sides at the Feb. 14 second vote to decide the matter. He gathered 1,083 signatures on his petition.
Objecting to the closure of smoking patios attached to their bars, opponents raised the specter of mobs of smokers gathering in parking lots behind downtown bars, littering, creating problems for police and even putting women in danger of sexual assault.
But council members did not change their minds and voted 4-3 again to approve the ban in a required "second read" of the new ordinance on Feb. 14.
Council member Jac Siegel, who based his decision to approve the ban on the effects of second-hand smoke on employees, said he continued to believe it was a "health and safety issue." Council member Ronit Bryant said the "same discussion took place when smoking was banned in restaurants." People were saying, "I can't enjoy my food without a smoke. But now people manage to eat without smoking."
The new ban goes into effect in 90 days and levies a $50 citation for anyone smoking within 25 feet of the outdoor patios, windows or doors of any publicly accessible building where smoking is already banned, including restaurants and most workplaces. Such buffers could cover wide swaths of the city's commercial areas, including most of Castro Street where in most areas smoking would only be allowed for those walking from one destination to another.
Apparently some homeowners mistakenly believe homes and apartment buildings are covered, said police spokesperson Liz Wylie. Police have received calls from people who have declared their homes smoke-free and want police to enforce a buffer zone, something police can't do under the new law, Wylie said.
Nick Chaput, owner of Dana Street Coffee Roasting and president of the Central Business Association, said that he has a designated smoking table in front of his coffee shop that people complain about on occasion, and which he was concerned he would have to police for smokers or face a citation from police.
"There are too many things with this not thought all the way through," Chaput said in opposition to the ordinance. "You are asking us now to be police and enforce the rules and we have enough to deal with on our working day."
Wylie said bars and coffee shops like Chaput's would not have to be responsible for any smoking at the table on public sidewalks. But attached patios, like the one behind Molly McGee's, are likely to be areas that businesses will be held accountable for because employees work there. Employees taking smoke breaks near back doors could also pose a problem.
The ordinance "is meant to prevent business owners from simply turning a blind eye towards regularly occurring violations that are happening, essentially, right in front of them or their staff and within an area that they clearly have control over," Wylie said.
Wylie added that there would have to be proof that a business "knew, or reasonably should have known" of violations occurring within its "span of control." She said it was also a business owner's responsibility to educate employees about the ban. While misdemeanors are possible in severe cases, deputy city attorney Nicole Clemens said business owners would likely receive infractions, with a fine of $100 for the first offense, $200 for the second offense within one year and $500 for each additional offense within one year.
The council heard from several supporters of the ban including a woman who said she had asthma attacks triggered by whiffs of second hand smoke. Another woman she had chronic obstructive pulmonary disease from breathing second-hand smoke. "I have a right to not have my life shortened by people abusing their rights," she told the council.
Rob Graham, owner the Sports Page bar, said the woman could chose not to go to his bar. He says he has a 6,000-square-foot patio that will be completely off-limits to smokers under the ban, even though portions are more than 25 feet from the building.
"I should have the liberty to run my business the way I see fit," said Jackie Graham, Rob's wife.
Council members John Inks, Tom Means and Laura Macias sided with the owners, some of whom fear they will lose business from people like Neal, who say they will go to bars in other cities.
Katy Rose, spokeswoman for the restaurant and hotel workers union UNITE HERE Local 15, said that the people whose job it is to serve smokers have no choice in the matter. "I urge you to think about this issue as a worker safety issue."
The creation of the ordinance was funded with a $53,788 grant from Santa Clara County to reduce exposure to second-hand smoke.