This smoking ban has some fuming

BELMONT, CALIF. —  When the City Council of this San Francisco suburb voted to consider what could be the most stringent tobacco regulation in America, anti-smoking activists cheered. Banning smoking everywhere but single-family detached homes and their yards would be a big step forward, even in health-conscious California.

Then the blogosphere erupted. Side-by-side portraits of Councilwoman Coralin Feierbach and Nazi SS chief Heinrich Himmler were posted on a smoking-rights website. Threats were e-mailed to City Hall, and police and prosecutors were called in to investigate.

A strict new ordinance is still set to be unveiled this winter for more public discussion and an eventual vote. But instead of just the flat-out ban on lighting up in apartments, condominiums and public places that captured worldwide attention, City Atty. Marc Zafferano said the first draft would be a menu of restrictions from which council members could pick and choose.

So although Belmont may not make the kind of history envisioned in the early headlines (“Belmont to be first U.S. city to ban all smoking”), it still could make history of another sort, by finding a line this tobacco-averse nation is unwilling to cross -- at least for the moment -- in pursuit of better public health.

“I don’t know where the boundaries of a truly legally defensible ordinance are,” acknowledged Councilman Dave Warden, who is pushing to pass “the strictest law possible.”

“I really believe that we’re really so close to the line that no one can really tell,” he said.

Even though nearly two-thirds of Americans have smoke-free policies in their own homes, according to the 2000 census, restrictions on smoking in multi-unit buildings, in the very sanctity of one’s own living room, constitute a new frontier in tobacco law.

The Belmont City Council is “breaking new ground,” said Jim Bergman, director of the Smoke-Free Environments Law Project, who has advocated for smoking bans in multifamily buildings. “I think the folks in Belmont have to be very careful in what they do on this one.... There is always a question of how fast do you move.”

Twenty years ago, a proposal to prohibit smoking in condos and apartments “would have been a radical and crazy idea,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids. “Today, it’s an idea that’s gaining growing acceptance, precisely because the science has evolved and changed.”

But though the U.S. surgeon general declared last year that there is no safe level of exposure to secondhand smoke, acceptance may not be here quite yet. Just check out the Internet responses to the council’s unanimous pre-holiday vote directing Zafferano to draft the strict new ordinance.

“People of this country need to wake up before all of our rights are diminished by these small interest groups and elected officials,” wrote one reader on the San Mateo Daily Journal website. “You go right ahead and get that deadly smoker, and ignore the biggest killer of all, Booze,” responded another.

Posters to smokers-rights websites such as www.speakeasyforum.com were far angrier. Some likened elected officials in Belmont, population 24,522, to Nazis. Others suggested that readers flood the Police Department with “possible smoking violation” calls or e-mail Feierbach en masse.

“Makes you wish California would just secede, doesn’t it?” was one of the site’s more polite comments.

The push for a smoke-free Belmont began last fall, when an elderly resident of a senior housing complex called Bonnie Brae Terrace wrote to the City Council. He wanted it to pass an ordinance proclaiming secondhand smoke a nuisance.

Longtime resident Ray Goodrich, 82, got the idea earlier in the year when the East Bay city of Dublin passed such a measure, which makes it easier for people to take their neighbors to civil court but is not enforced by police or code officers.

With his daughter, Becky Husmann, and a dozen or so neighbors, Goodrich eventually went to City Hall to ask for help. Now the activists, along with the City Council, have become a target of the vitriol.

“I’ve gotten e-mails: ‘That’s an old man complaining. He’s lived long enough,’ ” recalled an aghast Feierbach, who is now mayor. Another wrote: “If I want to smoke next door to some people who happen to have lung problems in an apartment, I don’t care. They’re old. They deserve to die.”

Warden argues that local sentiment is running “a little more positive than negative.” But smoke-ban boosters were in short supply one recent afternoon in this hilly, wooded community of roomy ranch houses and densely packed apartment buildings nestled between San Francisco and the Silicon Valley.

Of a dozen shoppers and business owners interviewed at the Carlmont Village Shopping Center, only two expressed wholehearted support for the proposed ordinance.

“I’m a nonsmoker, and I’m all for it; I have asthma,” said Alice Larson, 51, who was meeting a friend at a Mexican restaurant. “We have a right to breathe clean air. I think it’s a great ordinance ... I’m sure I’m in the minority.”

Indeed. Most comments had more in common with Rick DeWitt’s ridicule than Larson’s enthusiasm. To this electrical contractor and fellow nonsmoker, the proposal is “truly stepping over the line.” So far over, he said, that “everybody’s laughing at it.”

“The joke,” DeWitt said, “is if you’re driving down El Camino and you’re speeding and you get pulled over and you’re smoking, is the penalty increased?”

Few Bonnie Brae residents would laugh at that one. In 2003, a cigarette-caused fire destroyed 29 units at the complex. Management has since declared the apartments smoke-free for all new tenants, but existing smokers are allowed to puff away. The residents who marched to City Hall want the nuisance proclamation so they have legal recourse if others’ smoke makes their lives miserable.

Goodrich, who lives in a Bonnie Brae building where no one is allowed to smoke, declined through his daughter to be interviewed. But Husmann said her father “really has a heart for people who are stuck next to a smoker and they have no recourse and the smoker gets to be there.”

“When you have a smoker and a nonsmoker living next to each other in an apartment, the smoker is fine. It’s the nonsmoker who feels the pain,” Husmann said, especially if that person has asthma or other respiratory problems. “The right to breathe fresh air is the greatest right.”

It hasn’t always been that way. John Banzhaf, a professor of public interest law at George Washington University and executive director of the advocacy group Action on Smoking and Health, said tobacco regulations have generally mirrored society’s changing knowledge about secondhand smoke as a carcinogen.

In the late 1940s, ‘50s and most of the ‘60s, people could smoke virtually everywhere they went, with a few minor restrictions related to fire hazards, he said. When smoke was recognized at the very least as an irritant and temporary health hazard, segregated smoking and nonsmoking sections cropped up everywhere, from airplanes to offices.

That was during much of the 1970s, ‘80s and ‘90s, he said, a period underscored by the idea that “smokers have rights.” Then California banned smoking in restaurants and the workplace, and the boundary for permissible smoking tightened. Suddenly it was not OK to smoke indoors in public places.

When Calabasas voted last year to effectively ban smoking outdoors, the boundary moved again. But the city, Banzhaf said, deliberately chose not to address the smoke that drifts from private home to private home in the close confines of apartment buildings and condos -- at least for the time being.

Which brings us to Belmont, “which is taking the lead,” he said.

It is unclear just what the City Council will do when presented with the first draft of its new ordinance, whether the anti-smoking fervor on display in November will survive, what kind of history will be made, where the line will be drawn.

That was when Warden declared, to much applause, at a council meeting: “Wouldn’t it be nice to have a smoke-free city, where you don’t smoke in the parks, you don’t smoke outside, you don’t smoke in front of Starbucks, you just don’t do it?”

At the same meeting, Serena Chen stepped up to the podium, a little dazed, and marveled: “I have worked on this issue for about 15 years for the American Lung Assn., and I feel that the revolution has taken off, and I am trying to catch up with it.”

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Butting in

Calabasas’ 2006 ordinance restricting smoking in public places capped a push to ban outdoor smoking. Indoor smoking is again in the spotlight, with Belmont considering a ban in apartments and condos. Protecting children is another recent focus of anti-smoking regulation.

Cars

At least two states -- Arkansas and Louisiana -- have banned smoking in cars when children are present. Bangor, Maine, passed a similar ordinance earlier this month.

Foster children

At least eight states protect foster children from tobacco smoke, including Alaska, Arizona, Maine, North Dakota and Oklahoma. Although there is no statewide regulation in California, some counties do regulate smoking around foster children.

Custody disputes

Courts in dozens of jurisdictions around the country, including some in California, have ruled that smoking can be prohibited in a private dwelling where there is a child in a custody dispute.

Sources: Action on Smoking and Health, the Associated Press