I Blow Smoke on Your Law

nocotine laySitting on a park bench at Prescott Promenade on a hot July afternoon, John stares at a brawny tattooed man in his 50s smoking a cigarette under a “No Smoking” sign.

“Who knows what this guy would do if I went up to him and told him to put that cigarette out,” says John, as he waves a copy of El Cajon’s no-smoking ordinance in the air. “People don’t respect the law anymore. They’ve never respected this one.”

For some residents, the law that prohibits smoking in public — in parks, restaurants, bars, places of employment, and common areas of hotels and apartment buildings — is ineffective and unenforceable, and it serves no purpose other than as bragging rights for local politicians.

“I’ve seen people light up right in front of cops, and the cops don’t even ask them to put it out. Look at this guy,” says John, a 15-year resident of El Cajon who doesn’t want to give his real name. “He doesn’t care because no one is going to enforce it.”

Since March 2008, when the law’s grace period ended, not one citation has been issued for smoking in public.

The reason isn’t that the law has stopped everyone from lighting up — far from it — but that the law is “self-enforcing,” meaning it is up to employers, property owners, and other citizens to ask smokers to extinguish cigarettes if they pose a “positive danger to health and a cause of material annoyance, inconvenience, discomfort, and a health hazard.”

If the smoker refuses to put out the cigarette, the complainant can either find a police officer or file a civil action against the smoker.

For John, asking people to put out their cigarettes is as good as telling them to slow down and drive the speed limit. And filing a civil action is even more outlandish.

“Usually when I approach someone smoking, they tell me that they have a right to smoke where they want and there is nothing I can do about it. Their response is always some type of ‘I don’t give a damn’ attitude. If it’s a law, it needs to be enforced by the police and the City, not the people it’s supposed to protect.”

Second-term councilmember Gary Kendrick, the man behind the ordinance, is sitting in a shaded area outside a sandwich shop at the corner of Main Street and Magnolia. He says the law isn’t about enforcement or the number of citations issued; it’s about public health, social trends, and turning El Cajon into a “family-friendly” city.

“I believe everyone has the right to bear arms, but I don’t think they have the right to fire into a crowd,” Kendrick says. “The right to breathe clean air trumps the right to smoke.”

Kendrick started thinking about a public ban on smoking back in 2003, when his council office received complaints about secondhand smoke at car shows and outside retail centers.

Around the same time, Kendrick had an altercation with a smoker at a playground where he took his son to play. “This guy lit up a cigarette, and his smoke was blowing over to my kid. So I asked him to put it out, and he said no. I started thinking more about the dangers of secondhand smoke and the need to protect our citizens, most important, our children.”

Within four years, the City had enacted the toughest antismoking regulations in the county. The first, a 2004 law, aims to end underage smoking. Tobacco merchants pay a fee, currently $675 per year, to fund compliance checks and administrative hearings, held when alleged violators challenge fines. The second law, the smoking ban, went into effect in September 2007.

“Society’s norms are changing,” says Kendrick. “We’re going from a smoking society to a nonsmoking society. So we’re just legislating the direction that society is already headed. I think this will be a legacy for this city council for years and years. We’re saving lives.”

Regarding complaints about the lack of enforcement, he says, “There’s never 100 percent compliance with any law. But it puts an added pressure on the other smokers because they don’t want to break the law.”

As if on cue, a man carrying a large duffel bag walks past the table holding an unlit cigarette. He stops five feet away and lights up.

“Most people are responsible smokers, and they won’t smoke around other people,” says Kendrick in a slightly louder voice, trying to get the man’s attention. Seconds later, a thin plume of smoke reaches the table.

“Most people obey the law, but as you can see, there are always some that don’t.”

To encourage more residents to obey the law, the City asks businesses to set aside designated areas for their clientele and employees to smoke. According to the ordinance, “smoking outposts” should be at least 20 feet from a doorway or access point to a parking structure or retail area. The City has set up two outposts on public property.

One of them — a shadeless, five-by-ten-foot patch of dirt with a cement receptacle for cigarette butts — is located behind the Downtown Cafe, near the corner of East Main Street and Sulzfeld.

Less than 20 feet away, 30-year-old El Cajon resident Kevin Robinson stands in the shade, taking a drag from his cigarette.

Robinson says he heard about the City’s ban on the news but hasn’t given it much attention. “It’s a joke,” he says. “I can see if it was at a playground or at a parade, but out in the open? You can’t tell a grown man he can’t smoke. If the City’s going to start banning stuff, is alcohol next? I would say that’s a bigger issue.”

Asked why he isn’t smoking at the outpost, Robinson says he has no idea what that is. He walks over to see what one looks like and laughs.

“Look at this,” he says, pointing to the patch of dirt. “Is this a joke? This is all done to appease the councilmembers so they can feel good about themselves.”

But for Dr. John Pierce, head of the Cancer Prevention and Control research program at the UCSD Moores Cancer Center and chair of the World Health Organization’s research arm on tobacco-related cancer, the policies are a breath of fresh air. Pierce has coauthored a review for WHO on the effectiveness of nonsmoking policies, to be published this month. Writing on the subject in a July 2008 Lancet article, he and coauthors concluded that “smoke-free policies substantially decrease second-hand smoke exposure.” The article recommends “that governments enact and implement smoke-free policies.”

“Implementation of such policies can have a broader population effect of increasing smoke-free environments,” reads the article. “Not only do these policies achieve their aim of protecting the health of non-smokers by decreasing exposure to second-hand smoke, they also have many effects on smoking behavior, which compound the expected health benefits.”

Adds Pierce in a July 29 email: “The issue is protection of non-smokers in particular. [Some people] are particularly vulnerable [to secondhand smoke] and small exposures can create significant problems.”

As for ordinances such as the one in El Cajon infringing on the rights of smokers, Pierce writes, “There is no ‘right’ to expose others to harmful substances, and scientists have been unable to identify a safe level of exposure to secondhand smoke.”

But expanding or strengthening antismoking regulations would require a lot more work and public support, says Councilmember Kendrick. He’s thought about pursuing an initiative to prohibit smoking inside apartment buildings, but he won’t be doing that anytime soon. “I’m going to stay away from that for now. I don’t think El Cajon is ready for that. Those are issues for another day.”

© Copyright: Aug. 26, 2009 Sandiegoreader

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