UPDATE 2:40pm Monday | Just spoke with Linda Trang from the City Attorney’s office, who posits that the intent of 8.68.120(A) as applying only to businesses. However, she acknowledges it could be read as broadly as I interpreted it—hence C, she says. In fact, Trang notes that without the addition of C, had someone been cited for smoking at (e.g.) a bus stop, the lack of signage might very well have proven a viable defense.
But if A is read broadly, the question of the City’s responsibility remains open—more open than I’d thought considering the points Trang makes smoking bans in other public spaces (such as a bus stop).
I’m sure Trang’s right about the intent of A. So perhaps this is an example of the spirit being more important than the letter of the law. You tell me. But doesn’t the question of fairness—as well as effectiveness—remain?
UPDATE 9:45am Monday | Considering the absence of signage informing smokers of their lawbreaking, in the effort to make stick citations that Councilmember Schipske says police won’t be writing, the proposed ordinance adds 8.68.120(C) to the Long Beach Municipal Code: “Notwithstanding this Section, the presence or absence of signs shall not be a defense to the violation of any other provision of this Chapter.”
But the ordinance makes no change to Section 8.68.120(A)4, which states that “whenever in this Code smoking is prohibited, conspicuous signs shall be posted so stating, containing all capital lettering not less than one inch (1″) in height on a contrasting background. It is the duty of the owner, operator, manager, or other persons having control of such room, building, workplace, or other place where smoking is prohibited”—in this case, the City itself—”to post such signs or to cause such signs to be posted.”
What this means is that anywhere the City bans smoking without posting said signage, it will be committing an illegal act, violating one section of our municipal code by adding another—and then attempting to run an end-around5 the whole business by saying that the lack of required-by-law signage won’t be a defense for anyone getting a ticket. (Not that anyone will be getting a ticket, we’re told.)
Not convoluted enough for you? Consider, then, that one outdoor area where smoking is already prohibited is the beach (see 8.68.065)—and, comporting with the requirements of 8.68.120(A), there are 20 signs proximate to the beach informing people of this prohibition. So I have to ask: For the sake of consistency, will the City be removing these signs? If they don’t, doesn’t having such signage in some outdoor areas give rise to a reasonable expectation that where there isn’t such signage smoking is permitted outdoors?
Speaking of reasonable expectations, unlike with smoking outdoors, fireworks are illegal in most California cities. That fact, combined with the nature of fireworks—which can be said to present at least some degree of immediate danger (as opposed to the more abstract, long-term danger of second-hand smoke)—means people have far less claim to a reasonable expectation of fireworks being allowed within city limits. And yet the City has posted plenty of “no fireworks” signs around town—21 proximate to the beach alone6.
So it looks to me like this ordinance fails to make the grade not only in terms of fairness, but also when it comes to consistency—two traits our city government should endeavor to kill off rather than promulgate, no matter what subject is on the table.
The proposed ordinance is slated for discussion at Tuesday’s city council meeting, which begins at 5:00pm.
10:00am October 22 | Let us imagine the fictional city of Los Diablos. Los Diablos has a gang problem. Two rival gangs, the Lemons and the Limes, are at war. The Lemons always outfit themselves in yellow shirts, the Limes in green. As a result, it’s extremely easy for one group to identify the other group, and thus often clashes in public parks (where both groups like to hang) are commonplace.
The Los Diablos City Council comes up with an idea to reduce these clashes: they pass an ordinance prohibiting any group of three or more persons congregating in either yellow or green shirts.
In the wake of this new ordinance, the City makes some effort to educate the residents of Los Diablos to this change in law, and temporary signage goes up here and there, but for budgetary reasons the City opts against putting up permanent signs. Fast-forward to a year later, and Robert Shannon and Mike Mais (from the City Attorney’s office) and I (from here) decide to go on vacation together. Robert and Mike aren’t sure if they’re ready to go to Burning Man with me, so they think Los Diablos might be a good test trip for us as a trio.
It turns out get along like gangbusters, and we soon find that we share loves of both nature and wearing green. So one day we decide it would be a gas to venture out into Los Diablos’ grand Pitchfork Park in our matching outfits. We’re having a lovely day until a police officer approaches us. Pretty quickly he ascertains that we are not Limes; nonetheless, the law is the law, so over our protestations that we had no idea we were doing anything wrong (the temporary signs are long gone), he writes us tickets for $271 apiece.
The three of us leave Los Diablos with a bad aftertaste for the otherwise lovely city. We feel we should have at least gotten some sort of warning. We’re inclined to take our case to court, to force the City to expend its resources defending what we feel is an unjust practice of targeting first-time offenders who had no knowledge of their offense, feeling that we can probably mount a defense on the grounds that, since it is by no means customary in most places for congregating-while-wearing-green to be against the law, we had a reasonable expectation that it was allowed, and that it was incumbent upon the City of Los Diablos to have made some effort to inform unsuspecting green-lovers like us that sitting in the park so attired was an infraction of law.
But we don’t live very near Los Diablos, and so in the end we decide simply to tell our friends of our experience there, and to avoid a city that would treat out-of-towners so unjustly.
*
In case you don’t know, my extended metaphor is of the City of Long Beach’s plan to ban smoking in pretty much all outdoor areas—and to allow law enforcement to ticket people for smoking even when there is no signage anywhere around letting them know that doing so is illegal.
I am not a cigarette smoker, and I would love it if everybody quit. I am not someone who finds concerns about second-hand smoke dubious. I can’t stand how a large percentage of cigarette smokers feel tossing their cigarette butts onto the pavement is some sort of justified littering. And even though as a civil libertarian I have some qualms about this ordinance, I can’t get too worked up against it.
What bothers me is that on the face of it the way we’re going about it does not completely avoid the appearance of being as much about filling our coffers as about public health. Hence the rationale for not installing permanent signage being purely economic.
The ostensible goal of the ordinance is to get people not to smoke in public. Clearly, that end is best served if smokers are alerted to the fact that doing so is illegal. If they don’t know, since in most places outside of Long Beach it’s not illegal, people have a reasonable expectation that smoking is allowed outdoors if there’s no indication that it’s prohibited—and so they light up, and so second-hand smoke goes into the public air, until such point as a police officer sees and stops them. Signage would stop some people, of course. What the absence of signage does is allow for more second-hand smoke to get into the air, but also provides more opportunity for our City to make money off of it.
What the law + absence of signage is guaranteed to do is create an unfair situation not only for uninformed residents but also for out-of-towners. The latter is potentially a very bad bit of fallout, because we all know the Long Beach economy desperately needs the city to be more of a destination for people from outlying areas, as well as an attractive tourist spot. Prey upon people’s understandable nescience of this new law, and we may hurt ourselves on this front. (And even if it’s just a little, I’m not sure how many tourist dollars Long Beach can afford to lose.)
How reasonable is the expectation of signage? Consider how many restaurants, cafes, etc., with outdoor patios—where smoking is not banned by state law—post “no smoking” signs, since (it can easily be argued) there’s a reasonable expectation that, sans signage to the contrary, smoking is permissible outside. Thus can we imagine Sancho Smokesalot from San Salvador taking a postprandial stroll into the nearest park. He didn’t smoke while dining al fresco because of the signage, but now there’s nothing telling him he can’t, and so he does. Does he really deserve to run the risk of a $271 fine?
Councilmember James Johnson raised just this complex of issues related to signage during discussion at the October 19th council meeting, then went on to tell of his discussions with City Attorney Robert Shannon concerning the option to cite people only at locations where there is signage—whether temporary or permanent—thus giving people an undeniably fair chance to comply with the law.
Vice-Mayor Suja Lowenthal’s partial answer: “We have historically not depended on signs.” Really? Then one has to wonder what Health and Human Services Director Ronald Arias meant when he said, “We don’t have the money to make the nice signs that Parks and Rec normally does.” The key there, of course, is “normally.” As an example of that “normally,” someone might have pointed out to Lowenthal how much signage there is around town informing people that they’re required to clean up after their dogs. That signage is a great example of what Long Beach has done when its unadulterated aim is to deter a particular behavior: depend on signage.
Meanwhile, Councilmember Gerrie Schipske attempted to allay Johnson’s concerns by saying that the proposed law “is not going to be enforced. Our police are not going to be out there ticketing people.” Really? Then what possible objection could there be to Johnson’s proposal that police only be allowed to issue citations where there is signage? I mean, if they’re not going to be enforcing the law at all….
Look, it’s easy to demonize cigarette smoking. It’s no damn good for anybody (except the tobacco companies, natch), and it’s perfectly reasonable for those of us who don’t smoke not to want to be subjected—or have our children subjected—to the negative effects of smoking. So yeah, I get the ordinance. What I don’t get—or more accurately, don’t condone—is crafting the ordinance so that people are left open to being treated unfairly, especially when everyone agrees we would ensure everyone is treated fairly if we had more money. We should not try to instill our higher principles on the cheap. If this ordinance is worth doing, it’s worth doing fairly.
Footnotes
1This continues a fantasy begun here of Shannon and Mais being Greggory fans and huddling together reading my Burning Man column.
2No one seems to question that signage would be helpful, as all versions of implementation of the ordinance include the provision that permanent signs would eventually put up, even if only when old signage becomes so worn or damaged that it is to be replaced by new signage, anyway.
3To bring home how central money appears to be here, the proposed law contains two exemptions: golf courses and public events. The only rationale given by city staff for exempting the latter is economic, while money was one of two reasons city staff gave for exempting golf courses. (Interestingly, Councilmember Robert Garcia spoke of his support for removing the exemption golf courses, but not public events.)
4Thanks to commenter John Greet for bringing this to my attention.
5In honor of the NFL season, my first ever football analogy on the Long Beach Post.
6These statistics regarding beach signage come by way of the City Manager’s Office.