Smoke-Free Nation 

Berkeley's new outdoor smoking ban is one of several recent Bay Area laws that mark the beginning of the end to smokers' rights.

When the Berkeley City Council voted last November to ban smoking in the city's shopping districts, it was widely viewed as an attempt to deal with the intractable homeless problem on Telegraph and Shattuck avenues. After all, many homeless people smoke, and the measure was part of Mayor Tom Bates' Public Commons for Everyone Initiative. But the new law, which went into effect last month, does more than give police a new weapon to roust the homeless. It's a sweeping prohibition that will likely impact every smoker in the city.

In a recent interview, Bates downplayed the anti-homeless angle and defended the new law on public health grounds. "We banned it in all of the commercial areas because we're concerned about ... the fact that smoking is the number one killer, other than people dying of old age," he said. "And it's costing us incredible amounts of money in the city dealing with smoking-related illness. So it made sense for us to say to people: we don't want you to smoke in our downtown, and if you want to smoke you're going to have to go someplace else."

Berkeley's new ban comes three decades after it was the first city in the nation to legislate smoking sections in restaurants, according to Marcia Brown-Machen, who works in the city's health department. That 1977 line in the sand, designating some Berkeley public spaces as smoke-free, was the beginning of a slow process that continued all the way through the sea-changing law of 1998, when Californians lost the right to smoke in bars, or gained the right to work in one without being poisoned, depending on whom you ask.

But despite Berkeley's historic role as a trendsetter, the city is actually lagging behind other communities in the region in the ever-increasing clash between the rights of those who smoke and those who don't. By comparison, the city of Belmont is the true vanguard of regional antismoking rules. Not only did the Peninsula community precede Berkeley in a total ban on smoking in commercial areas, but it also prohibited smokers from lighting up in their condos or apartments if they have upstairs or downstairs neighbors.

Since last October, every new lease in Belmont has contained mandatory nonsmoking language. So renters and condo buyers must sign on the dotted line, and agree to never smoke at home, before they move in. By the start of next year, every apartment and condo in that city will be covered by this rule, which means that in the years to come, most of the multi-unit housing will be completely smoke-free.

In the East Bay, meanwhile, Dublin has dubbed smoking a "nuisance," thereby allowing nonsmokers to take smokers to court. Oakland, Emeryville, and Albany have banned smoking in outdoor common areas of condos, townhomes, and apartments. So have the counties of Marin, San Mateo, and Contra Costa. Oakland also has banned smoking in many public places and passed a groundbreaking disclosure law that requires landlords to tell prospective renters which apartments have smokers. Albany's City Council passed a similar "landlord disclosure" law last month, which will take effect next week. Hayward just passed a comprehensive ban on smoking in public that takes effect before the end of the month.

In short, the Bay Area, particularly the East Bay, is at the forefront of a burgeoning effort to snuff out smoking nationwide. Antismoking advocates hail all the new laws, but smokers say their rights are being trampled and taken away. Either way, it's not too difficult to imagine a future in which the only place people can light up is in a single-family home — and only if there are no children or neighbors nearby.

The American Lung Association has been leading the antismoking charge, helping cities draft new laws and regulations. Serena Chen, who works in the association's Northern California office and focuses on antismoking efforts in condos and apartments, said that, historically, smoking laws start at the local level and then are later adopted by state governments. In the mid-1990s, three-quarters of Alameda County residents were already covered by local laws banning on-the-job smoking by the time the California legislature made smokeless workplaces the law of the land.

Today, the dangers of secondhand smoke are no longer a matter of serious debate. Even the Bush administration's own surgeon general has concluded that there are no risk-free levels of secondhand smoke, and the federal Environmental Protection Agency considers it to be among the most lethal carcinogens. According to a 2006 report by the California EPA, secondhand smoke kills more than 50,000 people nationwide every year, including 3,400 deaths from lung cancer and 46,000 from heart disease.

The costs to society are also staggering. According to the Centers for Disease Control and Prevention, the United States spends more than $167 billion each year in smoke-related healthcare costs. That's a price tag of $3,702 per adult smoker.

A recent study found that smoking outdoors poses risks to nonsmokers, too. Stanford University researchers discovered that under certain conditions, such as sitting near a smoker on a park bench or in an outdoor dining area, the dangers of secondhand-smoke exposure are essentially equal to those indoors. The one major difference is that once a cigarette is extinguished, outside air clears very quickly.

With these facts in mind, the Oakland City Council passed a wide-ranging antismoking ordinance last December that includes prohibitions against smoking in ATM and movie ticket lines, public parks and trails, child-care centers, outdoor eating areas, and at bus stops. The sweeping law also bans smoking in common areas of condos and apartment buildings, unless it's in a landlord-designated outdoor area away from children.

But the most overlooked aspect of the ordinance is a provision that made Oakland the first city in the nation to pass a law regarding what is known as "landlord disclosure." When landlords in Oakland show prospective renters their apartments, they're now required to disclose which units are smoking and which are not. Landlords also have to tell new tenants how they officially handle smoking complaints in their buildings. In theory, landlord disclosure will empower prospective renters to make informed decisions about where they want to live.

However, most people seem unaware of the new rules. A quick and informal survey of Oakland landlords posting nonsmoking rentals on Craigslist found that none knew about the change. Chuck Chakravartula, who had three different apartments for rent, in three different buildings in the Lake Merritt area, said he hadn't heard about the new disclosure rules, but added that he's "always preferred nonsmoking." He said that in his experience, it's often the guests of his tenants who violate the smoke-free policy in his buildings, and that "just talking" to the people involved usually resolves things. "I'm not sure waving an ordinance in their face works as well," he said. "It sets up a different tone."

But Chen said that many condo owners in Oakland are seizing on the new law as a way to make their entire buildings smoke-free. "I've gotten calls from four or five condo owners," she said. "Smaller condo associations that are predominantly owner-occupied seem to have a better chance of success at going smoke-free. ... If you have a lot of units, this is very difficult to achieve since many condo owners are absentee landlords and ... just want to collect their rent."

Serena Chen is helping Robin Brooks, a resident of the Essex, a twenty-story luxury tower near Oakland's Lake Merritt, organize her roughly 270 neighbors. "I want us to be the first downtown high-rise to go smoke-free," Brooks explained. She began renting her studio apartment with a view of the lake in 2002 just after the building was completed. A couple of years later, she bought her unit when the Essex changed owners and converted to condos.

Back in 2002, Brooks liked her neighbor well enough, but things turned sour when the single mom next door hooked up with a live-in boyfriend who was addicted to nicotine. Luckily for the kids he wasn't allowed to smoke inside. Unlucky for Brooks. "He pretty much camped outside on their balcony literally chain-smoking. And that was when I realized that it was a completely untenable position to have someone smoking in a multi-unit development," Brooks said. "I had my choice: I could either close the sliding door to my balcony and my window, and suffocate because there is no other source of fresh air entering the building, or I could leave everything open and be exposed to secondhand smoke. So there were no good options — which is how I got involved in trying to stop smoking at the Essex."

Because it was still a rental property at the time, Brooks was able to convince the building manager to deal with her secondhand-smoke conflict. The manager gave Brooks' next-door neighbor an ultimatum: either force her boyfriend to take the elevator down to the street when he needed to light up, or move out. They moved.

But Brooks lives in fear that history will repeat itself. Someone new could move into a nearby unit and start generating secondhand smoke all over again, and this time, since the entire building was converted to condos in 2004, Brooks would find it a lot more difficult to solve the problem. "Whenever you're dealing with a homeowners' association, you're dealing with the most absolutely frustrating dysfunctional bureaucracy that you could ever want to be involved in," she said. 'You have every right to be upset if secondhand smoke is coming into your home. It has been identified by the California Air Resources Board as a toxic air contaminant. Why will homeowners' associations not enforce that?"

Earlier this year, Essex condo owners voted on whether to make their building smoke-free, and according to Brooks, a large majority of those who cast ballots favored her plan. But the number of residents who voted fell short of the requirements governing condo associations, so the plan failed. One of the problems, Brooks said, was that many of the units generate income for their owners, who collect rent from tenants. So those owners have more to lose — and less to gain — financially by going smoke-free.

Brooks views her antismoking campaign as a struggle between different economic interests. "The battle right now, in my opinion, is essentially between Realtors, mortgage brokers, developers — all of those people in the housing industry — that want to keep the market as big as possible," she said. "They live in fear that any restriction might make the market smaller. They don't get it — that there's a global movement afoot to stop smoking in multi-unit housing.... All I'm talking about is protecting our investment by protecting our health. And that nobody in their right mind is going to want to buy into a condominium development if their next-door neighbor smokes."

One East Bay city is encouraging residents to take matters into their own hands. In September 2006, Dublin legally defined secondhand smoke as a nuisance. The law bars Dublin officials from spending any city dollars to enforce the ordinance, but nonsmokers are free to sue their neighbors to make them stop smoking in condos or apartment complexes.

Dublin residents Nancy and Chuck Sanders, a married couple in their sixties, did just that. They moved into an apartment in the fall of 2006 and immediately noticed that their downstairs neighbor smoked a lot of cigarettes. "He was not just a smoker, but a very heavy smoker," Nancy said.

She and her husband quickly became experts on their new neighbor's habits. He would sit on his patio reading a book, chain-smoking, with the smoke drifting up into their living room windows. Or he'd lock himself in his bathroom with the fan going, and they could smell the smoke in their own bathroom directly above. Or he'd sit by his open bedroom window and blow the smoke outside, whereupon it would drift the few feet up into their own bedroom window. "We'd sleep with our window open and wake up in the middle of the night with a headache, nausea, and a sore throat," Nancy said.

The Sanderses said they tried talking with their neighbor several times. But Nancy said he "made it our problem," and told them he was a "full-on smoker" and not about to change. So the couple went online looking for help and soon discovered that their city had given them a strong tool. After the Sanderses requested assistance from City Hall, the City Manager's Office sent a letter to Chuck and Nancy and all of their neighbors.

The letter explained that Dublin residents could take their smoking neighbors to small claims court and offered a seven-step process for "effective mediation" of conflicts "where smokers and nonsmokers live in close proximity." But the Sanderses said their neighbor never even acknowledged receiving the letter, stopped answering the door when they knocked, and continued smoking unabated. In time, they hired a lawyer to draft a letter, more clearly threatening that they would take their neighbor to court if he did not voluntarily control his smoking. When they didn't get a reply, Chuck waited for his neighbor out in the parking lot at 9 a.m. to give him one last chance to avoid a lawsuit. But that final encounter went nowhere.

So three months ago, the Sanderses had their day in small claims court, and Alameda County Judge Charles Smiley issued a restraining order against their downstairs neighbor. It read, in part, that he "shall not smoke within 25 feet" of their home — which meant that he was barred from lighting up within 25 feet of his own apartment — or risk being arrested. The judge said that Dublin's ordinance forced him to set a precedent with the case, and that the best tool at his disposal was the restraining order. Nancy said that for the most part the drifting secondhand smoke problem has gone away since the judge intervened.

But residents of other East Bay cities can't use Dublin's new law. Jane Carleton, who has owned her condo in Walnut Creek for about four years, said her life changed last summer when the unit below her was purchased by a new owner. "It was August 17th. I'll never forget the day she moved in below me. She's a real partier," Carleton said.

Carleton said that her new neighbor, along with streams of her nightly party guests, would smoke a lot, both inside the unit and out on the balcony, at all hours. Carleton tried talking to her neighbor to alert her to the drifting smoke, but to no avail. She then worked with her other neighbors as well as her homeowners' association, but with little results. Finally, she contacted a lawyer who told her that it would cost around $15,000 to solve her problem.

For now, Carleton keeps her windows closed most of the time, but the smoke still finds its way into her home. She said it's making both her and her pet sick. She keeps a detailed log of "events," chronicling when and where she smells smoke and sometimes sees it coming into her own home. She said she's also looked into moving, but she's holding out hope.

Chen of the American Lung Association said the Sanderses' and Carleton's stories are all too common. "Californians are used to spending eight hours a day in a smoke-free environment, then going out to eat and not being exposed to secondhand smoke," Chen said. "The greatest irony of all is going home and opening your front door and your living room smells like a bar from the old days."

Smokers, understandably, feel under siege. John Schmidt, who owns the Pub in Albany, a low-key bar and smoke shop on Solano Avenue — think coffee shop with pipes and pints — recently sent a letter to the Albany City Council, complaining about the city's proposed new antismoking law. Schmidt said in his letter that his business declined more than 30 percent after the 1998 indoor smoking ban, "followed by a long recovery that was assisted by the availability of outdoor seating to accommodate smokers."

Schmidt sent the letter to express his opposition to the city's plan to ban smoking all along Solano, a popular shopping and dining strip. He told the Express that the proposed law forced him to get involved in city politics to save his business. He views the Albany ban as an unnecessary encroachment on his rights as well as the rights of patrons of the Pub.

After a drawn-out process, Albany passed the smoking ban last month. It takes effect next week, but includes provisions that still allow for outdoor smoking at bars along the avenue. For the time being, John Schmidt and his customers can still light up. But the city, like Oakland, did ban smoking in common areas of condos, townhomes, and apartments, and passed a landlord disclosure law.

Meanwhile, Marcia Brown-Machen of Berkeley's health department is working with others in the city to draft a smoke-free, multi-unit housing policy of their own. She predicted that the draft will be ready for the mayor and the city council in six to nine months. Berkeley officials, she said, are very interested in how other cities are enforcing their new restrictions.

Enforcement, in fact, has turned out to be a key issue in Berkeley's own ban on smoking in shopping districts, including downtown, Telegraph Avenue, Solano Avenue, and Fourth Street. Indeed, it will probably take a lot of time for the air to clear, since city officials do not plan to deploy a Draconian campaign. Instead, they will roll out the public education slowly, by distributing no-smoking signs for concerned business and restaurant owners. It also will be up to nonsmokers to urge smokers to "self-enforce" the new rules.

As for police, they plan to largely ignore smokers for the time being. Chief Doug Hambleton said that his department has been doing nothing different and that officers have been "infrequently" issuing tickets to smokers who are less than twenty feet from doorways, or at bus stops, referring to the city's older antismoking laws. As for the new law banning smoking on shopping district sidewalks, the chief said "the plan is to give out lots and lots of warnings."

But if the cops start handing out tickets to enforce the new law, it's going to be expensive for smokers. A violation of the city's no-smoking law is classified as an infraction, and it will cost smokers $100 for the first one. The second will be $200, and then $500 for each additional infraction.

Some smokers' rights advocates say Berkeley's new law goes too far. "This is just another attempt at trampling the rights of smokers, forcing them into back alleys, next to garbage cans, where no one can see or smell them," said Robert Best, the California coordinator of the Smoker's Club. "All they're doing is saying that the discrimination and segregation of smokers is okay. It's getting to the point that the only place you will be able to smoke is in your house with all your windows and doors closed and all the creases covered so that no smoke gets out."

Berkeley's latest no-smoking law came as part of a package that Mayor Bates championed to combat what he calls unruly street behavior. His Public Commons for Everyone Initiative was a set of carrots and sticks to deal with a homeless problem that the mayor believes is far out of proportion to the city's relatively small population.

Vocal critics of the plan said it was designed to sweep homeless people off the streets in Berkeley's shopping districts. Police have been given slightly greater power to deal with people lying down on the sidewalk under the plan. But according to Lauren Lempert, who was hired by the city in August to work on the public commons plan, the smoking ban has been noncontroversial so far. In more than twenty public meetings, where some people raised their voices and accused Lempert and the city of criminalizing the homeless, very few people singled out the smoking ban.

Even the Berkeley Chamber of Commerce, which includes bars and restaurants among its members, strongly supports the new restrictions. Chamber CEO Ted Garrett said that given the health concerns regarding secondhand smoke, the Berkeley ban is a positive step for business in the city. When asked whether the ban might upset some employers (such as bar owners whose customers will no longer be able to go outside for a puff), Garrett responded: "Quite honestly, we haven't heard anything negative from businesses."

But at least one critic said police have already used the city's existing smoking rules to unfairly harass homeless people. Osha Neumann, an attorney with the East Bay Community Law Center, said he has helped about seven homeless clients fight their smoking infractions in court. Most of these clients, according to Neumann, have gotten off on technicalities like the officer not showing up to court. But he said that the vast majority of homeless people who've been cited for smoking don't get legal help, and they could end up in jail for the night, or over a long weekend, as a result of being ticketed for smoking. This, Neumann explained, is because homeless people often are unable to pay the fines and skip their court dates, and then get arrested on warrants.

It's unclear how many people have been cited by Berkeley police under the city's "quality of life" laws, since those sorts of statistics aren't kept, Hambleton said. Council members asked for the data when considering the public commons plan last year and the numbers are on the way, according to Lempert.

So what about UC Berkeley? With over 24,000 employees, the university is by far the biggest business in town (the second largest is the Lawrence Berkeley National Laboratory), but the city's new rules don't apply on campus (or in People's Park). Cal already bans smoking in the vast majority of campus housing and twenty feet from all windows and doors, plus at all outdoor sporting events.

After Alta Bates Medical Center, the fourth largest employer in Berkeley is the city itself. If any of those workers still choose to indulge, they'll presumably have to get in their cars and drive around the block or walk to a nearby a residential neighborhood. The city does offer free help to employees — and anyone else — who want to quit through programs available from its health department. But when asked whether the city plans to accommodate smokers in any way under the new law, Bates staffer Julie Sinai said frankly: "We don't want people to smoke in Berkeley."

But even when some folks choose to take the path to better health, they still need a puff now and then just to get through the day. Michael Clayton takes classes at Berkeley City College and he said his schedule has him in town for ten-hour stretches. He's been trying to quit since January, but a nicotine lozenge his doctor prescribed for him caused him to break out in hives, so the doctor advised him to avoid all similar medical aids for the time being.

Clayton was enjoying the nice weather and his cigarette during a recent break from classes. Like most of the smokers on the streets of Berkeley, he was unaware of new no-smoking rules despite all the posted signs. He said he still planned to smoke when in town. He's been a smoker for more than three decades, and is down to four a day now. But he's sort of ambivalent to the new ban; while very much aware of the negative impacts of smoking on himself and others, he sees little choice for an addict like him but to step out onto the sidewalk as far from the crowds as he can get and take a drag. But he said that he knows the days of public smoking in America are numbered. "Cigarettes and SUVs are on their way out," he said, "and you can quote me on that."

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