Update: County passes Bay Area’s most strict tobacco ordinances

Smoking outside in Morgan Hill could soon become real expensive and if you get caught puffing, get ready to cough up the cash.

That’s why the city council voted Wednesday to direct city staff to draw up an ordinance that prohibits smoking in outdoor public areas, providing fines starting out at $100 for first-offenders.

The fine schedule is the same as that for other municipal code infractions such as parking or social host violations: $100 for the first offense, $200 for the second offense, and $500 for the third and subsequent offenses, according to community services director Steve Rymer.

City staff started researching such an ordinance last year. A series of public meetings last year and an online survey that attracted 860 responders were used to gather input from the community about the specific provisions that would be most reasonable in a new “secondhand smoke” ordinance. The city’s youth action council has also been involved in the process, and has indicated support for the prohibition among the young Morgan Hillers they represent.

The purpose of the ordinance is to shield non-smoking members of the public from the dangerous effects of breathing in secondhand smoke, according to council members and city staff. The city has worked with Santa Clara County and the nonprofit anti-smoking advocacy group Breathe CA in promoting the effort, which has been pursued in other nearby cities and resulted in outdoor smoking ordinances.

The council voted unanimously to continue drafting an ordinance that would prohibit smoking in outdoor dining areas, public events such as the Taste of Morgan Hill, all outdoor public recreation areas, service areas such as ATM lines and bus stops, and within 20 feet of any building entryway. Business owners would be responsible for enforcing the ordinance on or outside their properties, city staff said.

Council member Rich Constantine said it’s important to continue educating the public about the dangers of smoking, but a final ordinance should pay close attention to balancing the need to limit secondhand smoke with smokers’ rights.

“That’s where the problem lies. It’s difficult to appease the smoker and non-smoker. The issue is how we make it fair for all our citizens,” Constantine said.

In response to a followup motion by councilwoman Marilyn Librers to exempt renters of the Community and Cultural Center by allowing such event organizers to cordon off a designated smoking area, the council voted 4-1 in favor. Librers said the lack of such an exemption could discourage people from renting the facility from the city. She added that in general, she is “very conflicted” about prohibiting smoking outdoors.

“I believe most smokers are very aware of being considerate to people around them,” Librers said. “I’m very conscious of the rights of people and over-policing of our society.”

Mayor Steve Tate said keeping the outdoor air free of potentially carcinogenic tobacco smoke “goes beyond quality of life – it impacts life.”

Councilman Larry Carr voted against allowing a designated outdoor smoking section at the community center. He said it sends a “mixed message” that the city is more worried about losing facility rental revenues than it is about snuffing out smoking. Plus, he said he’s not convinced that a strict outdoor smoking ban would discourage people from booking the community center, which includes an amphitheater and lawn.

“If we say city facilities are smoke-free, you should make them smoke-free. You shouldn’t have a ‘buy-out clause,'” Carr said.

At a parks and recreation commission meeting where the ordinance and progress of the outreach effort were discussed last month, some commission members thought the fine schedule for the proposed infraction was too harsh, Rymer said. City staff noted that the proposed fine amounts are the same for all infractions listed in the city’s municipal code.

Following that meeting, city staff continued to collect the results of an online survey about the ordinance. Eight hundred and sixty people – about 83 percent of whom are Morgan Hill residents – responded to the survey. About 15 percent were business owners. And about 85 percent of those who filled out the survey were in support of an outdoor smoking prohibition.

Morgan Hill resident Doug Muirhead spoke against “ordinances like this” at last week’s council meeting, because it could end up protecting one group of citizen’s rights at the expense of another’s.

“In the long-term we end up with what are called islands of privilege,” Muirhead said. “If you’re fortunate enough to live in a private development, and if you’re fortunate enough to travel in a private vehicle, you have a choice about whether you use this legal product. Other people who don’t have those fortunate situations are just told, ‘We don’t trust you.'”

When city staff started the ordinance outreach effort, they hoped to make use of grant funding available to pay for staff costs and educational material. The deadline to draft an ordinance and take advantage of the grant is March 2, and the city might not be able to make full use of the grant as they expected, Rymer said. However, the city is likely to be reimbursed for staff time expended so far, though the money for educational and awareness efforts may not be available.

Smoking tobacco outdoors in Morgan Hill public places:*
– $100: Fine for first offense
– $200: Second offense
– $500: Third and subsequent offense
*Proposed

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Michael Moore is an award-winning journalist who has worked as a reporter and editor for the Morgan Hill Times, Hollister Free Lance and Gilroy Dispatch since 2008. During that time, he has covered crime, breaking news, local government, education, entertainment and more.

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