Where There’s Smoke…

Given this post’s title, you’re probably thinking that I’m going to write about the fires that have been raging in the greater Bay Area of late. However, except for some air quality problems, we here in Redwood City are fortunate in that we haven’t been directly affected. Instead, this week I wanted to make sure that you all are aware of the changes that are coming for smokers of all kinds, and those of us who don’t smoke but have to deal with its effects.

I’m not discussing the effects of the smoke from the Napa area fires on Redwood City for one good reason: through either some really great planning or some really good luck (OK, it was luck), my wife and I left for a trip to Germany just as the fires were getting started, and returned late in the evening on Wednesday, October 18—just after the winds had shifted and the fires were finally being contained. Thus, by what was a stroke of extraordinary luck, we missed the whole thing, and had to settle for watching the events unfold, horrified, from afar.

Our trip, which lasted a total of about ten days, was entirely in support of doing some intense genealogical research on my wife’s family. Genealogy has become one of my wife’s great passions: she’s been active on Ancestry.com for years, building up a detailed family tree, searching out long-lost relatives, and searching for hard evidence to back up what she’s finding online. Ancestry research has given new purpose to some of our travels. For instance, last year we took a trip to Ireland. While there we met with a genealogist in an attempt to find some record of my wife’s great grandparents, who emigrated from somewhere in Ireland to the United States back in the mid-to-late 1800’s. For this year’s trip we elected to follow a different branch of her family, who came here from Germany in the early 1900’s.

For various reasons I suspect that I’ll talk more about our trip in a future post, but for now I’ll focus, as usual, on Redwood City. Although I’ve been thinking about this topic for about two weeks now, the upcoming changes in our local smoking ordinances seem particularly relevant given that we just came back from a country where smoking is more acceptable. Indeed, as I write this I can hear our travel clothes tumbling around inside our dryer: upon our return we immediately washed everything we took, partly to get out the residual tobacco smell. These days most of us take it for granted that we can live our lives here in California relatively free of second-hand smoke, and forget how it is elsewhere in the world. For those smokers among us, however, things have certainly gotten more difficult over the years, what with the restrictions on smoking in restaurants and other public places. Because smoking continues to be legal, however, cities and states have struggled to strike a balance that provides smokers with sufficient opportunities to enjoy their cigarettes, cigars, and e-cigarettes—and now, cannabis—while protecting the rights of those who prefer their air to be free of second-hand smoke. While I’m sure that neither side is entirely happy with the current state of affairs, life in a community demands compromise; neither side can entirely have their way.

The line between the two sides is changing, however. Today, one of the places smokers are free to smoke is in their own homes. That freedom isn’t universal: owners of apartment buildings can designate their buildings as smoke-free, and most apparently do. But within Redwood City, even in those apartments where smoking is still allowed, that freedom is about to be severely limited. And that isn’t all…

At the City Council’s regular meeting on October 2 the Council was given a staff report on an ordinance prohibiting smoking “in and around multi-unit residences.” The phrase “multi-unit residences” is important: the ordinance doesn’t distinguish between renters and owners. The issue is that smoke is able to penetrate walls and pass between units, regardless of whether the units are rented or are individually owned. Even with the finest technology aimed at preventing second-hand smoke from passing through walls, smoke can still make its way out of an open window and into the open window of another nearby unit; there is pretty much no way for a renter or condominium owner to keep smoke from a neighboring unit out of theirs. Whether or not second-hand smoke causes lung cancer—the jury still seems to be out on that one—it has harmful effects that for some can be extremely serious. Thus, the proposed new ordinance that the City Council considered and, with some changes to make it even stricter, unanimously passed.

As written the ordinance applied to buildings with three or more units, exempting duplexes. During Council discussion, however, the question arose as to why duplexes were exempted. When no good reason could be given for why a triplex should fall under a smoking ban while a duplex should not, the Council amended the ordinance to include all multi-unit residential buildings. There was some brief discussion around whether rentals should be treated differently than ownership units (i.e., condominiums), but smoke doesn’t care whether you rent your unit or own it, so the ordinance applies to both. This is important to understand: even if you own a condominium, in the future you will not be allowed to smoke inside it. Nor, for that matter, will you be able to smoke on your unit’s private patio or balcony.

Many apartment and condo buildings will presumably designate a smoking area somewhere on their property, although there are some restrictions in the ordinance that can make it tricky to find an area that qualifies. The designated smoking area must be clearly marked and unenclosed, must be at least 25 feet from unenclosed areas that are used primarily by children or that facilitate physical activity (i.e., tennis courts and swimming pools), and must be at least 25 feet from any “nonsmoking area” (any enclosed or unenclosed area in which smoking is specifically prohibited). Finally, the smoking area can be no more than 10% of the total unenclosed area of the apartment or condo complex.

As for when this ordinance takes effect, for new leases and for new buildings that come online after January 1, 2018, January 1 seems to be the effective date. For all others—existing leases and existing condominiums—it appears that smokers have until January 1, 2019. The Council seems to feel that by granting existing renters and condo owners an extra year, affected persons will have sufficient time to adjust to the new rules.

On the night following the City Council meeting, another meeting was held in the Council Chambers—but this time it was of the Planning Commission. And one of the items on their agenda was to recommend (or not) to the City Council an amendment to Redwood CIty’s zoning ordinance regarding cannabis. Currently the only regulation on Redwood City’s books regarding cannabis is a zoning ordinance which prohibits medical cannabis distribution facilities in all zoning districts. The proposed ordinance would repeal that one existing ordinance, and would then add express provisions to:

  • limit indoor cultivation to six cannabis plants for personal consumption,
  • ban all outdoor cultivation of cannabis plants, and
  • ban all commercial cultivation, manufacturing, testing, retail and distribution.

The ordinance does not affect deliveries from outside jurisdictions; those are still allowed.

Note that the ordinance is focused on the production and sale of cannabis plants: it says nothing about smoking cannabis. However, existing law prohibits the smoking of cannabis wherever the smoking of tobacco is prohibited. Plus, the smoking ordinance approved by the City Council the previous evening applies to both, so the new restrictions being placed on one’s ability to smoke in an apartment or condominium will affect cannabis smokers as well. For the record, smoking of all types is also prohibited in enclosed public spaces within Redwood City, which means that smoking is going to be pretty much limited to single-family homes and those outdoor spaces in which smoking is still allowed.

The Planning Commission voted unanimously to recommend the cannabis ordinance to the City Council. Next, the Council will be taking up the issue in their upcoming (October 23) meeting—so if you want to make your voice heard on this, Monday’s meeting may well be your last chance.

If it seems as if this issue is moving quickly, it kind-of is, but that is due to pressure at the state level. In 1996 voters approved a state-wide proposition that decriminalized the use of medical cannabis within the State of California. Then, in 2016, voters passed another proposition that legalized the recreational use of cannabis by those 21 and older. Finally, in June of this year the California Senate passed SB 94 which set up a unified regulatory and licensing framework for all cannabis businesses, whether they be for medical or recreational purposes. SB 94 allows local governments to permit or prohibit cannabis-based businesses, but localities that want to do so must act before the State issues the first cannabis business licenses—which will occur on January 2, 2018. Otherwise, the local entity (such as Redwood City) would lose its ability to retain control over such businesses. Thus, the scramble by the city to put rules in place before the end of this year.

After consulting with other cities and states in which cannabis use is already allowed, city staff felt that it would be wise to take a phased approach that allows the city to make any necessary adjustments along the way. Thus, the proposal to initially ban all cultivation of cannabis within the city limits, with the one exception allowing limited individual cultivation for personal consumption. Once some time has passed and the city has had a chance to see how things are working, city staff suggests that the following next phases might be appropriate:

  • Move from unregistered to registered deliveries. Currently, the city does not track cannabis deliveries or require that the delivery drivers or the company for whom they are delivering be registered. Note that registration would only apply to companies that ship cannabis and the drivers who deliver it: recipients would not be tracked.
  • Develop regulations that would allow cannabis deliveries from retail operations within the city that don’t have a storefront.
  • Expand regulations to allow cannabis to be sold from retail stores within the city. The number of such stores would be limited, and of course their locations would be strictly regulated so as to not be near schools or other sensitive areas.

I have never been a smoker, and these days I live in a single-family home, so these new ordinances don’t affect me directly. However, because I’ve lived in apartments and condominiums where second-hand smoke was an issue, I can see the rationale for these new rules. Then again, I’m also well aware that smoking is legal—and that smoking cannabis is a newly won right for many—and so I can sympathize somewhat with their side of things. Good politics are a careful matter of considering both sides of an issue and striking a balance. Hopefully these new rules provide the necessary protections to those who don’t smoke, while still retaining sufficient rights for those who do.

1 thought on “Where There’s Smoke…

  1. I am also not a smoker (all rights reserved to cannabis smoking though) and live in a single-family home and I’ve been mostly happy with the somewhat reasonable limitations that California and other places have put on smoking, especially in restaurants. But the libertarian in me thinks this goes a step too far. Until the city council or some other entity can show that health effects of secondhand smoke from smokers in the next apartment are too grave, they should place this in the category of an annoyance, like playing a stereo too loudly or screaming babies or people moving furniture around. If someone’s breaking an ordinance which is there for everyone’s benefit (like not drilling at midnight) then law enforcement should be able to handle it and issue fines when appropriate. The same should apply to smokers. We live in a time when technology can effectively mitigate many annoyances. Extractive window fans, smokeless ashtrays, and of course e-cigs and vapes can go a long way toward preventing neighbors from getting too much secondhand smoke. There are limitations and requirements around many other legal activities but those don’t usually place an undue burden on those engaging in the activity. It is an undue burden to ask a condo dweller to exit the premises completely and go to a designated smoke zone that is 30 feet from his dwelling at 1 am in the middle of January. The city council should consider requiring smokers to prove that they’ve taken steps to mitigate the annoyance (and provide information and resources to do it), e.g. purchased and installed a fan, and fine them if they don’t do it in a timely fashion. Like everything else, they can be given warnings and the magnitude of the fine can be linked to number of infractions. If they’ve attempted the prescribed remedies and the structure of the building or apartment is such that the smoke still affects neighbors, the burden should shift to the building owner or the neighbors themselves. I would make the slippery slope argument, but I don’t think the city is going to curtail our sexual behavior anytime soon because our neighbor can hear us schtuping.

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