Fines for smoking could be lowered
CITYWIDE — Local restaurant owners are hoping that a possible change to Santa Monica’s comprehensive smoking ban — a proposition that would hold proprietors liable if they knowingly allow customers to light it up — will go up in smoke, at least for the time being.
The City Council tonight is expected to consider an amendment to an ordinance that made headlines for the seaside community, attracting national attention for a law that made it illegal to smoke anywhere within 20 feet of public entrances, exits and windows. The ban, which went into effect on Thanksgiving Day in 2006, extends to the Third Street Promenade, Farmers’ Markets citywide, outdoor dining areas, bus stops, and ATM lines.
The proposed amendment would accomplish several tasks, including reducing the fines for first infractions from $250 to $100 and prohibiting smoking on all library grounds.
But the element that has gained the attention of the business community is the provision that would hold restaurant owners and managers liable if they knowingly allow the banned activity to occur in the outdoor dining area, imposing the same citation issued to smokers. The amendment would also require signage notifying customers of the ban at all outdoor dining areas.
Tom Larmore, the chairman of the Santa Monica Chamber of Commerce, wrote a letter to the City Council on Friday outlining several concerns about the proposed changes, including the vagueness in the definition of “intentionally” or “knowingly,” and the short 30-day turnaround time after the changes are enacted when restaurant owners would have to educate their staff and post signage.
The chamber would like to see the amendment put on hold until City Hall completes a marketing campaign aimed at informing business owners, residents and visitors about the changes, an educational program that came out of a council meeting last year when chamber officials expressed concerns about the lack of notification to the public about the smoking ban, Larmore said.
“The council clearly understood our concern that smoking in outdoor dining areas was not something generally perceived by the public as prohibited,” Larmore said in an interview on Monday. “We do not want to subject restaurant owners to liability or have them go tell people not to smoke when (customers) don’t know what they aren’t supposed to do.”
Larmore said he is also seeking clarification to the circumstances under which owners would be deemed liable, hoping the city ordinance would align itself with state laws on smoking. A proposed revision to the amendment written by Larmore states that no business owner will have been deemed as acting knowingly if they have complied with the provisions of the ordinance and have requested that any person smoking refrain from doing so.
The state law also does not force business owners to eject smokers, Larmore added.
“We ask to put (the revisions) in the ordinance so it tracks the state law in its entirety,” he said.
Adam Radinsky, who heads the Consumer Protection Unit in the City Attorney’s Office, said on Monday that restaurant owners would be held to the same standard as contained in the state law regulating smoking. If a server or manager isn’t aware of a customer smoking, then the business would not be held liable. But if there is evidence that the owner is aware of customers lighting up, such as putting out ash-trays or serving customers who are smoking without making an effort to stop the activity, then the business could be held liable, Radinsky said.
The proposed changes have already been supported by the California Restaurant Association (CRA), which has a local Los Angeles chapter that covers Santa Monica. Andrew Casaña, who just recently served as the local government affairs representative for the CRA and is now one of its contractors, said the term “knowingly” is the key behind the association’s support.
“The city isn’t running out to try and make money and cite people,” Casaña said on Monday, adding it’s a complaint-driven ordinance. “If restaurants are knowingly allowing it, promoting, then they’re going to be responsible.”
The proposed amendment was sparked by a combination of complaints and a visual survey conducted by Healthier Solutions Inc., a non-profit agency that discovered there were still a number of places that allowed smoking, Radinsky said.
“While most places have been complying with the law,quite a few have not been,”he said.
The amendment package includes lowering the fines for violations so that it aligns with penalties in the state’s smoking law. City staff is proposing a $200 fine for the second violation within a year and a $500 for the third.
Sonia Cain, the owner of the Britannia Pub on Santa Monica Boulevard, called the amendment “ridiculous.” “(Banning) smoking inside, I completely get and I agree with, but outside — and I’m not a smoker — I think is ridiculous,” she said on Monday. “It’s even more ridiculous to put bar owners and bar staff with the obligation to police smoking.”
Cain added that the citation should be limited to the offending party — the smoker.
“Santa Monica is a beach town where people can relax and enjoy but everything is so by the book that you’re not allowed to do anything,” Cain said. “It’s getting ridiculous … it’s going to completely kill tourism.”
Originally published in the Santa Monica Daily Press print edition on April 8, 2008. Read the original PDF.