Restaurateurs don’t want to police patrons
DOWNTOWN — Restaurateurs could soon be held liable for their customers’ bad habits.
Attorneys for City Hall on Monday told members of the business community that they are planning to change the city’s comprehensive smoking ban so that fines would be issued to restaurants and bars that knowingly allow their patrons to light up.
Under the current ban, which went into effect in November of last year to protect the public from the dangers of second-hand smoke, smokers are prohibited from lighting up in all public parks and beaches, the Santa Monica Pier (except in designated areas), the Third Street Promenade, all farmers’ markets and outdoor dining and bar areas, as well as within 20 feet of any entrance, exit or open window to a public building.
Those caught violating the law can be fined up to $250.
As it stands, the law only targets the smoker — not the business, something city attorneys would like to change after receiving roughly 25 complaints about restaurant and bar owners who blatantly allow their customers to break the law, some going so far as to offer ashtrays.
Adam Radinsky, a city attorney who heads up the Consumer Protection Unit, which was responsible for drafting the smoking restrictions, said Santa Monica is the only city in the region with a ban that does not put pressure on business owners to comply.
“For the most part, (the law) has been successful,” said Radinsky, who estimates that police have issued roughly 100 citations since the law took effect, with the promenade and Main Street being the most problematic spots. “But there are those who are taking the approach of ‘It’s not our problem,’” because they are not being held liable for violations of the law.
Radinsky said that by amending the ban, it would make enforcement easier, however, the burden of proof would still be high. City attorneys, along with police, would need to conduct undercover operations at local businesses to gather evidence and then present that when issuing a citation. City attorneys would have to prove that a business owner was “knowingly or intentionally” permitting smoking.
“As long as a business is being honest … there shouldn’t be a problem,” Radinsky said.
News of the proposed change had some business owners concerned about becoming the enforcer, while others felt it would not put too much of a burden on employees to remind customers of the law.
“From my point of view, I don’t think the burden should be on us to enforce a relatively new law that is still controversial,” said West Hooker, owner of the popular promenade restaurant Locanda Del Lago, which has an outdoor dining area covered by the law. “I don’t want to have to be in the position of telling people what they can and cannot do.”
Hooker was particularly worried about foreign tourists who may not be aware of the law. He doesn’t want to risk driving away customers who would be confronted by his staff, who are in the business of providing the best dining experience possible.
He suggested that instead of a “negative” ad campaign that City Hall put a positive spin on their campaign.
“Perhaps we can say something like smokers can extend their lives in Santa Monica because they are not allowed to smoke,” Hooker said, eliciting laughter from those who attended a Monday morning briefing hosted by the City Attorney’s Office.
The California Restaurant Association, the leading advocate for the dining industry in the state, is not opposed to the changes being proposed by City Hall.
“We talked with the City Attorney’s Office and they assured us that if someone lights up on a patio, police are not going to walk up to the manager and issue a citation,” said Andrew Casana, senior director of local government affairs.“We certainly don’t want employees to be chasing customers around, and we don’t believe that it will come to that.”
Since the introduction of the first smoking ban in 1975 in Minnesota, business owners have expressed concerns about the impact the bans would have on their bottom lines, but so far, there has been no evidence to suggest that no smoking laws are taking a bite out of profits, Casana said.
In fact, enforcing the bans helps businesses, said Robert Berger of Healthier Solutions, a marketing firm that is working with Santa Monica to educate people about the no smoking law.
Berger and representatives from Los Angeles County Department of Public Health said if the law is not enforced, then businesses who encourage smoking will have an unfair advantage over those who don’t because they will be attracting more smokers to their establishments. Enforcement “levels the playing field,” they said.
Also, more and more people are choosing to dine only at restaurants where they know smoking is prohibited. By catering to this segment, business can also increase their profits.
Radinsky said changes to the law have not been finalized and he is not sure what type of penalty or fine structure will be added. Attorneys are considering sticking with the $250 fine per citations or they could opt to use the state’s tier of $100 for the first offense, $200 for the second and $500 for the third. They could also go so far as to revoke a business license if an operator is cited repeatedly within a year, however, Radinsky said that will not be recommended to the council.
The proposed changes could go before the council by the end of the month or sometime in October. Radinsky said the goal is to do something sooner rather than later in the interest of public health.
Originally published in the Santa Monica Daily Press print edition on September 18, 2007. Read the original PDF.