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Olive Avenue Confidential

Tobacco ordinance's reach is clouded in smoke

October 13, 2010|By Joe Piasecki

By now, even smokers know that cigarettes are toxic, addictive and just plain evil.

How far city governments should go in telling people when and where they can smoke is, however, a cloudier issue — a balancing act between freedom of choice and public welfare that now also threatens the privacy rights of Burbank condo and apartment dwellers.

A recently adopted extension of the 2007 Secondhand Smoke Ordinance that all but eliminated tobacco use throughout downtown Burbank will, as of May 2011, outlaw smoking on many private patios and balconies.

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Don't get me wrong: I'm sympathetic to the rights of nonsmokers to avoid someone else's toxic habit, and I support most of Burbank's current and pending tobacco regulations.

Smokers in multi-family dwellings shouldn't indulge in enclosed common spaces, in children's play areas or at swimming pools when kids are around.

I can also see the benefit of banning tobacco use in apartments where shared ventilation ducts carry smoke into nonsmoking units, which the new law will do.

But do we really want police officers knocking on doors and entering people's homes on suspicion of smoking tobacco?

That scenario very well could and probably will happen in Burbank as early as next year, though gray areas pose a challenge in enforcing the smoking ban on apartment balconies.

While the new law's intent is to allow police to issue a ticket when someone's smoking affects other people's enjoyment of their balcony — though torching carbon monoxide-producing charcoal and lighter fluid in a grill is OK — it's technically not illegal for a person to blow that same amount of smoke out their open window or patio door.

What happens then, and how much time should police spend investigating, where a smoker's feet were planted at the time of the alleged offense?

When it comes to an officer's right to enter your home, do changing social perceptions about a nasty habit redefine our notions of the Fourth Amendment's probable cause requirement?

So far it appears that impacts of second-hand smoke restrictions have matched their intent, though out-of-towners most often pay the price.

Of the 490 citations issued for smoking in 2009, and the 433 issued the first nine months of this year, 394 and 323, respectively — roughly 78% — went to non-residents, said Burbank police Sgt. Robert Quesada.

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