City’s smokers could get snubbed

City Council is considering stepping up local enforcement of state law that prohibits the sale of tobacco to minors.

California voters and the Gilroy City Council could deliver a one-two punch to smokers this week.

If California’s Proposition 29 passes today, smokers face a $1 tax spike per pack of cigarettes, and if the Gilroy City Council passes their proposed smoking ordinance Monday night, smokers will be prohibited from smoking in public parks, except for in designated areas.

The ordinance keeps in step with Santa Clara County’s established ban on smoking in public parks, as well as Morgan Hill’s slightly stauncher ordinance that bans smoking at parks as well as most other public outdoor areas.

Gilroy’s smoking ban would subject those caught smoking where it is prohibited to a “general city penalty” fine of not more than $100, unless the offender had previous infractions to Gilroy’s municipal code. For a second violation within one year, the fine reaches $200. For any additional violation after three offenses, the highest possible penalty is a $1,000 fine with misdemeanor charges.

While the ordinance will likely pass through council, not all council members are keen on the idea.

“This is just making rules for the sake of making rules,” Councilman Dion Bracco said. “It’s not going to be enforced, we’ve already talked about that. It’s just to make us feel good and say we’re doing something.”

Bracco said when he spent Memorial Day at Christmas Hill Park, he didn’t smell smoke at all, and saw few cigarette butts on the ground.

“I think we’re addressing a problem that isn’t there,” he said. “It’s not like we’re going to pay more people to patrol around looking for smokers. If you make a rule that nobody is going to enforce, then what is the point?”

The cost to implement the ordinance (putting up signs in all city parks) is covered by a $21,000 grant from the county to create anti-smoking initiatives and to educate people on the dangers of smoking.

But even with grant money, Bracco sees the ordinance as a needless expenditure.

“Just because you get free money, doesn’t make it right to spend it,” he said.

Council had not yet voted on the issue by Monday’s print deadline.

Marty Fenstersheib, Santa Clara County public health officer, said he is delighted that Gilroy is considering a public park smoking ban.

“We would like to see it be more comprehensive,” Fenstersheib said, “but we are delighted they are moving ahead with this first step.”

By “more comprehensive,” Fenstersheib meant Gilroy should do away with the exceptions that are written into the ordinance, such as allowing smoking at Gilroy Golf Course and Christmas Hill Park during the Garlic Festival. Fenstersheib also hopes that in the future, Gilroy will get rid of the designated outdoor smoking areas all together, as the county has.

“The county made a big step toward being totally nonsmoking, no exceptions. But Gilroy’s ordinance is still a good start because it is still going to protect a lot of people who come into city parks against the effects of second-hand smoke,” Fenstersheib said.

Fenstersheib said that with 15 percent of Gilroy youths who smoke, the city has the highest rate of smokers under the age 18 in the county, and this ordinance will make it just that much harder for youths to smoke.

And Fenstersheib said that although these city ordinances typically aren’t enforced – at least by law enforcement – they still do lessen the amount of smokers in parks.

“A lot of the ordinances for second-hand smoke and outdoor restrictions depend on self enforcement,” Fenstersheib said. “Even though it’s written in and enforcement agencies will assist if necessary, it’s really more about being self-enforcing over time.”

To Councilwoman Cat Tucker, having designated smoking areas at the park was an important part of the ordinance, so that smokers aren’t completely alienated from their community recreation areas.

“There are a lot of ways to look at this,” Tucker said. “If you look at it from the perspective of a young family, of course they are going to be against smoking. But if you look at it from the retirement community – a lot of them still smoke, and they paid taxes to provide public parks too.”

Tucker said creating designated smoking areas is a good compromise.

“We actually have designated drinking areas in two of our parks. If we accommodate people to drink alcohol we should be able to accommodate people who smoke.”

In March 2010, $6.98 million in federal stimulus money was awarded to the county to “reduce adult and youth smoking, help prevent tobacco-related deaths and reduce exposure to secondhand smoke,” and has been spent within the county as well as spread to cities within the county, said Ruth Cueto, assistant to a San Jose council member, Sam Liccardo, who sits on the county’s tobacco prevention board.

In November 2010, the county adopted three anti-smoking ordinances, which in part included prohibiting smoking at all county parks and county fairgrounds, including Uvas Creek Parkway near Christmas Hill Park.

Since the county enforced smoking bans, several cities have followed suit. Morgan Hill, Cupertino, Los Altos, Milpitas, Sunnyvale, Mountain View, Campbell, San Jose and Saratoga have all passed their own versions of ordinances that ban smoking in recreational areas, according to Amy Cornell, spokeswoman for the county’s public health department.

Morgan Hill’s smoking ban, which prohibits smoking at parks, outdoor dining areas, ATM lines, bus stops, near building entries and events such as Mushroom Mardi Gras, took effect June 2.

In San Jose, the penalty for smoking in a prohibited area is $250, although Cueto said the ordinance is difficult to enforce.

“It’s very difficult to actually fine the person unless you can prove you saw them smoking. It’s more of the community enforcing the ordinance – community pressure you can call it,” Cueto said.

It’s this “difficulty to enforce” that makes these ordinances futile, according to Jeff Burrus, manager of Morgan Hill Cigar Company.

“We perceive a lot of people are putting an awful lot of effort into something that isn’t going to have a lot of impact,” Burrus said of the recently passed ordinance in Morgan Hill and the proposed ordinance in Gilroy.

Burrus did say that Gilroy’s ordinance is much less heavy-handed than the one Morgan Hill tried to pass, which initially did not allow for designated smoking areas. (Morgan Hill City Council later adapted the ordinance to accommodate designated smoking areas.)

“We tend to get overly litigious with too many ordinances,” Burrus said. “Not all of our freedoms for why this country was established should be taken away by continued legislation.”

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