The Santa Monica City Council unanimously gave direction to city attorneys to draft an ordinance amending current smoking legislation to make restaurant owners and managers liable for knowingly or intentionally allowing smoking in outdoor dining areas at its meeting Tuesday, December 11th.

The ordinance is to include signage and education campaigns.

“We have to go about it in the right way — and that’s education, that’s marketing, as well as enforcement and a fine,” said Councilman Kevin McKeown. “That’s part of the whole package.”

The council also requested that the ordinance include prohibiting smoking on all Santa Monica library grounds, as the libraries have had problems and received complaints from the public about smoking on the premises.

This move comes just over a year after the current ban went into effect, which prohibits smoking on the Third Street Promenade and in all farmers markets, all outdoor dining areas and outdoor service areas, such as bus stops, ATM lines and movie theater lines, and within 20 feet of entrances, exits or open windows of buildings open to the public.

Smoking is also prohibited in the city’s public parks and on its beaches.

But the current law does not hold a restaurant operator or a business liable if it knowingly or intentionally permits smoking in its public outdoor areas where smoking is prohibited under the current law.

To date, the city has received dozens of complaints about the current ban not being enforced, said deputy city attorney Adam Radinsky, who heads the city’s Consumer Protection Unit.

Some believe that making business owners responsible will help with enforcement.

There are a number of reasons the city believes this will help, said Radinsky.

For one, the city sees this “as the best way to effectively enforce the law of no smoking at outdoor dining areas,” Radinsky said, adding that the city borrowed the identical standard under state law.

Also, it would effectively level the playing field of businesses.

“We have evidence that some restaurants and other outdoor businesses with outdoor patios are just choosing to ignore the law and do nothing and say nothing when their patrons smoke, while others are quite diligent, and when they’ve wanted to, have easily managed to enforce the law,” Radinsky said. “So it would level the playing field so no business would have any advantage.”

It would also bring Santa Monica in line with a number of cities in Southern California —Beverly Hills, Burbank and Calabasas — and throughout the state that not only prohibit smoking in outdoor dining areas but hold businesses responsible that condone that behavior, Radinsky said.

Willow Evans, a 21-year Santa Monica resident, said she had a deep appreciation for the city’s efforts to protect people from secondhand smoke by strengthening the current law.

“I’ve still had my meals ruined by cigarette smoke,” she said. “Please make restaurant owners accountable for what goes on at their tables. I’ve been a waitress.

“It’s not that hard to handle five to ten tables.”

Evans also pointed out that she had seen a “flagrant disregard of the laws.”

“Ashtrays are put out and, honestly, if you go out late at night, like eight, nine, ten, it’s like all the smokers are out and it’s a big smoking party,” she said. “And they are really rude to anybody that tells you, ‘Hey, there’s an ordinance, could you not smoke?’ It’s been pretty rough.”

Santa Monica Chamber of Commerce board chairman Tom Larmore stressed the importance of public education, a coordinated marketing campaign and signage.

“Our major concern is the lack of education on an illegal activity when education and a marketing effort are important,” Larmore said.

Lou Moench, former owner of Father’s Office, a restaurant and pub on Montana Avenue in Santa Monica, also spoke at the meeting. Father’s Office has voluntarily been smoke-free since 1992.

“Business owners are responsible for enforcing a multitude of laws,” Moench pointed out. “You can’t shoot heroin out on that patio; you can’t engage a prostitute out at the patio. The owners with those businesses are charged with making sure that doesn’t happen. There is absolutely no excuse for their failure to enforce.”

“It is very, very simple to deny service to people who don’t comply with your wishes,” he continued. “If worse comes to worst, you have to call the constable. But that didn’t happen. We did it without ever having to call the police.”

Only one member of the public spoke out against strengthening the current ordinance.

“I’m very much opposed to this proposed ordinance,” said Santa Monica resident Bruce Cameron. “The problem really is not smoking. What the issue is before you tonight is criminalizing non-criminal activity by business owners and their employees. Can you do it? Sure you can. Should you do it? No.”

After the public participation, the City Council discussed the issue.

McKeown agreed with the Chamber of Commerce that the ordinance “should be complemented and in fact preceded by a concentrated effort at education, signage and marketing.”

“I would like us tonight to go ahead and direct staff to prepare the ordinance, also though, to perhaps work with a graphic artist on some attractive signage,” McKeown said. “I think if this signage is going to be as pervasive as it needs to be, we make sure it’s esthetically pleasing. I know how important that signage is.”

At the meeting, assistant city manager Gordon Anderson said, “We would like to bring back to you, as part of the discussions early next year, some additional budget enhancements so we can do a better educational program in the community.”

Councilman Ken Genser suggested that the city also “explore a fine that is possibly more commensurate with the offense.”

The city had suggested a fine of $250. But after a number of different “penalty assessments,” the grand total of the fine and penalties is $920, Radinsky said.

The council made a motion to explore the amount of the fine.

Also, at the request of Mayor Pro Tem Richard Bloom, the council directed staff to provide information on tobacco retail licensing, various methods by which municipalities are regulating smoking in multi-unit buildings, and a non-binding resolution encouraging pharmacies not to carry tobacco products, as the American Lung Association is encouraging cities throughout the state to do.

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