ALAMEDA | Nov. 28, 2011 | Nearly everyone in Alameda agrees smoking is bad for you. It is also bad for others who inhale your secondhand smoke, but some other things may ultimately be worse for the city’s overall civic health, critics say.
The recently approved smoking ordinance passed Nov. 15 by the City Council will considerably beef up its current smoking ban to include rental properties. Alameda, cash-strapped like most other cities, is relying on residents to enforce the onerous ordinance.

Weeks earlier during the first reading of the ordinance, Alameda Police Chief Mike Noonan said enforcement of the proposed ban would not be a top priority. “We are not going to be the smoking police,” he said.

With shrinking city staff numbers and limited resources to put teeth into the ordinance, the city is instead relying on its greatest resource—people—to in effect snitch on scofflaws of the smoking ban.

Donna Mooney, the acting city attorney says the crowd-sourcing element of governance featured in the ordinance is rare. There is no other ordinance in the city’s municipal code that allows private enforcement of the law, she said. It’s the so-called “private attorney general” component of the ordinance, not the smoking ban, that has brought a flurry of concern to the table.

Alan Teague is an Alameda resident who backs the bans, but as a rental property owner in the city, he is concerned with how the ban will be prosecuted.”Vigilante enforcement is a little strange and a little disturbing,” he said.

“Smoking is not an illegal act in this country,” added resident Jake Thompson, who urged council to protest tenants’ rights. The rental units portion of the ordinance will begin in January 2013 and protect non-smoking tenants from being subjected to secondhand smoke that unpredictably travels from unit-to-unit.

Vice Mayor Rob Bonta, who is also a deputy district attorney in San Francisco, questioned the legal efficacy of allowing residents not harmed by an act to ask for damages. “That struck me as a little bit peculiar,” said Bonta.”Typically under the law, someone who is damaged is someone who brings the claim forward.”

Alameda City Manager John Russo said the provision is typical within environmental-related laws.
“There are many, many examples of federal statutes that provide for statutory damages because it’s difficult to show how the damage applied to that particular individual.

“The concept of the private attorney general is often included in consumer and other environmental-type statutes and regulations when there is an acknowledgement that the governmental agency may not have the resources at its disposal to do the enforcement at the level the legislature would like to see it done,” said Russo.

That has not stopped other equally contentious features of the original smoking ordinance from falling to the wayside. Bar and restaurant operators were able to excise a portion of the ban that would have prohibited smoking in outside patio areas near public space. Numerous bar owners said the restriction on their smoking clientele would force imminent closure of their businesses.

The ridiculously under-regulated e-cigarette lobby also seems to have dodged inclusion of their nicotine-based product from banishment on Alameda streets. The Council appeared hamstrung over whether the device which constitutes a cigarette-like delivery unit with flavored smokeless nicotine cartridges posed the same dangers as its tobacco cousins. Because the e-cigarettes come in an array of fruity flavors, many opponents say the product is being illegally marketed to children and teenagers.

The more sedate portions of the smoking ban will go in effect Dec. 15. Matters concerning the rental units aspect of the ban will go in effect in Jan. 2013 to allow time for property owners to rework leases with their tenants.

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