With Palo Alto's crusade against tobacco rapidly gathering force, two members of the City Council on Tuesday floated a proposal to raise the minimum age for buying cigarettes to 21.
The proposal, made by Councilmen Pat Burt and Tom DuBois, came in the midst of a lengthy discussion by the council's Policy and Services Committee about updates to the city's ever-evolving smoking ordinance. Over the course of the meeting, the four-member committee unanimously agreed to recommend a ban on e-cigarette sales at all locations where the traditional kind is currently banned; to recommend a ban on smoking at all apartment complexes where non-smokers reside; and to pursue a licensing program that, for the first time, would keep track of cigarette vendors and require them pay an annual fee to the city.
There was far less consensus on the proposal to raise the legal age for cigarette purchases beyond the state threshold of 18. While Burt and DuBois voted to direct staff to draft an ordinance raising the age, Councilmen Marc Berman and Cory Wolbach opposed the move. All four agreed that tobacco products are deeply harmful, but they split on whether to make a distinction between different stages of young adulthood. Burt had no issue with doing that.
"It's completely reasonable for us to consider restrictions to sales of harmful material for those who are not fully adults yet," Burt said.
Wolbach, however, said adults have the right to make decisions, even "really bad" ones like smoking cigarettes. He said that while he despises tobacco, he cannot support legislation that would raise the legal age for buying it to 21.
"It's age discrimination among adults," Wolbach said.
Berman agreed and, to demonstrate his reasoning, proposed an even more radical move: banning tobacco sales for everyone. When that proposal predictably fizzled, Berman made the point that if something is so harmful that it should require prohibition, it shouldn't be sold to anyone in the community. Like Wolbach, he took issue with a proposal to raise the buying age.
"I haven't heard any rationale for why someone who is 20 should be treated differently from someone who is 21," Berman said.
The unexpected discussion about raising the tobacco-buying legal age sprouted out of a recommendation from Public Works staff that the council support efforts in the state Legislature to raise the age limit. This includes, most notably, Senate Bill 151, a proposal by state Sen. Ed Hernandez to change the state's legal age (he withdrew the bill in July just before a scheduled hearing). Burt and DuBois both supported this recommendation.
Burt then proposed taking things a step further and pursuing a local ordinance to that effect. Santa Clara County recently passed an ordinance raising the legal age to 21 in unincorporated areas. And while questions remain whether cities and counties can legally adopt a stricter threshold than the state, City Attorney Molly Stump cited the determination by the county's legal counsel that they could. She said her office will have to explore the subject further before returning to the committee with more information. It will ultimately be up to the full nine-member council to determine whether the city should make the change.
But while the proposal to raise the smoking age remains hazy and controversial, a recommendation to include electronic cigarettes in the existing ban is heading toward almost certain adoption. The committee agreed that the devices, which turn nicotine and other chemicals into vapors, should be treated like regular cigarettes. Berman said e-cigarettes are something that "really scare me." He said he was worried about all of a sudden seeing Palo Alto's youth adopting this habit.
"I worry a lot that they're going to transition to real cigarettes, and we're going to be back to where we were 20 years ago, before the gains were made," Berman said.
Committee members had previously expressed support for including e-cigarettes in the ban, and they reaffirmed that position Tuesday night when they directed staff to return with an ordinance that achieves this.
There was far more discussion and uncertainty, however, about a proposal to ban smoking at multi-family buildings. The committee considered this issue earlier this year but balked at making the change. Instead, they asked staff to evaluate whether it's possible to isolate smoking areas in buildings and protect individual apartments from second-hand smoke through the use of air-cleaning systems, ventilation and air-conditioning systems.
On Tuesday, Public Works staff and several public-health experts testified that preventing second-hand smoke from spreading is extremely difficult, if not impossible. Their testimony in many ways echoed the 2006 finding by the U.S. Surgeon General that "separating smokers from non-smokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke."
Suzaynn Schick, assistant professor of medicine at the University of California, San Francisco, said "third-hand smoke" can persist for days, months and years. It can also travel as a vapor and can combine with other chemicals to form a "very toxic, lung-specific carcinogen."
Liz Williams, project manager for American Nonsmokers' Rights Foundation, pointed to a 2005 conclusion from the American Society of Heating, Refrigerating and Air Conditioning Engineers, which concluded that "ventilation cannot eliminate the health danger posed by secondhand smoke, and smoking does not belong indoors."
Given the difficulty of protecting apartments from secondhand smoke, the Policy and Services Committee voted to simply ban smoking at multi-family complexes. This recommendation went well beyond the recommendation from Public Works staff to limit the ban to common areas, balconies and outdoor areas close to doors and windows. Phil Bobel, assistant director of Public Works, argued that enforcing the ban would be far more difficult if it were also extended to individual apartments.
The committee, however, was not swayed. Enforcement of the ordinance, Berman said, will be a challenge -- but it's not that different from enforcing other nuisance issues, including noise.
"We all know we need to do a better job enforcing the gas leaf-blower ban," Berman said. "This is the same thing, but I don't think it being difficult is necessarily a reason not to do it."
The committee also discussed a proposal by staff to partner with Santa Clara County for a program to regulate tobacco sales. Members agreed that such a partnership should be pursued. Burt said he didn't think enforcement would be a problem and noted that only 20 to 30 local businesses currently sell cigarettes. It shouldn't be too onerous, he said, for staff to require these places to get licenses and to then collect annual fees.
"I wouldn't have a problem charging enough to fully cover whatever (the cost of administrating the program) is," Burt said. "It may mean we don't have little mom-and-pop gas stations selling cigarettes because they choose to not pay a several-hundred dollar fee, or whatever it might be. So be it, in my mind."
In addition to tobacco and e-cigarettes, the proposed prohibition would apply to medical marijuana. While the council will have the option of exempting marijuana use in its revised ordinance, the committee decided toward the end of Tuesday's long discussion not to delve into this topic just yet. DuBois was the only council member who spoke on the topic, saying he wouldn't favor the exemption.
"I think smoke is smoke," DuBois said.