City Council Adopts Smoking Ordinance for Golden

A brief recap: the new state law basically prohibits smoking in indoor areas open to the public, such as bars, restaurants, and other businesses.  It also creates a 15’ radius buffer zone around the front entrance of these businesses, the point of which is to ensure that folks can enter and exit without having to walk through a cloud of smoke.  While most of the state law is non-negotiable, the one significant opportunity for local governments to make adjustments is in the size of the buffer zone, so that’s where our discussion centered.

Three folks on Council favored either eliminating the buffer zone altogether or reducing it to something like three feet.  After some discussion, it seemed that the other four – myself included – favored adopting the state standard in our own city ordinance.  The state standard has problems, not least of which is that on a street like Washington in downtown Golden, because so many entranceways are so close together, we’d end up with a series of overlapping buffer zones and then a bunch of generally small, difficult-to-describe areas where smoking would be permitted.  I was willing to support this because I thought it was better to have some sort of buffer rather than none, and I didn’t think we were going to get four votes on something that would be easier to enforce but still provide a reasonable buffer zone.

As I said when this issue first came up (right after I was first elected to Council), I support the statewide ban on indoor smoking in publicly accessible areas.  A statewide solution ensures a level playing field in a way that diverse local ordinances can’t.  I also support the state law’s intent to create smoke-free areas around the front entrances as well (even though the state law is poorly-crafted in this regard).  I think government has an obligation to protect customers and employees from significant health hazards, including disease caused by unclean restaurant kitchens, workplace injuries resulting from unsafe conditions, and exposure to a deadly toxin (tobacco smoke).  Cigarettes and other tobacco products are unusual in that – even when used as directed – they kill, and the significant and severe health effects are not limited to the user but also affect anyone else that inhales the second-hand smoke.

All that said, as we were about to vote I finally understood something I hadn’t realized earlier, namely that under the state law any business owner is legally liable for any violations that occur within the buffer zone regardless of whether the owner has anything to do with the violation.  In other words, if someone lights up while they are strolling down Washington, the police can cite both the smoker and the owner of every single business the person walks in front of within the buffer zone.  It essentially puts the enforcement burden on every single business owner in Golden (i.e., to be safe every business owner would need to station an employee outside full-time to ensure that no one smokes in front of their business), and that just doesn’t seem fair to me.

I think it’s one thing to adopt a law that you only plan to enforce on complaint, which is basically what we were planning to do with the buffer zone, but it’s quite another to adopt a law that is fundamentally unfair.  The only way for us to avoid this problem without violating the state law was to zero out the buffer zone, which is what we did.  I’m hopeful that the state legislature will fix the problems with this law next year, and in the meantime we can see what actually happens in Golden and make adjustments to our ordinance if it seems appropriate.

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4 Responses to “City Council Adopts Smoking Ordinance for Golden”

  1. Rusty Shackleford Says:

    NOOOOOOO! I watched the rebroadcast on cable, and I was a little horrified that the city attorney just adopted Lynne Timpiero’s legal interpretation of the state statute without much thought or analysis. Almost as horrifying was that he hadn’t figured this out BEFORE the meeting. I disagree with this interpretation regarding the liability of business owners and also find it unimaginable that Golden police would enforce this law in such a way to be regularly fining business owners. Overall, a very disappointing outcome.

  2. Jacob Smith Says:

    I’m confident that the Golden P.D. would not have enforced the business owner liability provision, but still it makes no sense to me to adopt a law that is fundamentally unfair. It’s one thing to say you are going to adopt something but only enforce it when problems arise, but to me it seems like quite another to adopt something fundamentally unfair that you then have to say “but we won’t enforce it.”

    As for what the state law requires . . . we should have stopped and insisted that the city attorney go figure it out with certainty. If it turns out that we misinterpreted the state law, we can revisit the question. In any case, I’m hoping that the state legislature next year cleans up some of the messier parts of the statute.

    Regardless, the core of the state law – smoke-free indoors – is intact, so this is still a important step forward.

  3. Rusty Shackleford Says:

    Jacob, I think you are the most intelligent and thoughtful elected representative on city council. But I think the city council is looking at this all wrong.

    The point of this provision isn’t that businesses SHOULD or WILL be fined for each infraction, but that they COULD be fined if they don’t take appropriate steps to implement the law. It seems the fine for businesses was mainly meant to ensure they complied with law and tried to keep people from smoking in inside areas. But fining the business would also be fair and appropriate if, for example, a business’ employees were consistently smoking in the entryway radius, or if patrons regularly congregated around an entryway to smoke and the business did nothing to discourage this (i.e. refused to post a sign or ask them to stop.)

    Moreover, I think the actions of the city council are designed to solve a problem that doesn’t exist. How many businesses were fined (or even given warnings) between July 1st (when the law went into effect) and the council’s adoption of the new ordinance for violations involving the entryway?

    Overall, the change to a zero radius negates the intent of the law to reduce exposure to secondhand smoke. And I can’t understand how the provisions about fining businesses would be any more difficult or unfair to enforce than other provisions of the code dealing with things such as noise prohibitions or snow removal.

  4. goldenvoices Says:

    I take your point, Mr. Shackleford. I’m still uneasy about passing laws that seem unfair on their face, but maybe the way to deal with it would be to clarify that business owners would only be liable for a willful contribution to violations of the smoking ordinance, or something that similarly clarifies that simple lack of enforcement on the part of the business owner (e.g., a one person shop not hiring a second person to patrol the sidewalk in front of their store) does not constitute a violation of the code.

    By next spring – nearly a year after the state law took effect and six months after Golden adopted its own version – we’ll also have a really good sense of what implementation of the law actually looks like. There may not end up being a lot of smoking right in front of store and restaurant entrances, so this might not end up being a problem at all, but if it turns out that there is we can revisit and add a buffer.

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