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The Ever-Expanding Reach of Anti-Tobacco Zealots

San Francisco’s rent-control and tenant ordinances are so oppressive that thousands of apartment units sit vacant in a city where fierce housing demand has pushed rents for tiny apartments to above $3,000 a month. Basically, many property owners there refuse to rent out their apartments because once they do so, it becomes virtually impossible to ever evict a tenant or raise rents to cover rising costs. It’s better to let the units languish.

But across the Golden Gate Bridge, one tony Marin County city passed a law that — if, as expected, its expansive portions spread to other locales — could be the godsend for hard-pressed property owners throughout California. It’s not a housing law, but an anti-tobacco law. It bans all tobacco-related products — cigarettes, cigars, smokeless tobacco, electronic cigarettes, etc. — in multi-unit apartment complexes, condominiums and mobile-home parks. Other California communities, including San Francisco, have smoking bans in apartments, but Novato is dramatically pushing the envelope.

Under the law, which goes into effect January 2018, all leases must include a clause “providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.” In other words, if a tenant or any of the tenant’s guests use any type of tobacco product, the landlord will have the right to evict them.

I’m being facetious about the effect on housing, perhaps, but think of the possibilities here for those landlords who are eager to find ways to ditch tenants and turn the apartments into condos.

The law also prohibits anyone from “knowingly or intentionally permit(ing) the presence or placement of ash receptacles such as, for example, ash trays or ash cans within an area under the legal or de facto control of that person or nonprofit entity….” That means a landlord can potentially evict a tenant simply for owning a commemorative ashtray. Imagine the sting operations that will ensue. Heaven forbid someone sneaks a bit of snuff into an apartment.

OK, it might be tough catching a renter involved in some of these activities, but it’s an opportunity for creative apartment owners. The Novato law tries to help them by making it illegal for “causing, permitting, abetting or concealing a violation of any provision of this section.” So you’re in danger if you know your neighbor took a puff on his e-cigarette on his balcony. Maybe you should report him to the authorities, lest your lease come under scrutiny.

Furthermore, the ordinance allows “any person” — not just someone with standing — to sue any renter who violates the anti-smoking ordinance two times or more and allows that person, acting in the interests of the general public of course, to collect damages. This provides a profit motive to anti-smoking snitches who want to police such behavior. The ordinance even bans marijuana smoke, even as state law now makes smoking marijuana a legal activity.

The city attorney has the right to bring civil actions and criminal code-enforcement proceedings against anyone who has violated the ordinance at least twice. The law is shockingly discriminatory, too. A landlord can apparently enforce the ban at his discretion — and could decide that he’ll overlook a tenant smoking one day but then reconsider after realizing that there’s something else about the tenant he doesn’t like.

The law targets lower-income people given that single-family homes are exempt in a city where the median single-home value is around $745,000. It acknowledges no difference between cigarette smoking, which is unquestionably dangerous, and the use of vaping products and other nicotine products that are far less dangerous to users — and have few discernible “externalities” that could inflict harm on others. It’s an affront to property rights since the law dictates the terms of leases and makes no distinction between private and public property.

If you don’t own a single-family home or car and your landlord doesn’t choose to provide a carefully designated smoking area that meets the city’s detailed rules, there is no legal place to use tobacco products in the entire city given that it’s banned virtually everywhere else.

Ever-more expansive anti-tobacco ordinances are spreading like the Ebola virus. In Contra Costa County, the suburban county east of the San Francisco Bay, the board of supervisors is advancing a measure that would, among other things, ban the sale of all flavored tobacco products in unincorporated county areas.

Never mind that vaping liquids and smokeless tobacco such as Swedish snus (a spitless tobacco product placed on one’s gums) are typically sold in flavors. Public Health England advocates the use of vaping products as smoking-cessation strategies given that they are a far less dangerous alternative. They aren’t totally risk free, of course, but studies indicate they are 95 percent safer than combustible cigarettes. That’s another perverse aspect of these laws, which make it tougher for smokers to use products that help them kick the habit.

The Novato ordinance explains that the “term ‘smoke’ includes, but is not limited to, tobacco smoke, electronic smoking device vapors, marijuana smoke and crack cocaine.” That captures the outlook of the anti-smoking crowd: Smoke is smoke, whether it’s from tobacco, marijuana or crack cocaine. Tobacco is tobacco, even if it’s non-tobacco vapor or a wad of smokeless tobacco in a pouch.

At a recent committee meeting where state officials talked about divvying up millions of dollars in proceeds from California’s newly enacted tobacco tax, a committee member criticized the use of the term vaping, viewing it as the terminology of Big Tobacco. They talked about ways to combat the use of e-cigarettes and then — without any sense of irony — complained about how hard it is to convince smokers to take advantage of tobacco-cessation products. Go figure.

No one — even the tobacco industry — argues that cigarette smoking is safe or that the use of any nicotine-containing products is good from a health perspective. But even though California has a smoking rate that’s second-lowest in the nation (after Utah), anti-smoking activists see few limits on their zealotry. The Novato ordinance is particularly draconian, however, in that it obliterates property rights, expands litigation, cuts no slack to vaping, and further torments those low-income people foolish enough to live in such an upscale enclave.

There’s also a new state tax (an additional $2 a pack, and equivalent tax increases for other tobacco products), and a recent package of anti-smoking laws that includes raising the tobacco-purchase age to 21. There’s no end to this nonsense, and new ordinances will continue to ratchet up the encroachments.

Tobacco retailers have pressed the Novato City Council to reconsider the most noxious elements of the ordinance at a council meeting next week. Maybe city officials ought to enlist the aid of landlords to defend this monstrosity. The law is not a good idea for any number of reasons, but it could be a very profitable tool to promote gentrification.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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