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Menlo Park smoking ban: a one-woman crusade

By Dean Schaffer | 8 Oct 2010

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The Menlo Park City Council approved an ordinance banning public smoking on Sept. 28.

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Under the fluorescent lights in the Menlo Park City Council chamber, Barbara Franklin’s sea-foam green jacket and shorts nearly blended into the faded upholstery of her second-row seat. A Menlo Park resident for more than a decade, Franklin became a fixture of council meetings after she proposed revisions to the city’s smoking ordinance in December 2008.

From then on, she was relentless.

“She would come to every single meeting. If the ordinance wasn’t on the agenda, she would talk about it in the public comment section,” City Clerk Margaret Roberts said.

On Sept. 28, as Franklin calmly looked on, the Menlo Park council members unanimously passed the ordinance, making the city’s smoking regulations among the toughest in the state.

California law has banned smoking inside all public buildings and enclosed workplaces, including bars and restaurants, since 1998. Menlo Park’s new ordinance, which takes effect on Nov. 27, goes far beyond that: smokers will no longer be able to puff in parks, in common areas of condos or apartments, in service or waiting lines, on athletic fields or within 25 feet of any area where smoking is prohibited.

The council exempted sidewalks and public streets, in addition to bars, restaurants and tobacco stores that wish to allow smoking on their outdoor patios.

For Franklin, a retired San Francisco State University professor, the final vote took less than a minute but marked the culmination of nearly two years of advocacy that began with a complaint about her neighbor: secondhand smoke from his condo, directly beneath hers, kept wafting up.

My neighbor can get up as early as 4 o’clock in the morning and start smoking,” she said. “The way the wind currents move, the smoke just comes up and in. It’s just been terrible—dangerous levels.” Franklin said she exchanged numerous e-mails with him, to no avail. “He’s a nicotine addict,” she said. “He’s annoyed with me.”

So Franklin turned to the City Council instead. Through months of research, she educated herself on California smoking laws and the health effects of secondhand smoke and then conveyed her findings to the City Council through almost weekly reports and documents. “She brought a lot of research material to the council,” Roberts, the city clerk, said. “Her passion was very clear.”

At first, Franklin said, “I was just another person getting up to talk.” After about a year of attending meetings, however, she enlisted the support of Derek Smith, the director of San Mateo County Health System’s Tobacco Prevention Program. According to Franklin, Smith helped mobilize attendance for the council’s study session in October 2009, which considered updating the ordinance.

The new ordinance includes an exemption for bars, restaurants and tobacco shops that wish to allow smoking on their outside patios.

The City Council first debated the ordinance on March 2. Most notably, the council exempted the outside patios of restaurants, bars and tobacco shops after Bill Davis, owner of Menlo Park’s Knickerbockers Cigars, testified in the public hearing. Davis claimed that the language of the proposed ordinance would “hurt Menlo Park’s business. People will go to places in Palo Alto and further down where they can have a nice cigar and have a nice meal.” Thanks to the exemption, the terrace between Knickerbockers and its two neighbors—a bar and a restaurant—will continue to allow smoking. Chafing at the change, Council Member Heyward Robinson called the area a “big cloud of nastiness” at the Sept. 14 council meeting.

The ordinance also includes a new section declaring secondhand smoke a private nuisance, which means it can be the basis for a lawsuit. Franklin sees this section as one of the ordinance’s most significant achievements: “That actually is a very big step forward. There are only about three cities that have declared secondhand smoke a private nuisance,” she said, like Belmont, Calabasas and El Cajon.

But the list of cities with similar ordinances is growing. Burbank passed one even tougher than Menlo Park’s on Oct. 4, and Santa Clara County’s Board of Supervisor’s passed a set of ordinances very similar to Menlo Park’s on Oct. 19.

For some smokers, however, the new ordinance in Menlo Park seems too harsh. “There are hazards everywhere, and I don’t know if we can legislate against all of them,” local resident Susan LaCoste told the City Council on Sept. 14. Still, resistance from local businesses has been almost nonexistent, according to Franklin and Roberts, especially after restaurants, bars and tobacco shops were exempted in March.

As with noise ordinances, the smoking ordinance will be enforced by complaint, unless a law enforcement agent sees a violation while it is occurring, according to City Attorney Bill McClure. Complaints will be handled by Menlo Park’s code enforcement officer, who will issue a formal warning for a first violation. From there, violators will be fined $50 for a second violation and $100 for a third; on the fourth instance, the infraction will be increased to a misdemeanor. Private citizens can also move to protect their new right against secondhand smoke in court.

Council Members Kelly Fergusson, Andrew M. Cohen and Robinson have expressed a desire to revisit the ordinance in a year and perhaps eliminate the restaurant, bar and tobacco shop exemption. Franklin shares their ambition. “It’s the first time that they’ve made a change since 1993,” she said. “I hope it doesn’t take another 17 years to tighten it up some more.”

In the meantime, Franklin will finally take a break from the issue that has been a staple in her life for almost two years. “As I said to the City Council,” she joked, “I’m going to have to find something to do on Tuesday night.”

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