Smoking Law Shows No Teeth : County Enforcers Rely on Persuasion, Not Prosecution

It was November, 1982, and San Diego was in the vanguard of the nonsmokers movement. The City Council had just approved an ordinance separating smokers and nonsmokers in restaurants and other businesses, a first for a major U.S. city.

It is April, 1988. Following San Diego’s example, hundreds of cities throughout the country have passed nonsmoking laws. But critics say many of them are stricter and more far-reaching than the one here. San Diego, they say, has been left with a law without teeth.

Health associate Willie Pugh and his part-time assistant work in a crowded corner on the third floor of the county Department of Health Services. They are solely responsible for enforcing the city of San Diego’s smoking ordinance, as well as the county regulations.

Pugh acknowledges that someone with a complaint about smokers often doesn’t know where to voice it. He estimated that only one in three violations is reported.

If a complaint is made, there is the matter of enforcement. The law provides for a maximum $100 fine for anyone convicted of violating the nonsmoking ordinance, Pugh said, but no fine has ever been levied, nor has a case ever been referred to court for prosecution since the law took effect in January, 1983.

“Our job is not really to fine anybody, it’s to get them to comply,� he said. “Admittedly, though, the law needs to be toughened.�

To that end, the county Board of Supervisors on April 5 tentatively approved a stricter no-smoking ordinance. Final action will be taken in June or July.

The original proposal before the board called for restaurants to designate 50% of their seats for nonsmokers this year, 75% next year, and to go smoke-free by 1991, Pugh said. The smoking and non-smoking sections would have required separate ventilation systems.

“They didn’t buy the phase-in part of it or the separate ventilation systems, so we’ve had to scale it back,� Pugh said. “We’ll settle for the 50% nonsmoking now, and in a couple of years we’ll try to get the 75%.�

The revised proposal also calls for the fine to be increased from $100 to $5,000, he said.

“The $100 really has no deterrent effect with these restaurant owners,� said Debbie Kelley, program director for the San Diego affiliate of the American Lung Assn. “I think the $5,000 will have a deterrent effect.�

“If you look at the original ordinance, it is very unclear as to what a violation is, much less how penalties can be assessed,� Kelley said. “When we first got it, it was the strongest law we could get. We agreed to place our emphasis on voluntary compliance.�

Two other recent incidents in the county suggest that politicians and the public do not want to move too far too fast on the nonsmoking issue.

Rejected in Del Mar

Del Mar voters handily rejected a ballot measure in November that would have banned smoking on all public beaches, sidewalks and streets, and in alleys and parks. If approved, it would have been the nation’s most sweeping anti-smoking law.

A week after the Del Mar vote, Supervisor Leon Williams submitted a proposal to his colleagues that would have banned smoking in restaurants, bars, stores, places of employment, indoor and outdoor sports and entertainment facilities, ticket lines and common areas of residential complexes.

Employers and businesses would have been given the option of constructing separate smoking rooms that did not share ventilation systems with the nonsmoking areas.

The board rejected the proposal in late November, saying it was far too stringent.

Fewer Smokers in State

An estimated 27% of Californians smoke, down from 35% a decade ago, according to Kelley. She said that, even though local figures are not available, it is widely believed that the percentage of smokers in San Diego is even lower.

“San Diego is known for being a trend-setter where nonsmokers’ rights are concerned,� she said. “We were the first major city to enact a smoking ordinance, and people are, of course, more health-conscious here.�

College Restaurant, Reuben E. Lee, Taco Bell on Clairemont Mesa Boulevard, Anthony’s Harborside, B & B Deli, O’Hungry’s and Dock Masters are among the wide range of restaurants--25 in all--against which complaints were filed in the first three months of this year for alleged smoking violations, according to county health department records.

Letters Sent Out

In each case, the restaurant owners were sent a letter telling them that a complaint had been received by the department and asking them to comply with the law.

“Restaurants . . . shall designate an adequate amount of seating capacity to sufficiently meet the demands and shall inform all patrons that a nonsmoking section is provided,� the city ordinance states.

The interpretation of adequate has been left to Pugh and his assistant.

Eighty-seven complaints about smokers in restaurants were received by the health department in 1987, Pugh said. In each case, the complaint was settled “peacefully� through phone calls, letters and on-site inspections, he said.

‘Not a Hot Priority’

The law requires prosecution before a fine is levied, but Pugh acknowledges that his office has not “even gotten close� to sending a case to the district attorney’s office.

“We all know that a smoking complaint to the DA’s office is not a hot priority,� he said. “However, they would prosecute if they got one, if people just flagrantly violated the policy.�

One restaurant, Old Town Mexican Cafe at 2489 San Diego Ave., has been the subject of eight complaints since 1983, according to health department records.

One woman’s letter details how she requested the nonsmoking section of the restaurant and was told the wait would be much longer. She asked the hostess where the section was, and the hostess pointed toward three tables in the corner, she said.

Three Tables Not Enough

“Not only are three tables an inadequate amount of nonsmoking space for a restaurant that seats 100 people, but, she said, a diner was smoking at one of those three tables,� Pugh said.

Despite the complaints against the restaurant, referring the case for prosecution was “unnecessary,� Pugh said.

“At some point we will have to fine somebody to let them know we do mean business, but so far our way is working,� he said.

Paul McIntyre, executive director of the San Diego Restauant Assn., said his organization views the ordinance as working, “with few exceptions, very, very well.�

“The health department tells us there is an average of eight complaints per month,� McIntyre said, adding that in a county with more than 6,000 restaurants, he considers that figure to be low.

“We as restaurateurs neither condone nor condemn smoking,� he said. “We just want to give our customers a healthy and happy living environment.�

The lung association’s Kelley said the lack of assessed fines has had an effect on enforcement of the ordinance.

“We view it as a kind of mixed bag,� she said. “We’ve seen people do voluntarily comply with it when smoking and nonsmoking areas are clearly designated, but the down side is that there hasn’t been as much enforcement as we would have liked.

Many Don’t Go Back

“Action is taken only when a complaint is filed, and a lot of these people don’t know to whom they should complain,� Kelley said. “They just won’t go back to that particular restaurant, or make their preference known with their feet and just walk out.�

Pugh said many people fume in silence without knowing where their complaint can be directed.

“We figure we get one complaint for every three violations of the law,� he said. “Many people don’t know who to complain to, or don’t realize the law exists, or don’t talk for fear of retribution.�

The 87 complaints logged by the health department in 1987 were considerably fewer than the 184 in 1986 and 166 in 1985. Pugh attributes the decline in part to less media attention.

Judgment Call Made

“When it first passed, there were lots of news accounts and such about the new law, but I’d say many--maybe even half--of the people in San Diego are not aware the ordinance exists,� he said.

Another problem with the figures is that not every complaint received by the department is logged. A judgment call is made by Pugh and other staff members based on “how it sounds.�

“If it’s a violation that’s not really blatant, we just call them up and don’t log it,� Pugh said. “For example, if a person walks in and is smoking a cigarette in the entryway, that is not considered blatant. We’ll give the restaurant a call and just remind them to have people please put out their cigarettes, since the entryway is a public place.�

A Common Excuse

In most of the county, restaurants that seat 20 or more customers are required to provide a non-smoking area, although an exact number or percentage of tables is not specified by law. In La Mesa, National City and Lemon Grove, restaurants that seat 40 or more customers must provide a non-smoking section.

“One of the biggest excuses we get is that, ‘Oh, we know that we’re not in compliance, but we’re in the process of going smoke-free,’ � Pugh said. “We tell them that’s fine, but in the meantime they are required to provide a nonsmoking section.

“The smoking law’s been around since 1983, so they have had plenty of time to provide such a section.�

Ever hopeful, Pugh envisions a “smoke-free� county soon.

“I think we’re setting the groundwork now,� he said. “I think in two years we’ll be closer than we are now. It is very probable we will eventually achieve that goal by the year 2000.�