Apr 092014

ecigarettesmokingCity Moves to Ban E-Cigarettes Despite Lack of Complaints About Their Use

Last Month, the San Leandro City Council was set pass amendments to the City’s anti-smoking ordinance, as part of the consent calendar, that would prohibit the use of e-cigarettes to consume tobacco or marijuana everywhere where tobacco smoking cigarettes is prohibited today.  The ordinance also included a ban of smoking medical marijuana in private residences and after complaints by citizens Mayor Stephen Cassidy decided to take it off the agenda and bring it back, in an amended format, some time this month.

The staff report that accompanied the amendments to the anti-smoking ordinance provided very little justification for the e-cigarette restrictions, saying basically that City staff had seen people using e-cigarettes in city property and that there are health concerns about e-cigarettes. It cited no studies nor records of complaints.

In order to ascertain whether the use of e-cigarettes is a problem in San Leandro, I filed a California Public Records Act (CPRA) request for:

Any record of any complaint by any person filed or made to the City, City staff and/or the San Leandro Police Department concerning smoking of cigarettes or marijuana, or the use of e-cigarettes or other vaporing devices.

I limited my request for complaints filed from 2012 inclusively to the present, as e-cigarettes have become popular mostly in the last couple of years and the City is very slow in fulfilling long CPRA requests.

It turned out, however, that my search only originated three records detailing five complaints of smoking made to City staff and Police from 2012 to 2014. Four of these concerned cigarette smoking in apartment buildings.  The remaining complaint was about a man smoking marijuana in a bathroom stall at the Main Library.  There were no complaints whatsoever concerning e-cigarettes or marijuana smoking in multi-unit housing. 

The lack of complaints about the use of e-cigarettes, coupled with the absence of scientific evidence on the dangers of “second hand vapor,” puts the City in legal peril if it approves the ordinance without further consideration.  To pass Constitutional muster, any ordinance or law must be “rationally related” to a “legitimate” governmental interest.  It doesn’t take much to meet this standard, but it does require at least a de minimis consideration of what the government interest is and how the ordinance relates to it.  Other cities and states that have restricted the use of e-cigarettes have only done so after holding public meetings on the subject and considering the testimony of experts and members of the public.  If San Leandro moves forward with the ordinance without doing the same, it risks a protracted and expensive legal battle to defend its ordinance.  E-cigarette companies have already taken note.  The log of CPRA requests published in the last City Manager’s newsletter indicates a request for the staff report on this ordinance made by a research analyst at MultiState Associates, a lobbying firm that works for the e-cigarette industry.

Even if the City finds a rational basis to restrict the use of e-cigarettes for consuming tobacco, it should not extend the restrictions to the use of the devices to inhale medical marijuana.  E-cigarettes give medical marijuana patients an easy to use, discreet and safe way to take the medicine they need for pain management or other relief.  The ordinance as it stands would stop them from using an e-cigarette to take medical marijuana in any public place or place of work – thus forcing patients to go back home or go to the sidewalk.  Given the absolute lack of complaints about the use of e-cigarettes, there seems to be no moral justification for adding this burden to people who are already ill.

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