Arcata's smoking ban do-over



Barry Lee's dental office, on the southwest corner at J and 10th streets in Arcata, is a tranquil converted home, its bright green lawn sunken below the sidewalk and speckled with hedges and trees.

The little neighborhood corner has been decidedly less quiet recently, according to residents who say Arcata's downtown smoking and open alcohol container bans have driven throngs of people to the edge of the boundary.

"It's very disconcerting to have them congregate on my lawn," says Lee. "They like to sit there and smoke and drink — and it's not just cigarettes."

He's installed lights to deter people from sleeping on the office's front porch. While they haven't been aggressive toward him or his patients, he's seen people use the bushes behind the office as a toilet. His sign has been carried away several times. He routinely picks up litter and cigarette butts. He says he's watched a police officer approach a group of people hanging out and smoking and advise them to move across the street, where the city's smoking prohibition ends.

"I'm getting kind of fed up with that," Lee says. "Even with the whole transient thing in general. I've lived here 40 years and I love it. It's just going downhill as far as I'm concerned."

Arcata Police Lt. Bart Silvers says calls have increased in the outskirts of the boundary, and confirms that officers typically just remind people that they can't block the sidewalk. If an officer disperses a crowd, it usually reforms shortly after he or she leaves.

Before July 19, 2013, smoking was illegal on the plaza, but permitted on the sidewalk in front of tavern row (Ninth Street between G and H streets) and the rest of the downtown area. When the city began discussing expansion of the no-smoking boundary, ostensibly to protect non-smokers from secondhand smoke, Arcata Police Chief Tom Chapman indicated it was also an attempt to disperse the crowds of unsavory types who hung out near the plaza.

Arcata's long had an identity crisis when it comes to the many travelers and locals who spend time smoking, drinking, busking and hanging out downtown. The city's on a popular travel route and mild summers, the promise of low-commitment, under-the-table jobs and a historical tolerance for less-than-traditional lifestyles has for decades made Arcata a destination. Some call the mix of locals and transients street people or "plazoids," and the business community has been bothered by the smoking, drinking, loitering and occasional bad behavior that comes with the impromptu outdoor congregations.

So, last year the city council expanded its no-smoking zone to the downtown rectangle bordered by 11th Street to the north, Seventh Street to the south, U.S. Highway 101 to the east and J Street to the west. Anyone smoking within those boundaries could be charged with an infraction but, mostly, it was considered a tool for police to approach and disperse lingerers.

A year later, residents and business onwers on the zone's border are feeling the consequences of smokers being driven into their neighborhoods. Any given day this summer, small or large groups could be found along the borders — huddling on the sidewalks behind the Co-op's drab loading areas; milling around the north side of the Safeway shopping center; spread out on the grass in the sunken yard of Lee's office; perched on the retaining wall under former Assemblyman and Arcata Mayor Dan Hauser's impressive walnut tree.

At a Sept. 10 city council meeting, one resident said, "I can deal with smoke. I can't deal with people drunk in front of my house during all hours of the night waking my kids up."

Another neighborhood resident, Eric Nelson, complained that interactions with police aren't effective against loitering. "It is so frustrating to watch a police officer come up on a group of people that are obviously drinking, obviously smoking, and if there's too many of them on the sidewalk blocking the sidewalk, all they have to do is get up closer to the fence and all of a sudden it's OK and people can stay there," he told the council.

Some cities have toyed with laws prohibiting sitting and lying on sidewalks and other public spaces, but Arcata's council and city attorney expressed concern at the September meeting about pursuing anything similar, noting that the laws have seen pushback from First Amendment supporters.

"Really, you should not be the least bit worried about people's rights," Nelson said. "It's the rights of the public to have an orderly, non-inebriated society."

Council members Susan Ornelas and Michael Winkler showed interest in expanding the city's smoking ban at the September meeting. Winkler likes the idea of prohibiting smoking further west to K Street, which he says creates more of "natural boundary" than J Street and doesn't end in a residential area.

Ornelas wants the boundary pushed even further, fearing that a K Street boundary would encourage people to congregate on the city's L Street bike path slated to go into construction next year.

Why not a citywide ban?

"My thinking is it would restrict peoples' freedom too much," Winkler said. "My goal in all of this is to keep smoke away from nonsmokers, not to get people away from smoking — because that's a personal decision."

Ornelas is conflicted. She said the smoking ban would be "a bit extreme," but at the same time saw it as a necessary tool to "keep peace in the neighborhoods."

She, too, though a citywide ban would be excessive. "I hate to try and control peoples' behavior," she said. "It also becomes a bit of a farce. Police aren't going to stop someone walking and smoking a cigarette ... not bothering anybody."

Still, the ban clearly is intended to control peoples' behavior: not necessarily smoking, but gathering, loitering and being disruptive. "I generally do believe in freedom for people," Ornelas said during the September council meeting. "But what we have here is people that are rude. What we're trying to do here is control people who are rude through drinking and smoking laws."

The council is decidedly less squeamish about banning open alcohol containers citywide, despite Ornelas' admission during the September meeting that she would often walk to her daughter's house in Sunny Brae with an open beer, despite the fact that she thought it was illegal. "But I could give that up," she said.

The council seemed unanimously in favor of a citywide open container ban, and asked Chapman to return with a proposed ordinance. Currently, boundaries of the open container ban mirror that of the smoking ban.

Apparently the council doesn't share the same concern about personal freedoms when it comes to consuming alcohol — despite the fact that alcohol doesn't put off the noxious fumes that have motivated the council to ban cigarette smoking. While drinking alcohol in public remains legal, it is decidedly illegal to be drunk in public.

Still, council members were concerned that media coverage of the laws would harm the "de facto" open container ban that already exists. It was just generally believed, everyone agreed, that drinking in public was against the law, and so people didn't do it. With the news out, council members feared it would lead to an increase in public drinking, further fueling public safety and nuisance problems associated with alcohol.

As with any nuisance law, compliance is the crux of the smoking and drinking bans, Chapman said. Some people will continue to smoke and drink where it isn't allowed, but, for the most part, people want to obey the law, he said.

Chapman is researching smoking and open container bans in other cities, and expects to bring several options before the council next month. One, which Chapman seems to favor, is to retract the boundaries of the downtown smoking ban, while increasing the distance from entries to businesses and homes where smoking is prohibited. "What we're effectively accomplishing with that is banning smoking on the sidewalks in the downtown area," he said.

He'll also look at several options for expanding the boundaries — but he has concerns that the city will just see the same problem at the new border.

Chapman said the J Street neighborhood's current problems aren't due to a lack of enforcement, and his department doesn't have the resources to make sure everyone smoking in downtown gets a ticket. "Enforcement should not determine success and I don't think it can determine success," he said. "My view has always been: For an ordinance to be effective people have to voluntarily comply with the law."


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