Public Comment

Berkeley Says No to Clean Air

By Carol Denney
Saturday February 23, 2013 - 03:42:00 PM

" Weak.” “Embarrassing.” “A joke.”

Not my words. I got on the phone after looking at competing proposals from the Health Department and the Rent Stabilization Board regarding smoking regulations in multi-unit housing, and asked some of the public health advocates I know for their opinions. It wasn’t pretty.

With Richmond’s 100% smokefree law as the gold standard and Berkeley D-rated status quo as one of the worst, the new proposal manages to look even more egregious than leaving things as they are, which is hard to do. 

Just an example: the proposal does not recommend insisting that all new lease agreements be smokefree on the grounds that that would only protect a few people, rather than everyone. 

Did you notice how that made no sense? Protecting all tenants in new housing may not protect those who don’t live there, but it protects the tenants who do live there! And it eliminates the thorny issue the proposal creates in other ways by allowing some people in existing multi-unit housing to smoke indoors while requiring others to refrain, creating sheer policy nonsense, an enforcement nightmare, and completely subverting the health policy goal of having clean, breathable air for everyone. 

Air circulates within a building with shared walls. All you need is one smoker per building to create 100% toxic air for everyone, since there is no safe dose of secondhand smoke. Berkeley’s current proposal doesn’t call it “grandfathering”, but that’s what it is, and it makes the policy goal, clean air, a smoldering pile of ruins. 

I know what you’re asking. Why would Berkeley, of all places, insist on allowing smokers in multi-unit housing to continue to smoke indoors? 

Because of rent control, they answer. Most people drop their groceries right there at the door and run after hearing this, assuming that things are about to get boring, or legal, or both. But I’d seen this move before, years ago, when several commissions recommending a 100% smokefree proposal to the council were sandbagged by that same phrase from the Rent Board. I really wanted the detail this time, because, after all, somebody must understand what it means, and I wanted to know. 

So I stayed and listened to the very few middle-of-the-day meetings the subcommittee had where the most experienced advocates often were required to sit on the sidelines watching Rent Stabilization Board subcommittee members talk about anything but health policy with an ignorance so vast it was perilous to describe and difficult to address. Nobody laughed in their faces, but the temptation was great. 

Almost all of them seemed to think that a successful outcome of a smoking regulation would require everyone to quit smoking. 

Did you notice how that made no sense? The laws against smoking in workplaces, restaurants, and bars didn’t require anyone to quit. It did in fact help some people quit just by the insertion of the minor inconvenience of strolling outside, but nobody had to quit to make the law the ringing success it continues to be for public health. 

Nonsmoking workers in a smoke-filled workplace continue to have their health sacrificed to the tobacco industry’s profits in many states and many workplaces in California such as theaters and casinos, and nonsmoking apartment or condominium dwellers are in the same boat. Their kids die of SIDS, live with asthma, heart disease, and more than 36,000 die every year in California from secondhand smoke. 

It was Councilmember Kriss Worthington’s and Councilmember Max Anderson’s great idea about a year ago to require that the Rent Stabilization Board and the Commission on Community Health get a joint commission together to work out a proposal on smoking in housing with shared walls, the idea being that finally the Rent Board commissioners would encounter, and perhaps be moved by, public health concerns. 

But it didn’t work that way. The Rent Board’s deepest concern is not for the mother whose toddlers are breathing secondhand smoke night and day because of neighbors who smoke, but the possibility of the smoking neighbor getting evicted from his or her home if a smoking regulation is passed and the neighbor refuses refuse to comply. They know that no rash of evictions of smokers has ever taken place in any state or town nationwide, but because they’re afraid it might start here in Berkeley, they’re willing to sacrifice 100% of the public health goal to make sure smokers can go on poisoning their neighbors. 

The smoking apartment dwellers are low-income, the argument goes, and can’t afford to move. But so are the nonsmoking tenants, we pointed out as best we could to the subcommittee. I live next to two chain-smokers of both pot and tobacco. The woman upstairs from their apartment just died of heart failure. The woman across the hall died of cancer a couple of years ago. Another woman died of breast cancer upstairs on the other side of their apartment only a few years before that, and I was just diagnosed with breast cancer. On the other side of their apartment is a family with two toddlers. 

If Berkeley passes what is currently being proposed, tenants in buildings with smokers will get no relief, even though the few who still smoke in Alameda County already tend to step outside to do so. 

What makes this proposal worse than doing nothing at all is that once this proposal passes, the interest in the subject will fade. On average, it takes seventeen years to undo a bad law. Seventeen years is another generation subjected to involuntary death and disease. 

The most convincing argument the Rent Board makes on behalf of their weak proposal is that Berkeley’s Rent control law does not allow changes to a lease. But all tenants have the right to the “peaceful enjoyment” of their units, a right which the City of Berkeley admits is abrogated by a barking dog, which the city designates a nuisance. Secondhand smoke, under this proposal, is considered legally less harmful than a barking dog. 

No one who created a lease allowing one tenant to shoot an automatic weapon through the shared wall would have that lease upheld by a court of law. Yet that’s essentially what smokers do when they light up indoors. You may or may not hit the neighbor next door with the bullets of your automatic weapon or kill them with your secondhand smoke, but the risk is equally serious. It’s just the Rent Board and the police will react in the first case, and blow you off in the second. 

If the City of Berkeley and the Rent Board had any courage, it would make this argument about secondhand smoke pointing to decades of corroborating research and make sure the citizens of Berkeley are protected from the single most preventable cause of death and disease we know. 

Richmond did it; 100% smokefree with no grandfathering. San Raphael did it. Berkeley can only hide behind “rent control” so long as an excuse for inaction. In the meantime, many of us organize our lives around debilitating surgery and treatments. 

When the proposal comes up in April, we can only cross our fingers and hope for the sake of our health that the Berkeley City Council shows more common sense and courage than the Rent Board.