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Home My WebLink AboutCOM 0013.134 2002-2004 rr or Harry Kim Dixie Kaetsu Mana m Diceclor Mayor g g .,h a.N' '~i~ Peter L Hendricks Deputy Managing llirecmr (~uuutp of ~aknai`i 25 Aupuni Street, Room 215 • Hilq Hawaii 96720-4252 • (808) 961-8211 • F'ax (808) 961-6553 KONA: 75-5706 Kuakini Highway. Suite 103 • Kailua-Kona, Hawaii 96740 W (808) 329-5226 • Fax (808) 326-5663 _ C June 25, 2003 Z~ ro (T'I ~ 7. v+ The Honorable James Y. Arakaki, Chairman, ~ - 3 (T`I And Members of the Hawaii County Council ?,T N L~ County ofHawai`i ~ 25 Aupuni Street - Hilo, Hawaii 96720 Subject: Bill 260, Draft 5, Relating to Smoking Dear Chairman Arakaki and Council Members: Again, I thank you and the Council for wrestling with the issues surrounding the proposed ban on smoking in certain places in our County. As I stated in my letter to you dated May 23, 2003, I agree with Bill 260's general intent, to control exposure to second-hand smoke. However, the present Draft 5 still contains provisions that I had concerns about in my last communication to you. Proper Role of Government. My concerns focus first and foremost on what is the proper role of government in regulating and limiting personal freedoms. There is no argument that it is appropriate for the County to control second-hand smoke exposure to a reasonable degree. However, some of the proposed restrictions would intrude upon individual privacy and liberty in ways that seem unreasonable and go beyond the proper authority of government. The issue of enforceability also arises as some of the provisions seem to go to the extent that practical enforceability will be in question. Public Awareness. I am also concerned that due to the way certain provisions are worded, many that will be affected are not aware of this bill's impact. I strongly feel we should not pass laws that would affect so many people without their awareness of what is being passed due to the wording of the measure. Specifically, I am most concerned about the following: Smoking Ban In Private Residences. Proposed Section 14-21(a)(12) would prohibit smoking in "[p]rivate residences when used as a licensed child care, adult day care or health care facility." There is no limitation as to time, so this prohibition would apply at all times, even when no clients are present. Nor is there any distinction between private and business areas of the residence. Thus, the residents of the private home aze barred from smoking in any part of the house, even in a private bedroom, bathroom, or patio at any time. ~~t,. . 13. Raf. To, Ref. Dafe Q 2 203 June 25, 2003 James Y. Arakaki, Chairman, and Members of the Hawaii County Council Page 2 This prohibition appears far broader than necessary to protect clients from secondhand smoke. Many operators of care homes have constructed their residences with a physical separation between their personal residence and the portion of the building that is used by clients. This proposal intrudes on the personal privacy and liberty interests of the residence owners, with no substantial rational relationship to protection of others. A prohibition on smoking during hours of operation and/or in the parts of a residence accessible to clients would seem to provide the desired protection. There is another issue that the Department of Health has made me aware of that should also be considered, and that is the rights of adult clients of care homes. We should be aware that there are some clients of care homes for whom smoking is an activity that helps them. Operators of adult care homes, for the most part, do not allow smoking within their facilities by clients because of Department of Health and Fire Department requirements. However, like many shopping centers, these care homes have made provisions for covered areas such as patios or lanais outside the home to accommodate this particular need by some clients. Although I care not to see this, I recognize that especially in these cases, banning smoking in areas identified and set aside by care home operators may seriously jeopardize the health and wellbeing of some clients. I can see no justification for the invasion of the sanctity of the home and individual freedom that will result from this bill as written. Law enforcement would be burdened with an invasive enforcement duty, consuming valuable resources to no real purpose. I do not believe that government should intrude upon the sanctity of the home in this way. Again, I suggest that there are more practical alternatives, such as limiting the ban to business hours as HRS Section 346-158 does, and/or limiting the ban to common areas used by clients. Also, because of the need of some adult clients of care homes to smoke, adult care facilities should be considered separately from facilities providing care to children. Partially Enclosed Areas. Proposed Sections 14-21(a)(6) would prohibit smoking in "all enclosed or partially enclosed areas" within commercial buildings. This includes areas "open to the common use of the tenants of the building and their employees and customers, including but not limited to common entrance areas, ...lobbies ...malls, ...corridors . and waiting or rest areas within commercial buildings." As defined, the ban on smoking in partially enclosed areas would prohibit smoking on any sheltered sidewalk or walkway of the many shopping centers or downtown areas. This would, in effect, completely ban smoking in shopping centers and commercial and retail areas in Downtown Hilo, Pahoa, Honoka'a, Kamuela, Hawi/Kapa'au, Kawaihae, Kailua-Kona, Captain Cook, Hawaiian Ocean View Estates, Na'alehu, and anywhere else covered walkways June 25, 2003 James Y. Arakaki, Chairman, and Members of the Hawaii County Council Page 3 protect customers from our local weather. This would include large shopping centers such as Lanihau, Kona Coast and Crossroads Centers in Kailua-Kona, Keauhou Shopping Center, and smaller commercial centers such as North Kona Shopping Center and Coconut Grove Marketplace. We need to be aware that many commercial areas, including shopping centers, have planned, designed, and constructed their facilities to accommodate customers who smoke by providing outside covered areas for this purpose. This I consider to be good planning on the part of private business that does address this issue of accommodating smokers as well as protecting non-smokers. I can see no justification for the extent of this provision. The question of enforceability also pertains here. Also, I do not believe that the public understands the potential extent of this prohibition. If the Council intends to make these azeas totally smoke-free, it should clearly say so, rather than by enacting this overly broad measure. The 15-foot Rule. Proposed Sectionl4-21(a)(13) prohibits smoking "within a reasonable distance, but not less than 15 feet, from any entrance to, exit from , or any fresh air intake of any enclosed area where smoking is prohibited But "reasonable distance" is not defined. It apparently could be more than 15 feet. There is no way for anyone, smoker or police officer, to tell with any certainty whether one is in danger of breaking the law, especially if the wind is variable. Violations of law should not be so unpredictable. Enforcement of such laws would be too dependent on subjective judgments. Moreover, the 15-foot rule would effectively ban smoking on all sidewalks adjacent to restaurants, retail stores, and other enclosed businesses where smoking is banned. Again, this would effectively amount to a ban on smoking in all commercial or retail azeas. The only places where smoking would be allowed in such areas would be in the roadways or parking lots. I recommend that the entire subsection (13) be deleted. The desired result of preventing smoke from entering through a door or window can be addressed in other ways. For example, business owners can voluntarily place ashtrays at a distance from doorways and windows to encourage smokers to retreat to a distance appropriate for the situation. The Smoking Ban on Bars. This is the most difficult issue for me to resolve within myself, and really gets at the heart of what the responsibility of government is and should be. HRS Chapter 328K requires restaurants to provide no-smoking areas, but exempts bars. The legislature has thus been sensitive to balancing the interests of smokers and bar owners against health interests ofnon-smokers. If smoking is to be limited in places such as these, it should be by market forces and personal choices, and ideally not by the hand of government. June 25, 2003 James Y. Arakaki, Chairman, and Members of the Hawaii County Council Page 4 Conclusion. Please understand that none of the above is meant to imply that I do not agree with you that second-hand smoke is harmful. It is my duty to weigh the benefits and impacts of proposed regulation upon individual freedoms and small businesses. Thank you for hearing my concerns. I sincerely hope that we can together work out legislation which will provide the people of the County of Hawaii with reasonable, enforceable, practical protection against second-hand smoke. A Harry Kim MAYOR