A new proposal brought forth by District 7 Supervisor Myrna Melgar to ban smoking on outdoor bar patios has sparked heated discussions among public health advocates, bar owners, and the supervisors who will be voting on the ordinance. It’s also created a cloud of confusion around smoking laws.
Melgar’s office, which represents the West Portal, Forest Hill, Parkmerced, Golden Gate Heights, Inner Sunset, St. Francis Woods, Miraloma, and Monterey Heights neighborhoods, has repeatedly framed the proposed ordinance as a way to align the city with state law. State law does not prohibit smoking at outdoor bar or tavern patios. It only restricts smoking in indoor workplace settings, such as inside bars, restaurants, and offices. Several other cities in California, including San Jose and Oakland, prohibit smoking on bar patios in their local legislation.
Even state health officials were confused when asked if the state has any laws against smoking at outdoor bars or tavern patios. Several emails later, an expert weighed in: No. Melgar’s proposed ordinance would be stricter than state law.
Alejandro Montiel, the owner of the San Francisco Eagle Bar, a leather club in SoMa, noted in a letter to the Small Business Commission the way that the ordinance has been marketed. Montiel claims that it’s “broader than its public framing suggests.”
A petition opposing the ordinance, which has garnered nearly 2,800 signatures, echoes that: “Bars and restaurants, in particular, navigate a labyrinth of overlapping local regulations that far exceed state and federal requirements.”
The city’s Office of Small Business unanimously voted to oppose the proposal last month.
Melgar’s office refers to the ability to smoke at bars as one of the city’s “loopholes” despite it complying with state law. The proposal from Melgar’s office would, however, close existing loopholes that eliminate “preempted exceptions” for owner-operated bars and taverns. The state got rid of this exemption in 2016. The ban would also do away with another exemption to California law that currently allows SF hotels to permit smoking in up to 25 percent of their rooms.
The ordinance poses an existential threat to one of the city’s last bastions of the old world, the Occidental Cigar Club. With the blessing of city officials, this owner-operated exception is what has kept the 25-year-old cigar and whiskey lounge on Pine Street alive and legal. A sign at the door gives fair notice: “If the odor of fine tobacco products offends you, this is not an entrance.”
If passed, the ordinance would force Occidental to choose between selling tobacco products or alcohol. Jen Low, Melgar’s chief of staff, told Gazetteer SF that she personally informed the owners of their noncompliance with state law. (Representatives for Occidental Club did not comment.)
The assertion by Melgar’s office that the ordinance would simply catch SF up with state laws is not untrue considering the exceptions it seeks to target. However, positioning the patio smoking ban at the center of the ordinance has created widespread confusion among business owners, patrons, and the press.
Owners and employees of tobacco-infused businesses like hookah and cannabis lounges were confused on whether the ordinance would affect their operations. The city’s health department was also confused on whether hookah businesses, many of which rely on outdoor patios and semi-enclosed spaces to operate, would be impacted by the ordinance. They directed me to Melgar’s office for answers.
Melgar’s office was also unclear (or not sure) about how, or to what extent, the ordinance would impact hookah lounges. Low, from Melgar’s office, told Gazetteer SF that hookah falls under a different law because it’s not tobacco. (Hookah is the word for the water pipe used to smoke shisha, a moist and sometimes flavored tobacco.) It’s worth remembering that roughly two dozen hookah lounges were ordered to close in 2011 due to changes to smoking laws that restricted any businesses that host indoor smoking from also serving food or beverages.
Earlier this week, the supervisors agreed to delay the scheduled vote on Melgar’s ordinance to the June 8 land use and transportation committee meeting. If it gets advanced during that vote, it will then need to garner the approval of at least six supervisors to pass.
“We recognize the concerns raised by bar operators and appreciate their engagement. I am open to amendments to address the concerns and feel there is a way to meet our City’s longstanding goal to promote public health through smokefree places and support our small businesses,” the office of Supervisor Melgar said in a statement to Gazetteer SF. “I believe many of my Board colleagues expressed openness and we will continue to explore different options in the coming weeks.”
Until then, smoke ‘em if you got ‘em.
