Jacob Sullum had a nice little email exchange with an official from Calabasas, CA, following his Hit and Run post about the “all which is not permitted is forbidden” smoking ordinance, in which the city nogoodnik tried to claim the ordinance did not allow smokers to be jailed, which of course it does:
I wrote back, pointing out that the ordinance says, “A violation of this ordinance shall constitute a misdemeanor punishable pursuant to chapter 1.16 of this code [which specifies a penalty of up to six months in jail and a $1,000 fine] unless the prosecutor determines to prosecute it as an infraction as authorized by section 1.16.010(a).” Ten hours later, I received this reply:
You are correct regarding the ordinance text. I should have said that the City has publicly maintained that there are no plans to treat violations as misdemeanors. As is true of any violation of the City Code, we have a broad range of remedies, ranging from administrative fines (like parking tickets, which top out at $500), infractions (which also top out at $500), and full-blown misdemeanor prosecution. For the initial period of enforcement, the City only plans on educating people about the ordinance and issuing warnings. In extreme situations, such as repeated and willful violations, a fine may be levied as an infraction.
I guess my point, poorly made in my previous email, was that there are no foreseeable instances where the City would arrest people and put them in jail for smoking under this ordinance. I apologize for any confusion.
So the city’s position is that although it has the authority the put smokers in jail, it will never use that authority. If so, why put it in the ordinance to begin with?
Because they needed to get the ordinance passed. You say you’ll never use the authority, and then pull it out later when the fines don’t have the desired effect. The jail time is only one of the egregious parts of the ordinance, of course. A $500 fine for smoking outdoors is bad too. And not being able to smoke in your own personal automobile. And not being able to smoke outdoors if it is conceivable that another person will be present.