Why sidewalks, not apartments, are the next no-smoking zones.

How you look at things.
April 25 2012 9:05 AM

Smoke Screening

Where will the government outlaw smoking next? To find out, read its polls.

Woman smoking on a sidewalk.
Woman smoking on a sidewalk.

iStockphoto.

What’s next in the war on tobacco? Will the government outlaw smoking in your apartment?

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

That question was thrown at New York Mayor Michael Bloomberg last week as he announced legislation to regulate smoking in apartment buildings. The bill, introduced in the New York City council, would require landlords to disclose to prospective tenants whether their buildings permit smoking. At a press conference, Bloomberg denied he had any plans to prohibit smoking in apartments.

Bloomberg is telling the truth. If you want to know where smoking might be outlawed next, don’t look at apartment buildings. Look at sidewalks.

Don’t take Bloomberg’s word for it. Read his polls. For years, the city has used survey data to guide its campaign against smoking. In 2002, when Bloomberg was considering his first crackdown on cigarettes, the New York City Coalition for a Smoke-Free City commissioned a survey by the Global Strategy Group. The survey found that 77 percent of the city’s likely voters would support the elimination of smoking in all offices. If the prohibition were extended to restaurants, 71 percent would support it. If it included bars, 57 percent would still support it. Armed with these findings, Bloomberg went for the whole enchilada: a ban on smoking in offices, restaurants, and bars. The city issued a briefing book that laid out the poll data (see pages 18-19). At a press conference announcing the proposal, antismoking advocates cited an additional GSG poll of city voters, and city health commissioner Tom Frieden declared: “New Yorkers consistently favor legislation that makes all workplaces, including restaurants, bars, and offices, smoke-free.”

In March 2010, the city health department received a $15 million grant from the federal government to “expand and enhance its comprehensive tobacco control program.” The grant’s administrators allocated $115,000 of that money to GSG to conduct a “Tobacco Behavior and Public Opinion Survey.” The stated purpose of the survey was “to assess changes over time in social norms, awareness and attitudes toward a wide range of policy issues.” Wave 1 of the survey, completed in August 2010, found that 48 percent of New York City adults supported a ban on smoking in parks, and 52 percent supported a ban on smoking at beaches. Those numbers weren’t mentioned a month later, when Bloomberg unveiled legislation to expand the city’s restrictions on smoking. (Bloomberg instead cited a 2009 Zogby poll, commissioned by the Coalition for a Smoke-Free City, to support his claim that “65 percent of New Yorkers favor banning smoking at outdoor recreational places such as parks, ball fields and playgrounds.”) But the policies tested in the city’s August 2010 survey did match what Bloomberg proposed in his September 2010 legislation. The bill extended the city’s no-smoking rules to “public parks, beaches … pools, boardwalks, marinas, playgrounds,” and “pedestrian plazas.”

Bloomberg signed the parks-and-beaches smoking ban into law in February 2011. Two months later, GSG conducted Wave 2 of the city’s tobacco opinion survey. It found that support had increased for a wide range of smoking restrictions. The April 2011 survey added a question that hadn’t been included in the August 2010 survey: “Please tell me whether you favor or oppose a proposal that would prohibit smoking electronic cigarettes or e-cigarettes in indoor public places.” Only one-third of respondents supported this idea. But again, the question signaled an emerging legislative agenda: On April 6, 2011, members of the city council filed legislation to apply the city’s no-smoking zones to electronic cigarettes.

The third and final wave of the survey was conducted last month. This time, it included a question about apartment buildings: “Please tell me whether you favor or oppose a policy that would require landlords to inform tenants if their building permits or prohibits smoking inside apartments.” Sixty-four percent of respondents endorsed this idea. And, lo and behold, that’s exactly what Bloomberg proposed last week. The proposed policy “seems to be very popular,” Bloomberg told reporters. As evidence, city officials cited the GSG survey.

The pattern is obvious. When the city is considering a smoking restriction, it polls the question first. That doesn’t mean every restriction that gets polled will be proposed. But it does mean every restriction that will be proposed gets polled. This is common sense. Before you take on the tobacco industry, millions of addicts, and the culture of personal freedom, you’d better make sure you’re picking a fight you can win. You also need to verify that there’s enough public support to make the prohibition enforceable and to indicate that you can expect compliance. Not to mention the poll’s usefulness in persuading city council members that voting for the bill won’t hurt them.

So when Bloomberg says he isn’t looking to ban on smoking in apartments, you can believe him. If the city were thinking of doing that, it would have tested the idea in its tobacco survey. It didn’t.

Why not pursue this idea? Because it’s a legal, logistical, and political nightmare. It isn’t clear that courts would allow such a law to be imposed on tenants already in place. Nor is it obvious how the city could enforce it. And an outright ban on apartment smoking would have aroused the opposition of the Real Estate Board of New York, which is staying neutral on the smoking-policy disclosure bill.

Bloomberg doesn’t need to ban smoking in apartments. He can eradicate it simply by leveraging the ire of nonsmokers. Already, the city’s tobacco survey shows that 33 percent of New Yorkers who live in multi-family buildings are covered by smoke-free policies instituted by the buildings’ owners or operators. And this number is growing. At last week’s press conference, the mayor pointed out, “The trend is nobody builds a new hotel and lets you smoke.” By forcing landlords and co-op boards to address the issue with incoming residents, Bloomberg intends to help nonsmokers banish tobacco from the premises. “You’ll have a lot of people in big buildings insisting that the rules change,” he told reporters.

So, if apartments are off the list of potential targets for the next smoking ban, what’s on the list? Look at the tobacco survey. According to the city’s most recent report, between Wave 1 and Wave 2, the percentage of respondents who favored “prohibiting smoking in front of the entrances to buildings” increased from 55 to 61 percent. The percentage who favored “prohibiting smoking on sidewalks” increased from 39 to 47 percent.

City officials say they have no plans to ban smoking on sidewalks. They point out, quite reasonably, that the mere fact that they’re polling the question doesn’t, by itself, mean they’re going to try it. But they wouldn’t be polling the question if they weren’t thinking about it. A true nonstarter, such as an apartment smoking ban, doesn’t get included in the survey. A sidewalk smoking ban does.

Sidewalks, unlike apartments, are public. Legally, this gives the government much stronger grounds for prohibiting smoking on sidewalks. It also makes a ban on sidewalk smoking a lot easier to enforce. In fact, it requires the government to step in, since no co-op or condo association can dictate smoking policy on public property. Nor is a sidewalk smoking ban difficult to imagine. The city already prohibits smoking at sidewalk cafes, in pedestrian plazas, and on sidewalks adjacent to hospitals. Extending the smoke-free zone to other sidewalks would be just a difference of degree. Great Neck, a village less than a mile from Queens, enacted a law against sidewalk smoking last year. You can be sure the Bloomberg administration is watching.

Meanwhile, keep an eye on that tobacco survey. By last year, in Wave 2 of the poll, support for a ban on smoking in front of building entrances had risen above 60 percent. Support for a ban on sidewalk smoking had climbed almost to 50 percent. The city finished its Wave 3 polling last month but hasn’t released the data, except on apartment smoking. If the numbers keep going up, it’s hard to believe that a mayor who shut down smoking at parks, beaches, and outdoor cafes will draw the line at sidewalks.

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