County’s Indoor Smoking Ban May Be on Shaky Legal Ground

A new county ordinance that bans smoking inside government buildings may rest on shaky legal ground and county officials are asking the state attorney general for an opinion.

The ordinance, approved by the Board of Supervisors last month, was intended to curtail smoking privileges inside all buildings owned or leased by the county, including John Wayne Airport.

The restrictions go into effect this morning and sheriff’s deputies are charged with enforcement. But officials concede that defiant workers and visitors to the county headquarters and courthouse might be able to keep lighting up without suffering the consequences. ,

County lawyers are certain the ordinance applies within unincorporated areas but question whether it can be enforced inside city limits. The county Civic Center sits entirely within Santa Ana, and there are county courthouses in Westminster and Laguna Niguel, for example.

The airport is in unincorporated area, so there is little question of the county’s authority there.

“Generally, our office believes that counties may ‘criminalize’ conduct in county buildings or on county-owned property, but we are not exactly giddy with confidence on that point,” County Counsel Terry Andrus said in a memo to the board. “The district attorney believes otherwise but has substantial doubts also.”

To resolve the matter, Maurice L. Evans, chief assistant district attorney, has requested an opinion from the state attorney general. County officials expect it will take four to eight months before they get a reply. Officials in the county counsel’s office are reasonably confident that the ordinance will withstand scrutiny, but they concede that the issue is not clear cut.

In the meantime, the Sheriff’s Department intends to enforce the new law, even without a clear signal of whether the county is within its rights to do so. Violators would be subject to a $100 fine every time they’re nabbed smoking in a county building, and the smoking area in the courthouse cafeteria will scaled back from 80% of the restaurant to 20%.

The issue of the ordinance’s legality would arise if anyone were to refuse to pay the fine and argue that the law is illegal.

“As a practical matter, it’s never really even been raised so far in a case,” said Thomas Morse, a deputy county counsel who is handling the smoking issue. “There tends to be a very high level of compliance with these laws.”

But some county smokers have been quietly fuming about the ordinance ever since the board approved it. In buildings around the Santa Ana Civic Center, some smokers are worried that they’ll have to do their lighting up among the homeless people who congregate near the county buildings.

Some groups have even talked about coordinating their smoking breaks so that women smokers do not have to venture out alone.

So as workers enjoyed what many had expected would be their last legal day of smoking in the county’s designated indoor smoking areas, news of the law’s ambiguity spread quickly Wednesday afternoon. The question of the hour: Will anyone step forward to challenge the ordinance?

“There’s a discussion about who wants to offer themselves up as the sacrificial lamb,” one smoker said. “There haven’t been a lot of takers.”