16th Street Mall Smoking and Vaping Ban Approved: What It Means to You

Update: As predicted in our previous coverage, on view below, the Denver City Council approved a smoking and vaping ban on the 16th Street Mall at its October 30 meeting. The vote wasn't exactly a squeaker, with members favoring the measure by a 9-0 margin thanks largely to an amendment offered by Councilman Paul Kashmann that followed the outlines of policies shared with us by his colleague, Albus Brooks, who sponsored the original bill.

Specifically, Kashmann's amendment calls for the Denver Police Department to collect data about smoking citations handed out on the mall and then sharing its findings with City Council. The approach is intended to determine whether homeless individuals are being disproportionately targeted for smoking — a prospect that led advocates for folks in these circumstances to suggest that the smoking ban was a de facto extension of the controversial urban-camping ban rather than an earnest effort to improve the health of locals and visitors to the mall.

Kashmann's efforts to put a two-year sunset on the prohibition fell short, however.

In his conversation with Westword on the subject, Brooks emphasized that warnings would precede smoking tickets, which will carry a $100 civil penalty rather than a criminal one, and this message was reinforced at the meeting. Puffers can avoid a citation by moving fifty feet off the mall proper.

Continue for our previous coverage.

Original post, 6:52 a.m. October 30: Tonight, October 30, Denver City Council will hear the second reading of a proposed smoking ban for the 16th Street Mall, and it's widely expected to pass despite criticism from assorted community advocates, who fear the measure is a stealthy way to attack homeless individuals who congregate in the area. Sponsoring councilman Albus Brooks insists the policy is about health, not homelessness, and touts protections built into his bill that he sees as guarantees that it won't be abused. Fellow councilman Paul López promises he'll be watching closely to see if that proves to be the case.

"A lot of folks in the homeless community have spoken out against this because they're afraid it's something that unfairly targets them," López says. "I want to make sure the city isn't doing that — and I also want to remind everyone that homeless people aren't the only ones who smoke. There are a lot of folks on the mall, including folks who dress in fancy shoes and suits every day, who come out and smoke there, too."

A similar plan to prohibit smoking on the mall was floated in 2014, and at the time, its primary cheerleaders were aligned with business organizations such as the Downtown Denver Partnership. Groups like these "have been talking about this being a huge concern for a while," Brooks notes, "but I didn't really begin to formulate and push for this until last year, right before I got sick with cancer."

Upon his return to the job, Brooks goes on, "I started meeting with various organizations downtown, and health organizations really came out in support of this and are leading the effort. National Jewish, Denver Health, the National Cancer Society, the Colorado Health Foundation — so many groups. We really looked at this as a health-and-wellness opportunity, and it's received a ton of support."

At the same time, Brooks emphasizes that he also sat down "with homeless providers like Urban Peak and Denver's Road Home. We wanted to meet with the providers to really hear what their thoughts were about this legislation and what we could do to make sure we were mindful of the folks it could affect."

The proposal that resulted is accessible below, and Brooks points out that after the aforementioned conversations, "we made sure it's one of the lowest fines in the nation for this kind of issue, and it's also a civil infraction, so folks won't get a failure-to-appear-in-court notice or anything like that. The idea isn't to criminalize smoking. The idea is to promote a healthy lifestyle in our jurisdiction."

He adds that "it should be rare that anyone will get a fine. People are going to be asked to go fifty feet off the mall if they want to smoke, and they'll only get fined if they say, 'No, I'm not going to go fifty feet away,' or 'I'm not going to put out the cigarette.' And we'll also have our Denver Homeless Outreach Court that they can go to directly, and if they're unable to pay the fines, they'll be waived."

These provisions are important to López . He acknowledges that such smoking bans "aren't an uncommon policy in cities. I think people are really starting to home in on smoking in public places, whether it's tobacco or vaping. And even though the 16th Street Mall has always been a top spot for people to hang out, it's becoming more and more a public place, where people aren't just shopping, but sitting down and enjoying a meal with their families. So this kind of thing makes sense."

Even so, López wanted no doubt that "whatever fines or penalties a person is issued won't mean they'll end up in court or with a citation that could end up with their arrest or imprisonment. That's ridiculous. Smoking isn't a crime."

This equation changes when the substance being fired up is marijuana; smoking cannabis in public is against state law. Still, Brooks says the impact the new concept would have on vaping on the mall is tangential: "Our main concern is tobacco."

He also makes it clear that the homeless aren't the only demographic whose members smoke. He reveals that "a Denver Health team took observations on the mall earlier this month, and in a 45-minute span during the lunch hour, 85 people along four blocks were smoking tobacco, and only three of them were transient, homeless individuals. The others were mostly office workers."

That doesn't surprise López. "When this started to become an issue, I went down there and took a look around, and most folks who were smoking were people working in restaurants — and they were smoking in alleys. They were just taking a quick break, stepping outside, smoking a cigarette and then going back in. So I want to make sure we're not unjustly going after those folks as well. I don't smoke — I have my own personal health reasons for that — but I understand people who do, and I respect that. That's why I want to make sure we treat them with respect — that we're not stereotyping anybody, and we don't use this as a dragnet."

If the homeless are disproportionately singled out for smoking citations, we should know about it pretty soon. The bill's implementation date is December 1, and Brooks says "we're going to have data tracked quarterly to see how many tickets have been written and who they've been written to. That should alleviate concerns that we're targeting with this."

López will plans to carefully analyze these findings, saying, "We need to make sure this isn't something targeting homelessness."

To him, though, "the thing that really needs to be addressed is the overstep on the urban-camping ban, not the smoking ban. I was opposed to that when it first came out, and I continue to oppose it. Having a citation for being homeless is ridiculous, and we've got to do something about it."

Click to read the 16th Street Mall smoking-ban proposal.