Vaping on the 16th St mall Oct. 11, 2017 could be a thing of the past as the City Council committee will discuss and likely advance the 16th Street Mall smoking ban proposal. (John Leyba, The Denver Post)

Proposed ban on smoking, vaping for Denver’s 16th Street Mall discriminates homeless, advocates say

A proposal that would make the 16th Street Mall smoke-free isn’t about public health, opponents say, but about creating another means to push homeless and impoverished people out of Denver’s public spaces.

The Denver City Council’s safety, housing, education and homelessness committee on Wednesday approved moving the “Breathe Easy” ordinance along for consideration by the entire council later this month.

The measure, introduced by council president Albus Brooks, would ban all forms of traditional tobacco smoking and the use of vaporizers and e-cigarettes on the high-traffic, public mall. It would apply to all public areas on 16th Street from Broadway to Chestnut Place, and within 50 feet of where the mall’s public right of way ends in either direction.

Brooks says the measure is an overdue means to protect public health in a business and tourism corridor that draws 40,000 to 80,000 visitors every day. The measure has support from medical professionals, downtown property owners and business groups.

Speakers at the meeting included Dr. Barry Make, a pulmonologist with National Jewish Health, who said the density of crowds on the mall makes exposure to secondhand smoke particularly difficult to avoid.

“I would just like to say, first and foremost, this is about health and wellness,” Brooks said in a presentation to the committee, pointing to Centers for Disease Control and Prevention statistics that say 2.5 million people have died from ailments related to exposure to secondhand smoke since 1964.

But homeless advocates see it differently, describing the proposed rule as thinly veiled discrimination, and likening it to Jim Crow and other past laws crafted to limit the opportunities of certain groups and exclude them from public life.

“This smoking ban ordinance is persecution dressed up a public health measure,” said Dianne Thiel, who is not homeless. “This is persecuting homeless people for existing in our city.”

Under Brooks’ ordinance, smoking on the mall would be a civil offense punishable by a fine of up to $100. Brooks has also endorsed a soft rollout, with police and security officers being instructed to talk to violators about the new rules, instead of writing tickets, and directing them to places where they can smoke. He said he consulted with homeless advocacy groups such as Dry Bones Denver and Urban Peak Denver to ensure the ban was not crafted in a way that targeted anyone.

But opponents of the ordinance at Wednesday’s meeting weren’t having it. Representatives of Denver Homeless Out Loud pointed to the city’s urban camping ban as a measure they feel has been used to unfairly harm homeless people.

Terese Howard, an activist with the organization and who pleaded guilty in August to violating that camping ordinance, cited findings by her organization that showed 83 percent of people cited for violating smoking bans in downtown Fort Collins and Boulder were homeless.

People who can’t afford to pay their fines or fail to appear to answer a civil charge often are still subject to arrest in Colorado cities, Homeless Out Loud says.

“I don’t think we can ignore this track record of discriminatory enforcement,” Howard said. “This again is about pushing poor and homeless people off the mall.”

The measure comes to the fore a little more than a year after Denver officials introduced a new security plan for the mall aimed at curbing disruptions caused by traveling young people whom Mayor Michael Hancock described as a “scourge of hoodlums.” The city has invested hundreds of thousands of dollars in recent years in finding way to increase the time people linger on the mall, instead of passing though on their way to other destinations.

Councilman Rafael Espinoza said he shared some of the homeless advocates’ concerns. He referenced CDC statistics showing that more than 50 percent of smokers have a GED or no high school equivalency at all. Those same statistics indicate just 11 percent of smokers have a bachelor’s degree or better.

“I am concerned that we are targeting a very, very vulnerable population,” Espinoza said.

Other council members worried about the impacts on restaurant workers and members of the service industry and wondered whether the ban would apply to alleys, more than a dozen of which are privately managed.

Brooks urged his council colleagues to spend some time on the mall and observe all those who smoke there. He said he saw many people emerging from office towers to light up. He also expressed a willingness to revisit the issue if enforcement statistics show disproportionate impacts for any group.

“Let’s track it. Let’s look at the stats 30, 60, 90 days out and see who is getting the tickets,” Brooks said. “Let’s not guess. Let’s do the work.”

The measure is tentatively scheduled for a first reading before the City Council on Oct. 23. A second reading and council vote could follow on Oct. 30.

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