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Smoke And Mirrors

Northampton rushes to enact the strictest smoking policy east of Berkeley. But will it produce cleaner air?

By Brian Z. Zayatz & Harrison Greene

For over a year now, the Northampton Board of Health has been busy quietly determining the future of the city’s tobacco policies. The saga has been marked by loose ends, lack of evidence-based decision making, and high levels of opacity and inaccessibility. After a frenzied attempt at a blanket ban on smoking in the downtown area was ambiguously tabled until further notice, an equally rushed new set of regulations that could drastically limit where tobacco can be purchased in Northampton, threatening to shutter businesses, will be voted on at a December 5 meeting at 5:30 on the 2nd floor Hearing Room in City Hall.

Who gets to smoke when smoking is policed?

After tabling tobacco policy for the winter months, the summer kicked off for BOH members at a crowded May 23 meeting at JFK Middle School’s Community Room. A vote had been scheduled on the “Smoke Free Downtown” initiative, which, if passed, would have expanded existing bans on smoking in the city’s parks to include the entire downtown areas of Northampton and Florence. (Proponents of the expansion are quick to point out that it was not a ban, but a confinement of smoking to designated areas, which were never publicly announced beyond incidental mentions at the meetings.) The expanded restrictions had not been publicly discussed by the board over the winter, and the last forum on the issue, in which residents and board members could speak in dialogue to each other, was held in the fall. The vote did not take place, however, but was suddenly cancelled less than 48 hours before the meeting. Instead, the Board held a public comment period which saw a majority of speakers come out against the proposed expansion.

Like city council, the Northampton Board of Health does not answer questions during public hearings or comment sessions although there is no ordinance that they cannot. A number of speakers during May’s public hearing asked questions of the Board regarding the initiative that members diligently noted, but never addressed. Absent a forum, which the Board showed no intention of pursuing despite an obvious desire for dialogue from attendees of the meeting, concerned residents must speak, sit through most or all of the meeting, which may last several hours, to see if their questions or comments are addressed, then return to the next meeting the following month to either respond to the Board’s response, or, as has more often been the case, ask the same questions again.

One question asked repeatedly in different forms by numerous attendees during both the May and June meetings has been how the board intends to address the possibility for this regulation to be wielded disproportionately against Northampton’s houseless. This question the Board did occasionally address, though never without misinterpreting the concern. The concern was never that only the houseless smoke, but rather that there are many reasons, both practical and historically informed, that the houseless and working class of Northampton would be disproportionately targeted. On a practical level, panhandlers often sit in the same place for hours at a time—even if they were only as likely to be reported as their more affluent counterparts, it would still be much easier for police to track them down.

Historically speaking, however, it’s hard for anyone who’s familiar with the Northampton Police Department to believe they will be playing a merely educational role, as both Chief Kasper and the Board have repeatedly assured critics. Kasper herself came to the June 27 meeting to reiterate that her goal was not to target panhandlers, and that for most ordinances regulating behavior in the downtown area, the department’s approach was education driven. Without even addressing the broader implications of police becoming armed “educators,” the NPD’s own track record of escalating conflicts speaks for itself. Should someone refuse the education offered by Kasper’s officers, the regulation dictates that they would be subject to fines starting at $100, escalating after each offense. But as attorney Dana Goldblatt pointed out in a phone call for an earlier piece about this issue, the fines will probably never be issued. Instead, police will escalate a conflict until a suspect can be arrested for something like “‘flailing his arms’ ‘puffing his chest in an aggressive manner’ or, my personal favorite, ‘shouting obscenities,’” under the labels of “resisting arrest” or “assault and battery on a police officer.” This nuance was apparently lost to the board despite numerous requests during public comment for clarification on how this regulation would be pursued equitably.

It was not until November, long after the issue was apparently tabled, that Director of Public Health Merridith O’Leary, who chairs the Board but cannot vote on it, mentioned she had learned that the Board cannot fine individuals through regulations, only businesses. This news prompted BOH members to observe that the City Council, who does have the power to enact local ordinances that fine individuals, recently had a majority of its seats turned over to freshmen, the implication seeming to be that they can be more easily influenced to do the Board’s political bidding.

If we don’t know what the Panhandling Work Group is, how could we be influenced by it?

At the June 27th, 2019 Board of Health meeting, also held at the JFK School, board member Cynthia Suopis made a comment that the Smoke Free Downtown initiative did not come from the BOH, but rather, it had come to them. When The Shoestring sought to clarify this statement with Suopis at the end of the meeting, Merridith O’Leary, the city’s Public Health Director, said that Suopis was “incorrect,” and that the process for this regulation had been the same as it is for any other. When asked if there was any reason that the board was pursuing this initiative, O’Leary’s response seems more in line with Suopis’s comment:

“We’re pursuing Smoke Free Downtown] because of all the complaints that we were getting from downtown businesses about secondhand smoke wafting into their business. They wanted the health department to do something about that, when I said in fact, you need to be in control of your space, and you would be in violation of the Smoke Free Workplace reg[ulation] if in fact smoke was coming in. So if people are congregating, and smoking outside of your door and/or window, whatever it is, and the smoke is coming in, you actually have to ask people to move. And that’s not comfortable for people to do, and it could be confrontational, so that’s actually how this was all promulgated was from the amount of complaints that came into the health department about secondhand smoke coming in.”

In this case, the NPD would be effectively deputized to have these “not comfortable” interactions with smokers on behalf of Northampton business owners. But as then-Look Park Executive Director Shawn Porter said during the same meeting, people are usually amenable to being told by park officials that they’re not allowed to smoke, and rather than call the police, park officials “pick their battles” when smokers refuse to stop. If police were the ones having these interactions, some of them surely would go smoothly, but in cases where someone did raise their voice or otherwise not immediately comply, officers could escalate the situation and ultimately end it with an arrest on charges that could have easily been avoided, but instead send someone into our notoriously unfair criminal justice system.

For reasons outlined above, we could surmise that business owners have probably not been calling the Board of Health to complain about the transient shopping smoker or lunch break smoker. The people “congregating” outside businesses are more than likely houseless people and their friends or family. While only about 13% of Northampton residents are smokers, according to data from 2011-2015, the results of the mayor’s (dubious, but nonetheless “official”) 2017 “Survey of Northampton’s Panhandling and Busking Community” show that 85% of panhandlers smoke tobacco on or near Main Street.

Beyond this staggering disparity, Northampton’s business owners have provided other clues, some louder than others, about possible motivations for the Smoke Free Downtown initiative. (See our pieces on Mayor Narkewicz’s secretive Panhandling Work Group and proposed blanket downtown surveillance for in-depth coverage on the Chamber of Commerce and city officials’ implicit engagement of Northampton’s houseless). Recently, the owner of the now-closed ConVino Wine Bar, Caroline McDaniel, took an opportunity provided by the Gazette to blame her business’s failure on panhandlers “tak[ing] over the sidewalks.”  Even more recently, the Mayor invited around 50 business owners and members of the Panhandling Work Group to elevate their voice regarding which policy recommendations “stood out” from the Work Group’s 248-page report. More quietly, though, as The Shoestring reported in May, Executive Director of the Downtown Northampton Association Amy Cahillane emailed downtown business owners encouraging them to attend May’s scheduled vote on the Smoke Free Downtown initiative. Perhaps groups of people congregating are very intimidating for Northampton business owners, but more likely the idea of involving police in these interactions is appealing because police can do what business owners cannot, which is permanently relocate someone to a jail. For business owners tired of panhandlers “taking over the sidewalks” and allegedly harming their businesses by existing, Smoke Free Downtown would have been a very welcome handout.

(After multiple speakers at the May and June meetings suggested the Board look into possible connections between Smoke Free Downtown and the Panhandling Work Group, Suopis brought it up during the June meeting. “Clearly, we’re not a part of it,” replied Board member Suzanne Smith. The consensus among the Board appeared to be that since they did not know anything about it, there was no reason to suspect they were under its influence and thus should not spend any time looking into it. O’Leary reiterated to The Shoestring after the meeting that “I don’t think that’s our purview,” and that “we have a responsibility to look at [tobacco policy] through a social justice lens, but I don’t think it should direct whether or not we do policy that is in the broader good for all of public health.” She refused to respond when asked whether houselessness or incarceration were public health issues.)

Since cancelling the May vote on Smoke Free Downtown, the BOH spent the summer looking into how enforcement of existing regulations could effectively yield the same results. As O’Leary stated, it is already the onus of business owners to make sure their establishments are smoke-free. When Suopis asked Chief Kasper at June’s meeting whether police would respond to calls about people smoking, she replied that they already do. The Board also proposed revamping enforcement on public spaces that are already designated as tobacco free (and do not happen to be in front of businesses). Pulaski Park, which has technically been smoke-free since 2014 has been the ground zero of this effort. In the late summer, Board members began casually observing Pulaski Park to see who was smoking and when. Suopis, who has no known background in ethnography, said that most of the smokers she saw were not panhandling, and that salsa dancing night, with its “very diverse” crowd, saw almost no smoking. (Smith, who has been keeping her own tabs, said in September that she walks through the park frequently and sees almost no smoking, and that it’s always by the bus stop or front benches, where it is not technically forbidden).

After a lengthy discussion, the Board decided in August that, starting in October, health department employees would start canvassing Pulaski Park accompanied by police officers to inform smokers that the park is a smoke free space, and to hand out information on cessation programs. “It’s not easy to go up to a stranger and tell them to stop doing something without a badge,” opined Smith. The fact that the BOH is willing to direct the department’s personnel and resources towards these contacts begs the question of how else these encounters could have been arranged. Health department employees are not being sent to ask people if they want to quit, and how the department could better support residents who want to quit. Cessation is an extremely difficult process that often takes multiple attempts, is grossly expensive for the uninsured, and usually does not address the axes of class oppression that make smoking an attractive option. Instead, Northampton’s health department workers are informing smokers of a prohibition with armed agents of the state by their side. Any pretense that this is genuinely a public health issue, and not an issue of the city’s propertied class being afraid to breathe the same air as the city’s poorest, goes up in smoke. (The existing regulation’s statement of purpose, for what it’s worth, reads “[in recognition of] the rights of those who wish to breathe clean air.”)

Reports of heightened police scrutiny were brought to The Shoestring’s attention well ahead of the BOH’s timeline. On the morning of Monday, August 26th, the NPD was reportedly called by two middle-aged white men in Pulaski Park regarding a person smoking there, prompting multiple NPD vehicles to be dispatched to the scene of the cigarette smoking. Eric Matlock, a formerly houseless resident of color in Northampton who has been a consistent target of police scrutiny since he was violently arrested during a peaceful protest on the steps of Northampton’s City Hall nearly two years ago, was at the scene, as were Officers Khol and Delano who have been involved in nearly all of his spate of questionable arrests over that time. “They’ve had plain-clothes officers out IDing people for about three weeks,”  Matlock told the Shoestring. “A lot of people telling me about cops harassing them for smoking in public in that time.”

Discussion of Smoke Free Downtown and the heightened scrutiny of areas that fall under existing regulations have both tapered off, at least publicly. The former was never officially tabled, but has not been mentioned at a meeting since June. When asked whether Smoke Free Downtown was still in play, Director O’Leary responded that it was tabled until further notice. Plans for police and Health Department encounters with Pulaski Park smokers were confirmed as planned for October at the BOH’s September meeting, but were never discussed again.

“I don’t know how you prepare to lose 60% of your business, but…”

Since August, the Board of Health has transitioned to devoting the vast majority of their meeting time to finding ways to limit the legal sale of tobacco and nicotine products in Northampton. Initially, the favorite proposed regulation was a reduction of the number of licensed tobacco retailers by attrition, meaning that if a business that sold tobacco products went out of business or was sold, its tobacco license could not be transferred or bought by another business. For businesses that rely heavily on tobacco sales to turn a profit, many of which are immigrant-owned, this would essentially mean that the business could never be sold. At the time, Suzanne Smith was the only Board member to express any hesitation at such a drastic move. “I would really like to hear from business owners,” she concluded.

In September, Cheryl Sbarra, an attorney for the Massachusetts Association of Health Boards, joined the meeting to advise the Board on legal precedent for a variety of different possible amendments to the city’s tobacco policy. Sbarra attested that municipalities generally win when sued by businesses over tobacco policy, though the attrition proposal would likely have to be amended to allow a short window in which another business could apply for a license being given up before it is permanently retired.

Over the course of the meeting, however, rhetoric from the Board grew increasingly heated as the debate moved to whether they ought to pursue more or less restrictive proposals. One possible amendment would put all tobacco and nicotine products in tobacconist shops, which sell only these products. Sbarra reported that Concord, MA, is on track to be the first municipality to pass such a regulation, though San Francisco and Berkeley, California, both have even stricter regulations. While most of the Board, as well as Director of Public Health Merridith O’Leary were in favor of taking action as soon as possible and “wordsmithing” the regulations to perfection later, Smith again had reservations. “I don’t know how you prepare to lose 60% of your business,” she stated. “Ultimately it’s selling death, and I have a problem with that,” replied Board member Laurent Levy, followed by O’Leary asking, “Are we going to let economic concerns move our needle?” Board members added that Mayor Narkewicz also supports this measure. Ultimately, the meeting ended with an agreement to pursue a November vote on having less harsh amendments take effect in January 2020 (restricting menthol, mint and wintergreen flavored products to tobacconists, reducing permits through attrition, and capping the number of tobacconist licenses the city would issue, of which there are currently four) and restricting all tobacco and nicotine products to tobacconists starting in either July 2020 or January 2021.

By the time of the October meeting, Governor Baker had issued a four-month emergency ban on all nicotine and marijuana vaping products. (In Massachusetts, three people have died and 21 confirmed sickened by vaping products. For context, 10 people in Massachusetts have died in pre-trial detention this year. There has not yet been any public discussion of a ban on pre-trial detention.) Unable to reach a final draft of the proposed amendments by the end of the meeting and scrambling to keep January 2020 as an effective date so that it would overlap with the governor’s ban, the Board decided to meet twice between the regularly scheduled October and December meetings. Meanwhile, three of Northampton’s four existing tobacconists have shut their doors indefinitely pending Baker’s ban and further actions by the Board of Health.

On November 27th, Governor Baker signed a bill passed by a large margin in both houses of the state legislature that will limit sale of all flavored vaping products to on-site-consumption smoking bars, ban menthol-flavored cigarettes, tax other vaping products at 75%, and mandate that cessation treatment be covered by all insurers. Some of the goals of this law overlap with those of the new regulations proposed by the BOH, but it is as yet unclear how the law’s passage will affect the December 5th vote or the city’s tobacco retail locations.

Is there science behind the Board of Health’s closed doors?

Discussions of evidence pointing to the efficacy of the interventions sought by the Board of Health were limited during the Smoke Free Downtown meetings and nonexistent during the meetings devoted to sales regulations. Suopis had done a bit of research prior to the May meeting (when the vote had been scheduled), and expressed concern over the mixed evidence. Smith noted that because there are naturally so many confounding factors to studying the impact of an isolated variable on outdoor ambient air quality, it is basically impossible to study. Board members doubted that this regulation would hold up in court if challenged.

Both of these regulations are essentially different degrees of prohibition. Whereas most city officials seem to leap at the opportunity to make bold, self-affirming statements of purpose when they understand themselves to be on some sort of moral crusade, the BOH seems to be an exception. Perhaps it is because taxing and stigmatization have been the most popular tobacco control regimes across the country for years now that these seem unnecessary for the Board to justify. Perhaps it is because the BOH rarely has much of an audience. But the facts that recordings of the meetings are only available by public records request, that meetings were held in Florence at the JFK School until public pressure forced them to relocate, and that meeting times, locations, and agendas are scarcely available or accurate online before the meetings take place (of the BOH’s seven meetings that have occurred since April, only four have happened on the date their own site lists) suggest that the BOH does not want an audience.

Given the relatively recent emergence of more sweeping regulations like the ones the BOH proposed, evidence that these prohibition-based actions are effective at reducing smoking rates is hard to come by. The closest corollaries we have, then, are alcohol prohibition and the war on drugs, neither of which limited access to forbidden substances, but which led to thousands of deaths and millions of lives shattered by incarceration. The statement of purpose in the city’s existing “Regulation… Restricting the Sale of Tobacco Products and Nicotine Delivery Products” does not make any claim that the restrictions detailed therein are effective, but merely a moralistic association: these products are hazardous to health, therefore they ought to be regulated. Tobacco prohibition in Northampton, while every other nearby municipality still allows its sale and consumption, would not be particularly likely to reduce its presence in the community, but will almost certainly shutter at least some of the twenty-eight businesses that sell tobacco in Northampton, and will absolutely provide police with more opportunities to incarcerate the city’s houseless residents.

Aside from the occasional moralistic outbursts by the likes of O’Leary (whose email signature contained a banner reading “Addiction is a not a Choice [sic]. It’s a Disease”) and Levy (who has clarified multiple times that bongs, which he considers art, would still be purchasable under proposed regulations), the lack of any kind of justification for these regulations forces one to wonder why they have dominated every BOH meeting since April. At press time, multiple public records requests are still pending.

All of this paints a picture of an unelected governing body that is, at best, more interested in grandiose gestures than actually improving city residents’ health. The governor’s ban has already shuttered businesses across the state and within Northampton, likely driving some users of these products to the black market, where experts are concerned most of the recent cases of vaping-related illnesses have originated. The Board of Health has made clear that their dream is not to have a healthy city or reach creative and equitable solutions to complex problems, but to race to put Northampton on the map with the strictest tobacco policy in the eastern U.S. regardless of the consequences for the community. On December 5, the Board may get at least some of what they want (after all, they are the ones that vote on it; but May’s abrupt cancellation of the Smoke Free Downtown vote suggests they are not immune to public pressure). Whether or not the amendments pass, Hampshire County is likely to continue to receive failing grades for air quality from the American Lung Association as ozone pollution is exacerbated by climate change. Though the outsized power of their seats allows them great freedom to pursue a wide variety of issues, the Board has instead spent the better part of a year pursuing regressive solutions to structural problems in a climate that will only grow more and more hostile to human health.

Brian Zayatz is a regular contributor to The Shoestring. Harrison Greene is a co-editor of The Shoestring.

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