It was a dramatic moment for the Long Beach city officials who remained in the Council Chamber towards the close of the Feb. 18 Council meeting. That night, Michael Shaknovich, owner of E-Cig City in Long Beach, defiantly faced the Council as he protested a proposed electronic-cigarette (or e-cigarette) ordinance.
“As of right now, I’m going to try to make you all Instagram-famous,” Shaknovich told the Council. He panned his cell phone in a quick sweeping motion in the direction of the city officials on the dais. He announced he would publish their picture on the Web. Then the Long Beach businessman went a step further from his spot at the podium. Shaknovich pulled an e-cigarette from his pocket, took a quick drag on the device and exhaled. A big vapor cloud puffed up and hovered over his head before it eventually vanished.
“Still legal,” someone muttered.
Shaknovich argued against the ordinance that would regulate e-cigarette use (also known as vaping) in the same manner as tobacco-cigarette use. Long Beach already has an ordinance that, among other restrictions, prohibits smoking in a number of public areas throughout the city. Shaknovich urged the Council to consider classifying the e-cigarettes separately from tobacco.
“You’re telling me that I can’t vape in my own shop?” Shaknovich asked. “You want to put me out of business? I’m a small business. How dare you?”
During the public-comment period, a few people sided with Shaknovich. They argued that no studies have conclusively shown that e-cigarettes are harmful, but others disagreed and spoke out in favor of the new regulations. These advocates who liked the ordinance emphasized concerns that, without new rules in place, kids currently have easy access to e-cigarettes.
One man noted that youth aren’t only smoking the e-cigarettes with the bubble-gum flavors. He described how kids could get hooked on devices which could contain nicotine.
“We don’t need to give any more [chances] for junior-high-school students to become addicted,” he said, “so let’s regulate these as we do other products containing nicotine. That’s all that’s necessary.”
Melinda Cotton of the Coalition for a Smoke-Free Long Beach also supported the ordinance.
“Just to remind everyone that we’re not preventing people from using these [e-cigarettes] if they feel they help them quit actual tobacco cigarettes,” Cotton said. “We’re only saying, ‘Please don’t smoke them in public places. Please don’t glamorize them for our children.’”
Observers of the Long Beach City Council may have thought that the battle over electronic cigarettes had been decided earlier in February, but the ultimate decision that would change the city’s smoking regulations still needs to be fully approved in another reading of the ordinance.
The Long Beach City Council on Feb. 11 had already voted 5-1 with three members absent in a first reading to approve the ordinance. Councilmembers rarely change their minds after an initial reading, and it might have been expected to pass with the same voting margin at the meeting scheduled for the following week. However, at the Feb. 18 Council meeting, the ordinance was on the verge of failing when the time came for the second-reading vote.
To understand what happened during the Council meetings on Feb. 11 and Feb. 18 requires a basic knowledge of the City’s rules. Attention must also be paid towards the Council’s attendance and voting records for those two nights. In order to be adopted, ordinances need to be approved by the Council in a first and second reading. Moreover, City Attorney Charles Parkin confirmed in an emailed statement to the Signal Tribune that ordinances need to be passed by the Council with at least five votes out of the possible nine, no matter how many of the councilmembers are present. The mayor does not vote on ordinances.
On Feb. 11, Councilmembers Suja Lowenthal, Dee Andrews, James Johnson, Al Austin and Steven Neal voted in favor of the ordinance. Vice Mayor Robert Garcia was the lone dissenting vote that night. Since Foster was absent from the Council Chamber during this time, Garcia chaired this portion of the meeting. Councilmembers Gary DeLong, Patrick O’Donnell and Gerrie Schipske were not present for the vote.
Although the minutes for that night indicate that these three were absent for this particular decision, each of these city officials were present for other votes that evening. In addition, no councilmember was out of town on Feb. 11 and Feb. 18. On both dates, all nine councilmembers and the mayor were present in the Council Chamber for at least a portion of each of the meetings.
However on Feb. 18, only six councilmembers– O’Donnell, Schipske, Andrews, Johnson, Austin and Neal– remained in the Council Chamber to ponder the e-cigarette issue during the second reading of the ordinance. In the absence of Foster and Garcia at that point on the agenda, O’Donnell chaired the Council meeting. Lowenthal and DeLong were also not present for the ordinance’s second-reading vote.
O’Donnell wondered out loud what would happen to the ordinance if the Council voted with only these six councilmembers in attendance. He posed a question to the city attorney.
“So if I have six people, and I have two indicating they’re not going to support [and] approve the ordinance, if we get to the vote of the ordinance, the ordinance dies?”
Parkin acknowledged that O’Donnell was correct to conclude that the ordinance would fail in that given scenario since the ordinance needs five votes to pass. O’Donnell didn’t name the two councilmembers who opposed the ordinance.
Schipske noted the absence of her colleagues and had already offered a substitute motion that delayed the vote for two weeks until the meeting scheduled for March 4. The 5th-district councilmember compared the importance of the e-cigarette ordinance to the medical-marijuana issue as she pressed for full participation from all nine councilmembers.
“We’ve got three councilmembers who are not here to vote on this,” Schipske said, “and I think it’s very important. This is an extremely serious ordinance that we’re taking into consideration.”
The other present councilmembers agreed with Schipske. Her motion passed in a vote of 6-0.
After they voted, Schipske wanted clarification from the city attorney on the proposed ordinance. The 5th-district councilmember acknowledged that other cities have adopted similar ordinances to the one that is proposed in Long Beach, but she also expressed unease if e-cigarettes are classified similarly to tobacco.
“Again,” Schipske said, “my concern down the line is our vulnerability…of including things in a category that really don’t belong there.”
She described earlier models of e-cigarette devices that simulate smoking.
“These vapor devices are different,” Schipske added, “so we’re throwing everything in the same category.”
It is optional for e-cigarettes to contain varying amounts of nicotine, if any nicotine at all. However, during the public-comment period, one individual said that other chemicals besides flavor and nicotine could be used in the devices. He raised the concern that some e-cigarettes could contain THC, also known as tetrahydrocannabinol, an ingredient in marijuana.
Parkin pointed out a practical issue surrounding the City’s ability to regulate the devices, explaining that there would be no way to tell what chemicals an e-cigarette actually contains unless it could be tested.
“And I don’t think we could enforce that,” the city attorney concluded.
As of press time, the ordinance is the 22nd issue on the agenda for Tuesday’s upcoming meeting. It’s the last major agenda item in a long list of topics scheduled to be discussed. Mayor Foster could announce that night that the ordinance will be deliberated earlier in the evening to ensure that all councilmembers have a chance to vote.
The Signal Tribune didn’t contact any individual city official to ask why he or she failed to vote at either of the two Council meetings. Even if a councilmember is absent from the Council dais, he or she may still be working in City Hall, conducting legitimate business related to their role in the municipal government.
It may indeed be an important ordinance that should demand all nine councilmembers to take a position on a controversial issue, but it is still in danger of failing at next week’s meeting. Councilmembers have to decide for themselves whether they will remain at the dais long enough to press the button that will record their vote.
If the Council is still closely divided in its opinion of e-cigarettes, an absent councilmember could decide the fate of the ordinance. On the bright side, an absent councilmember, at the very least, might avoid fame on Shaknovich’s Instagram account next week…that is, if the e-cigarette advocate stays for the meeting too.