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New Smoking Ban Not Imposed by City Council

It is reported that on June 11, 2007 Mayor Chavez issued an executive order banning smoking on all City property including parks, bus stops, golf courses, Isotopes Park and Sunport grounds. The Mayor neither discussed with the City Council his intention to take this action nor has he provided a copy of the executive order to the Council.

Many people who understand how laws are supposed to be adopted are upset with the Council because they mistakenly believe that this ban has been imposed by the Council.

It is the City Council and not the Mayor that has the authority to establish, by ordinance, those activities that are subject to penalties. The Mayor has acknowledged, in his statements to the press, that he is without authority to impose any fines or legal penalties for violation of his order.

Even though there is no enforcement authority, the Mayor has stated that he wants the order “enforced by Albuquerque residents, city workers and police officers.” Having individuals enforce a policy that has no enforcement mechanism is apparently asking those individuals to enforce this ban through confrontation and/or intimidation, which could easily lead to unfortunate consequences.

“I am not opposed to expanded limitations on smoking,” said Councilor Winter. “I do believe that creating rules that prohibit citizen activities should be done in an open process after public discussion. To simply impose rules without advanced notice or the opportunity for citizen input is contrary to how government should operate. State statutes, the City Charter and City ordinances require that laws not be adopted in private but rather publicly. That public process is what governs the adoption of ordinances by the City Council. For the Mayor to act by executive order is contrary to the principles of open government.

“Rather than prohibit smoking through an unenforceable executive order, I call upon the Mayor to propose legislation for City Council consideration,” stated the Councilor. “This will allow a careful consideration of the wisdom and scope of any expansion of the current law. The City Council has procedures that require that the public be allowed input before an ordinance is adopted. That process should not be sidestepped by use of an executive order.”