HomeMy WebLinkAbout03-17-2015 C9 Ordinance Second Reading - E-Cigarette Regulations
Mar. 17, 2015
C9
FROM: Derek Johnson, Community Development Director
Prepared By: Greg Hermann, Special Projects Manager
SUBJECT: ADOPTION OF AN ORDINANCE REGULATING RETAIL SALES AND
PROHIBITING THE USE OF ELECTRONIC CIGARETTES IN ALL PLACES
WHERE SMOKING IS CURRENTLY PROHIBITED
RECOMMENDATION
Adopt Ordinance No. 1613 (2015 Series) enacting Municipal Code amendments associated with
regulating electronic cigarettes (Attachment 1).
DISCUSSION
On March 3, 2015, the Council voted 5:0 to introduce Ordinance No. 1613 amending Municipal
Code Chapters 8.14, 8.16 and 8.17 to prohibit the use of electronic smoking devices in all places
where smoking is currently prohibited, require retailers of electronic smoking devices to obtain a
Tobacco Retailer License, limit exceptions for on-site smoking for significant tobacco retailers, and
update relevant definitions.
The ordinance reflects the amendments made prior to introduction and is now ready for adoption.
The amendment will become effective 30 days after final passage of the Ordinance.
ALTERNATIVES
1. The Council could reject adoption of the Municipal Code amendments. This is not
recommended because the Council previously took action to approve policy language for
electronic cigarettes, and previously voted to introduce the Ordinance.
2. The Council could continue final adoption of the proposed amendments and provide
direction to staff for research and revisions, which would require re-introduction of the
ordinance.
ATTACHMENTS
1. Ordinance No. 1613 (2015 Series)
T:\Council Agenda Reports\2015\2015-03-17\Second Reading E-Cigarettes\ECAR- Second Reading, E-cigarette Ordinance.docx
C9-1
THIS PAGE IS INTENTIONALLY LEFT BLANK
Attachment 1
AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO,
CALIFORNIA, AMENDING CHAPTERS 8.14, 8.16 AND 8.17 OF THE SAN LUIS
OBISPO MUNICIPAL CODE RELATING TO THE SALE AND USE OF ELECTRONIC
SMOKING DEVICES
WHEREAS, the popularity of electronic smoking devices including electronic cigarettes
or “e-cigarettes” has grown exponentially, especially among young people; and
WHEREAS, electronic smoking devices are designed to be used in the same manner as
conventional tobacco products and operate by heating a liquid chemical solution with the user
exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and
other conventional tobacco products; and
WHEREAS, a study published in the Journal of Environment and Public Health suggests
that electronic smoking devices “may have the capacity to ‘renormalize’ tobacco use in a
demographic that has had significant de-normalization of tobacco use previously”; and
WHEREAS, a January 2015 report by the State of California Health and Human
Services Agency determined that the use and experimentation of electronic smoking devices by
youth is increasing and that research suggests kids who would have otherwise never smoked
cigarettes are now becoming addicted to nicotine through the use of electronic smoking devices;
and
WHEREAS, this same report further indicates that for young adults (18 to 29 years old),
the use of electronic smoking devices has tripled in only one year from 2.3 percent to 7.6 percent
and that nearly 20 percent of young adults who use e-cigarette have never smoked traditional
cigarettes; and
WHEREAS, the use of electronic smoking devices in public places and places of
employment increases the social acceptability and appeal of smoking, particularly for youth and
young adults, undermining the progress that has been made over the years in discouraging
smoking; and
WHEREAS, the use of electronic smoking devices in smoke-free locations threatens to
reverse the progress that has been made in establishing the social norm that smoking is not
permissible in public places or places of employment in San Luis Obispo, and will threaten the
City’s enforcement of these laws; and
WHEREAS, manufacturers of electronic smoking devices have not submitted clinical
studies about the safety and efficacy of these products to the FDA; and, therefore, consumers
currently have no way of knowing what types or concentrations of potentially harmful chemicals
they are inhaling and exhaling when they use these products; and
WHEREAS, nicotine is a highly addictive neurotoxin and is included in the Proposition
65 list of Chemicals known to the State to Cause Cancer or Reproductive Toxicity. Nicotine is
C9-2
Attachment 1
known to cause birth defects and is particularly dangerous for vulnerable populations including
children, pregnant women and people with cardiovascular conditions; and
WHEREAS, a recent study confirmed that electronic smoking devices that contain
nicotine also emit nicotine in the released vapor and involuntarily expose nonsmokers to
nicotine; and
WHEREAS, a recent study found a total of 22 elements in the vapors produced by
electronic smoking devices, three of these elements (lead, nickel, and chromium) appear on the
FDA’s “Harmful and Potentially Harmful Chemicals List”; and
WHEREAS, the U.S. Center for Disease Control recently reported a rise in emergency
calls to poison centers due to exposure to toxic e-cigarette liquids contemporaneous with the rise
in e-cigarette use, with calls rising from around one per month in 2010, to 215 per month in
2014; and
WHEREAS, electronic smoking devices currently are not an FDA-approved smoking
cessation device; and
WHEREAS, the World Medical Association has determined that electronic smoking
devices “are not comparable to scientifically-proven methods of smoking cessation and that
neither their value as therapeutic aids for smoking cessation nor their safety as cigarette
replacements is established”; and
WHEREAS, the use of electronic smoking devices within public places and places of
employment, including significant tobacco retailers, is inconsistent with current social values
regarding tobacco use, undermines the City’s efforts to curb tobacco use and its harmful effects,
and otherwise contributes to increased use and experimentation of tobacco by youth and young
adults; and
WHEREAS, in order to protect the health, safety and welfare of the community the City
has decided to legislatively prohibit the use of electronic smoking devices within certain areas of
the city.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein as the
findings of the Cit y Council by this reference.
SECTION 2. Section 8.14.020 of Chapter 8.14 of the San Luis Obispo Municipal Code
is hereby amended to read as follows:
8.14.020 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings
defined in this section unless the context clearly requires otherwise:
C9-3
Attachment 1
A. “Electronic Smoking Device” means an electronic device which can be used to deliver an
inhaled dose of nicotine or any other substances, including any component, part, or accessory of
such a device, whether or not sold separately. “Electronic Smoking Device” includes any such
electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic
cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or
any other product name or descriptor.
B. "Person" means any natural person, partnership, cooperative association, private corporation,
personal representative, receiver, trustee, assignee, or any other legal entity.
C. "Proprietor" means a person with an ownership or managerial interest in a business. An
ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater
interest in the stock, assets, or income of a business other than the sole interest of security for
debt. A managerial interest shall be deemed to exist when a person can or does have, or can or
does share, ultimate control over the day-to- day operations of a business.
D. “Tobacco product” means any product containing, made from, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, Electronic Smoking
Devices or any other preparation of tobacco including Indian cigarettes called “bidis.” “Tobacco
product” does not include any product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes and
is marketed and sold solely for such an approved purpose.
E. “Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange
for any form of consideration, tobacco, or tobacco products; "tobacco retailing" shall mean the
doing of any of these things.
F. "Licensing agent" means a city employee designated by the city administrative officer to serve
in this capacity.
G. "Enforcement agency" means the San Luis Obispo police department.
SECTION 3. Section 8.16.020 of Chapter 8.16 of the San Luis Obispo Municipal Code
is hereby amended to read as follows:
8.16.020 Definitions.
For the purposes of this chapter the following definitions shall govern unless the context clearly
requires otherwise:
A. “Business” means any sole proprietorship, partnership, joint venture, corporation, association,
or other entity formed for profit-making purposes or that has an employee, as defined in this
section.
C9-4
Attachment 1
B. “Dining area” means any area available to or customarily used by the general public, that is
designed, established, or regularly used for consuming food or drink.
C. “Electronic Smoking Device” means an electronic device which can be used to deliver an
inhaled dose of nicotine or any other substances, including any component, part, or accessory of
such a device, whether or not sold separately. “Electronic Smoking Device” includes any such
electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic
cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or
any other product name or descriptor.
D. “Employee” means any person who is employed; retained as an independent contractor by
any employer, as defined in this section; or any person who volunteers his or her services for an
employer, association, nonprofit, or volunteer entity.
E. “Employer” means any person, partnership, corporation, association, nonprofit or other entity
who employs or retains the service of one or more persons, or supervises volunteers.
F. “Enclosed” means:
1. Any covered or partially covered space having more than fifty percent of its perimeter area
walled in or otherwise closed to the outside such as, for example, a covered porch with more
than two walls; or
2. Any space open to the sky (hereinafter “uncovered”) having more than seventy-five percent of
its perimeter area walled in or otherwise closed to the outside, such as, for example, a courtyard.
G. “Multi-unit residence” means a building or portion thereof that contains more than one
dwelling space consisting of essentially complete independent living facilities for one or more
persons, including, for example, permanent provisions for living, sleeping, eating, cooking, and
sanitation. A single-family house shared by roommates is not a multi-unit residences for
purposes of this chapter.
H. “Multi-unit residence common area” means any indoor or outdoor common area of a multi-
unit residence accessible to and usable by more than one residence, including but not limited to
halls, lobbies, laundry rooms, outdoor eating areas, play and swimming areas.
I. “Nonprofit entity” means any entity that meets the requirements of California Corporations
Code section 5003 as well as any corporation, unincorporated association or other entity created
for charitable, religious, philanthropic, educational, political, social or similar purposes, the net
proceeds of which are committed to the promotion of the objectives or purposes of the
entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this
section.
J. “Place of employment” means any area under the legal or de facto control of an employer,
business or nonprofit entity that an employee or the general public may have cause to enter in the
normal course of operations, but regardless of the hours of operation, including, for example,
C9-5
Attachment 1
indoor and outdoor work areas, construction sites, vehicles used in employment or for business
purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities,
long-term health facilities, warehouses, and private residences that are used as child care or
health care facilities subject to licensing requirements.
K. “Playground” means any park or recreational area designed in part to be used by children that
has play or sports equipment installed or has been designated or landscaped for play or sports
activities, or any similar facility located on public or private school grounds, or on city grounds.
L. “Public place” means any place, public or private, open to the general public regardless of any
fee or age requirement, including, for example, streets, sidewalks, parking lots, parking garages,
bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses.
M. “Reasonable distance” means a distance that ensures that occupants of an area in which
smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area.
This distance shall be a minimum of twenty (20) feet.
N. “Recreational area” means any area, public or private, open to the public for recreational
purposes regardless of any fee requirement, including, for example, parks, gardens, sporting
facilities, stadiums, and playgrounds.
O. “Service area” means any area designed to be or regularly used by one or more persons to
receive or wait to receive a service, enter a public place, or make a transaction whether or not
such service includes the exchange of money including, for example, ATMs, bank teller
windows, telephones, ticket lines, bus stops, cab stands, and takeout counters.
P. “Significant tobacco retailer” means any tobacco retailer that derives seventy-five percent
(75%) or more of gross sales receipts from the sale or exchange of Tobacco Products and
Tobacco Product paraphernalia.
Q. “Smoke” means the gases, particles, or vapors released into the air as a result of combustion,
electrical ignition, or vaporization of Tobacco Products or any other weed or plant product, when
the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human
inhalation of the byproducts. The term “Smoke” includes, but is not limited to, tobacco smoke,
Electronic Smoking Device vapors and marijuana smoke.
R. “Smoking” means engaging in an act that generates Smoke, such as inhaling, exhaling,
burning, or vaporizing any Tobacco Product or any other weed or plant product intended for
human inhalation; or the lighting of any Tobacco Product or any other weed or plant product
intended for human inhalation. “Smoking” shall not include the igniting, combusting or
vaporizing of material that contains no Tobacco Products where the purpose of such igniting,
combusting or vaporizing is solely olfactory, such as, for example, smoke from incense.
S. “Tobacco product” means any product containing, made from, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to
C9-6
Attachment 1
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, Electronic Smoking
Devices or any other preparation of tobacco including Indian cigarettes called “bidis.” “Tobacco
product” does not include any product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes and
is marketed and sold solely for such an approved purpose.
SECTION 4. Section 8.16.050.A of Chapter 8.16 of the San Luis Obispo Municipal
Code is hereby amended to read as follows:
Significant tobacco retailers in existence as of May 20, 2010, provided within six months
of the effective date a dedicated ventilation system is installed and operational; and provided,
that minors are at all times prohibited from entering the store. If the condition of the required
ventilation system is not met within the specified time then this exception will be null and void.
SECTION 5. Section 8.17.010 of the San Luis Obispo Municipal Code is hereby
amended to read as follows:
8.17.010 Definitions.
For the purposes of this chapter, the following terms shall be defined as set forth below:
A. “Cigarette vending machine” means any electronic or mechanical device or appliance the
operation of which depends upon the insertion of money, whether in coin or paper bill, or other
thing representative of value, which dispenses or releases a tobacco product and/or tobacco
accessories.
B. “Electronic Smoking Device” means an electronic device which can be used to deliver an
inhaled dose of nicotine or any other substances, including any component, part, or accessory of
such a device, whether or not sold separately. “Electronic Smoking Device” includes any such
electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic
cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or
any other product name or descriptor.
C. “Person” shall mean an individual, firm, partnership, joint venture, unincorporated
association, corporation, estate, trust, trustee, or any other group of combination of the above
acting as a unit, excepting however, the United States of America, the State of California, and
any political subdivision or unit thereof.
D. “Tobacco accessories” means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, and any other item designed primarily for the
smoking or ingestion of tobacco products.
E. “Tobacco product” means any product containing, made from, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, Electronic Smoking
Devices or any other preparation of tobacco including Indian cigarettes called “bidis.” “Tobacco
C9-7
Attachment 1
product” does not include any product that has been approved by the United States Food and
Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes and
is marketed and sold solely for such an approved purpose.
SECTION 6. Severability. If any subdivision, paragraph, sentence, clause, or phrase of this
ordinance is, for any reason, held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of the
remaining portions of this ordinance, or any other provisions of the City’s rules and regulations.
It is the City’s express intent that each remaining portion would have been adopted irrespective
of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be
declared invalid or unenforceable.
SECTION 7. A summary of this ordinance, together with the names of Council members voting
for and against, shall be published at least five (5) days prior to its final passage, in The Tribune,
a newspaper published and circulated in this City. This ordinance shall go into effect at the
expiration of thirty (30) days after its final passage. A copy of the full text of this ordinance shall
be on file in the Office of the City Clerk on and after the date following introduction and passage
to print and shall be available to any member of the public
INTRODUCED on the ____ day of March 2015, AND FINALLY ADOPTED by the Council
of the City of San Luis Obispo on the ____ day of March 2015, on the following roll call vote:
AYES:
NOES:
ABSENT:
Mayor Jan Marx
ATTEST:
Anthony J. Mejia
City Clerk
APPROVED AS TO FORM:
J. Christine Dietrick
City Attorney
C9-8
THIS PAGE IS INTENTIONALLY LEFT BLANK
County of San Luis Obispo
I
THE Newspaper of the Central Coast
Cauncli of the City of San Luis Obispo, Cali
MBUNE
fornla, at its Regular Meeting of March 3.
3825 South Higuera • Post Office Box 112 • San Luis Obispo, California 93406 -0112 • (805) 781 -7800
In The Superior Court of The State of California
County aforesaid; I am over the age of eighteen and not
hn and for the County of San Luis Obispo
interested in the above entitled matter; I am now, and at
AFFIDAVIT OF PUBLICATION
all times embraced in the publication herein mentioned
AYES: Council Members Carpenter, Christi.
crff
AD # 1607666
SF,L�OB SPO
CI'T'Y OF SAN LUIS OBISPO
ORDINANCE NO. 1613 (2015 Series)
OFFICE OF THE CITY CLERK
AN ORDINANCE,OF THE CITY COUNCIL
a city Ordinance amending amending Municipal
OF THE CITY OF SAN LUIS OBISPO,
Code chapters 8.14, 8.16 and 8.17 to pro.
hlbil the use of electronic smoking devices
CALIFORNIA, AMENDING CHAPTERS
In all planes where smoking is currenl[y pro.
6.14, 8.16 AND 8.17 OF THE SAN LUIS
STATE OF CALIFORNIA
OBISPO MUNICIPAL CODE RELATING
TO THE SALE AND USE OF ELECTRON.
SS,
IC SMOKING DEVICES
County of San Luis Obispo
NOTICE IS HEREBY GIVEN that the CII)
Cauncli of the City of San Luis Obispo, Cali
fornla, at its Regular Meeting of March 3.
I and a citizen of the United States and a resident Of the
2015, introduced the above titled ordinance
County aforesaid; I am over the age of eighteen and not
upon a motion by Council Member Christi.
anson, second by Vice Mayor Ashbaugh,
interested in the above entitled matter; I am now, and at
and on the following roll call vote:
all times embraced in the publication herein mentioned
AYES: Council Members Carpenter, Christi.
was, the principal clerk of the printers and publishers Of
snson and Rivoire, Vice Mayor Ashbaugh
and Mayor Marx
THE TRIBUNE, a newspaper of general Circulation,
NOES: None
printed and published daily at the City of San Luis
Q_rdlnPkczt .f613[20115Serles) -This is
Obispo in the above named county and state; that notice
a city Ordinance amending amending Municipal
at which the annexed clippings is a true co was
copy,
Code chapters 8.14, 8.16 and 8.17 to pro.
hlbil the use of electronic smoking devices
published in the above -named newspaper and not in any
In all planes where smoking is currenl[y pro.
supplement thereof — on the following dates to wit;
hlbited, require retailers of electronic smok•
Ing devices to obtain a Tobacco Retailer Li-
MARCH 11, 2015 that said newspaper was duly and
cense, limit exceptions for on -site smoking
for significant tobacco retailers, and update
regularly ascertained and established a newspaper of
relevant definitions.
general circulation by Decree entered in the Superior
A full and complete copy of the aforernen•
Court Of San Luis Obis O COUII State of California on
p County, >
Boned Ordinance Is available for inspection
and copy in the City Clerk's Office, located
June 9, 1952, Case 419139 under the Government Code
at 090 Palm Street, San Luis Obispo, Call-
of the State of California.
fomia, or you may call (805) 781 -7100 for
more Information.
NOTICE IS HEREBY FURTHER GIVEN
I certify (or declare) under the penalty of perjury that the
that the City Council of the City of San Luis
foregoing is true and correct.
Obispo will consider adopting the afoje•'
mentioned Ordinance at its Regular M&al -.
/yam
Ing of March 17, 2015 at 6:00 p.m., which
will be held in the Council Chamber, locat-
or ,
ed at 990 Palm Street, San Luis Obispo,
(Signa (u e of Principal Clerk)
California.
DATED: MARCH 11, 2015
Anthony J. Mejia
AD COST: $156.20
City Clerk
March it, 2015 1607666