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HomeMy WebLinkAbout04/06/2010, PH3 - INTRODUCTION OF REVISED ORDINANCE - SMOKING PROHIBITION IN CERTAIN AREAS counat ""R°°°4_� j ac,Enba Report C I T Y OF SAN LUIS OBISPO FROM: Shelly Stanwyck, Assistant City Administrative Officer Prepared By: Brigitte Elke, Principal Administrative Analyst SUBJECT: INTRODUCTION OF REVISED ORDINANCE— SMOKING PROHIBITION IN CERTAIN AREAS RECOMMENDATION As recommended by the Community Task Force repeal and replace Chapter 8.16 of the City of San Luis Obispo Municipal Code to introduce comprehensive no-smoking regulations in San Luis Obispo. DISCUSSION Background In 1985, the City of San Luis Obispo was the first City in the world to ban smoking from indoor areas, restaurants, and bars. Since that time, State law"caught up" and Chapter 8.16 of the City's Municipal Code(Attachment 1) which currently regulates smoking in the City of San Luis Obispo found itself on par with State law and regulations. Both now regulate workplaces, health care facilities, government buildings, entertainment places, and food related indoor spaces. Statewide, many jurisdictions have expanded their smoking ordinances to go above and beyond current State law reacting to new information about secondhand smoke and its impact on people's health. In California, over 100 cities have adopted more stringent ordinances prohibiting smoking from outdoor recreation areas. 24 communities have banned smoking from all areas frequented by the public including multi-unit residences. In San Luis Obispo County, Morro Bay, Pismo Beach, Atascadero, and Arroyo Grande have banned smoking from their public parks, beaches, open space, sports facilities, skate parks, biking trails, and dog parks. Ordinance Amendment December 2009 During the communication portion of the agenda on the December 15, 2008 Council meeting, Council directed staff to return with recommendations for possible amendment of Chapter 8.16 of the Municipal Code in Fall 2009. Chapter 8.16 of the City's Municipal Code entitled "Smoking prohibited in certain areas" set forth the City's then current smoking regulations. Council direction was based on numerous complaints received pertaining to smoking and secondhand smoke exposure mainly in Downtown San Luis Obispo and the City's outdoor recreation areas. When preparing the recommended changes, staff reviewed and evaluated the following: dangers of secondhand smoke, smoking related litter and pollution of the environment, fire danger, and citizen complaint. f fl3 - I Amendment to Municipal Code Chapter 8.16—Non-smoking law Page 2 Based on findings staff presented the recommended amendments to the Parks and Recreation Commission in November 4, 2009 for consideration of a ban of smoking in city-owned outdoor recreation areas including Mission Plaza and its adjacent creek walk. After deliberation, the commission moved to support the recommended action but expanded it to include tobacco products in general. The Commission also felt that, in addition to the recommendation in the outdoor recreation areas, the Council should strongly consider expanding the ban to include the entire downtown core. Given the Parks and Recreation Commission's recommendation for a broader ban and the fact that a large number of complaints originate in the Downtown area, staff reached out to the Downtown Association and the Chamber of Commerce to gauge possible readiness for a comprehensive smoking ban in all public areas downtown as considered by the Parks and Recreation Commission. Both organizations considered the issue but felt that a more encompassing ban spanning the entire Downtown area would not be appropriate at this time. Council Deliberation on December 1,2009 Given the above mentioned considerations, staff ultimately presented a recommendation to amend the current municipal code with the ban of smoking and tobacco in the City's outdoor recreational areas. However, in its discussion, Council felt that the recommended action did not go far enough and that more comprehensive no-smoking regulations should be considered. Ultimately, the Council approved the recommended action as a good first step and directed staff to come back within three to four months with additional restrictions that should be evaluated by a community task force, so various stakeholders could weigh in for the final recommendation . (Attachment 2—Ordinance 1537). Evaluation and Consideration by the Community Task Force 1. Community Task Force Formation and Evaluation Issues Upon consideration of various interest groups and organizations, a task force representing the following constituency was formed in January 2010: Two members from the Chamber of Commerce representing the retail and lodging community - Two members from the Downtown Association representing property and bar owners - Two members representing the Health and Medical Community - One member representing multiple constituencies such as Cal Poly, Human Services, and the homeless community - One member representing multiple constituencies such as the restaurant, vintners, and property association The task force met three times to evaluate, discuss, and consider information provided by staff. In order to arrive at its final recommendation, the task force compared and considered language and stipulations of the 24 ordinances that regulated comprehensive no-smoking laws in California in addition to laws in Boulder, Colorado and Austin, Texas. The members were interested in learning how these jurisdictions dealt with: Amendment to Municipal Code Chapter 8.16—Non-smoking law Page 3 1) definition of public place 2) homeless issues 3) enforcement 4) smokers outposts or designated areas 5) tourism 6) public outreach, education, signage They invited a Police representative in order to gain a better understanding of the implementation and enforcement of such laws and how quickly the 1990 regulations were widely accepted. 2. Community Task Force Review and Discussion They solicited feedback from the enforcement arms of municipalities regarding acceptance, handling, and enforcement of comprehensive no-smoking regulation. They considered the concerns, issues, and potential conflicts from all the constituencies represented in the Community Task Force and asked each member to define his or her"best case scenario'. Early in its deliberations and based on its research and obtained feedback, the task force acknowledged that comprehensive prohibitions will be most effective when all encompassing with few exceptions and variations. Such an approach will keep the issue simple and allow for education, outreach, and enforcement of the new law very effectively. If too many exceptions are applied, citizens are confused as to where and when the new law applies and Police face a more difficult task in enforcing as loopholes will undoubtedly be created. However, for the members several issues remained-and had to be addressed in the proposed ordinance: 1) should smokers outposts be created? If yes, where should they be located? 2) should people be allowed to smoke when actively walking down the street? 3) should tobacco retailers be exempt from the regulation? 4) should multi-unit residencies be included or only the common areas? 3. The proposed ordinance Staff was asked to draft a model-ordinance to be circulated for feedback and discussion in the final Community Task Force meeting. The draft ordinance was based on the language of the model ordinance for comprehensive secondhand smoke regulations by the Technical Assistance Legal Center(TALC) with amendments from the December"outdoor recreational areas" ordinance and task force discussion points and considerations. The draft ordinance represented a comprehensive no-smoking law very similar to the one currently in effect in the City of Calabasas. In its final meeting, the Community Task Force members had only two elements on which they did not find consensus. One of the members was unable to attend the final meeting, but had submitted comments to the Community Task Force chair prior to the meeting. The following changes were made to the draft ordinance in response to the Community Task Force feedback and discussion: Amendment to Municipal Code Chapter 8.16—Non-smoking law Page 4 1) Language pertaining to theatrical productions was eliminated. 2) Language as to "while actively passing..."was eliminated since it would potentially create loopholes and the topic was covered more comprehensively with the addition of section 8.16.050 (4) of Attachment 4—Proposed Ordinance 3) The Community Task Force voted 6:.1 to add in the proposed ordinance section 8.16.050 (4): "Any outdoor area in which no non-smoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive." 4) They voted 5:2 to keep the language regarding"Significant Tobacco Retailers" as presented and allow for smoking within such businesses as long as minors are prohibited from entering the store at all times. There was one topic that the community task force referred to Council for further restrictions if deemed necessary. The recommended ordinance language only prohibits smoking in multi-unit residency common areas. The issue was brought up that this restriction would force parents, who step outside in order not to expose their children to secondhand smoke,back into the apartment of such residential properties. However, there is no statistical information as to how many apartments are already smoke free due to landlord regulations and how many units are rented to families. The task force considered lengthy language in other city ordinances (Loma Linda, Dublin, and Novato)but felt it did not have enough information to consider such prohibitions and that such regulations would further complicate the new law. Thus the ordinance as proposed is silent on this matter. (Attachment 3 —Community Task Force Minutes). Next Steps - Public Education and Enforcement Given the experience in other jurisdictions, compliance with an expanded smoking ban will best be achieved through strong signage referencing the governing law with the intent to encourage self-regulation in the area. Public outreach and information will further encourage acceptance and nurture compliance with a new non-smoking law. Police will not actively patrol areas for smoking related offenses but will enforce when encountered or called upon. In the Downtown area, outreach, education, and enforcement will be facilitated by the presence of the Downtown officers and the Downtown Association's security service. Violations of non-smoking areas would be considered either infractions or misdemeanors. However, staff recommends that violations of this proposed ordinance be handled through the City's administrative code enforcement procedures as the criminal justice system and the courts are not involved. Since the introduction of Chapter 1.12—General Penalty, the City has added the administrative citation process to deal with minor infractions such as smoking violations (Chapter 1.24 of the Municipal Code). Currently noise violations, urinating in public, and open containers are regulated through this process. It should be noted that the City has and continues to employ the philosophy of voluntary compliance with the administrative citation code. Prior to the implementation of penalties, voluntary compliance approaches will be used (when practical) in order to educate the public concerning the requirements of the code and compliance with its requirements. Amendment to Municipal Code Chapter 8.16—Non-smoking law Page 5 Based on the introduction of the ordinance in December 2009, new signs have already been installed in City parks and staff continues to install the signs where needed. Considering Council's direction to return with more comprehensive ordinance, staff has held back the public outreach and education in order to address it in an all encompassing fashion. CONCURRENCES The Police Chief has reviewed the proposed ordinance. If adopted, the Police Department is prepared to enforce the provisions of the ordinance on a complaint basis. FISCAL IMPACT In December 2009 Council allocated $10,000 from General Fund reserve to develop signs and outreach material. The local tobacco control program has also allocated $5,000 to this effort as well. Thus far, the Parks Division has spent $1,300 for the first 30 signs to be posted in the outdoor recreational areas of the City of San Luis Obispo. ALTERNATIVES 1. Council could consider leaving the City's current smoking prohibition as is which now include the outdoor recreational areas. This is not recommended given the health and litter issues and the well-thought out recommendation by the Community Task Force. 2. Council could further refine or adjust the recommended ordinance language by adding or eliminating certain components. ATTACHMENTS 1. Municipal Code Chapter 8.16 2. Ordinance 1537-2009 Series 3. Community Task Force Minutes 4. Proposed Ordinance Chapter 8.16 SMOKING PROT-IIBITED IN CERTAIN AREAS* - Page 1 of 4 ATTACHMENT 1 Chapter 8.16 SMOKING PROHIBITED IN CERTAIN AREAS* Sections: 8.16.010 Purpose. 8.16.020 Definitions. 8.16.030 Prohibition in certain public places. 8.16.040 Regulation of smoking in the workplace. 8.16.050 Posting of signs. 8.16.060 Compliance. 8.16.070 Violation—Penalty. 8.16.080 Where smoking not regulated. 8.16.090 Severability. "Prior history: Ord. 1048 § 1, 1985: prior code §§ 5400-5405. 8.16.010 Purpose. Because smoking of tobacco or any other weed or plant is a positive danger to health and a cause of material discomfort and a health hazard to those who are present in confined places, and in order to serve public health, safety and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco or any other weed or plant in certain areas which are used by or open to the public. (Ord 1172 § 1, 1990) 8.16.020 Definitions. For the purpose of this chapter, the following words shall have the following meanings: A. "Bar" means an area which is devoted to the serving of alcoholic beverages for con- sumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages. B. "Employee" means any individual who receives remuneration for services performed within the city. C. "Employer" means any person, partnership or corporation who employs the services of an individual person or persons. D. "Smoke" or"smoking" means and includes the carrying of a pipe, cigar or cigarette of any kind which is burning, or the igniting of a pipe, cigar or cigarette of any kind which is burning. E. "Service line" means an indoor line or area where persons await service of any kind, regardless of whether-or not such service involves,exchange of money. Such service shall include, but is not limited to, sales, giving of information, directions or advice, and transfers of money or goods. F. "Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club, including veterans' club, boardinghouse or guesthouse, which gives or offers for sale food to the public, guests, patrons or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities. G. "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. H. "Workplace" means any interior space under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a workplace under this section. (Ord. 1172 § 1, 1990) ,PJ4 -� Chapter 8.16 SMOKING PRO14IBITED IN CERTAIN AREAS* Page 2 of 4 ATTACHMENT 1 8.16.030 Prohibition in certain public places. Smoking shall be prohibited in the following places: A. Elevators, museums, Libraries, galleries, public transportation facilities open to the public and service lines of establishments doing business with the general public; B. Waiting rooms, sleeping rooms or public hallways of every private or public health care facility, including, but not limited to,.hospitals, clinics; physical therapy facilities, doctors' offices, and dentists' offices; provided further, that this prohibition shall not prevent the establishment of a separate waiting room in which smoking is permitted, as long as there also exists a waiting room in the same facility in which smoking is prohibited. In bed space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted. C. All buildings, vehicles, or other enclosed areas occupied by city staff, owned or leased by the city, or otherwise operated by the city, except in areas which the city administrator may designate as smoking areas. The city administrator may designate a smoking area only if the area involved: 1. Is not regularly open to the public; and 2. Does not require major room or building modifications; and 3. Is not regularly occupied by nonsmokers. In any dispute arising under the smoking area designations made by the city administrator under this chapter, the rights of the nonsmoker shall be given precedence. D,0ithin=any building not open to the sky which is primarily used for or designated for the purposes of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance whenever open to the public, except smoking which is a part of a stage performance, including all restrooms, and any area commonly referred to as a lobby. E. Within all public areas in every retail store, including, but not limited to, retail service establishments, retail food production and marketing establishments, retail, grocery, and drug stores. F. All restrooms open for public use. G.Withirnevery restaurant and bar. H. All areas in a laundromat open to and available for use by the public. Ir Within all areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, professional offices and other offices, banks, hotels and motels. J. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section may declare that entire establishment or facility as a nonsmoking establishment. (Ord. 1172 § 1, 1990) 14 8.16.040 Regulation of smoking in the workplace. Each employer who operates a workplace in the city shall, within sixty days of the effective date of the ordinance codified in this section, adopt, implement and maintain a written smoking policy which shall contain, at a minimum, the following provisions and requirements: A. Any nonsmoking employee may object to his or her employer about smoke in his or her workplace. Using already available means of ventilation or separation or partition of office space, the employer shall attempt to reach a reasonable accommodation, insofar as possible, between the preferences of nonsmoking employees and smoking employees. However, an employer is not required by this section to make any expenditures or structural changes to accommodate the preferences of nonsmoking or smoking employees. B. If an accommodation which is satisfactory to all affected nonsmoking employees cannot be reached in any given workplace, the preferences of nonsmoking employees shall prevail and the employer shall prohibit smoking in that workplace. Where the employer prohibits smoking in a workplace, the area in which smoking is prohibited shall be clearly marked with signs. C. The smoking policy required by this section shall be announced within three weeks off 4)C 3 —7- Chapter 8.16 SMOKING PR('uIBITED IN CERTAIN AREAS* ATTACHMENT 1 Page 3 of 4 adoption to all employees working in workplaces in the city and posted conspicuously in all workplaces in the city under the employer's jurisdiction. D. This section is not intended to regulate smoking in the following places and under the following conditions within the city: 1. A private home which may serve as a workplace; 2. Any property owned or leased by a state or federal governmental agency. E. Notwithstanding any other provision of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area. F. Notwithstanding any other provision of this section, if any provision of this section conflicts with, or differs from, the standards established by Labor Code Section 6404.5, as it may from time to time be amended, then the most restrictive standard, whether from this section or Labor Code Section 6404.5, shall apply. It is the intent of the council that this section be interpreted and applied in such a manner as to prohibit the smoking of tobacco products in all enclosed places of employment to the fullest extent permissible by law. (Ord. 1274 § 1, 1994; Ord. 1172 § 1, 1990) 8.16.050 Posting of signs. Signs which designate smoking or nonsmoking areas established by this chapter shall be conspicuously posted in every room, building or other place so coveredby this chapter. The manner of such posting shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. (Ord. 1172 § 1, 1990) 8.16.060 Compliance. A. The city administrative officer or his or her designated representative shall be responsible for compliance with this chapter as to facilities which are owned, operated or leased by the city. The finance director shall provide each business license applicant with a copy of this chapter. B. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply with the provisions of this chapter. Notice of these regulations shall be given to all applicants for a business license. Such owner, operator or manager shall post or cause to be posted all no-smoking signs required by this chapter and shall not allow service to any person who violates this chapter by smoking in a posted no-smoking area. C. Any place of employment conducted or operated without compliance with the provisions of Section 8.1.6.040 of this chapter applicable thereto shall be and the same is declared to be a public nuisance. Whenever there is reason to believe such public nuisance exists, any affected employee or any resident of the city, in his or her own name, may maintain an action in equity to abate and prevent such nuisance and to perpetually enjoin the employer from maintaining or permitting it. Upon the granting of equitable relief, in whole or in part, by a court of competent jurisdiction, an employer determined to be in violation of Section 8.16.040 of this chapter shall be liable for the attorney's fees, as may be determined by the court, incurred by the party bringing the action. D. The city administrative officer or his or her designee may enforce Section 8.16.040 of this chapter by either of the following actions: 1. Serving notice requiring the correction of any violation of that section; or 2. Requesting the city attorney to maintain an action for injunction to enforce the provisions of Section 8.16.040 of this chapter, to cause the correction of any such violation, and for assessment and recovery of a civil penalty of such violation, including attorney's fees. E. Any employer who violates Section 8.16.040 of this chapter may be liable for a civil penalty, not to exceed five hundred dollars, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the city. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this subsection shall be paid to the finance director of the city. P43 -� Chapter 8.16 SMOKING PRO"IBITED IN CERTAIN AREAS* ATTACHMENT 1 Page 4 of 4 F. In undertaking the enforcement of Section 8.16.040 of this chapter, the city is assuming an undertaking only to promote the general welfare. It not assuming any duty or obligation, nor is it imposing any duty or obligation on its officers and employees, nor is it liable in money damages or otherwise to any person who claims that(1)the city or one of its officers or employees breached any such obligation, and (2)the breach proximately caused injury. (Ord.. 1172 § 1, 1990) 8.16.070 Violation—Penalty. Any person who violates any provision of Section 8.16.030 or 8.16.040 of this chapter by smoking in a posted no-smoking area, or by failing to post or cause to be posted a no smoking sign required by this chapter, or by serving or accommodating any persorf who violates this chapter by smoking in a posted no-smoking area, or by knowingly or intentionally permitting any person to violate this chapter by smoking in a posted no-smoking area, is guilty of an infraction, and is subject to punishment as provided for in Chapter 1.12 of this code. (Ord. 1274 § 2, 1994; Ord. 1172 § 1, 1990) 8.16.080 Where smoking not regulated. . Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter: 1. Private residences, except when used as a child care or health care facility. 2. Hotel and motel rooms rented to guests. 3. Retail tobacco stores. 4. A private enclosed office workplace occupied exclusively by smokers, even though such an office workplace may be visited by nonsmokers. 5. Any area exterior to the building in which the establishment or facility is located. 6. Any enclosed rooms in an establishment or facility which are being used entirely for private functions. (Ord. 1172 § 1, 1990) 8.16,090 Severability. If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. (Ord. 1172 § 1, 1990) �K3 -� I ATTACHMENT? ORDINANCE NO. 1537(2009 Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO AMENDING CHAPTER 8.16 (SMOKING PROHIBITED IN CERTAIN AREAS)OF TITLE XIII(HEALTH AND SAFETY)OF THE SAN LUIS OBISPO MUNICIPAL CODE TO BAN SMOKING AND ALL FORMS OF TOBACCO PRODUCTS IN OUTDOOR RECREATION AREAS. WHEREAS, in 1985 the City council of the City of San Luis Obispo adopted regulations prohibiting smoking in certain areas; and WHEREAS, the 2006 U.S. Surgeon General's Report stated scientific evidence shows that there is no"safe"level of exposure to secondhand smoke; and WHEREAS, the United States Environmental Protection agency (EPA) has found secondhand smoke to be a risk to public health, and has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogens; and WHEREAS, the California Air Resources Board has put secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant2; and WHEREAS, exposure to secondhand smoke is the third leading cause of preventable death in.this country, killing over 52,000 non-smokers each year 3, and as many as 300,000 lower respiratory tract infections such as pneumonia and bronchitis 4,in children. WHEREAS, the City of San Luis Obispo is subject to regulations issued by the Stormwater Management Program mandated by the California Regional Water Quality Control Board to reduce the environmental impact from stormwater run-off and human activities in the local creek systems; and WHEREAS, cigarette filters and plastic wraps from cigarette packages are not biodegradable and cigarette related waste discarded in parks, along sidewalks, and in street gutters make their way through storm drains into creeks and rivers leaking dangerous chemicals into our watersheds.. 1 Cal..Air Resources BD.,Resolution 0-01,at 5(January 26,2006) 2 U.S. Dep't of Health and Human Servs.,Centers for Disease Control and Prevention,Clean Indoor Air Regulations Fact Sheet(2001) 3 S.A. Glantz&W.Parmley,Passive smoking and heart Disease: Epidemiology,Physiology,and Biochemistry, 83*1)Circulation 10 991)and California Environmental Protection Agency,office of Envtl.Health Hazard management,health Effects of Exposure to Environmental Tobacco Smoke: Final Report(1997) 4 U.S. Dept.of Health and Human Services,Center for Disease Control and Prevention,Targeting Tobacco Use:the Nation's Leading Cause of Death 2002,2(2002)available at www.odc.gov/tobacco 5 Cigarette Butt Litter—www.surfridenprg �113 1� Ordinance No. 1537 (2009 Series) ATTACHMENT 2 Page 2 WHEREAS, the City is subject to regulation under the California Endangered Species Act and the Federal Endangered Species Act of 1973, as two federally protected species under the Federal Act, Steelhead trout (Oncorhynchus mykiss) and California Red-legged frogs (Rana aurora),have both been found within the City of San Luis Obispo city limits; and WHEREAS, cigarette filters have been found in the stomachs of fish, birds, and other animals that mistake them for food,thus swallowing harmful plastic and toxic chemicals 6. WHEREAS, there is a cost to taxpayers for cleaning up tobacco related debris in parks, open space, and the City's storm water system; and. WHEREAS, the disposal of cigarettes can cause severe fire hazards in open space areas, especially during drought years; and WHEREAS, in light of the above the City Council desires to amend its regulations prohibiting smoking and all forms of tobacco products in certain areas to address these hazards. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Section 8.16.020 (Definitions) of Chapter 8.16 (Smoking Prohibited in Certain Areas) of Title XIII (Health and Safety) of the San Luis Obispo Municipal Code is hereby amended by the addition of subsection I (Outdoor Recreation Areas)to read as follows: 1. "Outdoor Recreation Area"means any City park, public plazas, open space, trails, skate-parks, sports facilities, dog parks, aquatic centers,and golf courses. SECTION 2. Section 8.16.035 (Prohibition in all public outdoor recreation areas) of Chapter 8.16 (Smoking Prohibited in Certain Areas) of Title 8 (Health and Safety) of the San Luis Obispo Municipal Code is hereby added to read as follows: 8.16.035 Prohibition in all public outdoor recreation areas. Smoking and all forms of tobacco products shall be prohibited in the following places: A. In any City park and all its amenities, parking areas, trails, and walkways, including contiguous sidewalks. B. In all City Open Spaces and Ecological Areas and all appurtenant trail systems, parking areas,and other amenities. C. In all City sports facilities, including: 1. the municipal golf course 2. the San Luis Obispo Swim Center 6 Clean Virginia Waterways(2007)"Cigarette Litter Impacts" 1�N3 -1 � Ordinance No. 1537 (2009 Series) Page 3 RffRCHMENT 2 3. skate park 4. roller hockey rink 5. all sports fields D. In all City dog parks. E. In all public transportation facilities including all bus shelters and bus stops. F. In Mission Plaza and the adjacent creek walk from Mission Plaza to Nipomo Street. SECTION 3. Existing section 8.16.050 (Posting of signs) of Chapter 8.16 (Smoking Prohibited in Certain Areas) of Title 8 (Health and Safety) of the San Luis Obispo Municipal Code is hereby repealed and new section 8.16.050(Posting of signs) is added to read as follows:' 8.16.050 Posting of signs Signs which designate smoking or nonsmoking areas established by this chapter shall be conspicuously posted in every room, building or other place so covered by this chapter. The manner of such posting shall be at the discretion of the owner, operator,manager or other person having control of such room, building, outdoor recreation areas, and other places and areas so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter.Notwithstanding this provision,the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter. INTRODUCED on the I" day of December, 2009 AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the 15'h day of December 2009 on the following vote: AYES: Council Members Ashbaugh, Marx and Settle,Vice Mayor Carter and Mayor Romero NOES: None ABSENT: None Mayor David F. Romero ATTEST: Elaina Cano II �oMMItMMMi �M1s�1n� City Clerk &"waft WWWd on W r11l;tl�Mtlwitr�wr�tbM�l APPROVED AS TO FORM: fe �~ � Z (;;;,an P. Lowell City Attorney p43-I� J ATTACHMENT 3 Community Task Force Meeting L 1 No-smoking / no-tobacco laws in San Luis 0 \ / / Meeting Minutes January 25, 2010 Each individual member of the task force gave a brief introduction. The committee then elected a chair to guide the task force in its deliberation. The committee asked for the next meeting to have an agenda guiding the outcome of the meeting. Staff was asked to gather more information from cities similar to San Luis Obispo. The following cities were selected: Novato, Temecula, Marin County, Mammoth Lakes, and Santa Rosa. In addition, Boulder, Colorado and Austin, Texas were added to the list. The task force members were especially interested in learning how these jurisdictions dealt with: - definition of public place - homeless issues - enforcement - smokers outposts or designated areas - public outreach, education, signage - tourism geographical locations/ limitations (special districts) The task force members were asked to think about their"best case scenario" to be presented at the next meeting. 'PN3 t3 1 ATTACHMENT 3 Community Task Force Meeting J L 1 No-smoking / no-tobacco laws in San Luis 0 \ / / Meeting Minutes February 8, 2010 PRESENT: Clint Pearce, Stephan Lamb, Marco Rizzo, Tom Swem, Ron Meier, Ali Semon, Kathleen Karle, Dr. Steve Hansen STAFF PRESENT: Brigitte Elke 1. Discussion with Lieutenant Steve Tolley—SLO Police Department The committee members were interested in learning how the Police Department dealt with the implementation of the 1990 ordinance and how it generally enforces laws such as no-smoking/no-tobacco regulations. Lieutenant Tolley explained that enforcement of the 1990 law followed a 30-day grace period and an educational campaign that included a media push. Initially, Police received about two to three calls a day, but after about six months, it became a non- issue. Generally, if violations of this kind are observed by an officer, he/she will proactively seek compliance with the law and will not write a citation on first contact. Regarding the homeless population, Lieutenant Tolley stated that the younger generation of transients is not usually smoking. The older generation of homeless seems to be more prone to become repeat offenders and is probably cited more often. However, they are usually well versed at hiding the violation and they can only be cited if they are caught"in the act". Also, the homeless population is more of a daytime population and is not usually seen out at night. Lieutenant Tolley confirmed that Police officers will not actively enforce the smoking law during the night time when Downtown becomes very busy with bar patrons. However, he mentioned such laws can often be used as an additional tool to enforce orderly behaviour. Z Review of material All task force members felt that the information received was comprehensive and gave the background needed. However, many of the comparison cities do not address tobacco stores and retailers. Since there is currently an issue between a local tobacco store and the adjacent business owner, the members were interested in learning more about how other jurisdictions dealt with similar situations. Staff was asked to look further into this issue. Most members felt, however, that it should not be singled out or made an issue. Dr. Hansen strongly disagreed with this approach. 3. "Best case scenario"for individual task force members Task force member Lamb mentioned his areas of concern. He felt that most could probably be addressed with the permission of outposts. However, he wanted to define how the City would deal with: TK3 a MACHMENT 3 - new construction of multi-unit buildings hotels the railroad station recovery centers - homeless shelters low income housing (HASLO units) private porches All members struggled with the application of a comprehensive no-smoking law to sidewalks. The task force concluded that the new approach should be based on a citywide smoking ban with definitions of exemptions and allowable outposts. They want to further evaluate whether defined curfews are feasible or definitions that allow smoking when it can be expected that no no-smokers are around or are likely to arrive. Staff was asked to research what other jurisdictions have done or how they deal with these types of issues. ATTACHMENT 3 Community Task Force Meeting J L No-smoking / no-tobacco laws in San Luis Obispo ® Meeting Minutes \ 7 / March 22, 2010 1. Review of material received The committee had received a draft ordinance considering various discussion points to date. Initial comments were given by email, summarized by staff, and re-send for consideration at the final task force meeting. The following issues surfaced in need of further discussion: - Theatrical productions were excluded from the new law in the current draft ordinance. Two of the task force members felt they should not be exempt and one felt to leave as is. - The responding task force members felt that the language on page 6—8.16.060 regarding "while actively passing" is creating a loophole and should be eliminated. - 8.16.030 (3) needed some more vetting as it might not sufficiently address bar patios and outposts. - One committee member felt that number of smoking rooms in hotels/motels should be kept at a small percentage. Additional discussion might be warranted for tobacco shops even though the task force might end up with "agree to disagree". 2 Discuss and draft renal recommendation to Council After discussion and deliberation, the task force made the following changes to the draft ordinance: 1) 8.16.030 (b) (5)changed transit depot to transit centers, bus shelters and stops to be consistent with language under 8.16.040 2) 8.16.030 (c) inserted "...and tobacco materials, waste or debris within the boundaries of an area in which smoking and tobacco products are prohibited...." 3) Eliminate the language pertaining to theatrical productions. 4) Eliminate language as to"while actively passing..." since it potentially creates loop holes and the topic is covered more comprehensively in 8.16.050 (4) 5) Voted 6:1 to add 8.16.050 (4): "Any outdoor area in which no non-smoker is present and, due to the time of day or other factors, if is not reasonable to expect another person to arrive." 6) Voted 5:2 regarding"Significant Tobacco Retailers"to keep the language as is and allow for smoking within such businesses. 7) Given the new language under 8.16.050 (4)the task force did not create any specific outposts/ smokers areas as said language allows for smoking under certain criteria. As to multi-unit residences, the task force left it at the common areas. The members felt that staff should include the discussion pertaining to the actual apartments in the staff report for Council to potentially include more comprehensive language. Staff will therefore include the discussion that the common areas regulation potentially forces parents back into the unit and to smoke around their children. However, due to lack of any statistics to know how many multi-unit residencies are already smoke-free due to enforcement by the landlord and how much of an issue this will truly be, the task force did not add multi- resident units to the areas where smoking is prohibited. tri -1� ATTACHMENT 4 ORDINANCE NO. XXX (2010 Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO TO REPEAL AND REENACT CHAPTER 8.16 (SMOKING PROHIBITED IN CERTAIN AREAS) OF TITLE XIII (HEALTH AND SAFETY) OF THE SAN LUIS OBISPO MUNICIPAL CODE WHEREAS, the 2006 U.S. Surgeon General's Report stated scientific evidence shows that there is no "safe" level of exposure to secondhand smoke; and WHEREAS, the United States Environmental Protection agency (EPA) has found secondhand smoke to be a risk to public health, and has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogenl; and WHEREAS, the California Air Resources Board has put secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant2; and WHEREAS, exposure to secondhand smoke is the third leading cause of preventable death in this country, killing over 52,000 non-smokers each year 3, and as many as 300,000 lower respiratory tract infections such as pneumonia and bronchitis 4, in children. WHEREAS, the City of San Luis Obispo is subject to regulations issued by the Stormwater Management Program mandated by the California Regional Water Quality Control Board to reduce the environmental impact from stormwater run-off and human activities in the local creek systems; and WHEREAS, cigarette filters and plastic wraps from cigarette packages are not biodegradable and cigarette related waste discarded in parks, along sidewalks, and in street gutters make their way through storm drains into creeks and rivers leaking dangerous chemicals into our watershed 5. WHEREAS, the City is subject to regulation under the California Endangered Species Act and the Federal Endangered Species Act of 1973, as two federally protected species under the Federal Act, Steelhead trout (Oncorhynchus mykiss) and California Red-legged frogs (Rana aurora), have both been found within the City of San Luis Obispo City limits; and WHEREAS, cigarette filters have been found in the stomachs of fish, birds, and other animals that mistake them for food, thus swallowing harmful plastic and toxic chemicals. 1 Cal.Air Resources BD.,Resolution 0-01,at 5(January 26,2006) 2 U.S. Dep't of Health and Human Servs.,Centers for Disease Control and Prevention,Clean Indoor Air Regulations Fact Sheet(2001) 3 S.A.Glantz&W.Parmley,Passive smoking and heart Disease: Epidemiology,Physiology,and Biochemistry, 83*1)Circulation 1 (1991)and California Environmental Protection Agency,office of Envtl. Health Hazard management,health Effects of Exposure to Environmental Tobacco Smoke: Final Report(1997) 4 U.S.Dept.of Health and Human Services,Center for Disease Control and Prention,Targeting Tobacco Use: the Nation's Leading Cause of Death 2002,2 (2002)available at www.cdc.gov/tobacco 5 Cigarette Butt Litter—www.surfrider.org ATTACHMENT 4 Ordinance No. XXX (2010 Series) Page 2 WHEREAS, there is a cost to taxpayers for cleaning up tobacco related debris in parks, open space, and the City's storm water system; and. WHEREAS, the disposal of cigarettes can cause severe fire hazards in open space areas, especially during drought years; and WHEREAS, in 1985 the City council of the City of San Luis Obispo adopted regulations prohibiting smoking in certain areas; and WHEREAS, in light of the above the City Council desired to amend its regulations prohibiting smoking and all forms of tobacco products in certain areas to address these hazards; and WHEREAS, on December 1, 2009, the City Council amended the ordinance to include outdoor recreational areas including Mission Plaza and the adjacent creek walk, and WHEREAS, at this same meeting, Council directed staff to come back with further and more encompassing no-smoking regulations; and WHEREAS, a Community Task Force of community members representing business, health, and various other interest groups was formed to make recommendations as to the extend of new no-smoking regulations; and WHEREAS, this Community Task Force has met, concluded its deliberation, and submitted its recommendations. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Chapter 8.16 (Smoking Prohibited in Certain Areas) of Title XIII (Health and Safety) of the San Luis Obispo Municipal Code is hereby repealed in its entirety and reenacted as follows: Chapter 8.16 SMOKING PROHIBITED AND SECONDHAND SMOKE CONTROL Sections 8.16.010 Purpose 8.16.020 Definition 8.16.030 Locations where smoking is prohibited 8.16.040 Prohibition of smoking and tobacco products in outdoor recreational areas 8.16.050 Where smoking is not regulated 8.16.060 Reasonable Distance Required 8.16.070 Posting of signs 8.16.080 Non retaliation :PLL 3 -1 8' ATTACHMENT 4 Ordinance No. XXX (2010 Series) Page 3 8.16.090 Compliance 8.16.100 Violations and penalties 8.16.110 Severability 8.16.010 Purpose The purposes of this chapter are to: A. Protect the public health, safety, and general welfare by prohibiting smoking in public places under circumstances where other persons will be exposed to secondhand smoke, B. Assure a cleaner and more hygienic environment for the City, its residents, and its natural resources, including its creeks and steams, C. Strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including children, to breathe smoke-free air, recognizing the threat to public health and the environment which smoking and tobacco causes, D. Recognize the right of residents and visitors to the City of San Luis Obispo to be free from unwelcome second-hand smoke 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. (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) "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. (d) "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. (e) "Enclosed"means: (1) any covered or partially covered space having more than 50% 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 75% of its perimeter area walled in or otherwise closed to the outside such as, for example, a courtyard; (f) "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 Multi-Unit Residences for purposes of this chapter.] (g) "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 (h) "Nonprofit Entity"means any entity that meets the requirements of California ATTACHMENT 4 Ordinance No. XXX(2010 Series) Page 4 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. (i) "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, 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. 0) "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. (k) "Public Place"means any place, public or private, open to the general public regardless of any fee or age requirement, including, for example,bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, and buses. (1) "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. (m) "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. (n) "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, and cab stands. (o) "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 paraphernalia. (p) "Smoking"means possessing a lighted pipe, lighted cigar, or lighted cigarette of any kind, or the lighting of a pipe, cigar, or cigarette of any kind, including, but not limited to, tobacco, or any other weed or plant. (q) "Tobacco Product'means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco,bidis, or any other preparation of tobacco. 8.16.030 Prohibition of smoking in public places, places of employment, and certain other areas (a) Enclosed Places. Smoking shall be prohibited in the following Enclosed places within the City of San Luis Obispo, except in places listed in subsection (d) below: 3 -c) ATTACHMENT 4 Ordinance No. XXX(2010 Series) Page 5 (1) Public Places; (2) Places of Employment; (3) Multi-Unit Residence Common Areas; (4) Enclosed areas adjacent to an Enclosed area in which smoking is prohibited by any other section of this code, state law, or federal law and that have a common or shared air space such as, without limitation, openings, cracks, air ventilation systems, doorways, hallways, and stairways. Notwithstanding any other provision, the fact that smoke enters one Enclosed area from another Enclosed area is conclusive proof that the areas share a common or shared air space; (5) Enclosed areas that have a common or shared ventilation, air conditioning or heating system with an Enclosed area in which smoking is prohibited. Notwithstanding any other provision, the fact that smoke enters one Enclosed area from another Enclosed area is conclusive proof that the areas share a common or shared air space. (b) Unenclosed Places. Smoking shall be prohibited in the following Unenclosed places within the City of San Luis Obispo: (1) Places of Employment; (2) Service Areas; (3) Public Places including Dining Areas [except an Unenclosed area of a bar that does not serve food. If smoking is permitted in the Unenclosed area of a bar that does not serve food, the entire smoking section must be limited to one clearly designated area prominently marked with signs, and must be located at least five(5) feet from any doorway or opening into an Enclosed area. Smoking in an Unenclosed area of a bar is only permitted provided the smoke does not enter adjacent areas in which smoking is prohibited by any law or by the owner; lessee or licensee of the adjacent property]; (4) Multi-Unit Residence Common Areas; (5) Ticket, boarding, and waiting areas of transit centers,bus shelters and stops; and (6) The sites of public events including, for example, sports events, entertainment, speaking performances, ceremonies,pageants, and fairs. (c)No person shall dispose of smoking and tobacco materials, waste or debris within the boundaries of an area in which smoking and tobacco products are prohibited, including inside the perimeter of any Reasonable Distance required by this chapter. (d) Nothing in this chapter shall be interpreted to conflict or regulate any area subject to exclusive regulation under existing State or Federal Law. 8.16.040 Prohibition of smoking and tobacco products in outdoor recreational areas (a) Smoking and all forms of tobacco products shall be prohibited in the following places: (1) In any City park and all its amenities, parking areas, trails, and walkways, including contiguous sidewalks. (2) In all City Open Spaces and Ecological Areas and all appurtenant trail systems, parking areas, and other amenities. (3) In all City sports facilities, including: ?�3 -al 1 ATTACHMENT 4 Ordinance No. XXX (2010 Series) Page 6 a. the municipal golf course b. the San Luis Obispo Swim Center c. skate park d. roller hockey rink e. all sports fields (4) In all City dog parks. (5) In all public transportation facilities including all bus shelters and bus stops. (6) In Mission Plaza and the adjacent creek walk from Mission Plaza to Nipomo Street. (b)No person shall dispose of smoking or tobacco waste within the boundaries of an area in which smoking and tobacco products are prohibited, including inside the perimeter of any Reasonable Distance required by this chapter. 8.16.050 Where smoking is not regulated Unless otherwise prohibited by law, smoking is permitted in the following Enclosed and/or Unenclosed places: (1) Significant tobacco retailers regardless of regulations under Section 8.16.030 (a) (4) and (5), if at all times minors are prohibited from entering the store; (2) Private residential units, except those used as a child care or health care facility subject to licensing requirements; and (3) Up to twenty-five percent (25%) of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as nonsmoking rooms such that seventy-five (75%) or more of its guest rooms are nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent"no smoking" signage shall be posted in nonsmoking rooms. (4) Any outdoor area in which no non-smoker is present and, due to the time of day or other factors,it is not reasonable to expect another person to arrive. 8.16.060 Reasonable Distance Required. Smoking in Unenclosed areas shall be prohibited within a Reasonable Distance from any entrance, opening, crack, or vent into an Enclosed area in which smoking is prohibited. 8.16.070 Posting of signs Signs which designate smoking or nonsmoking areas established by this chapter shall be conspicuously posted in every room, building or other place so covered by this chapter. The manner of such posting shall be at the discretion of the owner, operator, manager or other person having control of such room, building, outdoor recreation areas, and other places and areas so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter. �It3 -ate I i MACHMENT 4 Ordinance No. XXX(2010 Series) Page 7 8.16.080 Compliance A. The City Manager or his or her designated representative shall be responsible for compliance with this chapter as to facilities which are owned, operated or leased by the City. The Finance Director shall provide each business license applicant with a copy of this chapter. B. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply with the provisions of this chapter. Such owner, operator or manager shall post or cause to be posted all no-smoking signs required by this chapter and shall not allow service to any person who violates this chapter by smoking in a posted no-smoking area. C. Any place of employment conducted or operated without compliance with the provisions of Section 8.16.030 of this chapter applicable thereto shall be and the same is declared to be a public nuisance. Whenever there is reason to believe such public nuisance exists, any affected employee or any resident of the City, in his or her own name, may maintain an action in equity to abate and prevent such nuisance and to perpetually enjoin the employer from maintaining or permitting it. Upon the granting of equitable relief, in whole or in part, by a court of competent jurisdiction, an employer determined to be in violation of Section 8.16.030 of this chapter shall be liable for the attorney's fees, as may determined by the court, incurred by the party bringing the action. D. The City Manager or his or her designee may enforce Section 8.16.030 of this chapter by either of the following actions: 1. Serving notice requiring the correction of any violation of that section; or 2. Requesting the City attorney to maintain an action for injunction to enforce the provisions of Section 8.16.030 of this chapter, to cause the correction of any such violation, and for assessment.and recovery of a civil penalty of such violation, including attorney's fees. E. Any employer who violates Section 8.16.030 of this chapter may be liable for a civil penalty, not to exceed five hundred dollars, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this subsection shall be paid to the finance director of the City. F. In undertaking the enforcement of Section 8.16.030 of this chapter, the City is assuming an undertaking only to promote the general welfare. It is not assuming any duty or obligation, nor is it imposing any duty or obligation on its officers and employees, nor is it liable in money damages or otherwise to any person who claims that (1) the City or one of its officers or employees breached any such obligation, and (2) the breach proximately caused injury. (Ord. 1172 § 1, 1990) 8.16.090 Violations and penalties Any person who violates any provision of Section 8.16.030 of this chapter by smoking in a posted no-smoking area, or by failing to post or cause to be posted a no smoking sign required by this chapter, or by serving or accommodating any person who violates this chapter by smoking in a posted no-smoking area, or by knowingly or intentionally permitting any person to violate this chapter by smoking in a posted no-smoking area,is guilty of an infraction, and is subject to punishment as provided for in Chapter 1.12 of this code. (Ord. 1274 § 2, 1994; Ord. 1172 § 1, -P R3 -a3 ATTACHMENT 4 Ordinance No. XXX(2010 Series) Page 8 1990) or as provided under Chapter 1.24 (Administrative Code Enforcement Procedures) of this code(Ord. 1426 § 1 (part), 2002) 8.16.100 Severability If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. INTRODUCED on the day of April, 2010 AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the day of April 2010 on the following vote: AYES: NOES: ABSENT: Mayor David F. Romero ATTEST: Elaina Cano, City Clerk APPROVED AS TO FORM: Christine Dietrick, City Attorney R3 t From: tcmark@thegrid.net[SMTP:TCMARK@THEGRID.NET] � n� u COIL Sent: Friday, April 09, 2010 2:12:44 PM To: Council, SloCity 6 Subject: Smoking ban n Auto forwarded by a Rule A51— Orl 6 To whom it may concern: A rry V-6- I do not usually contact government entities regarding their legislation, but feel I must make an exception in this case.. The continued passage of unenforceable "feel good" legislation is making a mockery of both the process and the civil rights of our citizens. I do not believe that there is a legal basis to this legislation as I feel that it completely oversteps any constitutionally intended limits for a municipal authority. Further, I believe that this legislation will be a financial liability to your city and its businesses and result in lowered revenues for both. I also feel that, in fairness, the city should proportionally forgo its rights to any tax revenues received from the sale of smoking products within the city limits on the basis of outdoor area in which smoking is prohibited. Perhaps these funds could be allocated to somehow compensating the smokers for the restrictions on their personal freedoms. Another point is that by my calculations based on 2007 government figures, the amount of money contributed by smokers in excises and sales tax which goes to education and "proper childhood development" is approximately $699, 000, 000.00 annually. I think that it would only fair morally to return the proportionate funds to the state, so that they could be sent to more tolerant jurisdictions for their use. Perhaps the local school boards should take note of this, as they apparently have some financial difficulties at this time. The continued passage of legislation on the basis of narrowly based focus groups (such as those who ironically are funded by moneys received from tobacco manufacturers and smokers' taxes) and groups of children who do not contribute any tax revenues or have any voting rights, is an affront to the democratic process. if you really feel that this law is desirable, at least put it to a ballot to give it some semblance of legality. A further question would be whether the city intends to enforce the same restrictions on marijuana and other smoked items. After all, marijuana smoke has been ruled a carcinogen by the state of California, as well as being illegal (unlike tobacco) . On a more personal basis, if this legislation is passed, I certainly intend to minimize any purchases, visits, and dining out in San Luis Obispo, and will no longer promote San Luis Obispo to out of town visitors as a desirable destination. I also feel that a cost analysis of the costs that you may possibly occur from legal -challenges, compensation and enforcement should be considered before you continue forward in this process. RECEIVED APR 12 2010 SLO CITY CLERK r Respectfully yours, T.C. Mark SLO County resident From: Lee Perkins[SMTP:FUTURES333@GMAIL.COM] Sent: Saturday, April 10, 2010 3:13:22 PM To: Council, SloCity Subject: SMOKING BAN Auto forwarded by a Rule THANK YOU FOR CONTINUING TO BAN SMOKING IN MORE PLACES IN SLO. MY MOM DIED OF LUNG CANCER PARTLY FROM SMOKING. EVERYONE KNOWS SOMEONE WHO HAS DIED WITH A RELATED DISEASE TO SMOKING. THE LESS SMOKING WE HAVE IN OUR WORLD THE BETTER. THANK YOU FOR YOUR VOTE! Lee "What do we live for, if it is not to make life less difficult for each other." George Eliot RECEIVE® APR 12 2010 SLO CITY CLERK From: Judy Jones[SMTP:JJUDY64@ATT.NET] kJID44L ( �22cSoti� `F, l Sent: Thursday, April 08, 2010 10:36:18 AM To. Andrew Carter; Council, SloCity Cc: Council, SloCity Subject: TOTAL NON SMOKING BAN IN PUBLIC PLACES Auto forwarded by a Rule Mayor and City Council: GyK E As the Tribune says "A BIG, BIG BOUQUET" TO ALL. I know that 1 will appreciate living in this city even more. As a person with bronchial asthma who grew up with a Mother who smoked and worked for years in buildings with smoke, 1 feel proud that this city took a stand for BETTER HEALTH AND A BETTER QUALITY OF LIFE. I am smiling. Thank You Judy April 5 h 2010 San Luis Obispo City Council �,� �� RE: Ordinance Number 8.16 "Smoking prohibited in certain areas" P 7-ro/z NG 7 Dear San Luis Obispo City Council Members: .ELKE I am writing to you as a concerned resident of San Luis Obispo. Recently, I have read about the new ordinance, which is currently being reviewed and hopefully soon to be turned into law. However upon reading the minutes, attachments and ordinance itself,I found several problems. On attachment four,page four, it states: 41W i'- "(1) `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 is a minimum of twenty(20) feet." If you look at the same attachment on page five under part(b) section(3) it declares: "If smoking is permitted in the Unenclosed area of a bar that does not serve food, the entire smoking section must be limited to one clearly designated area prominently marked with signs, and must be located at least five(5) feet from any doorway or opening into an Enclosed area." This is a direct contradiction of what the reasonable distance must be. As an occasional bar-goer and non smoker, I am in full support of this ordinance but I feel a modification must be made to this ordinance. Five feet is not enough space between smokers and non smokers to avoid secondhand smoke. Some of my favorite bars have great patios but are avoided by non smokers, such as myself,due to the presence of smokers and their horrid smoke. I would not mind if there was a designated spot for them to smoke but I would not like to enjoy their cigarette with them. It is my hopes in writing this letter that you will take into consideration revising this ordinance in increasing the reasonable distance so non smokers can enjoy the downtown experience. Sincerely, a Otops Concerned San Luis ispo Resident RECEIVE® APR 0 6 2010 SLO CITY CLERK l From: Betty[SMTP:BETTYSLO@CHARTER.NETI Sent: Wednesday, April 07, 2010 11:04:50 AM To: Council, SloCity Subject: smoking ban Auto forwarded by a Rule I do hope this is the last restriction, regulation, and infringment of our libertys that you pass this year. Why don't you try and not take away anymore rights for just the rest of this year. This is why tea parties. We are going to get our freedoms back. When we live in society we put up with fellow mans bad habits as well as their good ones. We have to listen to some of you ramble on and on while on the council, but il'we need to know what is going on, we must listen. Thanks Allen and Dave for having some feelings for business men. That is what makes our city, county, and country work Please see that all council members receive this email Betty Buchanan RECEIVED APR 07WD SLO CITY CLERK From: Deborah Cash [mailto:dcash@downtownslo.com] RECEIVED Sent: Tuesday, April 06, 2010 3:57 PM APR O6 1010 To: Cano, Elaina Subject: Red File Item SLO CITY CLERK Elaina, hi I was just now able to obtain a quorum for a board vote on tonight's smoking ban item. I've put together a memo for the Council, if you can red file it, I would really appreciate it. Thanks much, Deborah L! COUNCIL LbDD DIR J CAO d ICAO L�FIN DIR RED FILE _ ZTlpe CHIEF aATTCRNEY [�'PW E i —. M ING AGENDA �CL�RWCRIo ICE CHF DEPT HEADS [� pEO DIA DAT � o ITEM #P,H3 T2r ®' IJL®IR MHR DIR �c� n1G2 �C c.Ea2.lG. , r 6 April 2010 To: Mayor Dave Romero and City Councilmembers From: Deborah Cash, Executive Director San Luis Obispo Downtown Association Re: Smoking Ban Ordinance The San Luis Obispo Downtown Association Board of Directors today voted to support the City staff's recommendation to repeal and replace.Chapter 8.16 of the City of San Luis Obispo Municipal Code to introduce comprehensive no-smoking regulations in San Luis Obispo. Two Downtown Association members, Tom Swem, Real Property Investments and Ron Meier, ASH Management, participated in the Task Force hearings and reviewed the process and recommendations with the Board and Executive Committee. While the vote was not unanimous, the Board generally acknowledges the health and environmental issues associated with tobacco use, and believes the positive attributes of the ordinance will prove beneficial in the long run. There is also the understanding that an educational period will ensue allowing the public to comprehend the new information and that visitors and guests from out of the area will be granted some latitude in the matter. Finally, the board feels that effective enforcement will require adequate signage and that signage should be in place prior to the issuance of citations. i rNN Coun Cl L m Em Oran bum H�'n� PY E/JIF7/V TO: City Council i —E-COUNCILG CDD DIR Crm ole-tc e'j FIN DIR �A fr7u¢OIFIRE CHIEF VIA: Katie Lichtig, City Manager LTATTORNEY 2firw DIR [TICLERIVORI© 3-POLICE CHF b ❑ DEPT HF.AC9 21EC BIR FROM: Christine Dietrick, City Attorney %_PiB MIUTIL DIR Shelly Stanwyck, Assistant City Manag r �?'� _— M-HR DIR jUl'W�n1ES _� �bu[7Cr[, Prepared By: Brigitte Elke, Principal Administrative Analyst — GL,,-dtc SUBJECT: April 3, 2010 Council Meeting Questions Regarding Public Hearing Item No. 3:Amendment to Municipal Code Chapter 8.16 — Non- Smoking Law Background In preparation for the April 3, 2010 Council Meeting, a Council Member posed a few follow up questions about the proposed Amendments to the City's Non-Smoking law. The question and answers are provided below. Question: Does the Ordinance outlaw smoking on streets and sidewalks? Answer: Yes, while not specifically listed, they are addressed in the definition of"Public Place" and "Reasonable Distance required". The ordinance is essentially designed to be all inclusive and points out the exceptions to the new regulations. However, policies such as no- smoking laws are designed to be largely self-regulating. Outreach and education about the new law will be used to inform people of possible violations. Even in complaint based cases, citations will be used as a last resort. Question: Is there a reason why the definition of"Public Place" is presented the way it was? Answer: Yes. The proposed Ordinance is based on a model ordinance developed by the Technical Assistance Legal Center (TALC) for comprehensive secondhand smoke regulations. Upon review of this model regulation, as well as other jurisdictions' ordinances the Community Task Force proposed general language instead of specific. Rather than listing all places that smoking is prohibited, e.g. streets, sidewalks, etc, broad language was included so as to not overlook a potentially public space but at the same time provide some illustrative examples. The twenty foot reasonable distance clause, for example implicitly includes sidewalks. The proposed Ordinance therefore follows the trend with these types of ordinances to have more encompassing language than narrow. Question: Why aren't the lists under enclosed and unenclosed more similar? Answer: The lists are not exactly the same because they regulate indoor and outdoor area - each presenting simila,_1, tlyAifferent circumstances to regulate. For the unenclosed areas L iL RED FILE APR 0 6 2010 MEETING AGENDA SLO CITY CLERK DATESb jo ITEM the following were listed to highlighted to provide clarity and notice of specific examples of areas not to smoke including: service areas; ticket, boarding, and waiting areas of transit centers and bus stops; and public event sites. From: Bob Edmonds[SMTP:BOBEDMONDS1@ATT.NETIrL—C n.4/COUNCILSent: Tuesday, April 06, 2010 10:44:54 AM DiRTo: Council, SloCity DTAA'�Cln nv-& DIR Subject: SMOKE BAN ORDINANCE E� tBAss'"�"* CHIEF Auto forwarded by a Rule 91',4TTdRNEY W of I L�CLERK/�ilCt 2f361G12CF1F 1 DEPT HEA98 l td bid € TIL bIR Dear San Luis Obispo City Council, aIR f NUJ 7-1 IYIe5 r APu4 bL- re; Tobacco Control Program �Crry ntG2. I regularly shop in downtown San Luis Obispo. For many years there has been a problem in the area of Chorro and Higuera. The cigar shop in that area allows cigar smoking in their store. The smoke from that store permeates other stores in the area and can be smelled outside as well. As you may know 2nd hand smoke is the most deadly of all tobacco smoke. When I've stopped into Fanny Wrappers to shop, I can not only smell old cigar smoke in their merchandise but throughout the store. On many occasions the smell was so strong that I left the store and chose not to purchase at all. Our beautiful downtown should be inviting and environmentally safe for all. We should take the opportunity now to change the downtown to a SMOKE FREE zone. Sincerely, Bob Edmonds 805-550-1500 RECEIVED RED FILE APR 0 6 2010 MEETING AGENDA SLO CITY CLERK DATE 4 o ITEM # '_ i 1 C-(t✓OUNCIL �DD DIR RED FILE L�eA&CfryIqi� [�FIN DIR MEETING AGENDA ' °�AeACftlea271RE CHIEF ff�A70RNEY CT PW DIR DA b o ITEM #.0 ; ETtLERK(CAIG 2--POLICE CHF ❑ DEPT HEADS C' AEC DIR r i Er-UTIL DIR CrHR DIR C6)L!mc. L- ti-ryt A(&f Dear Mr. Mayor and Members of the City Council, X I found the proposed ordinance confusing, for example, does 8.16.40 (b) refer to ashes or does it prohibit disposal of cigarette papers and the like in trash cans? Something easier to understand and more on point concerning the downtown core would be preferable. During the December council session the problem that was raised primarily involved smoking outside within the downtown core. I recommend the following as a much simpler approach than was taken in this proposal: Name the streets currently considered to be the boundaries of the downtown core and prohibit smoking within that area with three exceptions: 1. Significant Tobacco Retailers as long as minors are prohibited from entering the store, and 2. Any outdoor area, other than those specified in the previous amendment, in which no non-smoker is unwillingly within 20 feet and none is reasonably expected to be in the time it takes to finish smoking, and 3. Housing units, unless smoking is prohibited by the owner. When non-smoking advocates begin targeting places where people live,they have gone too far. An apartment dweller in an apartment building where smoking is allowed should, of course, be permitted to smoke in outdoor common areas. Anyone who moves into an apartment building where the owner of the property allows smoking should know that there will be smokers in residence. If said person objects to smoking, he/she should exercise personal responsibility and look for apartments where smoking is not allowed. According to the staff report, many such complexes exist. Even non-subsidized apartments are, in fact, low income housing. Some people live in apartments all of their lives; it is what they can afford. If the owner permits smoking, then tenants should be allowed to smoke both inside and outside. It appears that this provision is less about health concerns and more about one group of people deciding to change the behavior of another group of people, starting with those on the lower rung of the economic scale. g RECEIVE APR 0 6 2010 SLO CITY CLERK Simply because the Council has been offered a way to infringe on someone's living space does not mean it should. If this provision passes, where will it end? Will non- smoking advocates target condominiums next? Then will it be single family dwellings? It is interesting that staff and the Community Task Force used the model ordinance provided by the Technical Assistance Legal Center (TALC) of the non-profit Public Health Law & Policy in lieu of utilizing ordinances from other cities as their model. The TALC model appears to stress how an ordinance can be written to narrow or broaden definitions in order to be restrictive and, thus, "encourage" people to stop smoking. I personally find this very manipulative and underhanded. Education about the perils of smoking is valuable, and I support its use. However, manipulation of the environment as a way to curtail smoking is devious and unscrupulous. As members of the City Council what is your goal? If your goal is to pass no smoking laws with the expressed purpose of making smoking so difficult that, hopefully,those who smoke will cease to do so,then pass this proposed ordinance. If, on the other hand, it is your goal to assess the rights of both smokers and non- smokers and act in such a way as to fairly address the desires of both groups, then do not pass this proposed ordinance as written. Thank you for your time and attention. Respectfully submitted, Sandra Rowley RECEIVED Dear Mayor Romero and Council Members, APR 0 5 201U SLO CITY CLERK I'm writing to provide follow-up on the tobacco ordinance: • The Task Force agreed that the science and public health goals are pre-eminent. • We agreed with the city attorney and police that clear, uniform simple, logical,city-wide rules will enhance a mostly self-enforcing ordinance. • Signage and education and a "slow start"are important. New language supplants the outpost concept. • There was,however,an interesting disconnect on the issue of the non-pre-emptive state exception for tobacco stores. The downtown representatives spoke of the angry,vociferous opposition of the one exempted tobacco dealer in town(and indeed they declined to have individual names attached to the report). The"personal" nature of this issue seemed important to the majority. The public health and medical representatives were swayed by the egregious amount of smoke which entered neighboring businesses and public space for which there is no easy fix except to proscribe smoking in tobacco shops as well,as the city of Monterey has recently done. • People who want to buy tobacco will continue to buy it,and patrons and store workers will benefit,as well as all those who walk Chorro Street and frequent establishments proximate to this source of what the California Air Resource Board now labels, "a toxic air contaminant." One cigar emits toxics equivalent to a pack of cigarettes. Thank you for your efforts. The people here are with you on these issues,and your enlightened actions will benefit many and harm none. n L Sincerely, -'rCOUNCIL TCDD DIR LTGAac`-4,me,� Ey DIR RED FILE a�f"`m"4e'�- � FIRE CHIEF ❑'ATTORNEY MEETING AGENDA CLERK/ORIG Q'Pw DIR pR-rc ul�lJn ITEM #f j Stephen L. Hansen, MD _'3 DEPPTHEADS O�RECIDIRCHF � _ `- --u- O'UTIL DIR Q'HR DIR Gr�i nr�