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HomeMy WebLinkAboutO-1613 Sale and Use of Electronic Smoking DevicesORDINANCE NO. 1613 (2015 Series) AN ORDINANCE OF THE CITY 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 01613 Ordinance No. 1613 (2015 Series) Page 2 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 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 City 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. Ordinance No. 1613 (2015 Series) Page 4 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. "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. Ordinance No. 1613 (2015 Series) Page 5 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, 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. Ordinance No. 1613 (2015 Series) Page 6 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 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. Ordinance No. 1613 (2015 Series) Page 7 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 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 3rd day of March 2015, AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the 17th day of March 2015, on the following roll call vote: AYES: Council Members Carpenter, Christianson and Rivoire, Vice Mayor Ashbaugh and Mayor Marx NOES: None ABSENT: None r4, Ma or ar Marx ATTEST: J f csi C i3tly j City Ordinance No. 1613 (2015 Series) Page 8 APPROVED AS VMI rlswie Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, this '_ day of karc" , 201 b- P FAF, s