HomeMy WebLinkAbout1545ORDINANCE NO. 1545 (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 VIII (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 carcinogen; 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
contaminant 2 ; 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; and
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; and
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
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 -23 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
01545
Ordinance No. 1545 (2010 Series)
Page 2
WHEREAS, cigarette filters have been found in the stomachs of fish, birds, and other
animals that mistake them for food, thus swallowing harniful plastic and toxic chemicals; and
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
Ordinance No. 1545 (2010 series)
Page 3
8.16.070
Posting of signs
8.16.080
Non retaliation
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 streams;
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; and
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
Ordinance No. 1545 (2010 Series)
Page 4
(h) "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.
(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, streets, sidewalks, parking lots, parking
garages, 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, cab stands, and takeout counters.
(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:
(1) Public Places;
(2) Places of Employment;
Ordinance No. 1545 (2010 Series)
Page 5
(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:
a. the municipal golf course
b. the San Luis Obispo Swim Center
c. skate park
d. roller hockey rink
e. all sports fields
Ordinance No. 1545 (2010 Series)
Page 6
(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 in existence as of the effective date of this ordinance provided
within 6 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.
(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.
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
Ordinance No. 1545 (2010 Series)
Page 7
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 be 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,
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.
Ordinance No. 1545 (2010 Series)
Page 8
INTRODUCED on the 6th day of April, 2010, AND FINALLY ADOPTED by the
Council of the City of San Luis Obispo on the 20th day of April 2010, on the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
Elaina Cano
City Clerk
Council Members Marx and Settle, Vice Mayor Carter and Mayor Romero
Council Member Ashbaugh
None
APPROVED AS TO FORM:
Christine Dietrick
City Attorney
9
Mayor David F. Romero
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