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HomeMy WebLinkAbout2012-10-02; City Council; 21020; Amend Prohibit Smoking Unenclosed Areas MCA 12-01CITY OF CARLSBAD - AGENDA BILL AB# 21.020 AMEND TITLE 6. CHAPTER 6.14 OF THE CARLSBAD MUNICIPAL CODE TO PROHIBIT SMOKING IN UNENCLOSED DINING AREAS MCA 12-01 DEPT. DIRECTOR ^2^K MTG. 10/2/12 AMEND TITLE 6. CHAPTER 6.14 OF THE CARLSBAD MUNICIPAL CODE TO PROHIBIT SMOKING IN UNENCLOSED DINING AREAS MCA 12-01 CITY ATTORNEY x)^" DEPT. Clerk AMEND TITLE 6. CHAPTER 6.14 OF THE CARLSBAD MUNICIPAL CODE TO PROHIBIT SMOKING IN UNENCLOSED DINING AREAS MCA 12-01 CITY MANAGER RECOMMENDED ACTION: Adopt Ordinance No. CS-188. amending Title 6, Chapter 6.14 of the Carisbad Municipal Code to prohibit smoking in unenclosed dining areas. ITEM EXPLANATION: Ordinance No. CS-188 was introduced and first read at the City Council meeting held on September 25, 2012. The second reading allows the City Council to adopt the ordinance which will become effective thirty days after adoption. The City Clerk will have the ordinance published within fifteen days, if adopted. (Notwithstanding the preceding, this ordinance shall not be effective until approved by the Califomia Coastal Commission.) FISCAL IMPACT: See AB #21,013 on file in the Office of the City Clerk. ENVIRONMENTAL IMPACT: Pursuant to Public Resources Code section 21065, this acfion does not constitute a "project" within the meaning of CEQA in that it has not potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. EXHIBIT: 1. Ordinance No. CS-188. FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED • CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED Approved as Amended EXHIBIT 1 1 ORDINANCE NO. CS-188 2 AN ORDINANCE OF THE CITY OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AMENDING TITLE 6, 3 CHAPTER 6.14 OF THE CARLSBAD MUNICIPAL CODE TO PROHIBIT SMOKING IN UNENCLOSED DINING AREAS. 4 CASE NAME: SMOKE-FREE OUTDOOR DINING ORDINANCE CASE NO.: MCA 12-01 5 6 7 17 21 22 The City Council of the City of Carisbad finds as follows: SECTION I. FINDINGS. WHEREAS, tobacco use causes death and disease and continues to be an 8 urgent public health challenge, as evidenced by the following: • Tobacco-related illness is the leading cause of preventable death in the ^ United States.^ accounting for about 443,000 deaths each year;^ and 10 WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as evidenced by the following: 11 • The U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke;^ and 12 .The California Air Resources Board placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure;"* and • The California Environmental Protection Agency included secondhand smoke on the Proposition 65 list of chemicals known to the state of California to cause cancer, 25 birth defects, and other reproductive harm;^ and WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following: • Secondhand smoke is responsible for as many as 3,000 deaths from lung cancer and 46.000 deaths from heart disease among nonsmokers each year in the United 18 States;^ and r u ^ • Exposure to secondhand smoke increases the risk of coronary heart 19 disease by approximately thirty percent;^ and • Secondhand smoke exposure causes lower respiratory tract infections, 20 such as pneumonia and bronchitis in as many as 300,000 children in the United States under the age of 18 months each year;^ and exacerbates childhood asthma; and • us Department of Health and Human Services, Centers for Disease Control and Prevention. Tobacco Use: The Nation's Leading Killer. 2011, p. 2. Available at: www.cdc.gov/chronicdisease/resources/Duhlications/aag/pdf/2011Arobacco AAG 2011 508.pdf. ' US Department of Health and Human Services, Centers for Disease Control and Prevention. Tobacco Use: ^^^''^f/T^J/^^'''"^ Killer. 2011, p. 2. Available at: www.cdc.gov/chronicdisease/resources/Dublications/aag/ndf/2011/Tobacco AAO 2011 5U8.pdi. 23 3 us Department of Health and Human Services, Office ofthe Surgeon General. How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease: A Report ofthe Surgeon General. 2010, p. 9. Report highlights available at: 9/1 www.surgeongeneral.gov/librarv/tobaccosmoke/factsheet.html. , ^ ,f • * Resolution 06-01 Cal Air Resources Bd. (2006) at 5. Available at: www.arb.ca.gov/regact/ets2006/res0601.pdt; see also Calitomia Environmental Protection Agency, Air Resources Board. News Release, Califomia Identifies Secondhand Smoke as a "Toxic Air 25 Contaminant " Jan. 26,2006. Available at: wvywjrb.ca.gov/newsrel/nr012606.htm. ' Califomia Environmental Protection Agency, Office of Environmental Health Hazard Assessment. Chemicals Known to the State to Cause 26 Cancer or Reproductive Toxicity. 2006, p. 8 & 17. Available at: www.oehha.ca.gov/prop65/prop65Jist/hles/P65smsle081106.pdt. ' US Department of Health and Human Services, Centers for Disease Control and Prevention. Tobacco Use: Targeting the Nation's Leading Killer. 2011, p. 2. Available at: www.cdc.gov/chronicdisease/re.sources/publications/aag/pdf/2011Aobacco AAG 2011 508.pdt. ^'^ ' Bamoya J and Glantz S. "Cardiovascular Effects of Secondhand Smoke: Nearly as Large as Smoking." Circulation, 111: 2684-2698,2005. Available at: www.circ.ahajoumals.org/cgi/content/full/l 11/20/2684. 28 «US Department of Health and Human Services, Centers for Disease Control and Prevention. Tobacco Use: Targeting ^he Nation's Leading Killer. 2011, p. 2. Available at: www.cdc.gov/chronicdisease/resources/publications/aag/ndty2011/Tobacco AAG 2011 ^U^.pdt. 1 WHEREAS, exposure to secondhand smoke anywhere has negative health impacts, and exposure to secondhand smoke does occur at significant levels outdoors, as 2 evidenced by the following: • Levels of secondhand smoke exposure outdoors can reach levels attained 3 indoors depending on direction and amount of wind and number and proximity of smokers;^° and 4 WHEREAS, the U.S. Food and Drug Administration conducted laboratory 5 analysis of electronic cigarette samples and found they contained carcinogens and toxic chemicals to which users and bystanders could potentially be exposed;and 6 WHEREAS, creating smoke-free areas helps protect the health of the 86.9% of 7 Californians who are nonsmokers;^^ and 8 WHEREAS, there is no Constitutional right to smoke;^^and 9 WHEREAS, it is the intent of the City Council, in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous 10 behavior of smoking around non-tobacco users, especially children; by protecting the public from exposure to secondhand smoke; by reducing the potential for children to wrongly associate 11 smoking with a healthy lifestyle; and by affirming and promoting a healthy environment in the City. 12 ^ 13 14 15 16 17 18 19 20 21 22 /// /// /// /// /// /// /// /// /// us Department of Health and Human Services, Centers for Disease Control and Prevention. Tobacco Use: Targeting the Nation's Leading 23 Killer. 2011, p. 2. Available at: www.cdc.gov/chronicdisease/resources/publications/aag/pdty20n/Tobacco AAG 2011 508.pdf. Klepeis NE, Ott WR, and Switzer P. Real-Time Monitoring of Outdoor Environmental Tobacco Smoke Concentrations: A Pilot Study. San 94 Francisco- UniversiW of California, San Francisco and Stanford University, 2004, p. 80, 87. Available at: http://exposurescience.org/pub/reports/Outdoor ETS Final.pdf: see also Klepeis NE, Ott WR and Switzer P. "Real-Time Measurement of Outdoor Tobacco Smoke Particles." Journal ofthe Air & Waste Management Association, 57: 522-534,2007. Available at: 25 www.ashaust.org.au/pdfs/OutdoorSHS0705.pdl US Food and Drug Administration. News Release, FDA and Public Health Experts Warn About Electronic Cigarettes. July 22,2009. Available 25 at: www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucml73222.htm. '2 Califomia Department of Public Health, News Release, State's Latest Tobacco Ads Debut. December 20,2010. Available at ^„ www.cdph.cagov/Pages/NR10-099.aspx. " Public Health Law & Policy, Technical Assistance Legal Center. There Is No Constitutional Right to Smoke. 2005. Available at wwwphlpnet org/tobacco-control/products/there-no-constitutional-right-smoke 28 NOW THEREFORE the City Council does ordain as follows: 2 SECTION II. Chapter 6.14 of the Carisbad Municipal Code is hereby amended to read as follows: Chapter 6.14 - PROHIBITION OF SMOKING IN UNENCLOSED DINING AREAS Sections: 6.14.010- Purpose 6.14.020- Definitions 3 4 5 6 7 g 6.14.030 - Prohibition 9 6.14.040 - Reasonable Smoking Distance Required 10 6.14.050 - Optional Prohibition 11 6.14.060 - Posting of Signs 12 6.14.070 - Other Requirements and Prohibitions 13 6.14.080 - Penalties and Enforcement 6.14.010 - Purpose Because smoking of tobacco, or any other weed or plant, is a danger to health and a cause of material annoyance, inconvenience, discomfort and a health hazard to those who are present in unenclosed areas as well as confined places, in order to serve public health, safety and welfare, the declared purpose of this article is to prohibit the smoking of tobacco, or any other weed or plant in unenclosed dining areas. 6.14.020 - Definitions 14 15 16 17 18 19 (a) "Enclosed Dining Area" as defined in this chapter shall mean an area enclosed by a roof and 20 walls with appropriate openings for ingress and egress 21 (b) "Public Place" as defined in this chapter shall mean any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement. 22 (c) "Reasonable Distance" as defined in this chapter shall mean a distance of twenty (20) feet in 23 any direction from an area in which smoking is prohibited 24 (d) "Smoke" or "Smoking" as defined in this chapter shall mean and include the carrying of a lighted pipe, or lighted cigar, or lighted cigarette of any kind, or the lighting of a pipe, cigar or cigarette of any kind. (e) "Unenclosed Dining Area" as defined in this chapter shall mean any dining area, which is not 27 an Enclosed Dining Area, including streets and sidewalks, which is available to or customarily 28 used by the general public, an employee, or any invitee, and which is designed, established, or regularly used for consuming food or drink. 6.14.030 Prohibition 1 2 3 Smoking is prohibited in Unenclosed Dining Areas within the City of Carisbad. except places 4 where smoking is already prohibited by state or federal law. in which case those laws apply. ^ 6.14.040 Reasonable Smoking Distance Required Smoking shall be prohibited within a Reasonable Distance, as defined in this chapter, from any Unenclosed Dining Area. 6 6.14.050 - Optional prohibition Nothing in this chapter prohibits any person, corporation or any other legal entity, or employer, with legal control over any property from prohibiting smoking on any part of such property, even 9 if smoking is not otherwise prohibited in that area by law. 10 6.14.060 - Posting of signs 11 Any person, corporation or any other legal entity, or employer that has legal or de facto control of an Unenclosed Dining Area in which smoking is prohibited by this chapter shall post a clear. 12 conspicuous and unambiguous "No Smoking" or "Smoke-free" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have 13 letters of no less than one inch in height and shall include the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle 14 with a red bar across it). Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter 15" 16 6.14.070 - Other Requirements and Prohibitions No ashtrays or smoking disposal receptacles shall be placed in areas where smoking is 1^ prohibited. 6.14.080 Penalties and Enforcement 19 20 (a) Each incident of smoking in violation of this chapter is punishable pursuant to Chapter 1.08 of this code, or in alternative by the administrative code enforcement remedies of Chapter 1.10 of this code. (b) Except as otherwise provided, enforcement of this chapter is at the sole discretion of the 22 persons authorized to enforce this ordinance pursuant to Chapters 1.08 and 1.10 of this Code Nothing in this chapter shall create a right of action in any person against the City or its agents 23 for damages or to compel public enforcement of this chapter against private parties. 24 SECTION III. STATUTORY CONSTRUCTION & SEVERABILITY. 25 It is the intent of the City Council of the City of Carisbad to supplement applicable state anc federal law and not to duplicate or contradict such law and this ordinance shall be construed 26 consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or its application to any person or circumstance, is for any 27 reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs. 28 .4. 1 sentences, clauses or phrases of this ordinance, or its application to any other person or circumstance. The City Council of the City of Carisbad hereby declares that it would have 2 adopted each section, subsection, sutxiivision, paragraph, sentence, clause or phrase hereof independently, irrespective of the fact that any one or more other sections, subsections, 3 subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in a publication of general circulation in the City of Carisbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a regular meeting of the Carisbad City Council on the 25th day of September 2012, and thereafter. /// /// /// /// /// III III III III III III IH III III III III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carisbad on the 2nd day of October 2012, by the following vote, to wit: AYES: Council Members Hall, Blackburn, Douglas, Packard NOES: None ABSENT: Council Member Kulchin ABSTAIN: None APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attomey ATTEST: LORRAINE M. WOOD, City Clerk (SEAL)