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SR-102808-7B~~~ ;cYar City Council Report Santa Monica oc-t~~- 2-~,.Ztx~ City Council Meeting: , Agenda Item: ~-°.g To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Ordinance Amending The Anti-Smoking. Law To Prohibit Smoking In Multi- unit Residential Common Areas and To Create a Tobacco Retailer Licensing Program; Resolution Urging Local Pharmacies Not To Sell Or Promote Tobacco Products; and Informational Update On Other Potential Areas of Smoking Regulation In Multi-Unit Residential Properties Recommended Action Staff recommends that Council consider introducing for first reading the attached proposed ordinance and adopt the attached non-binding resolution. Staff also seeks Council direction for possible additional areas of tobacco regulation as described below. Executive Summary The proposed ordinance would do two things. It would amend the City's anti-smoking ordinance to prohibit smoking in all indoor and outdoor common areas at multi-unit residential properties. It also would create a tobacco retailer licensing program. There is no significant cost to the City associated with either proposed ordinance or with the proposed non-binding resolution. However, the ban on smoking in outdoor common areas raises significant issues which warrant careful consideration, including the rights and expectations of existing tenants and difficulties of enforcement. The report also provides information requested by Council on local feedback to Staff inquiries regarding possible further regulation of smoking in-multi-unit residential properties. Background Following public discussion at its meeting of April 8, 2008, Council directed staff to prepare an ordinance amending the- City's anti-smoking ordinance to prohibit smoking at outdoor common areas of multi-unit .residential properties; and to create a tobacco retailer licensing program. Council also directed staff to prepare a non-binding resolution urging local pharmacies not to sell tobacco products. Finally, Council directed staff to collect public opinion and feedback concerning possible additional regulation of smoking at multi-unit residential properties. 1 Discussion A. Proposed Ordinance Prohibition of Smoking In Multi-Unit Residential Common Areas Pursuant to Council's direction the attached proposed ordinance would prohibit smoking at all common areas of multi-unit residential properties. Staff also recommends allowing property owners to designate a smoking location in common areas '(with certain requirements), as reflected in the proposed ordinance. Council directed staff to consider this approach. Based on public feedback and approaches used by other cities, allowing (but not requiring) designated smoking areas appears a fair and reasonable compromise to accommodate smoking under certain circumstances where it is least likely to impact other residents. The proposed ordinance adopts the same standard used by the City of Oakland, which is the only other city with rent control to regulate smoking in outdoor common areas. The proposed ordinance covers both indoor and outdoor common areas. Most if not all indoor common areas already are covered by California state law but staff agreed with public input that it would be clearer for the ordinance to include both. There are other policy issues for Council's consideration in approaching this ordinance. First, some members- of the public have questioned whether the ordinance would include all multi-unit properties (including condominiums) or whether it would be limited to non-owner-occupied rental properties. It appears that practical and legal issues would be somewhat more complex- at condominiums. On the other hand, owner-occupied condominiums would not involve issues of tenants'. rights which make apartment smoking regulation more complex from a policy perspective. The proposed ordinance applies to all multi-unit residential properties and makes explicit the inclusion of condominiums. 2 Second, Rent Control Board staff raised the issue that the ability of a tenant in a controlled unit to smoke in outdoor common areas might in certain cases be deemed by the Board a "housing service" that could not unilaterally be taken away by the landlord or used as the basis for eviction under the rent control laws. If Council legislates a prohibition on smoking it would not be the landlord taking unilateral action against the tenant. However, this issue does raise the question of whether the ordinance- might impact the existing rights of smoking tenants. Unlike other areas of residential smoking regulation,. with the common areas it would be difficult to create a grandfathering exemption for existing tenants. Third, as is crucial with all potential areas of residential smoking regulation, Council needs to consider the appropriate means of enforcing the regulation of smoking in common areas. Staff elicited public opinions and ideas on this subject. Based on this input and the laws already adopted by other cities, the following are possible forms of enforcement for Council to consider. • Private right of action. Oakland, Calabasas, and other cities have created a private right of action so that a private person can sue the smoking tenant in court for damages or civil penalties to redress violations of the ordinance. This approach provides tenants who are suffering from second-hand smoke with a direct legal remedy. It also has the advantage for smoking tenants of not directly impacting their tenants' rights or tenancies since it need not alter the existing legal grounds for eviction. This is turn could minimize the temptation for unscrupulous owners to use smoking as a pretext to remove tenants in low-rent controlled units. The attached proposed ordinance includes this remedy. • Declaring smoking a nuisance. Some cities have declared second-hand smoke a nuisance. Doing this in Santa Monica would provide landlords with just cause to evict a violating tenant under Charter Section 1806(a)(3). In the context of the requested ordinance, Council could limit this declaration of nuisance to smoking in residential common areas. This would obviously have a potential impact on the 3 rights of certain smoking tenants who live in controlled rental units. It would also make private legal actions for nuisance by other tenants easier to bring. However, under existing legal definitions and emerging case law, smokers may already be liable for creating a nuisance regardless of location; so limiting the definition to common areas could create confusion. • Other landlord remedies. Council could consider other remedies for landlords without declaring second-hand smoke in common areas a nuisance. For example, multiple warning notices could be required before landlords could take action to evict a recalcitrant tenant. • Infraction. As with other violations of Santa Monica's smoking law,. common area smoking could be .deemed an infraction subject to citation by law enforcement. In the private residential setting, this raises the question of how enforcement would operate. Unlike all of the current areas of regulation, which are essentially public places, there is no obvious or easy way for officers to enforce the. regulation in private residential properties, or for other City staff to enforce. Whatever enforcement approach Council takes, it is vital to consider the practical ramifications for landlords, smoking tenants, and non-smoking tenants. Remedies and the effect of the law on smoking tenants' rights and tenancies need to be considered and carefully spelled out in the ordinance. Landlords and their organizations have expressed concern about landlords' potential liability to non-smoking tenants if they fail to take action against smokers; they also expressed concern that they not be seen as violating tenants' rights laws if they take action against smoking tenants. Rent Control Board staff and a representative of Santa Monicans for Renters Rights expressed concern that any regulation not undermine the existing rights or tenancies of tenants in controlled rental units. They also expressed concern that, even if existing smoking tenants are protected under the law, that some unscrupulous landlords may still use any anti-smoking regulation as a pretext for harassment of tenants in controlled units. 4 On the subject of potential owner responsibilities, Council could consider requiring landlords to serve notices of the law to all tenants; or to post no-smoking signs. Under existing local law, it is not clear whether a landlord can evict a tenant in a controlled unit for smoking. The potential legal arguments available to a landlord to do so are highly fact-specific and would depend on the details of each case. The potential arguments are: (1) the tenant "has committed a material and substantial breach of an obligation or covenant of his or her tenancy"; (2) the tenant is committing a nuisance; (3) the tenant is "creating a substantial interference with the comfort, safety, or enjoyment of other occupants or neighbors"; or (4) the tenant is "convicted of using or expressly permitting a controlled rental unit to be used for any illegal purpose." The proposed ordinance includes a separate right of action to redress violations in court. This could be utilized by another tenant, a landlord, the City, or others. The ordinance also includes residential common areas in the general list of locations where smoking is prohibited. Tobacco Retailer Licensing Program Pursuant to Council's direction the attached proposed ordinance would create a tobacco retailer licensing program in Santa Monica. The ordinance includes most of the features present in similar ordinances in other California cities and counties. The following are the principal features of the ordinance: • Requires all sellers of tobacco products to have and display a special license. • Prohibits tobacco product sales to minors and violating other related laws. • Provides for suspension of the license after the first and second violations within five years; .and revocation of the license after the third violation within five years. • The administration, enforcement, and education of the program is funded by the annual fees. 5 Staff has consulted with the Finance and Police Departments about administration and enforcement of the ordinance, respectively. Staff recommends that the City Attorney's Office oversee the enforcement of the program with the assistance of Police for the periodic undercover stings regarding underage sales of cigarettes. Staff also recommends that Finance oversee the administration of the program. The two main policy options in this area are which prohibitions to include; and how to address repeated violations. The prohibitions in the proposed ordinance are fairly standard in the many similar ordinances throughout the state. The remedies for repeat violations vary widely in other cities. Most cities provide for eventual revocation of the license after repeated violations within a prescribed period (typically three to four violations within afive-year period). However, the effects of revocation are diverse. Some cities allow the offending business to re-apply within as little as sixty days. Others appear to .impose a permanent ban upon revocation. Other cities allow the business to re-apply, but not until a period of five years or sometimes less has elapsed. Under the proposed ordinance a revoked licensee cannot re-apply for five years. Council could consider adding the sale of tobacco paraphernalia to the ordinance. The proposed ordinance covers only tobacco products Non-Binding Resolution For Local Pharmacies Pursuant to Council's direction staff has prepared the attached resolution supporting local and statewide laws that prohibit the sale and promotion of tobacco products in pharmacies and drugstores; and urging local pharmacies and drugstores not to sell tobacco products. The American Lung Association has offered to send a letter to each affected business in Santa Monica informing them of the resolution if passed. B. Informational Update On Potential Options In Residential Smoking Regulation Public Opinions On Residential Smoking Regulation 6 Pursuant to Council's direction staff solicited opinions, ideas and questions from the public and various groups on the subject of multi-unit residential smoking regulation. Staff solicited feedback from and invited to a public meeting the following groups: the Rent Control Board, Housing Division, Santa Monicans for Renters' Rights, Apartment Association of Greater Los Angeles (AAGLA), Action Apartment Association, Western Center on Law And Poverty, Legal Aid Foundation of Los Angeles, Healthier Solutions, Smoke-Free Apartment House Registry, and each of the local Neighborhood Associations. Staff also issued a press release and held a public meeting at the Main Library on May 29 which was attended by approximately 25 people. Staff received 34 emails and letters and 15 telephone calls on the subject. These responses are summarized below. Representatives of Smoke-Free Apartment House Registry expressed a strong need to protect tenants from second-hand smoke in residential .properties. They outlined a series of potential measures to address the problem. (See Attachment C.) Individual tenants also wrote or spoke at the meeting to express similar concerns with the ill effects they have experienced from the second-hand smoke of other tenants. Rent Control Board staff and a representative of Santa Monicans for Renters Rights expressed reluctance to adopt any form of residential smoking restrictions due to the concern that they could undermine the rights of existing tenants in controlled rental units. They also expressed concern. that unscrupulous landlords might use any anti- smoking regulation as a pretext for harassing tenants. The chairperson of the .Rent Control Board wrote to express strong opposition to any form of residential smoking regulation. (See Attachment C.) Although the full Board has not yet considered the issue in the wake of Council's latest inquiry, the Board did consider the issue at one of its meetings in 2007 and appeared to unanimously, albeit informally, opposed any such legislation. The Housing Commission plans to address the issue at its June 19, 2008 meeting. 7 A representative of the WVestern Center of Law and Poverty expressed opposition to any form of residential smoking regulation, arguing that individuals who are poor, disabled, or of color tend to both rent and smoke at higher rates than the general population. Thus, the argument goes, any regulation on residential smoking would have a disparate impact on each of those groups -not only existing tenants but future applicants as well.. A representative of AAGLA and some individual landlords and property managers expressed concerns that enforcement remedies and procedures be clearly and fairly spelled out in any future legislation. Some landlords opposed. any regulation of rental properties as a violation of property rights. Others welcomed potential regulation. In addition to these general views, staff solicited opinions concerning a series of specific areas for potential residential smoking regulation. The following is a summary of the areas discussed along with any specific public input: • Designate and disclose. This approach requires owners to disclose to all future renters or condominium buyers which units allow smoking and which do not. All. new occupants of anon-smoking unit would be barred from smoking. There are various ways to conduct the unit-designation process. Some members of the public urged that under this approach, non-smoking units be contiguous to each other. A tenants' rights advocate opposed creating any new grounds for eviction. Landlords voiced concerns of bureaucracy and potentially inaccurate information being given to a landlord who then might be liable for passing it on, • Future tenancies. This rule prohibits smoking in all residential units occupied under new leases as of a certain date. Some cities require lease clauses to this effect. Others mandate a percentage of units that must be smoke-free by a particular date. Landlord representatives expressed fear over becoming the enforcers of this rule and a desire to remove the temptation of unscrupulous landlords to evict tenants by leaving enforcement to others. Some residents 8 suggested not limiting smoking bans to future tenants in light of existing problems. • New housing construction. Under this model, smoking is banned either in all newly constructed multi-unit residential properties in a city, or in a percentage of new units. This regulation can also be phased in over time. • Balconies and patios. According to the Smoke-Free Apartment Registry, more than half of all complaints they receive from tenants are about smoke entering their units from outside balconies and patios of other tenants. They urge that if smoking is prohibited inside any units that balconies and patios also be covered. • Declare smoking a nuisance. As described above, this would facilitate the eviction of tenants whose. smoking harms others and it would also facilitate private actions by tenants. There appeared to be widespread support for this approach at the public meeting although Rent Board staff voiced continuing concern that existing tenants' rights-.not be undermined. Also the SMRR representative suggested that it would be unfair to adopt a residential nuisance rule for smoking without making smoking a nuisance citywide. Under existing state and local law the nuisance remedy already can be used to address smoking in some cases. • Declare rights of landlords to regulate. Similar to S.B. 1598, Council could consider an ordinance declaring the right of landlords to designate units or properties as smoke-free, while grandfathering existing smoking tenants. This approach was strongly endorsed by landlord representatives. No significant opposition to it was voiced by other groups in the outreach, although the Western Center on Law and Poverty opposes even the declarative portion of S.B. 1598 since, they argue, it may be perceived as an encouragement to evict smoking tenants and thereby disproportionately affect certain demographic groups. Additional outreach in summer 2008 9 Legal staff has conducted more outreach since the posting of the most recent staff report in early June. On June 19, 2008 staff presented the issues involved in residential smoking regulation to the Housing Commission. The commissioners recognized the complexities of regulating in this area. They generally agreed with the benefits of prohibiting smoking in residential common areas. They also favored the idea of a declaration of existing rights. Staff next presented the issue at a meeting of the Apartment Association of Greater Los Angeles (AAGLA) on June 23, 2008. AAGLA members voiced concern about potential rent decrease petitions if tenants violated the smoking laws. They also expressed a desire for landlords not to have to enforce residential smoking laws and potential liability for failing to do so. Staff presented the issue at a meeting of the Rent Control Board on July 10, 2008. The Rent Board members unanimously opposed the idea of residential smoking regulation. They raised issues including the number of people from certain demographic groups who are disproportionately more likely to smoke (the poor, minorities, the disabled, and renters); concerns about raising ire between tenants; problems of enforcement; and incentivizing evictions. Promotion of auittina Many have pointed out that underlying all of this discussion is the fact that the vast majority of smoking adults would like to quit for health reasons, but have trouble doing so due to the chemical addiction. Others have noted that poor and disabled residents are both more likely to smoke, and less likely to have access to cessation programs. In conjunction with any future smoking legislation, Council could consider having the City launch a campaign or promotion that would encourage and help smokers to quit smoking for good. This effort also could be combined with the direction to the public relations firm recently hired by the City to conduct public outreach on the smoking laws. 10 Regulation of exterior tobacco advertisements Council requested information on potential regulation of advertisements for tobacco products on the exterior of businesses. Under current law, the City cannot regulate the content of advertisements, e.g., by specifying tobacco-related ads, despite any compelling health interests in this area. The City can only address the manner, size, location, and time of advertising generally. Alternatives As to the proposed residential common area smoking ordinance, Council could consider alternatives to the proposed approach including different remedies and a different approach to designated smoking areas, as described above. As to the tobacco retailer licensing program, Council could consider changing the list of prohibitions and requirements in the ordinance. Council also could consider changing the prescribed remedies for repeat violations, as described above. If Council wishes to act further in the area of residential smoking regulation, it could consider among the various approaches outlined above: Public Outreach Staff conducted public outreach regarding both the common area ordinance and the other potential areas for residential regulation as described above. Financial Impacts & Budget Actions Adoption of the proposed ordinance would have minor financial impact. The prohibition of smoking at outdoor residential common areas would be enforced primarily by private persons and would not involve City staff time for enforcement. The administrative and enforcement costs of the proposed tobacco retailer licensing program (which are not currently known) would be borne entirely by fees collected from the covered businesses in the form of the license fee. These fees would be adjusted annually to reflect actual 11 costs. As with all smoking regulations adopted by Council, these new rules would be included in public educational outreach efforts conducted by City staff and possibly by outside consultants. Prepared by: Adam Radinsky, Head, Consumer Protection Unit Paula Rockenstein, Consumer Affairs Specialist Attachments: A: Proposed Ordinance B: Proposed Resolution 12 Approved: Forwarded to Council: City Council Meeting: October 14, 2008 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING CHAPTER 4.44 OF THE SANTA MONICA MUNICIPAL CODE ON SMOKING TO PROHIBIT SMOKING IN COMMON AREAS OF MULTI-UNIT RESIDENTIAL PROPERTIES; AND ADDING CHAPTER 4.45 TO THE SANTA MONICA MUNICIPAL CODE TO CREATE A TOBACCO RETAILER LICENSING PROGRAM WHEREAS, more than 440,000 people die in the United States from tobacco- related diseases every year, making it the nation's leading cause of preventable illness; and WHEREAS, the United States Surgeon General recently issued a landmark report describing "massive and conclusive scientific evidence" that ETS causes premature death and disease in adults and children, including .cancer, cardiovascular disease, and asthma; and WHEREAS, the Surgeon General's Report concluded that "there is no risk-free level of exposure to secondhand smoke" and that exposure to ETS has "immediate adverse effects" on the cardiovascular system; WHEREAS, the Surgeon General's Report concluded that public smoking laws are having the effect of improving public health and also reducing the incidence of smoking generally; and 1 WHEREAS, the Centers for Disease Control estimates that secondhand smoke exposure causes as many as 300,000 children in the United States to suffer from lower respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood asthma, and increases the risk of acute, chronic middle ear infection in children; and WHEREAS, the United States Environmental Protection Agency (EPA) has classified second-hand smoke as a Group A carcinogen, the most dangerous class of carcinogens; and WHEREAS, the EPA has concluded that second-hand smoke causes coronary heart disease in non-smokers; and WHEREAS, exposure to ETS is the third leading cause of preventable death in this country, killing over 52,000 non-smokers each year, including 3,000 deaths from lung cancer; and WHEREAS, second-hand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly, and children; and WHEREAS, the California Air Resources Board ("GARB") has officially identified second-hand smoke, or ETS, as a "toxic air contaminant" pursuant to Health and Safety Code Section 39660, providing the most authoritative finding to date of the health dangers of ETS in California; and WHEREAS, the CARB's Scientific Review Panel found that ETS concentrations in some outdoor locations was comparable to those found inside smokers' homes; and WHEREAS, the GARB report noted the following health statistics resulting from second-hand smoke exposure each year in the state of California: • Over 400 additional lung cancer deaths 2 • Over 3,600 cardiac deaths • About 31,000 episodes of children's asthma • About 21 cases of SIDS • About 1,600 cases of low birth weight in newborns • Over 4,700 cases of pre-term delivery; and WHEREAS, what the scientific research has confirmed is reflected in the large and growing number of local, state, and national governments that have prohibited smoking in many different outdoor locations in recent years; WHEREAS, children and youth who observe smoking in public places may model the behavior; and WHEREAS, City staff and other agencies have received complaints from residents of second-hand smoke exposure originating in the common areas of multi-unit residential properties ;and WHEREAS, banning smoking at all outdoor common areas of multi-unit residential areas is necessary to protect the public health, safety and welfare of Santa Monica residents: and WHEREAS, most Californians do not smoke and a majority favor limitations on smoking in multi-unit residences, as evidenced by the following: • 86% of Californians are non-smokers; and • 70% of Californians surveyed approve of apartment complexes requiring at least half of rental units be non-smoking, and • 67% of Californians surveyed favor limiting smoking in outdoor common areas of apartment buildings; and 3 WHEREAS, the California Legislature. has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority; and WHEREAS, state law requires all tobacco retailers to be licensed by the Board of Equalization in order to curb the illegal sale and distribution of cigarettes which deprive the state yearly of hundreds of millions of tax dollars that fund local and state programs such as health services, anti-smoking campaigns, cancer research, and education programs; and WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law; and WHEREAS, almost 90 percent of adult smokers started smoking at or before age 18; and WHEREAS, in order to help prevent the illegal sale of cigarettes and other tobacco products to minors, Santa Monica local law prohibits the sale of tobacco products from vending machines or out of the manufacturer's package or without required health warnings; and WHEREAS, despite the state's efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that: • Nearly half of all youth .smokers nationwide buy the cigarettes they smoke, either directly from retailers or vending machines, or by giving money to others to purchase the cigarettes for them; • Minors consume 924 million packs of cigarettes each year nationwide, yielding the tobacco industry $480 million in profits from underage smokers; 4 • Most adults who have ever tried smoking have tried their first cigarette under the age of 18, and are on average under the age of 16; and WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes; and WHEREAS, more than sixty cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking; and WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced by the following: • 14 percent of all tobacco retailers unlawfully sold to minors in 2004; • 32 percent of non-traditional tobacco retailers such as deli, meat, and produce markets sold to minors in 2004; • Teens surveyed in 2002 say they bought their cigarettes at: gas stations (58%), liquor stores (45%), and supermarkets and small grocery stores (25%); and WHEREAS, the local news media has reported recently on the ready availability of cigarette sales to minors in Santa Monica; and WHEREAS, Santa Monica has a substantial interest in promoting compliance with federal, state, and local laws .intended to regulate tobacco sales and use; in discouraging the illegal purchase of :tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and protecting children from being lured into illegal activity through the misconduct of adults; 5 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 4.44 of the Santa Monica Municipal Code is hereby amended to read as follows: CHAPTER 4.44 REGULATION OF SMOKING Section 4.44.010 Definitions. The following words and phrases, as used in this Chapter or in any other applicable law regulating smoking, shall have the following meanings: (a) Dining area. Anon-residential location where food or beverages are served by a business or routinely consumed by customers. This includes but is not limited to restaurant or bar seating- areas and patios. (b) Multi-Unit Common Area. Any indoor or outdoor area at a multi-unit residential property (including rental properties and condominiums) that is accessible to and usable by more than one resident, including but not limited to halls, paths, lobbies, laundry rooms, common cooking areas, outdoor dining areas patios, plat/ areas, swimming pools, gardens, and parking lots. -(b}~ Service area. A place where people use or wait for services provided by a private or government entity. This includes but is not limited to bus stops, ATM lines, information kiosks and theater lines. 6 ~)~ Smoke or smoking. The carrying or holding of a lighted pipe, cigar, cigarette, or any other lighted smoking product or equipment used to burn any tobacco products, weed, plant, or any other combustible substance. Smoking includes emitting or exhaling the fumes of any pipe, cigar, cigarette, or any other lighted smoking equipment used for burning any tobacco product, weed, plant, or any other combustible substance. Section 4.44.020 Prohibitions. (a) Smoking in Specific Locations. It shall be unlawful to smoke in the following places: (1) Ahyelevator; (2) Any public park; (3) Any public beach; (4) Anywhere on the Santa Monica Pier, except in designated areas; (5) Any outdoor service area; (6) Inside any public building (as that term is .defined in Government Code Section 7596); (7) .Any outdoor dining area; (8) Within twenty feet of the entrance,.exit or open window of any building open to the public; (9) The Third Street Promenade; 7 (10) Any Farmers Market; (11) The property of any public library.-; (12) Any Multi-Unit Common Area except that the propertv owner, manager or homeowners' association may designate a portion of an outdoor common area where smoking is allowed. Any such designated smoking area: (A) must be located at least 20 feet from anv indoor area; (B) must not include and must be at least 20 feet from outdoor areas primarily used by children, including but not limited to areas improved or designated for plav or swimming; (C) must be no more than 25 percent of the total outdoor area of the premises of the propertv; (D) must have a clearly marked perimeter; (E) must be identified by conspicuous signs; and (F) must not overlap with any area in which smoking is otherwise prohibited by this chapter or other law. (b) Disposal of Smoking Waste. No person shall dispose of any cigarette, cigar or tobacco, or any part of a cigarette or cigar, in any place where smoking is prohibited under this Chapter, except in a designated waste disposal container. (c) Liability of Businesses. 8 No business owner, operator or manager shall knowingly or intentionally allow smoking in an outdoor dining area that is under his, her or its control. This law does not require the physical ejection of any person from the business or the taking of steps to prevent smoking under circumstances that would involve a significant risk of physical harm. (d) Posting of Signs. Every business that owns or controls an outdoor dining area covered under subsection (a)(7) shall post one or more prominent signs in conspicuous locations to apprise users of the prohibition of smoking in that outdoor dining area. Multiple signs must be provided as needed for larger areas to ensure that signs are readily visible to all users of the area. (e) Enforcement and Penalties. (1) Infraction. A violation of this Section is an infraction and shall be punished by a fine of one. hundred dollars for the first violation; two hundred dollars for a second violation within one year; and five hundred dollars for a third and subsequent violations within one year. (2) Private Right of Action. Notwithstanding any other provision of this Chapter any person may bring a civil action for damages, injunctive relief or other relief to redress a violation of sub-section 4.44.020(a)(12). (2}~ Nonexclusive Remedies and Penalties. Punishment under this Section shall not preclude punishment pursuant to Health and Safety Code Section 13002, Penal Code Section 374.4, or any other law 9 proscribing the acf of littering. Nothing in this Section shall preclude any person from seeking any other remedies, penalties or procedures provided by law. Section 4.44.030 Sale of tobacco by vending machine or other mechanical device or out of package. (a) .Purpose. The City Council finds cigarette smoking and other tobacco use by minors to be a continuing problem with grave public health consequences. Studies show that the vast majority of adult smokers began as teenagers, and that teenagers who begin using tobacco before the age of fifteen eventually have much higher cancer rates than non- tobacco using teenagers. In recognition of the Surgeon General's conclusion that nicotine is as addictive as cocaine or heroin. action is needed to curtail the easy access of minors to cigarettes and other tobacco products. The purpose of this Chapter is to implement a strict and enforceable system to prevent the illegal sale of cigarettes and other tobacco products to minors. (b) Vending Machines. On or after May 1, 1991, no person shall sell or dispense cigarettes or other tobacco products by vending machine or any other device that automatically sells or dispenses tobacco products. (c) Out of Package Sales Prohibited. It is unlawful to sell cigarettes out of the manufacturer's package or without required health warnings. 10 SECTION 2. Chapter 4.45 is added to the Santa Monica Municipal Code as follows: CHAPTER 4.45 TOBACCO RETAILER LICENSING Section 4.45.010 Intent. It is the intent of the City Council, in enacting this ordinance, to encourage responsibility in tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors. Section 4.45.020 Definitions. The following words and phrases, as used in this Chapter, shall have the following meanings: (a) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. (b) "Proprietor" means a Person with an ownership or managerial interest in a business covered by this Chapter. An ownership interest shall be deemed to exist when a Person has a 10 percent or greater interest in the stock. assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have or share ultimate control over the day-to-day operations of a business. 11 (c) "Tobacco Product" means anv substance containing tobacco leaf including but not limited to cigarettes cigars pipe tobacco, hookah tobacco, snuff chewing tobacco, dipping tobacco or bidis. (d) "Tobacco Retailer" means any Person who sells, offers for sale or sample, advertises or otherwise promotes, or does or offers to exchange for anv form of consideration, in public view, any Tobacco Products. Section 4.45.030 Tobacco Retailer License Reauired. (a) No Person shall operate as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer's license pursuant to this Chapter for each location at which that activity is to occur. (b) Tobacco Retailing without a valid Tobacco Retailer's license is a public nuisance. Section 4.45.040 Application Procedure. (a) Applicants for a license under this Chapter. shall pay a non- refundable license fee in an amount established by Council resolution and sufficient to cover the costs of administration. (b) All applications shall be completed on a form prepared and supplied by the City Manager or the Manager's designee. 12 (c) Applicant shall be required to disclose any violations of the State tobacco licensing laws at any location within the City of Santa Monica within- the five years prior to the application for which Applicant's state tobacco retailer's license was either suspended or revoked. Section 4.45.050 Issuance of License. (a) Except as otherwise provided herein, and except where a Tobacco Retailer's establishment would not otherwise be permitted under local, state or federal laws, a license shall be issued upon receipt of a complete application in conformity with all of the requirements set forth in the Application Procedure section of this Chapter, and payment of the license fee. (b) A Tobacco Retailer's license will not be issued where: (1) Suspension or revocation proceedings have been initiated by any local state or federal agency for violations of local, state or federal tobacco control laws within the preceding 30-day ep riod. (2) Proprietor or any person employed bV Proprietor has been convicted or civilly adjudged liable for violating any local, state or federal tobacco control law within six months prior to the date of application. 13 (3) The Proprietor's Tobacco Retailer's license was revoked for the same location within the five years preceding the date of the application. (4) The Tobacco Retailer has not obtained a valid state tobacco retailer's license from the California Board of Equalization. (5) The Tobacco Retailer does not have a valid Santa Monica business license. or is delinquent on the pavment of business tax, late pavment penalties or other associated fees. (c) Every license issued under this Chapter shall be posted and displayed at all times in a conspicuous place within the business location that is visible to the public. (d) Notwithstanding any other provision of this Chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless the location has been fully transferred to a new Proprietor. Section 4.45.060 License Renewal and Expiration. (a) A Tobacco Retailer license will be valid until June 30 of every year and if not renewed will expire. Each Tobacco Retailer shall apply for the renewal of its Tobacco Retailer's license and submit the license fee no later than thirty days prior to expiration of the term. 14 (b) If anv material information required for issuance of a license herein has changed since the original license was issued, a new Tobacco Retailer's license is required before the business may continue to act as a Tobacco Retailer. Section 4.45.070 Prohibitions (a) No Tobacco Retailer shall violate anv local, state or federal law that relates to the sale, use, smoking, or other regulation of Tobacco Products. (b) No Tobacco Retailer shall sell or transfer a Tobacco Product to another Person who appears to be under the age of twenty-seven years, without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law, to purchase and possess the Tobacco Product. (c) No Tobacco Retailer shall permit any person who is youhger than the minimum age established by state law for the purchase or possession of Tobacco Products, to participate in the sale of Tobacco Products. (d) No Tobacco Retailer shall display Tobacco Products in a manner that is accessible to the general public without the assistance of the Tobacco Retailer or its employee. 15 fie) No Tobacco Retailer shall sell or display cigarettes out of the manufacturer's package or without required health warnings. (f) No Tobacco Retailer shall sell Tobacco Products from other than a fixed location, including but not limited to sales by persons on foot or from vehicles. Section 4.45.080 Remedies. (a) A Tobacco Retailer's license may be revoked by the City Manager or the Manager's designee if one of the following conditions exist: (1) The information contained in the application including supplemental information, if anv, is found to be false in anv material res ect (2) The license was issued in error or on the basis of false or misleading information supplied by a Proprietor. (b) In addition to any other remedy authorized by law a Tobacco Retailer's license may be suspended or revoked by the City Manager or the Manager's designee if it is determined that the Tobacco Retailer or its agents violated the conditions of this Chapter or any local state or federal law pertaining to the sale of Tobacco Products to underage minors as follows: 16 (1) Upon a finding of a first violation, the license may be suspended for up to 30 days; (2) Upon a finding of a second violation within five vears of the first violation, the license may be suspended for up to 90 daVS; f3) Upon a finding of a third violation within five vears of the first violation, the license may be revoked. (c) No Proprietor may re-apply for a Tobacco Retailer's license at the same retail location for five vears after the date of revocation. ~) The procedure used for revocation shall substantially conform to that set forth in the Santa Monica Municipal Code regarding business licenses generally. Any decision to revoke or suspend a license may be appealed according to the provisions of the Santa Monica Municipal Code. An appeal shall stay all proceedings in furtherance of the appealed action. (e) During any period of license suspension or revocation, the Tobacco Retailer must remove from public view all Tobacco Products and related advertising. ff) Violations of this Chapter constitute a misdemeanor. (g) Violations of this Chapter may be remedied bV a civil injunction or abatement action initiated by the City Attorney. 17 SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: M SH J NES MO RIE C' Atto n 18 Reference Resolution No. 10354 (CCS).