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O2282City Council Meeting: January 27, 2009 .Santa Monica, California ORDINANCE NUMBER z2sz (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 REGULATE SMOKING IN COMMON AREAS OF MULTI- UNIT RESIDENTIAL PROPERTIES 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 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 1 respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood asthma, and increases the risk of acute, chroriic 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 • Over 3,600 cardiac deaths • About 31,000 episodes of children's asthma 2 • 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, regulating 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, as found by the California Department of Health; and • 70% of Californians surveyed approve of apartment complexes requiring at least half of rental units be non-smoking, as found by the Center for Tobacco Policy and Organizing; and • 67% of Californians surveyed favor limiting smoking in outdoor 3 common areas of apartment buildings, as found by the Center for Tobacco Policy and Organizing; and WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes; and 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. A non-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 the occupant of more than one unit; including but not limited to halls, walkways, lobbies, laundry 4 rooms, common cooking areas, outdoor dining areas, patios, play areas, swimming pools, gardens, and parking lots. (c) 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. (d) 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) Any elevator; (2) Any public park; (3) Any public beach; (4) Anywhere on the Santa Monica Pier, eiccept in designated areas; (5) Any outdoor service area; 5 (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; (10) Any Farmers Market; (11) The property of any public library; (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 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 6 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) 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 proscribing the act 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 7 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. Section 4.44.040 Smoking Ih Multi-Unit Common Areas. (a) Remedy. Any person who smokes in a Multi-Unit Common Area is subject to an award of damages of not less than $100. which may be collected by any person in a civil action, including an action in Small Claims Court. The minimum damages amount shall increase to $200 for the second violation within one year; and to $500 for the .third and subsequent violations within one year. (b) Notice Required. The landlord or homeowners' association of every property that includes aMulti-Unit Common Area shall provide notice of the remedy in sub-section (a) to all affected occupants by: 8 (1) posting one or more prominent signs in .conspicuous locations in each Multi-Unit Common Area to ensure that the signs are readily visible to all users of the area; and (2) serving written notice on each unit. (c) Limitations and Exceptions. (1) Nothing in this section may be used as grounds to terminate a tenancy. Nothing in this section shall render smoking in Multi-Unit Common Areas a violation of law pursuant to any rental housing agreement. (2) No action may be brought pursuant to this section unless the complaining party has first made a good faith attempt to resolve the situation .informally, including written notice of this section and a written request to cease smoking in the Multi-Unit Common Area at least 30 days before filing suit. (3) The property owner, manager, or homeowners' association may designate a portion of a Multi-Unit Common Area where smoking is allowed. Any such designated area: (A) must be located at least 20 feet from any indoor area; (B) .must not include and must be at least 20 feet from play or recreation areas including but not limited to areas improved or designated for swimming or other sports; 9 (C) must be no more than 25 percent of the total outdoor area of the premises of the property; (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. (d) Nonexclusive Remedies and Penalties: Nothing in this Section shall preclude any person from pursuing any other remedies, penalties or procedures provided by law. SECTION 2. 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 3. 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 sectidn, 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. 10 SECTION 4. 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: MA SHA O S MO RIE Ci Attor 'e 11 Approved and adopted this 27th day of January, 200 . Ken Genser, M yor State of California ) County of Los Angeles) ss. City of Santa Monica ) I, Maria Stewart, City Clerk of the City of Santa Monica, do hereby certifty that the foregoing Ordinance No. 2282 (CCS) had its introduction on January 13 h, 2009, and was adopted at the Santa Monica City Council meeting held on January 27th, 2009, by the following vote: Ayes: Council members: Bloom, Holbrook, McKeown, Shriver Mayor Genser, Mayor Pro Tem O'Connor Noes: Council members: None Abstain: Council members: None Absent: Council members: None A summary of Ordinance No. 2282 (CCS) was duly published pursuant to California Government Code Section 40806. ATTEST: Maria Stewart, City lerk