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SR-702-002 (9) F:\ATTY\MUNI\STRPTS\MJM\beachpiersmoking.doc City Council Meeting: March 23, 2004 Santa Monica, California TO: Mayor and City Council FROM: City Staff SUBJECT: Proposed Ordinance Prohibiting Smoking On The Santa Monica Beach and Pier, In Waiting Areas for Public Services, And Within 20 Feet Of Entrances And Exits To Public Buildings Introduction The City Council has directed staff to prepare an ordinance prohibiting smoking on the beach and the Pier. The attached, proposed ordinance fulfills that directive. Additionally, the proposed ordinance includes a prohibition against smoking at waiting areas for public services, such as bus stops, creates an enforcement mechanism for the existing state prohibition against smoking within 20 feet of a public building?s main entrance, expands that prohibition to include all exits and entrances, and revises and updates the Municipal Code Chapter on smoking for the sake of clarity and brevity. Background The Council has previously adopted legislation intended to reduce the risks to public health and the detriment to the public welfare attendant upon the use of tobacco products. For instance, the City Council adopted laws regulating work place smoking prior to the enactment of statewide prohibitions. More recently, the Council voted to adopt an ordinance prohibiting smoking in public parks. That ordinance?s findings reflect the dangers posed by the inhalation of second-hand smoke, the risk of children 1 ingesting discarded cigarette butts and other smoking materials, and the degradation to aesthetics caused by improper disposal of smoking waste. As to Council?s direction to prepare an ordinance banning smoking on the beach and the Pier, both the Recreation and Parks Commission and the Pier Restoration Corporation (PRC) considered the matter. The Recreation and Parks Commission voted to support an ordinance banning smoking on the beach, in beach parking lots and on the Pier. The PRC Board and staff have advocated for allowing smoking in a designated area on the Pier. As to piers in other cities, approaches vary, sometimes according to pier composition. For instance, smoking is permitted on both the Redondo Beach and Huntington Beach Piers. Huntington Beach?s pier is entirely concrete, and Redondo is three-quarters concrete. In contrast, Venice Pier, also made of concrete, is a non-smoking venue. Pier 30, in San Francisco, is made of wood; and smoking is allowed but ashtrays are abundant and obvious. Stearns Wharf in Santa Barbara has a designated smoking area. As to anti-smoking measures in general, other cities have adopted a variety of measures. For instance, Davis, Berkeley, Santa Barbara, Los Gatos, Laguna Hills, Palo Alto and San Ramon prohibit smoking in outdoor dining areas where food is served. Additionally, Davis and Berkeley, which appear to have the most restrictive laws in the state, have prohibited smoking at outdoor events, increased the minimum percentage for non-smoking hotel rooms from 35% (required by state law) to 75%, and adopted complete indoor workplace bans (closing loopholes in state law). Additionally, those 2 two cities, and others prohibit smoking in waiting areas, and within 20 feet of doors and windows of businesses and public facilities, unless the smoker is simply passing by. Anti-smoking advocates and groups recommend a variety of smoking restrictions. These recommendations include prohibiting smoking in all outdoor dining areas, prohibiting smoking in common areas of multi-unit residential buildings, making employers and owners liable for knowingly permitting violations of anti-smoking laws, and defining the term ?nuisance? in local law to include drifting tobacco smoke that enters another?s dwelling. Apparently, no California city has, as yet, adopted these measures. Additionally, one advocacy group recommends adopting a resolution in opposition to drug stores and pharmacies selling tobacco products. Discussion The attached ordinance would amend the Municipal Code to prohibit smoking on the beaches and the Pier as directed by Council. The ordinance would also prohibit smoking at waiting areas for public services on the theory that those waiting there are in a ?captive? situation and cannot simply choose to avoid second-hand smoke. Additionally, the measure would create an enforcement mechanism to effectuate the recently adopted statewide prohibition against smoking within 20 feet of the main entrance of a public building and modify its scope to include all exits and entrances. Finally, the proposed ordinance would reorganize and consolidate sections of the Municipal Code on smoking to make them clearer and more concise. Some of the same factors underlying the Council?s decision to prohibit smoking in public parks also apply to the beach or the Pier. As in park play areas, small children play in 3 the sand on the beach and may ingest anything they find there, including tobacco products. Additionally, second-hand smoke is disagreeable and dangerous in all settings, particularly those subject to crowding. Moreover, the aesthetics of the beach and Pier are adversely impacted by discarded tobacco products. Also, as the background material indicates, public safety is a special consideration as to the Pier because of the risk of fire. The Pier is made of wood treated with creosote and is flammable. Information from City and PRC staff indicates that, in the last year, the Harbor Patrol responded to several fires that caused physical damage to the Pier. Additionally, information from police personnel stationed on the Pier indicates that they extinguish dozens of smoldering plank and trash fires annually. PRC staff reports that there are currently over 125 burn holes on the Pier caused by discarded cigarettes. Of these, at least ten are over six inches long. The PRC has discussed reducing the fire hazard and minimizing adverse aesthetic impacts through the installation of specialized trash receptacles or ashtrays. Some have already been installed. The PRC staff has recommended allowing time to gauge their efficacy before adopting a total smoking ban. Another consideration raised by PRC Board members and representatives of the business community is the potential impact of smoking bans on local businesses and tourism. It is difficult to predict whether there would be a net impact and whether it would be positive or negative. Presumably interested groups will provide the Council with viewpoints and information on this topic. 4 Available information from other cities is sketchy and/or anecdotal. Santa Barbara reports only a negligible decline in the last year in pier business overall and an increase in restaurant sales. Information from Santa Cruz indicates that parking counts are up in 2003 notwithstanding the adoption of a prohibition against smoking on the boardwalk. In response to contacts made by City staff, employees of the cities of Davis and Berkeley have indicated that their smoking bans have not adversely impacted local businesses. Fiscal Impact If adopted, this ordinance would be implemented through the use of signage and enforcement efforts would be undertaken by existing staff. Thus, no direct cost increase is anticipated. Recommendation Staff recommends that the Council introduce the attached ordinance for first reading. PREPARED BY: Marsha Jones Moutrie, City Attorney Adam Radinsky, Deputy City Attorney 5 F:\ATTY\MUNI\LAWS\MJM\Smoking SMMC4.44.doc City Council Meeting: March 23, 2004 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 ON THE BEACH AND THE PIER, IN WAITING AREAS FOR PUBLIC SERVICES AND WITHIN 20 FEET OF AN ENTRANCE OR EXIT TO A PUBLIC FACILITY WHEREAS, smoking endangers public health; and WHEREAS, numerous studies have shown that second-hand smoke is a significant public health hazard; 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, the United States Center for Disease Control and Prevention (CDC) estimates that second-hand smoke causes 3,000 lung cancer death per year among adult non-smokers in the United States; and 6 WHEREAS, second-hand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly and children; and WHEREAS, the CDC has found that second-hand smoke causes children to suffer from lower respiratory tract illness, such as bronchitis and pneumonia, exacerbates childhood asthma, and increases the risk of acute chronic middle ear infections in children; and WHEREAS, the City of Santa Monica is committed to keeping its recreational spaces safe, healthy and pleasant for everyone; and WHEREAS, smoking on the beach and the Santa Monica Pier endangers children and adults by exposing them to second-hand smoke; and WHEREAS, cigarette and cigar butts and used matches dropped onto the ground in public spaces degrade the aesthetic quality of those spaces; and WHEREAS, cigarette and cigar butts and used matches dropped into the sand on the beach are particularly dangerous because young children play in the sand and may ingest them; and WHEREAS, smoking in waiting areas for public services endangers the health of those who use the waiting area to obtain the service; and WHEREAS, smoking near entrances and exits to public facilities endangers the health of those who use and work within the facilities; and WHEREAS, children and youth who observe smoking in public places may model the behavior; and 7 WHEREAS, banning smoking on the beach, on the Santa Monica Pier, within waiting areas for public services, and within 20 feet of entrances and exits to public buildings is necessary to protect the public health, safety and welfare of Santa Monica residents, workers and visitors, 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 Deleted: 020 Definitions Section 4.44.010 . The following words and phrases, as used in this Chapter or in any other applicable law regulating smoking, shall have the following meanings: Deleted: (a) Bar. An area where alcoholic beverages are served for consumption on the premises and in which the serving of food, if any, is only incidental and consists solely of hors d'oeuvres, snacks and similar foods. (a) Smoke or Smoking. The carrying or holding of a Deleted: b Deleted: or lighted pipe, cigar, cigarette , or any other lighted smoking Deleted: of any kind product or equipment used to burn any tobacco products, weed, plant, or any other combustible substance. Smoking Deleted: the includes emitting or exhaling the fumes of any pipe, cigar, Deleted: or cigarette, or any other lighted smoking equipment used for Deleted: or any kind 8 burning any tobacco product, weed, plant, or any other combustible substance. (b) Service area. A place where people use or wait for services provided by a government entity, such as waiting areas for public transportation. Deleted: 010 Deleted: General p Prohibitions Section 4.44.020 . (a) Smoking in specific locations It shall be unlawful to smoke in the following places: Deleted: a (1) Any elevator; (2) Any public park; (3) Any public beach; (4) Anywhere on the Santa Monica Pier; (5) Any outdoor service area; (6) Inside any public building (as that term is Deleted: (b) On any bus used in defined in Government Code Section 7596) or within 20 feet the business of transporting passengers for hire in the City, excepting for charter operations;¶ of any entrance, exit or window of a public building. (c) Any restroom open to the general public or provided for use to customers or patrons, unless there are separate smoking and (b) Disposal of smoking waste. nonsmoking restrooms;¶ (d) Every building owned or leased by the City of Santa Monica and used for municipal purposes. If only a portion of a building is used for municipal purposes, this subsection shall apply only to that portion of the building used for municipal purposes.¶ 9 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) Enforcement and Penalties. (1) Infraction. A violation of this Section is an infraction and shall be punished by a fine of two hundred fifty dollars. (2) Nonexclusive Remedies and Penalties. Punishment under this section shall not preclude punishment pursuant to Health & 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. Sale of tobacco by vending Section 4.44.030 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 10 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. Deleted: Furthermore, by adoption of Santa Monica Municipal Code The purpose of this Chapter is to implement a strict and Sections 4.44.010 through 4.44.030, the City has already prohibited smoking in public places, work enforceable system to prevent the illegal sale of cigarettes places, and restaurants. The sale of tobacco by vending machine encourages violations of these and other tobacco products to minors. Sections of the Municipal Code since minors have access to most of these types of premises. (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 Deleted: with Deleted: Section 4.44.040 Smoking in public parks.¶ to sell cigarettes out of the manufacturer's package or (a) Prohibitions.¶ (1) No person shall smoke within the boundaries of any public park.¶ without required health warnings. (2) No person shall dispose of any cigarette, cigar or tobacco, or any part of a cigarette or cigar, within the boundaries of any public park, except SECTION 2. Any provision of the Santa Monica Municipal Code or appendices in a designated waste disposal container.¶ (b) Enforcement and Penalties.¶ thereto inconsistent with the provisions of this Ordinance, to the extent of such (1) Infraction. A violation of this Section is an infraction and shall be punished by a fine of two hundred fifty inconsistencies and no further, is hereby repealed or modified to that extent necessary dollars.¶ (2) Nonexclusive Remedies and Penalties. Punishment under this to effect the provisions of this Ordinance. section shall not preclude punishment pursuant to Health & Safety Code Section 13002, Penal Code Section 374.4, or any other law proscribing SECTION 3. If any section, subsection, sentence, clause, or phrase of this the act of littering. Nothing in this Section shall preclude any person from seeking any other remedies, Ordinance is for any reason held to be invalid or unconstitutional by a decision of any penalties or procedures provided by law.¶ 11 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 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: _________________________ MARSHA JONES MOUTRIE City Attorney 12