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SR-121107-8A~ir ;,Y Of City Council Report Santa Monica 17~vriber 11, ZOCS'] City Council Meeting: #o , Agenda Item: To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Request For Council Direction To Draft An Ordinance Amending The Outdoor Smoking Ordinance To Make Restaurant Owners And Managers Liable Under Certain Circumstances And Update On Other Local Anti- smoking Efforts Recommended Action Staff recommends that Council give direction on a possible amendment to the anti- smoking ordinance to create liability for business owners and managers who knowingly allow smoking in outdoor dining areas. Executive Summary The existing no-smoking ordinance prohibits smoking in outdoor dining areas but does not hold businesses responsible. Staff has received numerous complaints of continued smoking at outdoor dining areas, and has learned that some restaurants knowingly allow these violations to occur. Making owners and managers liable for smoking at outdoor dining areas, as other jurisdictions have done, likely would correct the problem. Staff requests direction to prepare an ordinance for Council consideration which would make this change. There is no significant cost associated with such an ordinance; the periodic undercover inspections by staff would not involve Police Department personnel. Discussion Business Liability And Outdoor Dining Areas The City's most recent outdoor smoking ordinance became effective in November 2006. It prohibited smoking at all outdoor dining areas in the City, among other locations. 1 Since that time staff has received more than two dozen complaints of customers smoking at outdoor dining areas of local restaurants. In many of these cases, the business owners responded to staff's inquiries by stating that the current law does not require owners to enforce the no-smoking rule or make them liable; and they have refused to make an effort to curtail the illegal smoking at their outdoor patios. The continuing problem of smoking at some outdoor dining areas is also evidenced by the fact that the Police Department issued 19 citations to smoking restaurant patrons in the first eight months of this year. Additional anecdotal evidence and staffs own observations confirm that smoking continues at a number of local outdoor dining areas. Staff seeks Council direction on potentially making businesses liable in such situations, for several reasons. First, it would help effectuate the outdoor dining area law. Although overall public compliance with the 2006 ordinance has been good and educational efforts have been effective, outdoor dining areas have proved more difficult to enforce due to the non-cooperation of some businesses. Once businesses are responsible, staff expects that overall compliance by smokers with the law will increase since businesses can readily control the conduct at their private establishments. This is what happened with Staff's enforcement of the statewide indoor smoking law that became effective in bars in 1998. Also, owner and manager liability would be less disruptive to diners and easier to enforce through undercover inspections (as it is with local indoor bars) since neither confrontation with nor citations of patrons will be necessary. Second, business liability would help level the playing field for local restaurants by assuring that none can cater to a smoking clientele. Third, creating business liability would bring Santa Monica into uniformity with the other three local cities that ban smoking at outdoor dining areas. Beverly Hills (effective October 1, 2007), Burbank and Calabasas all impose liability on the businesses in such cases. 2 In order to ensure fairness to owners and operators, staff recommends using the same standard as state law (Labor Code Section 6404.5) for imposing owner liability for smoking: only those businesses that "knowingly or intentionally allow" smoking would be liable. Thus, for example, if a customer lights up before a waiter has had a chance to notice or respond, the owner would not be liable. Fairness could also be ensured in other ways, including the manner of implementation. Staff suggests an enforcement plan similar to its enforcement of the statewide indoor workplace law in local bars and restaurants: an initial written notice to all affected businesses and publicity in the news media, followed by undercover inspections and, when appropriate, prosecutions. Public Outreach Staff conducted outreach on this issue by holding an informational public meeting on September 17, 2007. Invited to the meeting were the local Chamber of Commerce, the California Restaurant Association (CRA), the Convention and Visitors Bureau, and the local Business Improvement Districts including the Bayside Corporation. The CRA has indicated its non-opposition to creating business liability. Staff also is planning a second informational meeting for restaurant owners, BIDS, and others interested in the proposed amendment. Alternatives Council could consider other means to assure that business owners do not allow smoking at outdoor dining areas. One way would be for staff to continue to respond to individual complaints by urging voluntary compliance from restaurants, and for police officers to continue to cite individual smokers at dining areas. However, staff believes, based on past experience with enforcing the statewide indoor smoking law in local bars, that creating owner liability would be the fastest, most efficient, and fairest way to achieve the goal of reducing smoking at outdoor dining areas. 3 Update On Other Local Anti-Smoking Efforts In the past Council has asked staff to monitor anti-smoking developments in other cities. In recent months several California cities have addressed the issue of multi-unit residential smoking. The City of Oakland recently approved at first reading an ordinance that requires owners of multi-unit residential properties to disclose to prospective tenants and purchasers where any smoking-permitted units are located. The ordinance also prohibits smoking at all indoor and outdoor common areas of multi-unit residential properties; and allows owners to create designated outdoor smoking areas. The Calabasas City Council on October 3, 2007 requested further staff review of other cities' residential smoking laws but reached a consensus to require in the future that 80 percent of the buildings in multi-building residential complexes be completely smoke- free, while grandfathering in all existing smoking tenants. The Council plans to reconvene on the issue in November 2007. The City of Belmont approved at first reading an ordinance which among other things requires no smoking in all multi-unit housing including condominiums. Units which do not share a floor or a ceiling with another unit are exempt. The housing portion of the ordinance will not take effect for 14 months so that current leases can expire and new leases be prepared. The ordinance will be complaint driven and the city will enforce. The City of Temecula recently adopted an ordinance which requires that every apartment building of ten units or more set aside 25 percent of contiguous units as non- smoking. Market rate buildings have eight years to comply; senior housing buildings have five years to comply. Staff is not recommending that Council act in the residential arena at this time but will continue to monitor the actions of other cities. 4 Recommendations Staff recommends that Council give direction as to how best to effectuate its anti- smoking policies at outdoor dining areas and suggests a direction to amend the existing ordinance to create liability for businesses in certain situations as described above. Financial Impacts And Budget Actions Adoption of an ordinance such as that discussed above would have no substantial financial impact. Added enforcement of this provision would involve periodic staff time for undercover inspections. However, since .direct confrontation and citation would not be necessary, no involvement of Police Department personnel with this aspect of the ordinance is expected. Prepared by: Adam Radinsky, Head, Consumer Protection Unit \\Csmfst\City Attorney\Moaicipallaw\CovsumerPmtection\Smoking\2006 projecddiving area owners SR 1 ¢]0] doc 5 Approved: Forwarded to Council: