SR-040808-7Cc7_~
~;Yof City Council Report
Santa MonicaW
City Council Meeting: April 8, 2008
Agenda Item: 7~.
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Ordinance Amending The Outdoor Smoking Ordinance To Make
Restaurant Owners And Managers Liable Under Certain Circumstances,
Reduce The Amount Of Fines, and Prohibit Smoking On Library Grounds;
and Informational Update On Anti-Smoking Legislation Of Other Cities
Including Multi-Unit Residential Areas, Tobacco Retailer Licensing, and
Non-Binding Resolution Regarding Pharmacy Sales Of Tobacco
Recommended Action
Staff recommends that Council introduce for first reading the attached proposed
ordinance. Staff also seeks Council direction for possible additional areas of tobacco
regulation as described below.
Executive Summary
The proposed ordinance would amend the City's anti-smoking ordinance to create
liability for business owners and managers who knowingly allow smoking in outdoor
dining areas; require signage at outdoor dining areas; reduce the fines for all violations
of the ordinance from $250 to $100 for first violations; and prohibit smoking on all
Library grounds. There is no significant cost associated with the proposed ordinance;
the periodic undercover inspections by staff at outdoor dining areas would not involve
Police Department personnel.
The report also provides information requested by Council on anti-smoking legislation
adopted by other cities in three other areas: multi-unit residential housing; tobacco
retailer licensing; and anon-binding resolution recommending that pharmacies not sell
tobacco products.
Background
Following public discussion at its meeting of December 11, 2007, Council directed staff
to prepare an ordinance amending the City's anti-smoking ordinance to create liability
for business owners and managers who knowingly allow smoking in outdoor dining
areas; and to prohibit smoking on all Library grounds. Council directed staff to research
1
possibilities of reducing the fine structure of the ordinance and of requiring signage at
outdoor dining areas as part of this same amendment. (A copy of the December 11,
2007 staff report is attached as Attachment B.) Council also directed staff to provide
information on anti-smoking legislation adopted by other California cities in three other
areas: multi-unit residential housing; tobacco retailer licensing; and anon-binding
resolution recommending that pharmacies not sell tobacco products.
Discussion
Proposed Ordinance
Business Liability In Outdoor Dining Areas
Pursuant to Council's direction the proposed ordinance would make business owners
and managers liable for knowingly or intentionally allowing smoking at outdoor dining
areas. The proposed standard (knowingly and intentionally allowing smoking) is
identical to that of the state law that applies to indoor workplaces, Labor Code Section
6404.5.
Staff also recommends including a requirement that outdoor dining areas include no-
smoking signs sufficient to apprise all diners of the law. The three Los Angeles-area
cities that have imposed similar requirements, all require such signage. Calabasas
requires that signs be conspicuously posted at each entrance and include letters of at
least one inch in height or the universal no-smoking symbol. Burbank requires that signs
be conspicuously displayed including multiple signs as appropriate for larger areas to
ensure that signs be readily visible to all diners. Beverly Hills has a similar requirement
to Burbank's.
Signs are considered helpful to both education and enforcement of no-smoking rules at
outdoor dining areas. They both alleviate the need for enforcement and facilitate private
enforcement (one diner informing another of the law) and enforcement by employees.
2
Reduction of Fine Amount
Staff recommends that the fine for violations of the ordinance be reduced from $250 to
$100 for first violations; and that subsequent violations within one year be fined at $200
and $500 respectively. This recommendation is based on two factors. First, City
Attorney and Police Department staff have received complaints from some cited
individuals that the $250 fee is disproportionately high, especially when taking into
account the mandatory penalty assessment that the court adds in every criminal case
(2.6 times the base fine plus $20), which increases the actual amount paid in some
cases to $920. Second, staff has researched the fine structures of other Southern
California cities' anti-smoking laws and confirmed that most cities have the $100-200-
500 fine structure for violations within one year (for example, Calabasas, Beverly Hills
and Burbank). This is also the fine structure of the state law that prohibits smoking at
indoor workplaces.
A base fine of $100 is still relatively high for an infraction. Also, those three cities and
the state law all provide that the initial base fine be up to $100, and not a mandatory
amount of $100. Council could consider whether to make the $100 base fine
mandatory; or whether the fine should be "up to" $100, $200 and $500. In any event,
staff believes that it would enhance the efficacy of the overall ordinance if the fines were
reduced.
Smoking On Library Grounds
In light of complaints from the public and staff at the Main Library, Council directed staff
to add all Library grounds to the list of locations where smoking is prohibited in the
ordinance. Library and legal staff believe that the prohibition should include a "curb to
curb" approach which would protect all ramps, walkways, and other common areas at
the City's libraries.
3
Information On Additional Areas Of Regulation
Multi-Unit Residential Areas
Since the December 11, 2007 Council meeting, several cities have updated or
formalized their smoking laws covering multi-unit residential areas:
Calabasas: Prohibits smoking in all common areas and directs landlords to create
designated outdoor smoking areas. Declares secondhand smoke a public nuisance. In
multi-building complexes, requires 80 percent of buildings (not units) to be completely
smoke-free by 2012.
Oakland: Prohibits smoking in all common areas and directs landlords to create
designated outdoor smoking areas. Requires owners to designate and disclose all
smoke-free units to prospective tenants and condominium buyers.
Belmont: Prohibits smoking in all multi-unit housing including apartments and
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. Belmont is the only city to date
to prohibit residential smoking this broadly. (The city does not have a rent control law.)
Staff has also organized a chart showing the measures that have been taken to date by
other local governments in California covering residential smoking. (See Attachment C.)
The following is a summary of those laws:
• Ten California cities have regulated smoking at residential locations.
• Six cities have prohibited smoking at outdoor residential common areas; of
these, three cities allow or require property owners to designate outdoor smoking areas.
• Four cities have declared second-hand smoke a public nuisance. This can
facilitate legal actions against smokers in some situations.
4
• Three cities have no-smoking requirements for certain future multi-unit
residential construction.
• Two cities require owners to disclose to prospective renters or condominium
buyers which units allow smoking and which do not.
Two concerns raised at the previous Council meeting were preserving rent control
tenants' rights and educating landlords about potential legal measures to protect
tenants from second-hand smoke while not infringing on smoking tenants' legal rights.
Some have voiced a concern that anti-smoking laws might be used by some landlords
to evict rent-controlled tenants. Others have voiced a concern that smoking might be
considered a "housing service" for which a tenant would be entitled to compensation for
removing, and which could create eviction protections in a tenant. "Housing service" is
defined as any "benefit [or] privilege ...connected with the use or occupancy of any
rental unit." City Charter §1801(d). It is an open question whether a tenant's right to
smoke might be construed as a housing service.
In any event, there are numerous options for potential residential smoking regulation
that would not impact the rights of existing tenants.
Staff has received approximately 25 complaints and inquiries from the public on this
issue in the past year. Some tenants have complained that their health (or their
children's) is being damaged by other tenants' smoking and they have requested action
by the City to address this problem since no current law directly covers this conduct.
These inquiries appear to be increasing in recent months. In addition, staff is informed
by S.A.F.E:, a local anti-smoking organization focused on residential smoking, that there
are other similar complaints in the City.
Regardless of whether Council directs any regulatory action in this area, staff
recommends that Council direct staff to conduct public education for landlords, tenants
and others in this area to clarify existing rights, responsibilities, and options.
5
Tobacco. Retailer Licensing
An increasing number of California local governments are adopting tobacco retailer
licensing ordinances. These laws are intended to help reduce the sale of cigarettes to
minors. Although state law already imposes criminal fines for such sales, that law has
not appreciably reduced the incidence of the illegal sales. Licensing is seen as a more
powerful -and cost-free -way to address the problem. The ordinances require all
sellers of tobacco products in a city to pay an annual fee of between $200 and $600 that
in turn pays for the administration and enforcement of various requirements aimed at
reducing sales of tobacco to minors. The most common requirements of these laws (in
addition to prohibiting sales to minors) are banning mobile sales of tobacco products
and requiring sales clerks to request proof of age when the customer appears to be
below a certain age. They are enforced through inspections and undercover operations.
Violations result in various lengths of suspension of the license -meaning the retailer
cannot sell tobacco .products during that time. Most cities mandate the eventual
revocation of the license for multiple violations within afive-year period. Enforcement is
typically handled by various combinations of the police department, code enforcement,
and (by contract) County health departments.
To date, more than fifty local governments in California have adopted tobacco retailer
licensing laws. In 2006, 15 new cities added such laws (including .Burbank, Glendale
and Davis); in 2007, 13 more cities did so (including Carson, Santa Ana and Riverside).
Attachment D is a summary of the requirements of tobacco retailer licensing laws
adopted by selected California cities in recent years.
Resolution Encouraging Pharmacies Not To Sell Tobacco Products
The Los Angeles County Department of Public Health and the American Lung
Association are encouraging local governments to adopt non-binding resolutions that
encourage all local pharmacies to stop selling tobacco products. Hospitals have
6
stopped selling tobacco products. By far the largest number of pharmacies that still sell
cigarettes are the major chains (Rite-Aid, CVS, Longs, etc.).
If Council were to adopt such a resolution, the American Lung Association would send a
letter to each pharmacy in the City advising them of the resolution
Alternatives
As to the proposed ordinance, Council could consider alternatives to reducing the initial
fine from $250 to $100. These include keeping the fine as it is; or using an accelerated
schedule for subsequent fines only for businesses (in outdoor dining areas). Council
could also consider whether to make a $100 fine a mandatory or maximum figure. As to
the libraries, Council could consider a more limited scope of the area covered.
As to the three areas of new information provided here, Council could consider various
amendments to the City's anti-smoking ordinance as described above
Public Outreach
Staff (including City Attorney and City Manager personnel) plan to conduct a major new
public education campaign for the overall outdoor smoking ordinance, preferably to
coincide with the adoption of the proposed ordinance. The City Manager has approved
new funding to pay for this campaign. Staff has released a Request for. Proposals for
the potential design and help with implementation of this campaign. Staff also continues
to work closely with the Police Department and various business groups to coordinate
the enforcement and education of the ordinance.
Financial Impacts & Budget Actions
Adoption of the proposed ordinance would have no substantial financial impact. Added
enforcement of the outdoor dining area 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
7
ordinance is expected. As to the Library provision, staff expects that most enforcement
will be through informal means; and that required police involvement would be minor.
Prepared by:
Adam Radinsky, Head, Consumer Protection Unit
Attachments: A: Proposed Ordinance
B: December 11, 2007 staff report
C: Chart of other cities' residential smoking regulation
D: Select summary of tobacco retailer licensing laws
Approved:
Mars Jone outrie
City orne
8
Forwarded to Council:
F:\CityAttorney\MuniLaw\ConsumerProtection\Smoking2007project-ord 1 std raft040808
City Council Meeting: April 8, 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 MAKE RESTAURANT OWNERS AND MANAGERS LIABLE
UNDER CERTAIN CIRCUMSTANCES, REQUIRE POSTING OF NO SMOKING
SIGNS, REDUCE THE AMOUNT OF FINES, AND PROHIBIT SMOKING ON PUBLIC
LIBRARY GROUNDS
WHEREAS, the November 2006 amendment to the outdoor smoking ordinance
prohibited smoking in outdoor dining areas but did not create any liability for business
owners; and
WHEREAS, since November 2006 staff has received numerous complaints of
customers smoking at outdoor dining areas at local restaurants; and
WHEREAS; 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 refused to make an effort to curtail the
illegal smoking at their outdoor patios; and
WHEREAS, visual surveys in late 2007 found that smoking was still occurring at
a substantial number of outdoor dining areas in Santa Monica; and
1
WHEREAS, making owners, operators .and managers liable will increase the
effectiveness of the outdoor smoking law since they can control the conduct at their
private establishments; and
WHEREAS, making owners, operators and managers liable for smoking at
outdoor dining areas will make it easier to enforce the ordinance through undercover
inspections since no confrontation with patrons or citations of patrons will be necessary;
and
WHEREAS, making owners, operators and managers liable for smoking at
outdoor dining areas will help level the playing field for local restaurants by assuring that
none can cater to a smoking clientele; and
WHEREAS, making owners, operators and managers liable for smoking at
outdoor dining areas will bring Santa Monica into uniformity with the other nearby cities
that ban smoking at outdoor dining areas; and
WHEREAS, many other California cities, including three in Los Angeles County
that impose liability on businesses for smoking at outdoor dining areas require the
posting of prominent no smoking signs; and
WHEREAS, the posting of no smoking signs in outdoor dining areas will facilitate
the enforcement of the law by patrons as well as employees; and
WHEREAS, staff has received complaints from some cited individuals that the
current $250 fee for violations of the ordinance is disproportionately high, especially
when taking into account the mandatory penalty assessment that the court adds in
every criminal case; and
2
WHEREAS, most California cities impose initial fines of $100 for violating outdoor
smoking ordinances, with fines increasing to $200 and $500 respectively for subsequent
violations, as does the state indoor workplace smoking law; and
WHEREAS, the public and Library staff have complained about chronic second-
hand smoke adjacent to the Main Library.
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) 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.
3
(c) 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; 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;
4
(10) Any Farmers Market.-;
(11) The grounds 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 vvaste 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.
(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.
5
(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.
(3) Business Owner Liability.
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.
6
(c) Out of Package Sales Prohibited. It is unlawful to sell
cigarettes out of the manufacturer's package or without required health
warnings.
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 section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequeritly declared invalid or unconstitutiohal.
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:
v~
M RSH NES M UTRIE
C Atto n
7
c7~
;tYof City Council Report
Santa Monica
City Council Meeting: December 11, 2007
Agenda Item: 8-A
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.
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 dihing 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 ih 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 establishmerits. This is what happened
with Staffs 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.
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
2
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 urgingvoluntary 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.
4
Staff is not recommending that Council act in the residential arena at this time but will
continue to monitor the actions of other cities.
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
Approved:
Marsha Jones Moutrie
City Attorney
Forwarded to Council:
P. Lamont Ewell
City Manager
5
ATTACHMENT C
MATRIX OF LOCAL SMOKEFREE HOUSING POLICIES
March 2008
City of Oakland
December 2007
The city passed an ordinance that
prohibits smoking in enclosed and
unenclosed places.
Each violation is an infraction punishable by a fine of $100.00 for the first
violation; $200.00 for the second violation within a year; and $500.00 for
each additional violation within one year.
For enclosed areas this applies to all new
and existing multi-housing common
areas. All landlords in multi-housing
complexes are required to disclose to
prospective tenants whether smoking is
permitted in the unit to be rented and
which units are designated smoking units
and the smoking policy for the complex.
All sellers of condominium units are
required to disclose to prospective
buyers respectively whether smoking is
permitted in the unit and the smoking
policy for the complex.
For unenclosed places smoking the.
prohibition applies to multi-housing
commons areas, except the landlord
may designate a portion of the outdoor
areas of the premises as a smoking area.
Smoking areas must be located at least
25 feet from any indoor area where
smoking is prohibited; must not include
and must be at least 25 feet from
outdoor areas primarily used by children,
including but not limited to, areas
improved or designated for play or
swimming; must be no more than 25
percent of the total outdoor area of the
The ordinance is enforced by the City Administratior or his or her
designee.
A private citizen may bring legal action to enforce this chapter
_ j _ Chart provided by the Center for Tobacco Policy & Organezing.
Updated by Paula Rockenstein ofahe Santa Monica Ciry Attorneys Office
March 2008
?t;~ohhrnunlt".f0aieihas ed! _,..:,>,~ . :M oj'~'zAyCsaans':. ,.~,':.,, `.'. ...
premises of the multi-housing complex. It
must have a clearly marked perimeter
and must be identified by conspicuous
si ns.
~..,
enfo~ge>tXi~lntiProX[srons.,..:a .... ?' .. :; ,. .. ' . ,_:,fa -....... ~ ., , .
City of Belmont .The city passed an ordinance that Each violation is an infraction subject to a $100 fne. Violations are also
October 2007 prohibits smoking in all new and existing subject to civil action brought by the city, with a fine of between $250
apartments and condominiums that and $1000.
share a common floor and/or ceiling.
For current tenants who smoke, there is a This ordinance can be enforced by any peace officer or code
14 month grace period during which enforcement offcial.
time they are still allowed to smoke in
their unit. The city attorney can also bring a civil action to remedy violations,
including nuisance abatement proceedings, code enforcement
The new law also requires every lease of proceedings or suits for injunctive relief.
a unit where smoking is prohibited to
contain language that states the unit is
nonsmoking and that other tenants in
the building may enforce the no-
smoking lease term. The same grace
period of 14 months applies to the new
lease terms for current tenants who
smoke. Landlords are not required to
enforce the new no-smoking lease terms
nor are they required to evict a tenant
who smokes in a nonsmoking unit.
The ordinance also declares
secondhand smoke a nuisance.
Finally, the ordinance bans smoking in
indoor and outdoor common areas, with
landlords allowed to create designated
smoking areas that meet certain
restrictions (i.e. 20 feet away from i
entrances and windows). i
City oLTemecula This city passed an ordinance that Violations of this ordinance are enforceable by the city and subject to '
May 2007 requires landlords to designate 25 penalties outlined in the Temecula municipal code. '
percent of their units as non-smoking in '
all new and existing multi-unit residences '
with 10 or more units (it does not apply
to condominiumsj. These non-smoking
units must be grouped together
horizontal) and vertical) and in a
_ z, _ Chart provdded by dhe Center for Tobacco Poddcy & Organizing.
Updaaed by Paula Rockensdein of the Sancta Monica City Attorneys Offue
March 2008
r~omrrlunC .~~?a~c~Psis;;?d... ~ ?.. l,- ,'J~f~aa~~tkzyisFOas~ +F,,.,...,, :, „ , ,,,,,,!;r,,',y ~EdF#~ti~T#t~ tr it Nislan .~.:`i . t .,.~.~.!~~.... a i.~',3 _,..,,:.. ~ e~,~.,_::.. t:~.:
separate building to the maximum
extent possible.
For new multi-unit housing, landlords
must submit a floor plan to the city that
identifies the smoking and non-smoking
units within six months of enactment of
this ordinance.
Landlords of existing multi-unit
residences must submit d floor plan to
the city that identifies the smoking and
non-smoking units within one year.
Landlords have up to five years to
actually designate these units as non-
smoking and may apply for up to three,
one-year extensions to comply, with the
exception of senior housing.
This ordinance also prohibits smoking in
all indoor, and outdoor common areas
for all multi-unit residences (any
residence with two or more units).
County of Sacramento This resolution encourages property
April 2007 owners of multi-unit rental housing to
designate at least 50 percent of their
units as non-smoking or to make whole
buildings within amulti-unit housing
complex smokefree. Property owners
that do so will be publicly recognized by
the Board of Supervisors.
City of Thousand Oaks The City of Thousand Oaks adopted a
March 2007/ September 2004 policy requiring developers of new
publicly-assisted rental housing to set
aside one-third of the new units as non-
smoking units.
In March 2007, the city updated this
policy to require that two-thirds of newly
constructed publicly assisted rental
housing and one-half of new supportive
housin be smokefree.
_ 3 _ Chart provided by Phe Center jar Tobacco Policy & Organizing.
Updated by Paula Rackenstein of the Santa Monica City Attorneys Office
March 2008
4^gminil~t. tAai~,P~ ged ~ ~._'_>,::.' ~,
City of Sacramento
December 2006 ,IlA~1~f:krvXisFQn~' .. ?....`::'. i ..r ... ,.:a ~ : ~
This resolution encourages property
owners of multi-unit rental housing to
designate at least 25 percent of their
units as non-smoking or to make entire
buildings within amulti-unit housing
complex smokefree. Property owners
that do so will be publicly recognized by
the City Council ~°@~ferrl~xif.~~yt{§t~n~...,. ~ .,:.: ..r?' , ;, .,.° ,....,'.,:.i.., _~~~! ',:~. ~?s
_~.., ,
City of Emeryville The ordinance bans smoking in indoor Enforcement will be handled by the City Manager. Citizens can register
December 2006 and outdoor common areas of multi-unit a complaint with the City Manager to initiate enforcement.
housing.
The ordinance also declares
secondhdnd smoke a nuisance, which
allows a citizen to take private legal
action. However, the ordinance states
that the city cannot be a party in that
legal action orhave legal action
brought against it for non-enforcement
of the smoking ordinance. Further, it
states that no owners, managers, or
employers who operates premises
controlled by the smoking restrictions
can be found guilty or held liable for the
nuisance rovisions.
City of Rancho Mirage The City Council adopted a smoking Residents can make complaints to the Housing Authority.
December 2006 policy for the Rancho Mirage Housing
Authority. This policy prohibits smoking in
outdoor common areas in the Housing
Authority's three senior affordable
housing residential complexes.
The policy would also prohibit smoking
within apartment units for the Santa
Rosa Villas and any.future senior
residential complexes. All new residents
of the other two existing senior
residential complexes will be prohibited
from smoking in their units, but people
that already live in those two complexes
will be allowed to smoke in their units
until they move.
_ 4 _ Chart provided by the Centerjor Tobacco Palicy & Organizing.
Updated by Paula Rockenstein of the Santa Monica City Attorneys Office
March 2008
: , r..
'.~~m[nur~4. {[kat~ff?~isse~7 ... ,. :=.a...
City of Dublin
September 2006
fyllao~,t`r~t~lsit~ ~, ~ , '~, a - ...
~.._~...,; .,
This ordinance declares secondhand
smoke a nuisance.
~n ~ I , ~ s ,:,
~r~~rr~eDt=f'#ay3sl~1~ .,a ,..:,.:: .<~ Pe_s.:.:e. ..., ri, . i,~.u., ., E.;.y
The city passed a separate ordinance to state that the city will not
spend any money or staff resources for the enforcement of this
ordinance.
City of Calabasas As part of a broader secondhand smoke The city prosecutor, city attorney, peace officer, or city code
February 2006/February 2008 ordinance, the city prohibits smoking in enforcement offcer may enforce the provisions in this ordinance. The
all indoor and outdoor common areas in ordinance requires business owners to enforce these provisions in their
multi-unit housing (lobbies, hallways, establishments. Citizens of Calabasas can also report any violations of
swimming pools, outdoor eating areas, the law to the code enforcement unit.
play areas, etc).
The ordinance declares that exposing The ordinance also allows any member of the public to sue another
others to secondhand smoke is a public person to enforce these provisions.
nuisance.
In February of 2008, the City of Enforcement of the smoking ordinance for multi-unit residences is
Calabasas modified their current similar to the enforcement of the noise laws.
smoking ordinance to include additional
areas to be added to the multi-housing If anon-smoking tenant violates their lease by smoking, they are
area. These areas requires: subject to potential non-renewal. If a landlord receives two written
complaints from different individuals about anon-smoking unit tenant
*at least 80% of apartment buildings to smoking, the tenant may be subject to eviction at the discretion of the
be permanently designated as non- landlord..
smoking units by January 1, 2012.
According to the California Apartment
Association of Los Angeles, the average
turnover rate for apartments in
Calabasas is currently 3-4 years.
*Landlords to submit an initial annudl
report by July 1, 2008 to the City
detailing the number and location of
non-smoking and smoking buildings until
the required minimum 80%non-smoking
buildings have been determined.
*Permits up to 20% of buildings to be
designated by landlords as smoking
building and allows smokers currently in
rental units to be " randfathered" in.
_ 5 _ Chart provided by the Center for Tobacco Policy & Organizing.
Updated by Paula Rockenstein of the Santa Monica City Attorneys Office
March 2008
_. a rrliuis {dgte,~*ai~~e~#'1 .. :.!a...,, ,Mcipr`P[aylsitSit fit.,.... €; ~F,~ ~ ,
:~ri~ ...: ,~,:`
t
,,~
`,'
~~ ; ~
:.,Enfarp'IamerlltR'~~isCAn ,
:'I !'.~
... m.
Upon proper notification to their .
..
, .._
,..
,.
,
landlord, smoking unit tenants will be
permitted to continue smoking inside
their units even if they are residing in a
building designated smoke-free.
Relocating to smoke-free or smoking
building is completely voluntary.
*all multi-unit apartment residences,
balconies, porches, and patio's to be
smoke-free.
*Iandlordq to create outdoor designated
smoking areas for smokers
*leases for non-smoking units to contain
a clause stating that smoking is
prohibited in the unit and that it is a
material breach of the lease to violate
the terms of the ordinance. Landlords
will be required to provide potential
tenants with a floor plan identifying the
location of smoking units, non-smoking
units and any designated smoking
areas.
City of Santa Barbara The Housing Authority of the City of Residents can make complaints to the Housing Authority.
November 2005 Santa Barbara adopted a policy that
prohibits smoking in all 36 units of the
Vista La Cumbre senior housing
complex. This prohibition applies to
smoking inside the units as well as on
balconies. Residents are allowed to
smoke in a designated area outside the
building and residents who formerly
smoked in their units were not
grandfathered in, meaning they had to
stop smoking in their units as soon as the
policy became effective.
City of Madera The City Council approved asmoke-free Residents may make complaints to the site manager.
Au ust 2002 olic of the Madera Housin Authorit .
_ (_ Chart provided by the Center for Tobacco Policy & Organizing.
Updated by Paula Rockenstein of the Santa Monica City Attorneys Office
March 2008
The Madera Housing Authority adopted
a policy to transition two of three senior
housing buildings to be smokefree. New
residents moving into buildings A and C
at Yosemite Manor will not be allowed
to smoke in their units or on their patios.
Smokers that already reside in buildings
A and C would be allowed to continue
to smoke in their units but must keep
their door to the hallway closed when
smoking. Current and future residents of
building B would still be allowed to
_ '] _ Chart provided by the Center far Tobacco Policy & Organizing.
Updated by Paula Rockenstein of the Santa Monica Ciry Attorneys Office
March 2008
ATTACHMENT D
Tobacco Retailer Licensing Laws Adopted By Selected California Cities
Date City Revocation Enforcement Rules Annual fee
9/07 Glendale 3 viols. in 5 yrs Police, code Check ID $225
enf.- if look 27
8/07 Davis 4 viols. in 5 yrs D.A., enviro. Clerk must $348
be 18
2/07 Burbank 3 viols. in 5 yrs Police Check ID $235
if look 27;
clerk must
be 18
11/06 Carson 5 viols. in 3 yrs Sherrif, code $500
enf.
10/06 Sta Ana 4 viols. in 5 rs Police, health $635
9/06 Concord -- Police Check ID $160
if look 27
5/06 Riverside 4 viols. in 5 yrs Health Check ID $350
if look 18;
clerk must
be 18
9/05 L.A. -- Health $208
3104 Sacramento 4 viols. in 5 yrs Police, code $300
enf.
2/04 Pasadena 3 viols. in 5 rs Police $211
All cities ban the mobile sale of tobacco products.
Additional
documents
available for review
in City Clerk's
Office.