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sr-041211-7e (2)c7® City of Santa Monica City Council Report City Council Meeting: April 12, 2011 Agenda Item: ~E To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Introduction and First Reading of an Ordinance Amending the Anti- smoking Law to Correct a Clerical Error and Reinstate Previously Adopted Amendments to That Law Expanding the Prohibitions Against Smoking in Residential Common Areas Recommended Action Staff recommends that City Council introduce for first reading the attached proposed ordinance, which corrects a clerical error. Executive Summary The proposed ordinance would correct a clerical error that resulted last year when Council adopted two ordinances within a short time, both of which regulated second- hand smoke. The second ordinance was adopted before the first ordinance went into effect and inadvertently nullified it. The proposed ordinance will reinstate the expanded definition of "residential common areas" in which smoking is prohibited. Background On August 10, 2010, the City Council adopted Ordinance Number 2318 (CCS) amending Chapter 4.44 of the Santa Monica Municipal Code ("the Common Area Ordinance") to expand the definition of Residential Common Areas for purposes of second-hand smoke protections. The new ordinance included all outdoor areas within 25 feet of any door, window or vent within the definition of common area. On September 14, 2010, the City Council adopted Ordinance. Number 2321 (CCS) amending Chapter 4.44 of the Santa Monica Municipal Code ("the Pier Ordinance") to prohibit smoking outright on the Santa Monica Pier. 1 However, the adoption process of the two ordinances overlapped in time. When Council heard the first reading of the Pier Ordinance, its text did not reflect the recent (and not yet effective) changes from the Common Area Ordinance. Hence, when Council adopted the Pier Ordinance at second reading, the newly amended Chapter 4.44 now omitted the recent changes made to the definition of Common Area. Discussion The attached proposed ordinance will not change City policy prohibiting smoking in residential common areas. Since Council already voted to adopt the expanded definition of "common areas", the present ordinance is intended merely to rectify a clerical error. The new ordinance reinstates the identical text that was originally introduced in the Common Area Ordinance and inadvertently removed with the adoption of the Pier Ordinance. The only exception is as to notice. The attached ordinance omits the requirement that owners serve a separate written notice of the new common area definition on all units by December 2010. Staff did community outreach on this requirement last year and believes that re-adopting this rule is unnecessary. Financial Impacts & Budget Actions No financial impacts will result from the adoption of this ordinance. Prepared by: Adam Radinsky, Head, Consumer Protection Unit Approved: Forwarded to Council: arsh ones M utrie Rod Gould y At rney City Manager Attachments: A: Proposed Ordinance 2 City Council Meeting: April 12, 2011 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA CORRECTING A CLERICAL ERROR TO REFLECT PRIOR AMENDMENTS TO CHAPTER 4.44 OF THE SANTA MONICA MUNICIPAL CODE REGULATING SMOKING ON THE SANTA MONICA PIER AND IN MULTI-UNIT COMMON AREAS WHEREAS, on August 10, 2010, the City Council adopted Ordinance Number 2318 (CCS) amending Chapter 4.44 of the Santa Monica Municipal Code to expand the definition of Residential Common Areas for purposes of second-hand smoke protections to include all outdoor areas that are within 25 feet of any door, window or vent; and WHEREAS, on September 14, 2010, the City Council adopted Ordinance Number 2321 (CCS) amending Chapter 4.44 of the Santa Monica Municipal Code to prohibit smoking outright on the Santa Monica Pier; and WHEREAS, the adoption process of the two above ordinances overlapped in time and, due to a clerical oversight, the second ordinance did not reflect the changes made by the first ordinance; and WHEREAS, the City Council wishes to reconcile the amendments made to Chapter 4.44 to correctly reflect its prior actions. 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES RESOLVE 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 (which include+ng 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 rooms, common cooking areas, outdoor dining areas, patios, play areas, swimming pools, gardens, and parking lots. The term also includes all outdoor areas that 2 are within 25 feet of any door window or vent at a multi-unit residential propertv including private-use balconies, porches decks and patios and regardless of whether or not the included area is located on the same propertv. (c) Santa Monica Pier. The Santa Monica Pier, consisting of both the Newcomb Pier and the Municipal Pier, protruding from the Santa Monica State Beach at the southwesterly terminus of Colorado Avenue, and extending for approximately two thousand one hundred thirty-five feet into the Santa Monica Bay. (d) 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. (e) Smoke or Smoking. The carrying or holding of alighted 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. 3 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; (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; (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 4 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 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 ~a 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 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 6 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 In Multi-Unit Residential Properties ir~sn-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 multi-unit residential property that shall provide notice of the remedy in sub-section (a) to all affected occupants by 7 posting and maintaining 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. (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 Whom It May Concern: 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; 8 (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; (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 section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this 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: ^r _ MARHA JO S U;PRIE City orney 10