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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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;
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(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
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