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O2469City Council Meeting: October 14, 2014 Santa Monica, California ORDINANCE NUMBER 2469 (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING CHAPTERS 4.44 AND 4.45 OF THE SANTA MONICA MUNICIPAL CODE ON SMOKING TO REGULATE ELECTRONIC SMOKING DEVICES SIMILARLY TO TOBACCO PRODUCTS WHEREAS, during the past several years the popularity of electronic smoking devices including electronic cigarettes or "e- cigarettes" in this country has grown exponentially, especially among young people; wine WHEREAS, Santa Monica has been at the forefront of adopting and enforcing laws to protect people from involuntary exposure to the dangers of secondhand smoke; and WHEREAS, electronic smoking devices are used in the same manner as conventional tobacco products and operate by heating a liquid chemical solution typically made up of propylene glycol or glycerin, nicotine, and flavored chemicals, with the user exhaling a smoke -like vapor similar in appearance to the exhaled smoke from cigarettes; and WHEREAS, the use of electronic smoking devices in smoke -free locations may increase the social acceptability and appeal of smoking, particularly for youth, undermining the progress that has been made over the years in discouraging smoking; M WHEREAS, e- cigarettes are widely believed to be a "gateway" to cigarette use, especially among youth, since they contribute to nicotine addiction and glamorize smoking; and WHEREAS, nicotine is a highly addictive neurotoxin and is included in the Proposition 65 list of Chemicals Known to the State to Cause Cancer or Reproductive Toxicity and is known to cause birth defects and is particularly dangerous for vulnerable populations including children, pregnant women and people with cardiovascular conditions; and WHEREAS, numerous studies have shown the potential health risks from the vapor of e- cigarettes, including a significant increase in airway resistance among users and cell mutations similar to those caused by cigarette smoke; and WHEREAS, a 2013 study found a total of 22 different elements in the vapors of electronic smoking devices, three of which appear on the U.S. Food and Drug Administration's (FDA) list of harmful and potentially harmful chemicals; and E WHEREAS, the U.S. Centers for Disease Control recently reported a sharp rise in emergency calls to poison centers due to exposure to toxic e- cigarette liquids contemporaneous with the rise in e- cigarette use, with such calls rising from around one per month in 2010, to 215 per month in 2014; and WHEREAS, e- cigarette manufacturers have not submitted clinical studies about the safety or efficacy of the devices to the FDA, so consumers have no way of knowing what types or concentrations of potentially harmful chemicals they are inhaling and exhaling when they consume them or are exposed to them; and WHEREAS, e- cigarettes have not been scientifically proven to be safe for users or persons exposed to their vapor; and WHEREAS, the marketing and advertising of e- cigarettes in television, radio, online and print advertisements is expanding rapidly with no restrictions or regulation, with much of the advertising directed at children; and WHEREAS, e- cigarettes appear visually similar to traditional cigarettes from even a short distance, leading to confusion of the two and giving the visual impression that smoking is again allowed in locations where smoking is banned, thus hampering public and private enforcement of no- smoking laws; and WHEREAS, the scientific evidence to date does not support the claim that e- cigarettes are an effective smoking cessation tool, but rather indicates that e- cigarette users actually have significantly lower odds of quitting smoking cigarettes, by more than 30 percent; and 9 WHEREAS, California state law prohibits the sale of electronic smoking devices to minors; and WHEREAS, the City's tobacco retailer licensing law is intended to aid efforts to prevent illegal sales of tobacco products to minors; and WHEREAS, more than 45 California cities, the cities of New York, Chicago, Washington, D.C. and Boston, and at least five states have regulated e- cigarettes the same as traditional tobacco products; and WHEREAS, in order to protect the health, welfare and safety of its residents and visitors by protecting them from exposure to the byproducts of electronic smoking devices, facilitating uniform enforcement of smoke -free air laws, reducing the potential for re- normalizing smoking where tobacco use is prohibited, and protecting youth from observing behavior that could encourage them to smoke, the City has decided to legislatively prohibit the use of electronic smoking devices in all areas where the smoking of tobacco products is currently prohibited and to include electronic smoking devices in its tobacco retailer licensing law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 4.44.010 of the Santa Monica Municipal Code is hereby amended to read as follows: Section 4.44.010 Definitions. n 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) Electronic smoking device. An electronic or battery- operated device that delivers vapor for inhalation. The term includes every variation and type of such devices including electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, electronic hookahs or any other similar product. (c) Multi -Unit Common Area. Any indoor or outdoor area at a multi -unit residential property (which include 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 are within twenty - five feet of any door, window or vent at a multi -unit residential property, including private -use balconies, porches, decks, and patios, and regardless of whether or not the included area is located on the same property. (d) 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. (e) 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. (f) Smoke or Smoking. The carrying or holding of a lighted or activated pipe, cigar, cigarette, electronic smoking device, or any other lighted or activated smoking product or equipment used to burn any tobacco products, weed, plant, or any other combustible substance. Smoking includes emitting or exhaling the fumes or vapor of any pipe, cigar, cigarette, electronic smoking device, or any other lighted smoking equipment used for burning any tobacco product, weed, plant, or any other combustible substance. SECTION 2. Section 4.44.020 of the Santa Monica Municipal Code is hereby amended to read as follows: Section 4.44.020 Prohibitions. N (a) Smoking in Specific Locations. It is 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; (12) Any hotel for which an occupancy permit is issued on or after February 9, 2012. (13) Any "vaping lounge" or other business that sells electronic smoking devices; except that electronic smoking devices may be used at the two such businesses that were locally licensed as such lounges in Santa Monica as of June 24, 2014; provided there is 7 appropriate ventilation so as not to interfere with neighboring occupants and provided no minors are allowed in the businesses. (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 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 violation within one year; and five I 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 3. Section 4.45.020 of the Santa Monica Municipal Code is hereby amended to read as follows: Section 4.45.020 Definitions. The following words and phrases, as used in this Chapter, shall have the following meanings: (a) "Electronic smoking device" means an electronic or battery - operated device that delivers vapor for inhalation. The term includes every variation and type of such devices including electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, electronic hookahs or any other similar product. (b) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. 9 (c) "Proprietor" means a person with an ownership or managerial interest in a business covered by this Chapter. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day -to -day operations of a business. (d) 'Tobacco product' means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco or bidis; and any electronic smoking device. (e) 'Tobacco retailer" means any person who sells, offers for sale or sample, advertises or otherwise promotes, or does or offers to exchange for any form of consideration, in public view, any tobacco products. SECTION 4. 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 5. 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 10 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 6. 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: 11 Approved and adopted this 14th day of October, 2014. Pam O'Connor, Mayor State of California ) County of Los Angeles ) ss. City of Santa Monica ) I, Sarah P. Gorman, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2469 (CCS) had its introduction on September 23, 2014, and was adopted at the Santa Monica City Council meeting held on October 14, 2014, by the following vote: Ayes: Councilmembers: Davis, Holbrook, McKeown, Vazquez, Winterer Mayor O'Connor, Mayor Pro Tem O'Day Noes: Councilmembers: None Absent: Councilmembers: None A summary of Ordinance No. 2469 (CCS) was duly published pursuant to California Government Code Section 40806 . ATTEST: r--- Sarah P. Gorman, City Clerk