Loading...
HomeMy WebLinkAboutORD 448 2017 0607 ORDINANCE NO. 448 AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, AMENDING CHAPTER 8.32, REGULATING SMOKING IN PUBLIC PLACES, OF TITLE 8, HEALTH AND SAFETY, OF THE MOORPARK MUNICIPAL CODE AND MAKING A FINDING OF EXEMPTION UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT WHEREAS, on December 19, 1988, the City Council of the City of Moorpark (City) adopted Chapter 6.01, Regulation on Smoking, of the Moorpark Municipal Code (Municipal Code); and WHEREAS, on July 7, 1993, the City Council repealed Chapter 6.01 of the Moorpark Municipal Code and adopted Chapter 8.32, Prohibiting Smoking in Public Places of the Municipal Code; and WHEREAS, on December 15, 1993, the City Council amended Chapter 8.32, to add Section 8.32.040, Posting of Signs, to the Municipal Code; and WHEREAS, on July 1, 2009, the City Council amended Chapter 8.32 in its entirety, Prohibiting Smoking in Public Places, of the Municipal Code; and WHEREAS, tobacco use causes death and disease and continues to be an urgent public health challenge, as evidenced by the following: • 480,000 people die prematurely in the United States from smoking- related diseases every year, making tobacco use the nation's leading cause of preventable death; and • Tobacco use can cause disease in nearly all organ systems and is responsible for 87 percent of lung cancer deaths, 79 percent of all chronic obstructive pulmonary disease deaths, and 32 percent of coronary heart disease deaths; and WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as evidenced by the following: • The U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke; and • The California Air Resources Board placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure; and Ordinance No. 448 Page 2 • The California Environmental Protection Agency (EPA) included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm; and WHEREAS, exposure to secondhand smoke anywhere has negative health impacts, and exposure to secondhand smoke occurs at significant levels outdoors, as evidenced by the following: • Levels of secondhand smoke exposure outdoors can reach levels attained indoors depending on direction and amount of wind and number and proximity of smokers; and • Smoking cigarettes near building entryways can increase air pollution levels by more than two times background levels, with maximum levels reaching the "hazardous" range on the United States EPA's Air Quality Index; and • To be completely free from exposure to secondhand smoke in outdoor places, a person may have to move nearly 23 feet away from the source of the smoke; and WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following: • Since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to secondhand smoke; and • Secondhand smoke is responsible for an estimated 41,300 heart disease-related and lung cancer-related deaths among adult nonsmokers each year in the United States; and • Exposure to secondhand smoke increases the risk of coronary heart disease by about 25 to 30 percent and increases the risk of stroke by 20 to 30 percent; and WHEREAS, tobacco use and exposure to secondhand smoke impose great social and economic costs, as evidenced by the following: • Between 2009 and 2012, the total annual economic burden of smoking in the United States was between $289 billion and $332.5 billion; and • From 2005 to 2009, the average annual health care expenditures attributable to smoking were approximately $132.5 billion to $175.9 billion in direct medical care costs for adults and $151 billion in lost productivity; Ordinance No. 448 Page 3 • The total annual cost of smoking in California was estimated at $548 per resident or between $2,262 and $2,904 per smoker per year; and • California's Tobacco Control Program saved the state and its residents $134 billion in health care expenditures between the year of its inception, 1989, and 2008, with savings growing yearly; and WHEREAS, laws restricting the use of tobacco products have recognizable benefits to public health and medical costs with research studies showing that smokefree policies effectively do the following: • Reduce tobacco use; and • Reduce exposure to secondhand smoke; and • Increase the number of tobacco users who quit; and • Reduce initiation of tobacco use among young people; and • Reduce tobacco-related illnesses and death; and WHEREAS, laws restricting use of electronic smoking devices also have benefits to the public, as evidenced by the following: • Research has found at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene; and • Exposure to vapor from electronic smoking devices may cause passive or secondhand vaping; and • Use of electronic smoking devices in smokefree locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment; and WHEREAS, state law prohibits smoking within 25 feet of playgrounds and tot lots; and WHEREAS, the state smokefree workplace law does not expressly prohibit the use of electronic smoking devices in enclosed workplaces; and Ordinance No. 448 Page 4 WHEREAS, the City's Community Development Director has concluded that the proposed changes to the City's smoking regulations included in this Ordinance are exempt from review under the California Environmental Quality Act, pursuant to Section 15061(6)(3) of the State CEQA Guidelines, because it can be seen with certainty that the additional restrictions on smoking that are imposed by this Ordinance will not have any potentially significant adverse impact on the environment; and WHEREAS, there is no Constitutional right to smoke. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. CEQA. The City Council hereby concurs with the Development Director's conclusion that it can be seen with certainty that there is no possibility the adoption of this Ordinance will have a significant adverse effect on the environment. The Ordinance does not propose construction or any alteration to the physical environment. Furthermore, the Ordinance proposes amendments to the City's smoking regulations that will reduce the public's exposure to the harmful effects of second-hand smoke. As such, the City Council hereby concludes that this Ordinance is exempt from California Environmental Quality Act review pursuant to Title 14, Section 15061(b)(3) of the California Code of Regulations. SECTION 2. Chapter 8.32 of the Moorpark Municipal Code is hereby replaced in its entirety consistent with Exhibit A to this ordinance. SECTION 3. If any section, subsection, sentence, clause, phrase, part or portion of this ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This ordinance shall become effective thirty (30) days after its passage and adoption. Ordinance No. 448 Page 5 SECTION 5. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED AND ADOPTED this 7th day of June, 2017. • ice S. Parvin, Mayor ATTEST: Maureen Benson, City ClerkfiARV 11441A AttAfto Attachment: Exhibit A Ordinance No. 448 Page 6 Exhibit A Chapter 8.32 PROHIBITING SMOKING IN PUBLIC PLACES Sections: 8.32.010 Definitions. 8.32.020 Prohibition of smoking in public places. 8.32.030 Prohibition of smoking by private property owner or manager. 8.32.040 Smoking — Permissible smoking areas. 8.32.050 Posting of signs. 8.32.060 Duties of person, employer, business, or non-profit entity. 8.32.070 Other applicable laws. 8.32.080 Violations and penalties. 8.32.010 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: A. "Bikeway" means any Class 1 Bike Path or Trail, separated right-of-way for bicycles, or Class 2 Bike Lane, restricted right-of-way. B. "Common Area" means every enclosed area and unenclosed area of a multi- family housing development that residents of more than one unit of that development are entitled to enter or use, including, but not limited to, halls, paths, lobbies, courtyards, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking areas, restrooms, laundry rooms, cooking areas, and eating areas. C. "Dining Area" means any indoor or outdoor non-residential location where food or beverages are served by a business or routinely consumed by customers and/or employees of a business. D. "Electronic Smoking Device" means an electronic or battery-operated device that delivers vapors of nicotine and/or other substances for inhalation. This term includes every variation and type of such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, a vapor cigarette, or any other similar product. This term does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of diseases. Ordinance No. 448 Page 7 E. "Employee" means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer. F. "Employer" means any business or non-profit entity that retains the service of one or more employees. G. "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls. The walls may be penetrated by windows, doors, or passageways. H. "Family Day Care Facility" means a home providing day care for children, which is subject to state and/or county licensing requirements. "Place of Employment" means any enclosed area under the control of the city or private employer or any outdoor working area, such as a construction area, which employees normally frequent during the course of employment. J. "Public Building" means any building to which the public is invited or in which the public is permitted. K. "Public Event" means any art show, fair, parade, firework display, sports activity, or any other similar event in a public place within the City, regardless of any fee or age requirements. L. "Public Place" means any area to which the public is invited or in which the public is permitted, regardless of any fee or age requirement or whether publicly or privately owned. M. "Residential Care Home" means a home providing 24-hour care for children, adults, or elderly persons, which is subject to state and/or county licensing requirements. N. "Retail Smoking Products Store" means any retail business establishment where at least fifty percent (50%) of product display area is for smoking products, including but not limited to, cigarettes, cigars, pipe tobacco, electronic smoking devices, vaping E- liquids and supplies, and smoking supplies and accessories. A retail smoking products store does not include marijuana dispensaries or marijuana bakeries. O. "Separate Ventilation System" means a system which is exhausted to the outside and negatively pressurized. P. "Service Area" means any publicly or privately owned area where people use or wait to receive a service or make a transaction, whether or not such service or Ordinance No. 448 Page 8 transaction includes the exchange of money. Service areas include, but are not limited to, areas including or adjacent to information kiosks, bus stops, train stations, Automated Teller Machine (ATM) lines, information kiosks, mobile vendor lines, and theatre lines. Q. "Shopping Center" means any parcel of land zoned and used for retail sales. R. "Smoke" or "Smoking" means inhaling, exhaling, burning, or carrying any lighted or activated cigar, cigarette, electronic smoking device (e-cigarette), or pipe containing any tobacco, marijuana, crack cocaine, weed, plant, or other combustible substance in any manner or in any form. "Smoke" does not mean the combustion of material solely for olfactory purposes such as, for example, smoke from incense that does not contain any tobacco or nicotine, or the emissions from a product specifically approved by the United States Food and Drug Administration for use in mitigating or preventing disease. 8.32.020 Prohibition of smoking in public places. It is unlawful for any person to smoke in violation of any law or regulation of the State of California and in any place set forth herein: A. In any park, sidewalk, bikeway, athletic field (including spectator viewing areas), playground, trail, recreational area, or publicly-owned open space; B. In indoor or outdoor public places within shopping centers, including parking lots and parking structures; C. Within twenty-five (25) feet of the entrance, exit, or open window of any public building, or any outdoor dining area; D. In any outdoor service area or any public building, including indoor and outdoor reception and waiting areas; E. In any dining area, or any location where food, designated for sale or distribution to the public, is prepared, served, or stored, or where such food utensils are cleaned or stored; F. Within buses, taxicabs, and other means of public transit provided by or under the authority of the City and at ticket, boarding, and waiting areas of public transit shelters, stops, and stations; G. Within any indoor or outdoor common area within residential developments; H. In any enclosed area or outdoor place of employment or work sites, except as provided in Section 8.32.040.D; Ordinance No. 448 Page 9 I. In any family day care facility or residential care home; J. Hotel and motel facilities, except as provided in Section 8.32.040.B; K. At any public event; L. In any elevator; M. At polling places; N. In any city-owned parking lot or parking structure; O. In schools; P. In public restrooms. 8.32.030. Prohibition of smoking by private property owner or manager. Nothing in this Chapter shall prohibit any owner, operator, manager, employer, non- profit entity, or other person with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area and whether the area is enclosed or not. 8.32.040. Smoking — Permissible smoking areas. Notwithstanding any other provisions of this Chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this Chapter: A. Private residences, except when used as a family day care facility or residential care home. B. A maximum of twenty percent (20%) of the guest rooms in hotels and motels. C. A retail smoking products store, provided it is located twenty-five (25) feet or more from any opening of a private residence, has a separate ventilation system, and does not share a ventilation system with any other enclosed area or public place not otherwise exempted in this section. This section does not apply to the smoking of marijuana, which shall be prohibited in retail smoking product stores. D. A place of employment that employs only the owner and no other employee, independent contractor, or volunteer, provided that: Ordinance No. 448 Page 10 1. The place of employment does not allow members of the public within enclosed areas; and 2. The enclosed area containing the place of employment does not share a ventilation system with any other enclosed area or public place not otherwise exempted in this section. E. Theatrical production sites, if smoking is an integral part of the story in the theatrical production, as specified in Section 6404.5(e)(4) of the California Labor Code. F. A designated outdoor smoking area, subject to approval of the Community Development Director, for shopping centers, public places, or parking lots provided that: 1. The smoking area is as small as practicable to accommodate the number of smokers that are expected to use the area, but is not smaller than fifty (50) square feet in total area, and does not have a dimension on any side less than five (5) feet; and 2. The smoking area is not located within twenty-five (25) feet of any outdoor service area; entrance, exit, or open window of any public building; or dining area; and 3. Appropriate ash can(s) are placed in the smoking area and are maintained regularly by the owner, operator, or manager of the smoking area; and 4. The smoking area is posted with one or more conspicuously displayed sign(s) identifying the area as a designated outdoor smoking area as follows: Signs with arrows directing the public to the smoking area may be allowed; signs shall be no smaller than three (3) inches high and eight (8) inches long with a pictorial representation of a burning cigarette; signs shall contain "Designated Smoking Area" and shall be posted prominently between five (5) feet and seven (7) feet above the floor or ground; and all signs are subject to approval of the Community Development Director. G. Outdoor special events, subject to Community Development Director approval of a Temporary Use Permit for a single event, or an Administrative Permit, for a recurring event, provided that: 1. Such permit shall be subject to appropriate conditions of approval to limit the duration of such permit and require compliance with State law; and 2. Such permit shall limit, to the extent feasible, exposure of nonsmoking persons to secondhand smoke; and Ordinance No. 448 Page 11 3. An Administrative Permit for a recurring event shall be subject to renewal every six (6) months. 8.32.050. Posting of signs. Every owner, operator, manager, employer, or other person having control of an enclosed or outdoor area where smoking is prohibited by this Chapter shall clearly and conspicuously post "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it). 8.32.060. Duties of person, employer, business, or non-profit entity. A. No person, employer, business, or non-profit entity shall knowingly permit smoking or place ash receptacles in an area which is under the control of the person, employer, business, or non-profit entity in which smoking is prohibited by this Chapter or by other law, unless the person, employer, business, or non-profit entity is otherwise compelled to do so under State or Federal law. B. No person, employer, business, or non-profit entity shall intimidate, threaten any reprisal, or effect any reprisal for the purpose of retaliating against another person, employee, or applicant for employment, who seeks to attain compliance with this Chapter, or who is exercising any right to a smoke-free environment afforded by this Chapter. 8.32.070. Other applicable laws. A. This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. B. It is not the intention of this Chapter to regulate any conduct where the regulation of such conduct has been preempted by the State of California. 8.32.080. Violations and Penalties. Any person who violates any provision of, or fails to comply with, any requirement of this Chapter is guilty of a misdemeanor/infraction and, upon conviction thereof, shall be punished in accordance with this code. The remedies provided by this code are cumulative and in addition to any other remedies available at law or in equity. Ordinance No. 448 Page 12 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) I, Maureen Benson, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Ordinance No. 448 was adopted by the City Council of the City of Moorpark at a regular meeting held on the 7th day of June, 2017 and that the same was adopted by the following vote: AYES: Councilmembers Mikos, Pollock, Simons, Van Dam, and Mayor Parvin NOES: None ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 14th day of June, 2017. Maureen Benson, City Clerk (seal) ";rx� a.