HomeMy WebLinkAboutPH 4 REG OF SMOKING 10-21-85~. ~,'~ .,,')== ~ ff. ~ ;.'i~ ~ PUBLIC HEARING
DATE: October 14, 1985
TO:
FROM:
SUBJECT:
Honorable Mayor and City Council
Director of Community and Administrative Services
PROPOSED ORDINANCE NO. 949, RELATING TO THE REGULATION OF SMOKING IN
PUBLIC PLACES AND PLACES OF EMPLOYMENT
RECOMMENDATION:
Pleasure of the City Council.
,BACKGROUND:
Council discussed the concept of an Ordinance limiting and/or prohibiting smoking
at a previous meeting and directed the City Attorney's office to draft a
"moderate" Ordinance.
The attached Ordinance No. 949 regulates smoking in public places and places of
employment. It prohibits smoking in public places, except in designated smoking
areas. Where smoking areas are designated, existing physical barriers and
ventilation systems will be used to minimize the toxic effect of smoke in adjacent
non-smoking areas. It will be the responsibility of employers to provide
smoke-free areas for non-smokers to the maximum extent possible within existing
facilities. Employers are not required to incur expense to make structural or
other physical modifications in providing these areas. Any employer who can prove
a "good-faith effort" to develop and promulgate a policy regarding smoking and
non-smoking in the work place shall be deemed to be in compliance with the
Ordinance, provided that a policy which designates an entire work place as a
smoking area will not be seen as a good faith effort.
The City Attorney's office has stated that if people had complaints regarding
enforcement of the Ordinance, such complaints would be referred to the City
Attorney's office rather than the Police Department.
Director--
Royleen A. White,!
Community and Administrative Services
RAW/kaw
Attachments: Ordinance No. 949
Staff Report dated 5/10/85
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ORDINANCE NO. 949
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN AMENDING ARTICLE 4, CHAPTER 1 OF
THE TUSTIN MUNICIPAL CODE BY ADDING PART 2,
SECTIONS 4120, 4121, 4122, 4123, 4124, 4125,
4126, 4127, 4128, AND 4129, RELATING TO THE
REGULATION OF SMOKING IN PUBLIC PLACES AND
PLACES OF EMPLOYMENT
The City Council of the City of Tustin, California, does
hereby ordain as follows:
Section 1. That Article 4, Chapter 1 of.the Tustin
Municipal Code be, and hereby is, amended by adding Part 2,
Sections 4120, 4121, 4122, 4123, 4124, 4125, 4126, 4127, 4128,
and 4129 to read as follows:
"Section 4120. PURPOSE. Because smoking of
tobacco, or any other weed or plant, is a positive
danger to health and a cause of material annoyance,
inconvenience, discomfort and a health hazard to those
who are present in confined places, and in order to
serve public health, safety and welfare, the declared
purpose of this article is to prohibit the smoking of
tobacco, or any other weed or plant, in public places
and places of employment, except in designated smoking
areas.
Section 4121. DEFINITIONS. (a) "Smoke" or
"smoking" as defined in this chapter shall mean and
include the carrying of a lighted pipe, or lighted
cigar or cigarette of any kind.
(b) "Public place" shall mean any enclosed
area to which the public is invited or in which the
public is permitted, including but not limited to,
retail stores, retail service establishments, retail
food production and marketing establishments,
restaurants, theaters, waiting rooms, reception areas,
educational facilities, health facilities and public
transportation facilities. A private residence is not
a "public place ".
(c) "Place of employment" shall mean any
enclosed area under the control of a public or private
employer which employees normally frequent during the
course of employment, including but not limited to work
areas, employee lounges, conference rooms, and employee
cafeterias. A private residence is not a "place of
employment" .
Section 4122. PROHIBITIONS. No person shall
smoke in a public place or place of employment, except
in designated smoking areas.
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Section 4123. DESIGNATION OF SMOKING AREAS.
(a) Smoking areas may be designated in public places
and places of employment by proprietors or other
persons in charge except in retail stores, retail
service establishments, food markets, public
conveyances, theaters, auditoriums, public assembly
rooms, meeting rooms, restrooms, elevators, pharmacies,
libraries, museums or galleries 'which are open to the
public or any other place where smoking is prohibited
by law, ordinance or regulation. Where smoking areas
are designated, existing physical barriers and
ventilation systems shall be used to minimize the toxic
effect of smoke in adjacent nonsmoking areas. It shall
be the responsibility of employers to provide smoke-
free areas for nonsmokers to the maximum extent
possible within existing facilities. Employers are not
required to incur any expense to make structural or
other physical modifications in providing these areas.
An employer who can prove a good faith effort to
develop and promulgate a policy regarding smoking and
nonsmoking in the work place shall be deemed to be in
compliance with this section, provided that a policy
which designates an entire work place as a smoking area
shall not be deemed a good faith effort. Restaurants
covered by the provisions of this article shall desig-
nate an adequate amount of seating capacity to suf-
ficiently meet the demands and shall inform all patrons
that a no smoking section is provided.
Section 4124. OPTIONAL PROHIBITION. All managers
and owners of any establishments serving or doing
business with the public may at their discretion post
"No Smoking" signs within various areas of their
businesses and utilize the full right of the provisions
of this chapter. No public place other than the ones
enumerated in Section 4126 shall be designated as a
smoking area in its entirety.
Section 4125. POSTING OF SIGNS. Signs which
designate smoking or no smoking areas established by
this chapter shall be clearly, sufficiently and
conspicuously posted in every room, building or other
place so covered by this chapter. No smoking signs
shall be specifically placed in retail food production
and marketing establishments, including grocery stores
and supermarkets open to the public, so they are
clearly visible to persons upon entering the store,
clearly visible to persons in checkout lines, and
clearly visible to persons at meat and produce
counters. The manner of such posting, including the
wording, size, color, design and place of posting
whether on the walls, doors, tables, counters, stands
or elsewhere shall be at the discretion of the owner,
operator, manager, or other person having control of
such room, building or other place so long as clarity,
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sufficiency and conspicuousness are apparent in
communicating the intent of this chapter.
Section 4126. EXCEPTIONS. (a) No-smoking areas are
not required in individual private offices, hotel and
motel meeting and assembly rooms rented to guests,
areas and rooms while in use for private social
functions, private hospital rooms, psychiatric facili-
ties, jails, bars, and stores that deal exclusively in
tobacco products and accessories and restaurants with
a seating capacity of less than 20 persons.
(b) Restaurants or eating establishments
with a seating capacity of less than 20 persons shall
have the option of designating a no-smoking section or
allowing or prohibiting smoking throughout the estab-
lishment.
(c) Any owner or manager of a business or
other establishment subject to this article may apply
to the City Council for an exemption or modification of
the provisions of this article due to unique or unusual
circumstances or conditions.
Section 4127. ENFORCEMENT AND APPEAL. (a) The
Director of Community Services shall be responsible for
compliance with this chapter when facilities which are
owned, operated or leased by the City of Tustin are
involved. The Director of Community Development shall
provide business license applications with copies of
this article.
(b) The owner, operator or manager of any
facility, business or agency within the purview of this
chapter shall comply herewith. Such owner, operator or
manager shall post or cause to be posted all "No
Smoking" signs required by this chapter. Such owner,
operator or manager shall not allow service to any
person who violates this chapter by smoking in a posted
"N6 Smoking" area.
(c) It shall be the responsibility of
employers to disseminate information concerning the
provisions of this article to employees.
(d) The provisions of this article
pertaining to places of employment shall not apply
until January 1, 1986.
Section 4128. PENALTIES. Any person who violates
a provision of this chapter by smoking in a public
place or place of employment, other than in a
designated area, shall be guilty of a misdemeanor and,
upon conviction, shall pay a fine not to exceed one
hundred dollars ($100.00) per violation."
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Section 2. This ordinance shall take effect and be in
force on the thirtieth day from and after its passage.
PASSED AND ADOPTED at a regular meeting of the City Council of
the City of Tustin held on the day of , 1985.
Atte st:
FRANK H. GREINKE,
Mayor
MARY WYNN
City Clerk
SDA:lw:D: 6/25/85 (16 .lwp)
SDA:lw :R: 8/22/85
May g85 Inter- Corn
TO:
FROM:
SUBJECT:
Honorable Mayor and City Council
Director of Community and Administrative Services
PROHIBITION/REGULATION OF SMOKING
RECOM)tENDATION:
Pleasure of the City Council. Should Council request the Attorney to draft an
Ordinance, staff needs direction regarding which restrictions or prohibitions to
include. These are detailed in the report.
SU~%~uRY:
This report describes State Legislation already in effect regarding the
prohibition or regulation of smoking; it lists by functional restrictions
different methods which local Ordinances may exceed state law; and it summarizes
Ordinances which have been enacted.
By far, regulation of smoking in the workplace has been the most controversial
aspect of local Ordinances. As Council can see from the report, there are several
ways to accomplish this:
The least restrictive Ordinances simply prohibit smoking in public
workplaces.
More restrictive Ordinances prohibit or regulate smoking in public and private
workplaces. In these Ordinances employers are required to make a "good faith
effort" to accommodate both parties. If the employer can demonstrate such an
effort, then a dissatisfied employee has no recourse other than to tolerate
what he or she finds unacceptable about the policy or to find another job.
In the most restrictive Ordinances, a single employee who is unhappy with the
policy developed by the employer can invoke the Ordinance to prohibit smoking
in the office entirely.
Regarding enforcement considerations, most cities who have enacted Ordinances rely
on public-information campaigns and self-enforcement. Most cities report they
have had no problems with enforcement once the Ordinance is passed; however, if
such an ordinance is passed, someone from the city is obligated to respond to
complaints.
In discussing potential Ordinances with Police Chief Thayer, he stated that his
personnel would rely on self enforcement by the involved parties. Chief T~ayer
said that if an Ordinance is passed, of course his personnel would respond, but he
would hope they would not have to. As Council is aware, the patrol function could
suffer should an inordinate number of hours be directed towards this problem. The
staff does not anticipate this happening, but it must be noted as a potential
pitfall.
Page 2
The California League of Cities was most helpful in researching this report, and
staff would like to acknowledge the League; an article in Western City was also
most helpful.
SUI~'4ARY OF CURRENT STATE LEGISLATION:
The California Legislature enacted the California Indoor Clean Air Act in 1976;
the Act was amended once in 1978. This legislation regulates smoking as follows:
Public Meetings in Publicly-Owned Buildings: Where public business is
being conducted which involves the general public as either participants
or observers, at least 50 percent of the meeting area must be designated
a non-smoking area.
Health Facilities and Clinics. Every reasonable effort must be made to
assign patients to hospital rooms according to the patient's non-smoking
or smoking preference. In cafeterias where occupied capacity is fifty or
more persons, at least 20 percent of the area must be designated
non-smoking.
Perfor~nces in Publicly-Owned Buildings. With the exception of lobbies
and indoor sporting events, smoking is prohibited. This includes any
motion picture, stage, drama, music recital or any other performance made
available to the general public in a publicly-owned building.
Restaurants in Publtcl¥-Own~ Buildings. In publicly-owned buildings
only, where occupied capacity is fifty or more persons, at least 20
percent of the area must be designated non-smoking.
Retail Food Production and Marketing Establishments. Except in employee
lounges or other areas not open to the general public, smoking is
prohibited.
The California Indoor Clean Air Act is non-preemptive in nature--that is, the
legislature expressly permits a local governing body to provide additional
supplemental regulation, which could include a complete ban of smoking in a wide
variety of areas.
TWO STATE REFERENOUMS HAVE FAILEO TO PASS:
Prior to the current movement in many cities to develop such supplemental
regulation, two attempts have been made via the state's referendum process to add
to existing state law. One measure was on the 1978 general election ballot, and
the other, commonly known as the "Non-Smokers Bill of Rights," was placed on the
1980 ballot. Both initiatives were rejected by the voters. Since that time,
those supporting further smoking restrictions have turned to local officials.
SUI~qARY OF LOCAL ORDINANCES BY RESTRICTIONS/REGULATIONS:
Based on a review of a number of Ordinances, the primary places smoking is
regulated and how such regulation has been applied are outlined below:
Page 3
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Public Assembly Rooms/Areas. Limited Ordinances usually go beyond state
law by prohibitfng Smoking altogether in such meetings, whether or not the
meeting is held in a city-owned building {as long as it is being conducted
by a city-elected or appointed person or body). The more extensive
Ordinances further prohibit smoking in any waiting room, lobby, hallway,
or public counter area under the control of the city.
Health Facilities/Clinics. Limited Ordinances go beyond state law by
including hospital waiting rooms and public hallways. More extensive
Ordinances include those restrictions and restrict or prohibit smoking
entirely in the public area of doctor and dental offices.
Grocery Stores. State law already prohibits smoking in grocery stores.
Many cities reinforce this restriction by having it written into their
Ordinances.
Auditoriums/Theatres. This category is usually defined as "any building
not open to they sky which is primarily used for exhibiting any motion
picture, stage drama, musical recital or other similar performances."
State law currently prohibits smoking at such events only if they are
held in publicly-owned buildings. Most city ordinances do not go beyond
this level of restriction, leaving such restrictions to the discretion of
either the private operators of the facilities or the local Fire
Department. Those that do go beyond state law prohibit smoking at all
such events, whether held in publicly or privately owned buildings and
require non-smoking areas in the lobbies.
Elevators. Smoking in elevators is permitted by state law. Ordinances
that go beyond state law prohibit smoking in publicly-owned elevators, or
in both publicly or privately owned elevators open to use by the general
public.
Museums~ Libraries~ Galleries. State law does not prohibit smoking in
these facilities, although the operators of such facilities frequently
prohibit smoking in areas open to the general public as a matter of
policy.
Restaurants. State law requires 20 percent set aside for non-smokers in
restaurants operating in publicly-owned buildings with an occupied
capacity of fifty or more persons. Many Ordinances do not further
regulate restaurants. Those Ordinances which do go further regulate
restaurants located in private buildings and vary widely in the specifics
of the restrictions. The amount of space that must be designated
non-smoking ranges from a "reasonable amount" to 30 percent. The
occupied capacity threshold which triggers the need for a non-smoking
area ranges from 20 to 100 persons. Some programs are mandatory; others
are voluntary. Drinking establishments are usually exempt.
Retail Stores/Service Establishmnts. Several cities restrict smoking in
retail stores and/or service establishments. A wide range of retail
stores is affected including department stores, pharmacies, and
speciality shops (tobacco stores are always exempt). Service
establishments include banks, savings and loans, and sales and service
offices which are generally open to the public.
Page 4
Places of Employment. Place of Employment is typically defined as "any
enElosed area under the control of a public or private employer which
employees normally frequent during the course of employment, including
work areas, lounges, conference rooms, and cafeterias." This has proven
to be the most controversial area of the smoking restriction issue. While
some cities have adopted policies that regulate smoking in city offices,
only a few have adopted Ordinances that extended to the private workplace.
Most ordinances restricting smoking in the workplace require the employer
to develop a smoking policy that accommodates the needs of both the smoker
and the non-smoker. Controversy comes into play in determining how far
the rights of each party extend. In some cities for example, employers
are required to make a "good faith" or a "reasonable" effort to
¢ccommodate both parties. The burden of proof in this regard rests with
the employer. If the employer can demonstrate such an effort, then a
dissatisfied employee has no recourse other than to tolerate what the
employee finds unacceptable about the policy or to find another job. In
the most restrictive cities, a single employee who is unhappy with the
policy developed by the employer can invoke the Ordinance to prohibit
smoking in the office entirely.
REVIEW OF ORDINAJiCES CIl"~ BY CITY:
1. NIMLO ~odel Ordinance. The NIMLO Model Ordinance prohibits smoking in
retail stores (with some exceptions), elevators, public theatres,
projection booths, public conveyances, and dance floors. It does not deal
with smoking in the workplace or public or private buildings.
2. City of Atascadero. Atascadero regulates and prohibits smoking in certain
public places, but stops short of regulating smoking in the workplace.
Also they require a non-smoking area in restaurants.
3. City of Carlsbad. Carlsbad prohibits smoking in certain public areas.
Carlsbad prohibits smoking in a public place of employment, except in
designated smoking areas. The ordinance goes on further to say that
smoking areas may be designated in public places and places of employment
by proprietors or other persons in charge except in retail stores, retail
service establishments, food markets, public conveyances, theatres,
auditoriums, public assembly meeting rooms, restrooms, elevators,
pharmacies, libraries, museums, et cetera.
4. Cit~ of Los Angeles. In addition to the normal provision of theatres,
public meeting and'lassembly rooms, health care facilities and retail food
establishments, Los Angeles regulates smoking in public and private places
of employment. The Ordinance requires that it shall be the responsibility
of employers to provide smoke-free work areas for non-smokers to the
maximum extent possible, but employers are not required to incur any
expense to make structural or other physical modifications in providing
these areas. An employer who makes reasonable efforts to develop and
promulgate a policy regarding smoking and non-smoking in the workplace
shall be deemed to be in compliance.
City of San Diego. San Diego prohibits smoking in public places and
places of employment except in designated smoking areas. Smoking is
prohibited in retail stores, retail service establishments, food markets,
public conveyances, theatres, auditoriums, public assembly rooms, meeting
rooms, restrooms, elevators, pharmacies, libraries, and museums.
Regarding the workplace, San Diego's ordinance is similar to Los Angeles'.
Page 5
The City of San Francisco. The City of San Francisco requires private
employers to adopt and maintain a written policy about smoking in the
office workplace. Employers must attempt to accommodate the preferences
of smoking and non-smoking employees. If a satisfactory accommodation
can not be acheived, the preferences of non-smoking employees shall
prevail and smoking shall be prohibited. Read literally, the ordinance
may grant a non-smoking employee in a workplace the right to veto smoking
in that workplace, regardless of whether or not ventilation prevents
smoke from being detected at the non-smokers work station. A more
reasonable interpretation would allow a non-smoker to insist that smoking
be prohibited in a workplace only when the smoking affects the
non-smoker.
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Cit) of Pasadena. The City of Pasadena prohibits smoking in elevators,
public areas of health care facilities in hospitals, public meeting
rooms, theatres and auditoriums, public restrooms, indoor service lines,
eating establishments (with some exemptions for outdoor areas and set
aside spaces for non-smokers). In addition, the Pasadena ordinance also
requlates smoking in the office workplace. In any dispute arising under
the smoking policy, the right of the non-smoker shall be given
precedence.
Cit) of Laguna Beach. Laguna Beach prohibits smoking in elevators,
hospitals and health care facilities, public meeting rooms, theatres and
auditoriums, public restrooms, indoor service lines, and eating
establishments {with some exceptions). Laguna Beach regulates smoking in
the office workplace by prohibiting smoking in employer conference and
meeting rooms, classrooms, auditoriums, restrooms, medical facilities,
hallways and elevators. Contiguous no smoking areas must be maintained
in cafeterias, lunchrooms and employee lounges of at least half the
seating capacity. And further, any employee in the office workplace
shall be given the right to designate his or her immediate work area as a
non-smoking area and to post it with appropriate signs. Laguna Beach has
one of the more strict ordinances; in any dispute arising under the
smoking policy, the rights of the non-smoker shall be given precedence.
Staff requires direction regarding Council's desire for any type of ordinance for
Tustin. Should Council request the Attorney's office to draft such an ordinance,
staff needs to know which provisions should be included.
Royleen A. White, Director
Community and Administrative Services
RAW/kaw
DATE:
October 16, 1985
Inter- Corn
TO:
FROM:
SU BJ ECT:
Honorable Mayor and City Council
Director of Community and Administrative Services
ENFORCEMENT SURVEY
The City of Irvine recently completed a survey of enforcement activities
regarding smoking ordinances. They have shared their research with us,
so you will have even more up-to-date information.
Royleen A. White, Director
Community and Administrative Services
RAW/kaw
Attachment
CITY OF IRVINE
NO SMOKING ORDINANCE ENFORCEMENT SURVEY
OCTOBER 1985
SACRAMENTO
The County of Sacramento Health Department provides enforcement
service for both the County and City representing a total of
one million people. They have one full-time enforcement officer
which they feel is more than adequate. Their Ordinance was
implemented in January 1985. They experienced 50-60 calls per
day for the first few months but now it has tapered down to an
average of four per day. They report no problem with enforce-
ment in public places, but find much more effort is involved
with private workplace complaints. Their procedure is to send
out a form letter to the employer upon receipt of the first
complaint; send out a second form letter upon receipt of the
second complaint after 14 days; and finally, a personal visit to
the employer upon receipt of the third complaint.
PASADENA
The City of Pasadena has had a comprehensive no-smoking ordinance
in place for one and one-half years and reports very little
enforcement activity over that time. At first, there were a few
complaints but now virtually none are received, according to the
City's Health Department which is responsible for enforcing the
ordinance. The few problems that they have experienced have
related to businesses not being aware of the existing ordinance.
LAGUNA BEACH
The City of Laguna Beach has had a no-smoking ordinance in effect
for three months and indicates they have experienced minimum
enforcement activity. The enforcement responsibility has been
assigned to the Police Department. All businesses in the City
have been sent two notices informing them of the new ordinance.
The Police Department's only real effort so far has been to check
out restaurants to insure all required signs have been installed.
They have only received two complaints to date.
SAN DIEGO
The City of San Deigo contracts with the County of San Diego for
their no-smoking ordinance enforcement. The County has three
full-time enforcement officers to cover the no-smoking ordinance
in County territory, the City of San Diego, and in four or five
other smaller contract cities in the the area. The City of San
Diego feels %hey could enforce their own ordinance with one full-
time person. Considering San Diego has one million people and
50,000 business permits, Irvine's effort would equate to much less
than the full-time person that San Diego feels their enforcement
effort would require.
No Smoking Ordinance Enforcement Survey
October 1985
Page 2
SAN DIEGO (CONTINUED)
San Diego did indicate that the toughest part of their enforce-
ment effort pertains to regulations within the workplace. Even
though most of the complaints are legitimate, the enforcement
agency sometimes gets caught in the middle of hidden agendas
between smokers vs. non-smokers, supervisors vs. employees, etc.
SUNNYVALE
The City of Sunnyvale does not have a no-smoking ordinance. Their
City Council recently considered such a proposal but it was not
approved. The Sunnyvale Chamber of Commerce supports a voluntary
"no-smoking" campaign but there are currently no municipal restric-
tions. Consequently, there is no enforcement activity on the part
of the City.
OCEANSIDE
Oceanside's ordinance has been in place for one year. For the
first six months they experienced some complaint activity due to
the "newness" of the ordinance, however, in the last six months
they have only had four or five complaints. Enforcement is on a
complaint basis only and is handled through the City's code
enforcement division within the Community Development Department.
This division has four staff who handle all code enforcement,
including abandoned vehicles, litter, noise, weeds, etc. They
feel their biggest problem has been getting businesses to post
the required signs, but this is primarily due to the sign company
being behind schedule with their deliveries.
LL/bw