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HomeMy WebLinkAbout07 SECOND READING & ADOPTION OF ORDINANCE NO. 1485Agenda Item 7 AGENDAREPORT Reviewed: Cty Manager Finance Director J N/A MEETING DATE: OCTOBER 17, 2017 TO: JEFFREY C. PARKER, CITY MANAGER FROM: ERICA N. RABE, CITY CLERK SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 1485 SUMMARY: Ordinance No. 1485 amends the Tustin City Code by expanding upon the City's current smoking and park regulations to clarify that smoking is prohibited in public parks. Additionally, if adopted, the proposed ordinance would clarify that use of electronic cigarettes and similar devices is prohibited in all areas of the City where smoking is prohibited. RECOMMENDATION: Have second reading by title only and adoption of Ordinance No. 1485. BACKGROUND: On October 3, 2017, the City Council had first reading by title only of the following Ordinance: ORDINANCE NO. 1485 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA AMENDING PART 2, CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN CITY CODE REGARDING THE REGULATION OF SMOKING IN PUBLIC PLACES, PLACES OF EMPLOYMENT AND CITY -OWNED, OPERATED OR LEASED FACILITIES, AND SECTION 7112 OF CHAPTER 1 OF ARTICLE 7 OF THE TUSTIN CITY CODE REGARDING PROHIBITED ACTIVITIES IN PARKS. Attachment: Ordinance No. 1485 ORDINANCE NO. 1485 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING PART 2, CHAPTER 1 OF ARTICLE 4 OF THE TUSTIN CITY CODE REGARDING THE REGULATION OF SMOKING IN PUBLIC PLACES, PLACES OF EMPLOYEMENT AND CITY - OWNED, OPERATED OR LEASED FACILITIES, AND SECTION 7112 OF CHAPTER 1 OF ARTICLE 7 OF THE TUSTIN CITY CODE REGARDING PROHIBITED ACTIVITIES IN PARKS. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. In 1994 the City adopted Ordinance 1134 regarding smoking in public places, places of employment and City -owned, operated or lease facilities, which regulates smoking in various enclosed areas. Neither in Ordinance 1134, nor elsewhere in the Tustin City Code are there any regulations regarding smoking in public places that are not enclosed, including City parks. B. There is a danger associated with second-hand smoke in and around areas frequented by children. Currently, section 104495 of the California Health & Safety Code prohibits smoking within twenty-five feet of "tot lots" and "playgrounds" and authorizes local municipalities to adopt more restrictive smoking regulations in the interest of the public health, safety and general welfare. C. Electronic cigarettes, commonly known as e -cigarettes, e -cigars, e - cigarillos, e -pipes, e -hookahs, vape pens, or other "vaping" devices, are battery operated devices which are designed to deliver nicotine, flavor, and/or other substances through a vapor inhaled by the user. As with traditional tobacco products, California Health & Safety Code section 104495 prohibits the use of electronic cigarettes within twenty-five feet of "tot lots" and "playgrounds", and also authorizes local municipalities to adopt more restrictive regulations regarding the use of electronic cigarettes in the interest of the public health, safety and general welfare. D. It is the intent of the City Council, in enacting this ordinance, to provide for the public health, safety and general welfare, by expanding upon the City's current smoking regulations by prohibiting smoking in certain unenclosed public areas, and by prohibiting the use of cannabis and electronic cigarettes and similar devices in those areas where smoking is prohibited by the Tustin City Code. E. That proposed Ordinance No. 1485 is not subject to the California Environmental Quality Act ("CEQA") under CEQA Guidelines (14 Cal. Code Regs.) section 15060(c)(2), 15060(c)(3), and 15061(b)(3). The activity is not subject to CEQA 1272036.1 Ordinance 1485 Page 2 because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to activities that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 2. Part 2, Chapter 1 of Article 4 of the Tustin City Code is hereby amended to read as follows: PART 2 - SMOKING IN PUBLIC PLACES, PLACES OF EMPLOYMENT AND CITY - OWNED, OPERATED OR LEASED FACILITIES 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, because the increasingly frequent use of electronic cigarettes, which emit a smoke -like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products, is largely unregulated by the federal and state governments, and in order to serve public health, safety and welfare, the declared purpose of this Part 2 is to prohibit the smoking of tobacco, or any other weed or plant, in certain public places and places of employment, except in designated smoking areas, and to prohibit smoking in City parks and in City -owned, operated or leased facilities. 4121 - DEFINITIONS For the purpose of this part, the following words and terms shall have the meaning: (a) "Bar' shall mean any area which is devoted to the serving of alcoholic beverages for consumption on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar' shall not include the restaurant dining area. (b) "Smoke" or "smoking" shall mean the inhaling, exhaling, burning, or carrying of any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product (including cannabis) intended for inhalation, whether natural or synthetic, in any manner or form. Smoking includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking. 1272036.1 Ordinance 1485 Page 3 (c) "Public place" shall mean any enclosed area to which the public is invited or in which the public is permitted, other than the ones enumerated in section 4126 and City -owned, operated, and leased facilities, including but not limited to, retail food production and marketing establishments, retail stores and retail service establishments, elevators, restaurants, theaters, waiting rooms, reception areas, educational facilities, health facilities and public transportation facilities. A private residence is not a public place. (d) "Public park" shall mean any park operated by the City or any park situated on privately owned property within the City that is generally open for public use, and shall include all sidewalks or other public rights-of-way which are located immediately adjacent to any public park. A park shall be deemed generally open for public use if it is open to any person(s) other than the owner of the privately owned property upon which the park is situated, including but not limited to, tenants, guests, or customers. (e) "Place of employment" shall mean any enclosed area under the control of a public or private employer except the City and the places enumerated in section 4126, 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. (f) "Tobacco product" shall mean any of the following: (1) A product, containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff. (2) An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. (3) Any component, part, or accessory of a tobacco product, whether or not sold separately. "Tobacco product" does not include a nicotine replacement product approved by the United States Food and Drug Administration. 4122 - PROHIBITIONS (a) No person shall smoke or use a tobacco product in a public place, or place of employment, except in designated smoking areas. 1272036.1 Ordinance 1485 Page 4 (b) No person shall smoke or use a tobacco product in any City -owned building or facility leased or operated by the City. (c) No person shall smoke or use a tobacco product in any public park. 4123 - DESIGNATION OF SMOKING AND NONSMOKING AREAS (a) Except where smoking is prohibited by a proprietor, smoking and nonsmoking areas shall be designated in public places and places of employment by proprietors or other persons in charge and signs shall be posted. 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. However, employers are not required to incur any expense to make structural or other physical modifications in providing smoking and nonsmoking areas. Restaurants covered by the provisions of this part shall designate an adequate amount of seating capacity to meet the demands of nonsmokers and shall inform all patrons that a no smoking section is provided. (b) Notwithstanding subsection (a) of this section, no area of a public .park shall be designated as a "smoking area." 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 all areas of their businesses, and utilize the full rights of the provisions of this part. No public place other than the ones enumerated in section 4126 shall be designated as a smoking area in its entirety. 4125 - POSTING OF SIGNS (a) Signs which designate smoking or no smoking areas shall be clearly, sufficiently and conspicuously posted in every room, building or other place so covered by this part. No smoking signs shall be specifically placed in retail food production and marketing establishments, including grocery stores and supermarkets open to the public, retail sales and retail service establishments 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, sufficiency and conspicuousness are apparent in communicating the intent of this part. (b) "No Smoking" signs, with letters of not less than one inch in height which read "Smoking and Use of Tobacco Products is Prohibited", along with a depiction of 1272036.1 Ordinance 1485 Page 5 the international "No Smoking" symbol (consisting of a representation of a burning cigarette enclosed in a circle with a bar across it) shall be posted in all public parks.' The location and number of signs to be posted at each public park within the City shall be at the discretion of the Director of Parks and Recreation. The owner of any private property upon which a public park is located shall be responsible for ensuring that "No Smoking" signs are posted and maintained on that property in a manner acceptable to the Director of Parks and Recreation. 4126 - EXCEPTIONS (a) Nonsmoking areas are not required to be designated 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 facilities, jails, bars, private residences, restaurants with a seating capacity of less than twenty (20) persons, and establishments devoted to the exclusive sale of tobacco and tobacco related products. (b) Restaurants with a seating capacity of less than twenty (20) persons shall have the options of designating smoking and nonsmoking sections, allowing smoking, or prohibiting smoking throughout the establishment. (c) Any owner or manager of a business or other establishment subject to this part may apply to the City Council for an exemption or modification of the provisions of this part due to unique or unusual circumstances or conditions. (d) Nothing in this Part shall be deemed to authorize the smoking of cannabis in any public place. 4127 - ENFORCEMENT (a) The Director of Community Services shall be responsible for compliance with this part when facilities owned, operated or leased by the City of Tustin are involved. The Director of Community Development shall provide business license applicants with copies of this part. (b) The owner, operator or manager of any facility, business or agency within the purview of this part, and not exempt under section 4126 shall comply with the requirements to designate smoking and nonsmoking areas and to post signs. Such owner, operator or manager may refuse service to any person who violates this part by smoking in a posted "No Smoking" area. 4128 - PENALTIES Any person who violates a provision of this part shall be guilty of an infraction and, upon conviction, shall pay a fine of one hundred dollars ($100) for a first violation, a fine of two hundred dollars ($200) for a second violation within one (1) year, and a fine 1272036.1 Ordinance 1485 Page 6 of five hundred dollars ($500) for each additional violation of this part within one (1) year. SECTION 3. Section 7112 of Chapter 1 of Article 4 of the Tustin City Code is hereby amended to read as follows: 7112 - PROHIBITED ACTIVITIES IN PARKS The following activities, sports and uses are hereby prohibited at any park, or playground: (a) Sale, possession or use of fireworks. (b) Sale, possession or use of narcotics. (c) Sale, possession or use of alcoholic beverages except upon written permit duly issued by the Director of Community Services as provided in Section 6310. (d) Gambling. (e) Sale, possession or use of firearms or weapons of any kind, including, but not limited to, air rifles, slings, knives or clubs. (f) Littering, defacing or damaging of property. (g) Giving private lessons for commercial purposes. (h) Use of abusive or profane language. (i) Smoking or use of any tobacco product or cannabis as set forth in Article 4, Chapter 1, Part 2 of this Code. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this day of , 2017. 1272036.1 Ordinance 1485 Page 7 DR. ALLAN BERNSTEIN, MAYOR ATTEST: ERICA N. RABE, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. was duly and regularly introduced and read by title only at the regular meeting of the City Council held on the day of , 2017, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the day of , 2017, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe, City Clerk Published: 1272036.1