City Council Meeting: October 14, 2008                                             Santa Monica, California

ORDINANCE NUMBER (CCS)

(City Council Series)

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 4.44 OF THE SANTA MONICA MUNICIPAL CODE ON SMOKING TO PROHIBIT SMOKING IN COMMON AREAS OF MULTI-UNIT RESIDENTIAL PROPERTIES; AND ADDING CHAPTER 4.45 TO THE SANTA MONICA MUNICIPAL CODE TO CREATE A TOBACCO RETAILER LICENSING PROGRAM

 

WHEREAS, more than 440,000 people die in the United States from tobacco-related diseases every year, making it the nation’s leading cause of preventable illness; and

WHEREAS, the United States Surgeon General recently issued a landmark report describing “massive and conclusive scientific evidence” that ETS causes premature death and disease in adults and children, including cancer, cardiovascular disease, and asthma; and

WHEREAS, the Surgeon General’s Report concluded that “there is no risk-free level of exposure to secondhand smoke” and that exposure to ETS has “immediate adverse effects” on the cardiovascular system;

WHEREAS, the Surgeon General’s Report concluded that public smoking laws are having the effect of improving public health and also reducing the incidence of smoking generally; and                                    • they also reduce smoking among smokers

WHEREAS, the Centers for Disease Control estimates that secondhand smoke exposure causes as many as 300,000 children in the United States to suffer from lower respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood asthma, and increases the risk of acute, chronic middle ear infection in children; and

WHEREAS, the United States Environmental Protection Agency (EPA) has classified second-hand smoke as a Group A carcinogen, the most dangerous class of carcinogens; and

WHEREAS, the EPA has concluded that second-hand smoke causes coronary heart disease in non-smokers; and

WHEREAS, exposure to ETS is the third leading cause of preventable death in this country, killing over 52,000 non-smokers each year, including 3,000 deaths from lung cancer; and

WHEREAS, second-hand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly, and children; and

WHEREAS, the California Air Resources Board (“CARB”) has officially identified second-hand smoke, or ETS, as a “toxic air contaminant” pursuant to Health and Safety Code Section 39660, providing the most authoritative finding to date of the health dangers of ETS in California; and

WHEREAS, the CARB’s Scientific Review Panel found that ETS concentrations in some outdoor locations was comparable to those found inside smokers’ homes; and

WHEREAS, the CARB report noted the following health statistics resulting from second-hand smoke exposure each year in the state of California:

     • Over 400 additional lung cancer deaths

     • Over 3,600 cardiac deaths

     • About 31,000 episodes of children’s asthma

     • About 21 cases of SIDS

     • About 1,600 cases of low birth weight in newborns

     • Over 4,700 cases of pre-term delivery; and

WHEREAS, what the scientific research has confirmed is reflected in the large and growing number of local, state, and national governments that have prohibited smoking in many different outdoor locations in recent years;

WHEREAS, children and youth who observe smoking in public places may model the behavior; and

WHEREAS, City staff and other agencies have received complaints from residents of second-hand smoke exposure originating in the common areas of multi-unit residential properties ; and

WHEREAS, banning smoking at all outdoor common areas of multi-unit residential areas is necessary to protect the public health, safety and welfare of Santa Monica residents; and

WHEREAS, most Californians do not smoke and a majority favor limitations on smoking in multi-unit residences, as evidenced by the following:

• 86% of Californians are non-smokers; and

• 70% of Californians surveyed approve of apartment complexes

requiring at least half of rental units be non-smoking, and

• 67% of Californians surveyed favor limiting smoking in outdoor

common areas of apartment buildings; and

WHEREAS, the California Legislature has recognized the danger of tobacco use and has made reducing youth access to tobacco products a high priority; and

WHEREAS, state law requires all tobacco retailers to be licensed by the Board of Equalization in order to curb the illegal sale and distribution of cigarettes which deprive the state yearly of hundreds of millions of tax dollars that fund local and state programs such as health services, anti-smoking campaigns, cancer research, and education programs; and

WHEREAS, state law explicitly permits cities and counties to enact local tobacco retail licensing ordinances, and allows for the suspension or revocation of a local license for a violation of any state tobacco control law; and

WHEREAS, almost 90 percent of adult smokers started smoking at or before age 18; and

WHEREAS, in order to help prevent the illegal sale of cigarettes and other tobacco products to minors, Santa Monica local law prohibits the sale of tobacco products from vending machines or out of the manufacturer’s package or without required health warnings; and

WHEREAS, despite the state’s efforts to limit youth access to tobacco, minors are still able to access cigarettes, as evidenced by the fact that:

Nearly half of all youth smokers nationwide buy the cigarettes they smoke, either directly from retailers or vending machines, or by giving money to others to purchase the cigarettes for them;

Minors consume 924 million packs of cigarettes each year nationwide, yielding the tobacco industry $480 million in profits from underage smokers;

Most adults who have ever tried smoking have tried their first cigarette under the age of 18, and are on average under the age of 16; and

WHEREAS, research demonstrates that local tobacco retail ordinances dramatically reduce youth access to cigarettes; and

WHEREAS, more than sixty cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop minors from smoking; and

WHEREAS, California retailers continue to sell tobacco to underage consumers, evidenced by the following:

14 percent of all tobacco retailers unlawfully sold to minors in 2004;

32 percent of non-traditional tobacco retailers such as deli, meat, and produce markets sold to minors in 2004;

Teens surveyed in 2002 say they bought their cigarettes at: gas stations (58%), liquor stores (45%), and supermarkets and small grocery stores (25%); and

WHEREAS, the local news media has reported recently on the ready availability of cigarette sales to minors in Santa Monica; and

WHEREAS, Santa Monica has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and protecting children from being lured into illegal activity through the misconduct of adults;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN 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. 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)  Multi-Unit Common Area.  Any indoor or outdoor area at a multi-unit residential property (including rental properties and condominiums) that is accessible to and usable by more than one resident, including but not limited to halls, paths, lobbies, laundry rooms, common cooking areas, outdoor dining areas, patios, play areas, swimming pools, gardens, and parking lots.

 (b)(c)  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.

(c)(d)   Smoke or smoking. The carrying or holding of a lighted 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.

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, except in designated areas;

(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 Multi-Unit Common Area, except that the property owner, manager or homeowners’ association may designate a portion of an outdoor common area where smoking is allowed. Any such designated smoking area:

(A) must be located at least 20 feet from any indoor area;

(B) must not include and must be at least 20 feet from outdoor areas primarily used by children, including but not limited to areas improved or designated for play or swimming;

(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.

(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 hundred dollars for a third and subsequent violations within one year.

(2) Private Right of Action. Notwithstanding any other provision of this Chapter, any person may bring a civil action for damages, injunctive relief, or other relief to redress a violation of sub-section 4.44.020(a)(12).

(2)(3)   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 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 2.  Chapter 4.45 is added to the Santa Monica Municipal Code as follows:

CHAPTER 4.45

TOBACCO RETAILER LICENSING

Section 4.45.010 Intent.

It is the intent of the City Council, in enacting this ordinance, to encourage responsibility in tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors.

Section 4.45.020 Definitions.

The following words and phrases, as used in this Chapter, shall have the following meanings:

(a) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(b) “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 10 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.

(c) “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.

(d) “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 4.45.030  Tobacco Retailer License Required.

(a) No Person shall operate as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer’s license pursuant to this Chapter for each location at which that activity is to occur.

(b) Tobacco Retailing without a valid Tobacco Retailer’s license is a public nuisance.

Section 4.45.040  Application Procedure.

(a) Applicants for a license under this Chapter shall pay a non-refundable license fee in an amount established by Council resolution and sufficient to cover the costs of administration.

(b) All applications shall be completed on a form prepared and supplied by the City Manager or the Manager’s designee.

(c) Applicant shall be required to disclose any violations of the State tobacco licensing laws at any location within the City of Santa Monica within the five years prior to the application for which Applicant’s state tobacco retailer’s license was either suspended or revoked.

Section 4.45.050  Issuance of License.

(a) Except as otherwise provided herein, and except where a Tobacco Retailer’s establishment would not otherwise be permitted under local, state or federal laws, a license shall be issued upon receipt of a complete application in conformity with all of the requirements set forth in the Application Procedure section of this Chapter, and payment of the license fee.

(b) A Tobacco Retailer’s license will not be issued where:

(1) Suspension or revocation proceedings have been initiated by any local, state or federal agency for violations of local, state or federal tobacco control laws within the preceding 30-day period.

(2) Proprietor or any person employed by Proprietor has been convicted or civilly adjudged liable for violating any local, state or federal tobacco control law within six months prior to the date of application.

(3) The Proprietor’s Tobacco Retailer’s license was revoked for the same location within the five years preceding the date of the application.

(4) The Tobacco Retailer has not obtained a valid state tobacco retailer’s license from the California Board of Equalization.

(5) The Tobacco Retailer does not have a valid Santa Monica business license or is delinquent on the payment of business tax, late payment penalties or other associated fees.

(c) Every license issued under this Chapter shall be posted and displayed at all times in a conspicuous place within the business location that is visible to the public.

(d) Notwithstanding any other provision of this Chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless the location has been fully transferred to a new Proprietor.

Section 4.45.060  License Renewal and Expiration.

(a) A Tobacco Retailer license will be valid until June 30 of every year and if not renewed will expire. Each Tobacco Retailer shall apply for the renewal of its Tobacco Retailer’s license and submit the license fee no later than thirty days prior to expiration of the term.

(b) If any material information required for issuance of a license herein has changed since the original license was issued, a new Tobacco Retailer’s license is required before the business may continue to act as a Tobacco Retailer.

Section 4.45.070  Prohibitions

(a) No Tobacco Retailer shall violate any local, state or federal law that relates to the sale, use, smoking, or other regulation of Tobacco Products.

(b) No Tobacco Retailer shall sell or transfer a Tobacco Product to another Person who appears to be under the age of twenty–seven years, without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law, to purchase and possess the Tobacco Product.

(c) No Tobacco Retailer shall permit any person who is younger than the minimum age established by state law for the purchase or possession of Tobacco Products, to participate in the sale of Tobacco Products.

(d) No Tobacco Retailer shall display Tobacco Products in a manner that is accessible to the general public without the assistance of the Tobacco Retailer or its employee.

(e) No Tobacco Retailer shall sell or display cigarettes out of the manufacturer’s package or without required health warnings.

(f) No Tobacco Retailer shall sell Tobacco Products from other than a fixed location, including but not limited to sales by persons on foot or from vehicles.

Section 4.45.080  Remedies.

(a) A Tobacco Retailer’s license may be revoked by the City Manager or the Manager’s designee if one of the following conditions exist:

(1) The information contained in the application, including supplemental information, if any, is found to be false in any material respect;

(2) The license was issued in error or on the basis of false or misleading information supplied by a Proprietor.

(b) In addition to any other remedy authorized by law, a Tobacco Retailer’s license may be suspended or revoked by the City Manager or the Manager’s designee if it is determined that the Tobacco Retailer or its agents violated the conditions of this Chapter or any local, state or federal law pertaining to the sale of Tobacco Products to underage minors, as follows:

(1)  Upon a finding of a first violation, the license may be suspended for up to 30 days;

(2) Upon a finding of a second violation within five years of the first violation, the license may be suspended for up to 90 days;

(3) Upon a finding of a third violation within five years of the first violation, the license may be revoked.

(c) No Proprietor may re-apply for a Tobacco Retailer’s license at the same retail location for five years after the date of revocation.

(d) The procedure used for revocation shall substantially conform to that set forth in the Santa Monica Municipal Code regarding business licenses generally. Any decision to revoke or suspend a license may be appealed according to the provisions of the Santa Monica Municipal Code. An appeal shall stay all proceedings in furtherance of the appealed action.

(e) During any period of license suspension or revocation, the Tobacco Retailer must remove from public view all Tobacco Products and related advertising.

(f) Violations of this Chapter constitute a misdemeanor.

(g) Violations of this Chapter may be remedied by a civil injunction or abatement action initiated by the City Attorney.

SECTION 3.  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 4.  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 the ordinance would be subsequently declared invalid or unconstitutional.

SECTION 5.  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:

 

 

_________________________

MARSHA JONES MOUTRIE

City Attorney