9.E Report Expanded Smoking Prohibition Ordinance - 2nd Reading 2019-03-19PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.E
SUBJECT/TITLE:
ADOPTION OF AN ORDINANCE EXPANDING THE REGULATION OF SMOKING IN
PUBLIC PLACES WITHIN THE CITY
RECOMMENDATION:
Adopt an Ordinance amending Chapter 8.14 of the Pismo Beach Municipal Code,
regulating smoking in public places.
BACKGROUND:
On March 5, 2019 the Council introduced an Ordinance amending Chapter 8.14 (Smoking
in Public Places) of the Pismo Beach Municipal Code to expand the City's prohibition on
smoking in public places.
The agenda report for the March 5 item, which includes background and discussion, is
provided as Attachment 2. Following public input and deliberation, the Council
introduced the ordinance (Attachment 1) as presented, on a 3–2 vote, Mayor Pro Tem
Howell and Council Member Blake voting No.
Recommendation
Staff recommends that the Council adopt an ordinance (Attachment 1) expanding the
City's prohibition on smoking in public places. If the Council acts to adopt the ordinance
as recommended, it will become effective by statute on April 18, 2019.
FISCAL IMPACT:
Staff costs incurred in enforcement of the ordinance in an amount dependent on the
number of violations. No significant fiscal impact is anticipated.
ALTERNATIVES:
1.Pismo Beach Municipal Code 2.04.340 automatically waives full readings of
Ordinances unless the Council directs otherwise; the Council may opt to have staff
conduct a second reading in full, and then take action on the Ordinance.
2.Amend the Ordinance and return them for another first reading and introduction.
3.Decline to adopt the Ordinance.
ATTACHMENTS:
1.Ordinance as introduced March 5, 2019
2.March 5, 2019 staff report for introduction of ordinance
Submitted by: Erica Inderlied, City Clerk Meeting Date: March 19, 2019
City Manager Approval:
9.E-1Council Agenda 3-19-2019
ORDINANCE NO. O-2019-XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA AMENDING CHAPTER 8.14 OF THE PISMO BEACH MUNICIPAL
CODE, REGULATING SMOKING IN PUBLIC PLACES
WHEREAS, the smoking of tobacco, or any other weed or plant, is a danger to health
and an inconvenience and a health hazard to those who are exposed to the resulting
smoke; and
WHEREAS, California law prohibits smoking in enclosed places of employment and other
specific locations, but additional regulation of smoking is left to local government; and
WHEREAS, Pismo Beach is one of two cities in San Luis Obispo County given a grade
of "F" in the American Lung Association’s 2018 State of Tobacco Control report card,
primarily because the City’s tobacco-use ordinances do not substantially limit the
locations where tobacco may be used; and
WHEREAS, it is the intent of the City Council in enacting this ordinance to provide for the
public health, safety, and welfare by discouraging smoking around non-smokers; by
protecting adults and children from exposure to smoking while they work and play; by
reducing the potential for children to associate smoking with a healthy lifestyle; by
protecting the public from smoking-related litter and pollution; and by affirming and
promoting the family atmosphere of the city's public places; and
WHEREAS, it is expressly not the intent of the City Council in this ordinance to duplicate
what is already prohibited by California or federal law, but rather to fill in regulatory gaps
as permitted by California and federal law.
NOW, THEREFORE, the City Council of the City of Pismo Beach does ordain as follows:
SECTION 1.
The recitals set forth above are incorporated herein as findings in support of this
ordinance.
Attachment 1
9.E-2Council Agenda 3-19-2019
SECTION 2.
Chapter 8.14 of the Pismo Beach Municipal Code is revised to read in its entirety as
follows:
Chapter 8.14 SMOKING IN PUBLIC PLACES
8.14.010 Definitions.
For the purpose of this chapter, certain words and phrases shall be construed as
set forth in this section, unless it is apparent from the context that a different
meaning is intended.
"Enclosed" means all space between a floor and ceiling which is enclosed on three
or more sides by solid walls or windows (exclusive of door- or passage-ways)
which extend from the floor to the ceiling, including all space therein screened by
partitions which do not extend to the ceiling or are not solid, office landscaping, or
similar structures.
"Open air dining area" means any unenclosed area located on private or public
property made available to or customarily used by the general public that is
designed, established, or regularly used for consuming food and/or beverages, or
where food or beverages are served, whether or not for compensation. This
includes, without limitation, restaurants, restaurants at hotels and private clubs,
cafés, and coffee shops.
"Place of employment" means any area under the control of a public or private
employer that employees normally frequent during the course of employment,
including, but not limited to, conference and class rooms, employee cafeterias,
employee lounges and restrooms, hallways, and work areas. A private residence
is not a place of employment unless it is used as a childcare or health care facility.
"Public place" shall mean any enclosed or unenclosed area to which the public is
invited or in which the public is permitted, including, but not limited to, banks,
educational facilities, health facilities, public transportation and parking facilities,
reception areas, restaurants, retail food production and marketing establishments,
retail service establishments, retail stores, theaters, waiting rooms, and recreation
or meeting rooms in condominiums, apartments, housing developments and
mobile home parks, to the extent not otherwise governed by or exempted from
California Labor Code Section 6404.5 and California Health and Safety Code
Section 118875, et seq. A private residence is not a "public place" unless it is used
as a childcare or health care facility.
"Recreational area" means and includes any publicly owned or operated area that
is open to the general public for recreational purposes, regardless of any fee or
age requirement. The term "Recreational Area" includes, but is not limited to,
Attachment 1
9.E-3Council Agenda 3-19-2019
parks, piers, boardwalks, beaches, picnic areas, playgrounds, tot-lot sandbox
areas, sports fields, walking paths, gardens, hiking trails, bike paths, parks or trails
established by adverse uses, and parks on leased property.
"Service area" means any enclosed or unenclosed area where one or more
persons wait for, receive or exchange goods or services of any kind, including
without limitation lines or waiting areas for: (A) ATMs; (B) information kiosks; (C)
banks; (D) restaurants and other food service establishments; (E) tickets and
admission lines to a theater or other venue event; (F) car washes and vehicle
service establishments; (G) bus stops or taxi stands; and (H) valet parking pick-up
areas.
"Smoke" or "smoking" means inhaling, exhaling, burning, or carrying any lighted
or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco, cannabis
or other plant product intended for inhalation, whether natural or synthetic, in any
manner or in any form. "Smoking" includes the use of a battery-powered or other
electronic smoking device that creates an aerosol or vapor, in any manner or in
any form, or the use of any oral smoking device for the purpose of circumventing
the prohibition of smoking. "Cannabis" shall have the same meaning as set forth
in California Business and Professions Code Section 26001, as that section may
be amended from time to time.
"Unenclosed" means a predominantly outdoor area that does not meet the
definition of "enclosed."
8.14.020 Smoking—Prohibited.
A. In addition to all places where smoking is prohibited under California or
federal law, no person shall smoke in or on, and smoking areas shall not be
established or designated in or on:
1. Open-air dining areas, or within twenty-five (25) feet of any open-air
dining area.
2.Within fifty (50) feet of any entrance, exit, operable window, or air
intake vent to any enclosed public place that is used as a health care
facility, licensed child or adult care facility, or senior center, or within
twenty-five (25) feet of any entrance, exit, operable window, or air
intake vent to any other enclosed public place. For purposes of this
subsection, entrance or exit shall mean an opening into an enclosed
public place from a contiguous street, sidewalk, walkway, or parking
area, and "air intake vent" shall mean an opening into an enclosed
public place that draws in air from the outside as part of a structural
ventilation system.
Attachment 1
9.E-4Council Agenda 3-19-2019
3.Public places when being used for a public event, including, but not
limited to, farmers' markets, fairs, concerts, or other special events
open to the general public.
4.Recreational areas, or within twenty-five (25) feet of any recreational
area.
5.Service areas, or within twenty-five (25) feet of any service area.
6.Sidewalks on the following streets:
a.Any street in the Downtown Core Planning Area, to wit: that
area of the city southwest of United States Highway 101 from
and including the intersection of Dolliver and Price Streets on
the northwest, to and including Addie Street, as extended
from the Pacific Ocean to United States Highway 101, on the
southeast.
b.Shell Beach Road.
c.Five Cities Drive.
7.Unenclosed places of employment.
B. No person shall dispose of smoking waste or place or maintain a receptacle
for smoking waste in an area where smoking is prohibited by this chapter or
other law, or within a distance of twenty-five (25) feet from an area where
smoking is prohibited.
C. A person shall not intimidate, threaten any reprisal, or effect any reprisal,
for the purpose of retaliating against another person who seeks to attain
compliance with this chapter.
D. This section shall not apply to smoke generated by portable or fixed
barbeques, nor smoke generated by the combustion of material containing
no tobacco or nicotine where the purpose of such combustion is solely
olfactory, such as smoke from incense.
E. This section shall not apply to smoking when part of a stage or theatrical
production, although use of simulated smoking products is encouraged
whenever possible.
8.14.030 Signage.
Signs not less than eight (8) inches by ten (10) inches, stating "No Smoking" with
letters of not less than one inch (1") in height, or depicting 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), shall be clearly and conspicuously
posted in every building or other place where smoking is regulated by this chapter,
Attachment 1
9.E-5Council Agenda 3-19-2019
by the owner, operator, manager or other person having control of such building
or other place.
8.14.040 Penalty.
A. A violation of this chapter is an infraction and shall be punished by a fine of
two hundred fifty dollars ($250) for a first violation of this chapter. Each
subsequent violation within a one-year period shall be punished by a fine of
five hundred dollars ($500). Violations of this chapter may alternatively be
punished as administrative violations as provided in Chapter 1.24.
B. Notwithstanding any other provision of this chapter, a private citizen may
bring legal action to enforce this chapter.
C. Punishment under this chapter shall not preclude punishment pursuant to
California Health & Safety Code Section 13002, California Penal Code
Section 374.4, or any other law proscribing the act of littering. Nothing in
this chapter shall preclude any person from seeking any other remedies,
penalties or procedures provided by law. This chapter shall not be
interpreted or construed to permit smoking where it is otherwise restricted
by other applicable laws.
SECTION 3.
Under the provisions of the California Environmental Quality Act (CEQA) Guidelines
Section 15061 (b) (3), this ordinance is covered by the general rule that CEQA applies
only to projects which 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 in question may have a significant effect on the environment, such as the adoption
the regulations contained herein, the activity is not subject to CEQA.
SECTION 4.
This ordinance shall not be interpreted in any manner to conflict with controlling provisions
of state or federal law, including, without limitation, the Constitution of the State of
California. If any section, subsection, or clause of this ordinance shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections, subsections
and clauses shall not be affected thereby. If this ordinance, or any section, subsection or
clause of this ordinance shall be deemed unconstitutional or invalid as applied to a
particular appeal, the validity of this ordinance and its sections, subsections, and clauses
in regard to other contracts shall not be affected. This chapter shall be interpreted in a
manner supplementary to and consistent with California Labor Code Section 6404.5 and
California Health and Safety Code Sections 104495 and 118875, et seq., as amended,
and in all cases of conflict between this chapter and any California state law, the
applicable state law provision shall prevail.
Attachment 1
9.E-6Council Agenda 3-19-2019
SECTION 5.
This ordinance shall become effective on the thirtieth (30th) day following passage and
adoption hereof.
SECTION 6.
The City Clerk shall certify to the passage and adoption of this Ordinance, shall enter the
same in the book of original ordinances of the City and shall make a minute of the passage
and adoption thereof in the records of the meeting at which the same is passed and
adopted.
Before the expiration of fifteen (15) days after the passage of this Ordinance, the City
Clerk shall cause the same to be posted in three public places within the City of Pismo
Beach, to wit: 1) City Hall, 760 Mattie Road, Pismo Beach, 2) U.S. Post Office, Shell
Beach Road, Pismo Beach, 3) U.S. Post Office, Crest Drive, Pismo Beach.
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
ADOPTED at a regular meeting of the City Council held this th day of , 2019,
on motion of Council Member , seconded by Council Member , and on the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
Attachment 1
INTRODUCED at a regular meeting of the City Council held this 5th day of March, 2019,
on motion of Council Member Reiss, seconded by Council Member Guthrie, and on the
following roll call vote, to wit:
3
2
Reiss, Guthrie, Waage
Blake, Howell
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
9.E-7Council Agenda 3-19-2019
APPROVED AS TO FORM:
______________________________
David M. Fleishman, City Attorney
Attachment 1
9.E-8Council Agenda 3-19-2019
PISMO BEACH COUNCIL AGENDA REPORT
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Council Agenda March 5, 2019 12.A-1
Attachment 2
9.E-9Council Agenda 3-19-2019
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Council Agenda March 5, 2019 12.A-2
Attachment 2
9.E-10Council Agenda 3-19-2019