HomeMy WebLinkAboutORD 1200ORDINANCE NO. 1200
AN ORDINANCE OF THE CITY OF PALM DESERT, CALIFORNIA,
AMENDING AND RESTATING CHAPTER 8.36 REGULATION AND
PROHIBITION OF SMOKING OF THE PALM DESERT MUNICIPAL CODE.
THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS
The City Council of the City of Palm Desert hereby finds and declares as follows:
WHEREAS, tobacco use causes death and disease and continues to be an urgent
public health challenge, as evidenced by the following:
• Tobacco -related illness is the leading cause of preventable death in the United States,
accounting for about 443,000 deaths each year; and
• Scientific studies have concluded that tobacco use can cause chronic lung disease,
coronary heart disease, and stroke, in addition to cancer of the lungs, larynx,
esophagus, and mouth; and
• Some of the most common types of cancers including stomach, liver, uterine cervix, and
kidney are related to tobacco use; 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
• The California Environmental Protection Agency 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 causes death and disease, as evidenced by
the following:
• Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers
each year in the United States; and
• Exposure to secondhand smoke increases the risk of coronary heart disease by
approximately thirty percent; and
• Secondhand smoke exposure causes lower respiratory tract infections, such as
pneumonia and bronchitis, in as many as 300,000 children in the United States under
the age of 18 months each year, and exacerbates childhood asthma; and
WHEREAS, tobacco use and exposure to secondhand smoke impose great social and
economic costs, as evidenced by the following:
• The total economic burden of smoking in the United States is $193 billion; and
ORDINANCE NO. 1200
• From 2001 to 2004, the average annual health care expenditures attributable to smoking
were approximately $96 billion; and
• The medical and other costs to nonsmokers due to exposure to secondhand smoke
were estimated at over $10 billion per year in the United States in 2005; and
• The total annual cost of smoking in California was estimated at $475 per resident or
$3,331 per smoker per year, for a total of nearly $15.8 billion in smoking -related costs in
1999 alone; and
• California's Tobacco Control Program saved the state and its residents $86 billion in
health care expenditures between the year of its inception, 1989, and 2004, with savings
growing yearly; and
WHEREAS, exposure to secondhand smoke anywhere has negative health impacts,
and exposure to secondhand smoke does occur 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
• Irritation from secondhand smoke begins at levels as low as 4 micrograms per cubic
meter, and in some outdoor situations this level can be found as far away as 13 feet
from the burning cigarette; and
• To be completely free from exposure to secondhand smoke in outdoor places, a person
may have to move nearly 25 feet away from the source of the smoke, about the width of
a two lane road; and
• Studies on a cruise ship have found that even while cruising at 20 knots and with
unlimited air volume, outdoor smoking areas contained carcinogens in nearly the same
amounts as inside the ship's casino where smoking was allowed;, and
WHEREAS, cigarette butts pose a health threat to young children, as evidenced by the
following:
• In 2004, American poison control centers received nearly 8,000 reports of children
poisoned by the ingestion of cigarettes, cigarette butts, and other tobacco products, and
• Children who ingest cigarette butts can experience vomiting, nausea, lethargy, and
gagging; and
WHEREAS, cigarette butts are a major source of litter, as evidenced by the following:
• It is estimated that over two billion cigarette butts are discarded every day worldwide,
and that Americans alone discard more than 175 million pounds of cigarette butts every
year; and
• Cigarette butts are often cast onto sidewalks and streets, and frequently end up in storm
drains that flow into streams, rivers, bays, lagoons and ultimately the ocean; and
• Cigarette filters, made of plastic cellulose acetate, take approximately 15 years to
decompose; and
WHEREAS, laws restricting the use of tobacco products have recognizable benefits to
public health and medical costs, as evidenced by the following:
• Cities with smokefree laws see an appreciable reduction in hospital admittances for
heart attacks in the months and years after such laws are passed; and
• Smoking bans help people reduce the number of cigarettes they smoke or quit
altogether; and
• Strong smoking regulations for restaurants decrease the number of children who
transition from experimenting with smoking to becoming actual smokers; and
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ORDINANCE NO. 1200
WHEREAS, creating smokefree areas helps protect the health of the 86.7% of
Californians who are nonsmokers; and
WHEREAS, society is becoming less tolerant and less accepting of cigarette smoking,
as evidenced by the following,
• A 2008 survey of California voters found that 75% though that secondhand smoke is
harmful, 64% were bothered by secondhand smoke, and 73% support laws restricting
smoking in outdoor public places; and
• People living in cities with strong smokefree air laws are more likely to believe smoking
is not acceptable that the smokers should attempt to quit smoking; and
• As of 2008, there were 187 California cities and Counties with local laws restricting
smoking in at least one outdoor area; and
WHEREAS, state law prohibits smoking within 25 feet of playgrounds and tot lots and
expressly authorizes local communities to enact additional restrictions; and state law prohibits
smoking within 20 feet of entryways and operable windows of government buildings; and
WHEREAS, there is no Constitutional right to smoke;
NOW, THEREFORE, the intent of the City Council of the City of Palm Desert is as
follows:
SECTION II. PURPOSE AND INTENT
It is the intent of the City Council of the City of Palm Desert in enacting this ordinance to provide
for the public health, safety, and welfare by discouraging the inherently dangerous behavior of
smoking around non -tobacco users, especially children; by protecting the public from exposure
to secondhand smoke where they live, work, and play; by reducing the potential for children to
wrongly associate smoking with a healthy lifestyle; and by affirming and promoting a healthy
environment in and around the City's outdoor places.
SECTION III. AMENDMENT AND RESTATEMENT OF CHAPTER 8.36 REGULATION AND
PROHIBITION OF SMOKING
Chapter 8.36 of the Code of Palm Desert, California is hereby amended and restated as follows:
"Chapter 8.36
REGULATION AND PROHIBITION OF SMOKING
8.36.010 Purpose of chapter.
Smoking of tobacco, or any other weed or plant, is a positive danger to health and a
cause of material annoyance, inconvenience, discomfort and health hazard to those who are
present in confined places. In addition, the California Air Resources Board has 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. Therefore, it is the City's intent to provide for the public health, safety and welfare,
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by prohibiting the smoking of tobacco, or any other weed or plant, in public places and places of
employment, except in designated smoking areas as set forth herein.
8.36.020 Definitions.
The following words and phrases, whenever used in this chapter shall have the meanings
defined in this section unless the context clearly requires otherwise.
A. "Business" means any sole proprietorship, partnership, joint venture, corporation
association, or other entity formed for profit -making purposes.
B. "City" means the City of Palm Desert, and its related entities including the Palm
Desert Redevelopment Agency and the Palm Desert Housing Authority.
C. "Common area" means every unenclosed area of a multi -unit residence that
residents of more than one unit of that multi -unit residence are entitled to enter or use, including,
for example, paths, courtyards, playgrounds, swimming pools, parking lots, and picnic areas.
D. "Dining area" means any area, including streets and sidewalks, which is available
to or customarily used by the general public or an employee, and which is designed,
established, or regularly used for consuming food or drink.
E. "Employee" means any person who is employed or retained as an independent
contractor by any employer or nonprofit entity in consideration for direct or indirect monetary
wages or profit, or any person who volunteers his or her services or an employer or nonprofit
entity.
F. "Employer" means any person, business, entity or nonprofit entity that retains the
service of one or more employees.
G. "Enclosed area" means an area in which outside air cannot circulate freely to all
parts of the area, and includes an area that has:
1. Any type of overhead cover whether or not that cover includes vents or other
openings and at lease three (3) walls or other vertical boundaries of any height whether or not
those boundaries include vents or other openings; or
2. Four (4) walls or other vertical boundaries that exceed six (6) feet in height
whether or not those boundaries include vents or other openings.
H. "Multi -unit residence" means a residential property containing two (2) or more
units.
I. "Nonprofit entity" means any entity that meets the requirements of California
Corporations Code section 5003 as well as any corporation, unincorporated association or other
entity created for charitable, religious, philanthropic, education, political, social or similar
purposes, the net proceeds of which are committed to the promotion of the objectives or
purposes of the entity and not to private gain. A government agency is a nonprofit entity within
the meaning of this chapter.
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J. "Place of employment" means any enclosed areas 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, except for child care facilities in
private homes.
K. "Person" means any natural person, business, cooperative association, nonprofit
entity, personal representative, receiver, trustee, assignee, or any other legal entity including
government agencies.
L. ""Primary entrance" means the entrance to a building or business through which
the majority of patrons enter. A building or business has only one primary entrance. Where the
door into the establishment is at the end of a corridor formed by two or more vertical walls or
barriers, with or without overhead cover, the primary entrance shall be deemed to be at the end
of the corridor open to the exterior.
M. "Public place" means:
1. Any area to which the public is invited or in which the public is permitted,
including, but not limited to, shopping malls, 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 and their
associated parking areas. A private residence or private country club is not a public place.
2. Areas measured a distance of forty (40) feet from the entrances and exits to City -
owned public places.
3. Areas measured a distance of twenty (20) feet from the primary entrances to
publicly or privately -owned commercial, industrial, institutional, or office professional buildings.
4. Unenclosed areas owned by the city including, but not limited to, City -owned
property, parks, playgrounds, restrooms, baseball and soccer fields, except the golf course area
of Desert Willow or where specific signs are posted permitting such smoking;
5. Unenclosed public events including, but not limited to, sports events,
entertainment, speaking performances, ceremonies and fairs;
6. Hotels, except in designated areas.
N. "Reasonable distance" means a distance of twenty (20) feet or, with respect to a
designated smoking area or such larger area as the City Manager reasonably determines in
writing to be necessary in a given circumstance to ensure that occupants of an area in which
smoking is prohibited are not exposed to second-hand smoke created by smokers outside the
area.
O. "Secondary entrance" means any entrance to a building or business that is not
the primary entrance. One building or business may have multiple secondary entrances.
P. "Secondhand smoke" means smoke from tobacco or any other weed or plant
created by burning or carrying any lighted pipe, hookah, cigar, or cigarette of any kind, and the
smoke exhaled by an individual who engages in smoking.
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ORDINANCE NO. 1200
Q. "Shopping mall" means any parcel of land zoned and used for retail sales by
more than one (1) retailer that is jointly operated or which includes shared parking facilities.
R. "Smoke," or "smoking" means and includes the carrying of a lighted pipe, or the
lighting of a pipe, cigar or cigarette of any kind.
S. "Unenclosed area" means any area that is not an enclosed area.
8.36.030 Prohibition of Smoking in Unenclosed Areas
A. Smoking is prohibited in the unenclosed areas of the following places within the
City, except places where smoking is already prohibited by state or federal law, in which case,
those laws apply:
Public places;
Places of employment;
3. Businesses, including but not limited to, restaurants and bars, and other public
accommodations. In addition, smoking is prohibited within a reasonable distance of the primary
entrance to a dining area. Where a business has more than one entrance, an outdoor smoking
area may be designated within a reasonable distance of one of the secondary entrances. In
such case, smoking is prohibited within a reasonable distance of the primary entrance and any
other secondary entrances.
4. Common areas of multi -family residential properties owned by the City of Palm
Desert, except where permitted under 8.36.070.
B. No person shall dispose of smoking waste or place or maintain a receptacle for
smoking waste in an area in which smoking is prohibited by this chapter or other law, including
within any reasonable distance required by this chapter.
8.36.040 Designation of smoking areas
A. Places Where Smoking Permitted. Notwithstanding section 8.36.030 of this
chapter, smoking is permitted in the following locations within the City, unless otherwise
provided by state or federal law:
1. Private residential property, other than (a) those private residential properties
used as a child-care or health-care facility subject to licensing requirements when employees,
children or patients are present or (b) home based business where members of the public are
invited. Nothing in this chapter shall require a person or entity who or which owns or controls a
private residential property, including but not limited to a condominium association or an
apartment owner, to permit smoking and such a person may prohibit smoking throughout the
property he, she or it owns or controls.
2. Designated areas in shopping mall unenclosed areas, provided that (i) there is
not more than one square foot of area designated for smoking for every twenty thousand
(20,000) square feet of rentable space of the shopping mall (provided that each shopping mall
may have at least one (1) designated smoking area of forty (40) or fewer square feet in area, (ii)
the area is prominently marked with signs, (iii) it is located the greatest distance practicable, and
at least a reasonable distance, from any doorway or opening into an area or any access way
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ORDINANCE NO. 1200
from parking facilities to the retail areas of the shopping mall, (iv) smoke is not permitted to
enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner,
lessee or licensee of the adjacent property, and (v) the location(s) of the designated smoking
area(s) is or are approved in writing by the City Manager of the City or his/her designee based
on the standards of this subsection and the goals of this chapter.
3. Any unenclosed area in which no nonsmoker is present and, due to the time of
day or other factors, it is not reasonable to expect another person to arrive.
B. Where smoking areas are designated, existing physical barriers and ventilation
systems shall be used to eliminate the toxic effect of smoke in adjacent nonsmoking areas, but
employers are not required to incur any expense to make structural or physical modifications in
providing these areas. There shall be no designated smoking areas in areas that have a
common or shared air space with other areas in which smoking is prohibited such as, without
limitation, air conditioning systems, heating systems, ventilation systems, entries, doorways,
hallways, and stairways or within a reasonable distance of commercial building entries. In all
disputes in the work place, the rights of the nonsmoker shall be given priority over the rights of
the smoker.
C. No person shall smoke in an area in which smoking is otherwise permitted by this
chapter or other law within a reasonable distance from any primary entrance, opening, crack, or
vent into an area in which smoking is prohibited by this chapter, other law or by the owner,
lessee or licensee of that area.
8.36.050 Optional prohibition.
All managers and owners of any establishment exempted from the provisions of Section
8.36.070 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 provision of this
chapter. No public place other than those enumerated in Section 8.36.070 shall be designated
as a smoking area in its entirety.
8.36.060 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 productions 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,
sufficiency and conspicuousness are apparent in communicating the intent of this chapter.
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8.36.070 Exceptions.
Exceptions to the smoking prohibitions of this chapter are as follows:
A. Private offices, including those in the work place, designated areas of hotels and
motels, areas and rooms while in use for private social functions, private hospital rooms,
psychiatric facilities, jails, bar areas and stores that deal exclusively in tobacco products and
accessories.
B. Areas measured within a twenty (20) foot zone outside of a building's primary
entrance, as long as the smoker is actively passing through on the way to another destination
and so long as the smoke does not enter any indoor area in which smoking is prohibited.
C. Any owners or other person having control of a business or other establishment
subject to this chapter may apply to the city for an exemption or modification of the provisions of
this chapter due to unique or unusual circumstances or conditions.
D. Up to 25% of the contiguous deck area around swimming pools in multi -family
residential properties owned by the City of Palm Desert. Such designated smoking areas must
be clearly signed.
8.36.080 Nonretaliation.
No person or employer shall discharge, refuse to hire or in any manner retaliate against
an employee or applicant for employment because such employee or applicant exercises any
rights afforded by this chapter.
8.36.090 Enforcement.
A. 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
"No Smoking" area.
B. It shall be the responsibility of employers to disseminate information concerning
the provisions of this chapter to employees.
C. The city's code enforcement officers, police and fire personnel are authorized to
issue citations for violation of the provisions of this chapter.
8.36.100 Violation —Penalty.
A. Any person who violates any provision of this chapter by: (1) smoking in a posted
"No Smoking" area; (2) failing to post or cause to be posted a "No Smoking" sign required by
this chapter; (3) owning, managing or operating a business or building in which the prohibitions
of this chapter are violated; or (4) violating any other provision of this chapter, is deemed guilty
of an infraction in accordance with Chapter 1.12 of this code.
B. Any violation of this chapter is hereby declared to be a nuisance.
C. Each incident of smoking in violation of this chapter is an infraction subject to a
fifty dollar ($50) fine."
ORDINANCE NO. 1200
SECTION IV. SEVERABILITY
If any section, subsection, clause or phrase of this Ordinance or any part thereof is for any
reason held to be invalid, unconstitutional, or unenforceable by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portion of the
Ordinance. The City Council declares that it would have passed each section, subsection,
paragraph, sentence clause or phrase thereof, irrespective of the fact that any one or more
section, subsection, sentence, clause or phrase would be declared invalid, unconstitutional or
unenforceable.
SECTION V. COMPLIANCE WITH CALIFORNIA ENVIRONMENTAL QUALITY ACT
This ordinance complies with the "City of Palm Desert Procedure for Implementation of
California Environmental Quality Act, Resolution No. 02-60", in that pursuant to Section 3.07,
the ordinance is exempt because there is no possibility that the adoption of the ordinance will
have any significant negative effect on the environment.
SECTION VI. PUBLICATION AND EFFECTIVE DATE
The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance
in the Desert Sun, a newspaper of general circulation, published and circulated in the City of
Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of
Palm Desert, California, on the 10th day of December, 2009, by the following roll call vote:
AYES: BENSON, FERGUSON, KELLY, SPIEGEL, and FINERTY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
ATTEST:
RA H LLE D. KLASS 1K, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
I -o67
CINDY FINER'FY. MAYOR
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