HomeMy WebLinkAboutOrd 1154AA - Relating to Smoking 10-09-2008 _ _..�.��,.,,�,a.�K.��
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' � CITY OF ; ALM DESERT E�_,
COMMUNITY SERVICES DIVISION
CITY CLERK OPERATIONS
INTEROFFICE MEMORANDUM
To: Honorable Mayor and Members of the City Council
Carlos L. Ortega, City Manager
From: City Clerk on behalf of David J. Erwin, City Attorney
Date: June 23, 2008
Subject: JUNE 26. 2008 CITY COUNCIL AGENDA -
ORDINANCE NO 1154AA-Amending and Restatinq Chaater 8.36 of the
Code of Palm Desert California, Relatina to Smokina
Following are the City Attorney's recommendations for disposition of the three Ordinances
appearing on the June 26 City Council Agenda.
• Ordinance No. 1154AA is the new, REVISED ordinance regarding the regulation
and prohibition of smoking.
Recommend it be passed to second reading.
• Ordinance No. 1154A was continued from the June 12 Meeting.
Recommend it be disregarded and receive no further action.
• Ordinance No. 1154 was the initial ordinance regarding regulation of secondhand
smoke introduced at the April 24 Meeting and passed to second reading at the
June 12 Meeting; it was continued to June 26.
Recommend it be removed from the agenda and receive no further action.
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* 1) Adopted Ord. No. 1154; 2) dererred action on Ord. No. 1154AA until such time as the
appropriate due diligence can be performed by way of the city working with interested
persons in the co�unity to find and propose an acceptable alternat�ve by the meeting
of October 9, 2008. 5-0
H.IWPdataIWPDOCSIMemoslsmoking ords mem from DJE.wpd
PRESS RELEASE FOR NEW SMORING REGIII.ATION ORDINANCE
FOR IMMEDIATE REI.EASE CONTACT: Sheila Gilligan
760-776-6411
CITY COUNCIL TO CONSIDER SMOKING BAN — PROPOSED ORDINANCE
AVAILABLE FOR PUBLIC REVIEW
PALM DESERT, CA (June 18, 2008)—The Palm Desert City Council will meet at
4 p.m. on Thursday, June 26, to consider an ordinance regulating and prohibiting
smoking in public areas throughout the City.
The City Clerk's office has copies of the ordinance, Ordinance Number 1154AA,
available for viewing at City Hall. More information about the ordinance, as well
as the complete text of the proposed law, can be accessed on the City's Internet
site by visiting www.citvofpalmdesert.orq.
If approved by the Council, the ordinance would prohibit smoking in all public
places in Palm Desert with the exception of limited, designated smoking areas.
Public places, as defined in the ordinance, include retail businesses, restaurants,
theaters, hotels, bars, waiting rooms, and reception areas, as well as health,
educational, and public transportation facilities.
Private homes and private country clubs would not be affected by the smoking
ban, except for residences used as health-care or child-care facilities, or as home
based businesses open to the public.
City police, fire, and code enforcement personnel would be authorized to issue
citations to people who violate the ordinance. The public is invited to attend the
meeting, which will take place in the Council Chamber at City Hall, 73-510 Fred
Waring Drive.
For more information, please call 346-0611.
# # #
pgDINANCE AND ANNOIINCEt�NT ALSO POSTID ON CITY WEBSITE AS OF
JDNE 18, 2008.
ORDINANCE NO. 1154AA
AN ORDINANCE OF THE CITY OF PALM DESERT, CALIFORNIA
AMENDING AND RESTATING CHAPTER 8.36 OF THE CODE OF PALM
DESERT, CALIFORNIA RELATING TO SMOKING.
The City Council of the City of Palm Desert,California does hereby ordain as
follows:
i. That Chapter 8.36 of the Code of the City 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 U.S. Surgeon General has concluded that there is
no risk-free level of exposure to secondhand smoke and neither separating smokers from
nonsmokers nor installing ventilation systems effectively eliminates secondhand smoke.
Thcrefore, it is the City's intent to provide for thc public health, safety and welfarc by
prohibiting the smoking of tobacco, or any other weed or plant, in public places and places
of employment, cxcept in designatcd smoking areas as set forth herein.
8.36.020 De�nitions.
A. "Common area" means any indoor or outdoor common area of a shopping
mall accessible to and usable by the occupants or customers of more than one (1) retail
establishment, including but not limited to halls, lobbies, outdoor eating areas, playgrounds
and parking lots.
B. "Place of employment" means any areas under the control of a public or
private employer which employees normally frequent durin�; the course of employment,
including, but not limited to, work areas, employee lounges, conference rooms and
employee cafeterias whether inside or outside. A private residence is not a place of
employment, except for child care facilities in private homes and home based occupational
businesses where members of public are permitted.
06-17-08
R�16US.DERW IN`297983.1
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ORDINANCE N0. 1154AA
C. "Public place" means:
l. Any 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 or private country club is not a public place.
2. Areas measured a distance of fifty (50) feet from the entrances and
exits to City-owned public places.
3. Outdoor locations owned by the City which have a designated "no
smoking" sign posted at their normal entrances and exits to such outdoor locations,
including, but not limited to:
a. City-owned parks, playground, restrooms, baseball and soccer
fi elds.
b. Outdoor public events including, but not limited to, sports
events, entertainment, speakin�performances, ceremonies and fairs.
c. City property, except where specific signs are posted
permitting such smoking.
4. Such desi�nated no smoking areas may contain specitic limited areas
posted permitting smoking.
D. "Reasonable distance"means a distance of tif�y(50) feet or, with respect to a
designated smoking area or such larger area as thc 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.
E. "Secondhand smoke"means smoke from tobacco or any other weed or plant
created by burning or carryinb any li�hted pipe, cibar, or cigarette of any kind, and the
smoke generated by an individual who engages in smoking.
F. "Shopping mall" means any parcel of land zoned and used for retail sales by
morc than one(1) retailer that is jointly operated or which includes shared parking facilities.
G. "Smoke", or "smoking" as detined in this chapter means and includes the
carrying of a lighted pipe, or the lighting of a pipe, cigar or cigarette of any kind.
RMBUS DERWIN�97983.1 06-17-08
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ORDINANCE N0. 1154AA
8.36.030 Prohibition.
A. Except as otherwise provided by this chapter or by state or federal law,
smoking is prohibited evcrywhere in the City, including but not limited to:
1. Public places;
2. Places of employment;
3. Hotels, businesses, restaurants and bars, and other public
accommodations, including the public right of way. In addition, smoking is prohibited
within a reasonable distance of a dining area.
4. No indoor smoking area nor outdoor commercial patio shall be
permitted unless provided by state or federal law.
B. No person shall dispose of smoking waste or place or maintain a rcceptacle
for smoking waste in an area in which smoking is prohibited by this chapter or other law,
inclucting within any reasonable distance required by this chapter.
8.36 035 Secondhand smoke—Declaration of nuisance.
Secondhand smoke constitutes a nuisance. Notwithstanding any other provisions of
this chapter, a private citizen may bring a le�al action to abate secondhand smoke as a
nuisance, a tespass or for personal injuries proximately sustained therefrom.
8.36.040 DesiQnation of smoking areas.
A. Places Whcre Smoking Permitted. Notwithstanding section 8.36.030 of this
chapter, smoking is permitted in the following locations within the City, unless otherwisc
provided by state or federal law:
l. Private residential property, other than (a) those private residential
properties used as a child-care or health-care facitity 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 outdoor common areas, provided
that (i) there is not more than one square foot of area designated for smoking for every
twenty thousand (20,OOU) square feet of rentable space of the shopping mall (provided that
each shopping mall may have at least one (1) designated smoking area of foRy (40) or
fewer syuare feet in area, (ii)the area is prominently marked with si�ms, (iii) it is located the
greatest distance practicable, and at lcast a reasonable distance, from any doorway or
openin� into an area or any access way from parking facilities to the retail areas of the
shopping mall, (iv) smokc is not permitted to enter adjacent areas in which smokin�; is
prohibited by this chapter, other taw or by the owner, lessee or licensee of' the adjacent
RMD�S�DERWIN'�979$3.1 06-17-08
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ORDINANCE N0. 1154AA
property, and (v) the location(s) of the designatcd smoking area(s) is or are approvcd in
writing by the City manager of the City based on the standards of this subsection and the
goals of this chapter.
3. Any outdoor 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 desi�mated, existing physical barriers and
ventilation systems shall be used to eliminate thc toxic effect of smoke in adjacent
nonsmoking areas, but employers are not required to incur any expense to makc structural
or physical modifications in providing these areas. There shall be no desi�nated smokin�;
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 reasonabie distance of
commercial building entrys. In all disputes in the work place, the rights of the nonsmoker
shall be�iven priority over the ribhts 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 not less than fifty (50) feet from
any 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 arca.
8.36.050 Postin�of si�ns.
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 elscwhere, 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.
8.36.060 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.
8.36.070 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 managcr shall not allow service to any person who violates this chapter by
smoking in a posted"No Smoking"area.
06-17-08
R M BUS'•.DERW IN'297983.I
4
ORDINANCE N0. '1154AA
B. tt shall be the responsibility of employers to disseminate information
concerning the provisions of this chapter to employees.
C. The City's zoning and license officers, police and fire personncl are
authorized to issue citations for violation of the provisions of this chapter.
8.36.080 Violation—Penaltv.
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; or (3) violating any other provision of this chapter, is deemed guilty of an
infraction in accordance with chapter 1.12 of this code.
8.36.090 Severabilitv.
The City council declares that, should any section, paragraph, sentence or word of
this chapter of the code, hereby adopted,be declared, for any reason, to be invalid, it is the
intent of the council that it would have passed all other portions of this chapter independent
of the eliminations herefrom of any such portion as may be declared invalid.
PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day ot�
, 2008, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTA[N:
JEAN BENSON, Mayor
ATTEST:
RACHELLE D. KLASSEN, City Clerk
City of Palm Desert, California
R�16US UF.RWIN'?979R3.1 5 �6-1�-�8
Klassen, Rachelle
From: Gilligan, Sheila
Sent: Thursday, June 19, 2008 1:31 PM
To: Klassen, Racheiie
Subject: FW: Web Site InquirySmoking Ban
From: Pennant0l@aol.com [mailto:Pennant0l@aol.com]
Sent: Thursday,June 19, 2008 10:27 AM
To: InformationMail
Subject: Web Site InquirySmoking Ban
I am now ashamed to admit I am a taxpayer in Palm Desert after reading your proposed smoking ban law. I was hoping
that the Smoke Nazi's had not taken over Palm Desert, but obviously I was wrong.
Whatever happened to letting the various businesses determine if they would allow outdoor smoking on patios, etc. It
used to be called freedom, but I guess you elected nannies have not heard of that concept.
C. Stevenson
Gas prices getting you down? Search AOL Autos for fuel-efficient used cars.
1
Klassen, Rachelle
From: Gates, Mary on behalf of Gilligan, Sheila
Sent: Monday, June 23, 2008 10:46 AM
To: Klassen, Rachelle
Subject: FW: The Proposed Outdoor Smoking Ban
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From: Ryan Zalaskus [mailto:ryanzaiaskus@gmail.com] N :� ,
Sent: Sunday, ]une 22, 2008 11:18 PM W `�''"_
To: InformationMail -,,. '
Subject:The Proposed Outdoor Smoking Ban — ��c t�:
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Dear City of Palm Desert, City Council, and Mayor:
I am writing in strong opposition to the city's impending outdoor smoking ban. An outdoor smoking ban in
unnecessary, extreme,and will have serious unintended consequences.
I,et me first clarify that I am a strong supporter of the state's comprehensive smoking ban in indoor places.
Indoor smoking is extremely annoying to nonsmoker and science has linked exposure in smoky indoor ptaces to
clevated health risks in nonsmokers. l'hus, I am the first to support the state's law making all indoor workplaces
smoke-free environments.
However, I thin the line has to be drawn at outdoor smoking bans.
First, the scicntific data we have linking secondhand smoke to health risks in nonsmokers is based off of studies
whcre cxposure is in indoor settings. Indoors, smoke lingers and does not easily dissipate, even with exccllent
ventilation. Outdoors, however, smoke quickly dissipates into biilions of cubic feet of air rather than lingering
at the top of a ceiling. While science has said that secondhand smoke is dangerous, that is based on indoor and
not outdoor settings. There is a huge difference between sitting in a smoke-filled bar and walking past a smoker
on the street. I did an online search and i found only one study from Stanford linking outdoor smoking to some
health risks. However, this is one recent study, whereas there is over twenty-five years of published research
saying that indoor smoke is harmful,and hardly enough of a basis for another ban. I've heard studies every few
years saying that red meat causes cancer, yet red meat has not been banned. Simply put, while the evidence
exists that secondhand smoke is dangerous,that is based on indoor settings, and applyin�those same studies to
casual exposure to smoke in an outdoor setting is complete fallacy of logic.
i
Second,outdoor smoking bans are counterproductive. As far as I'm concerned, it is children that are the most
needed to be protected from secondhand s►noke since their lungs are still growing and since they generally have
to go where their parents go, if their parents smoke,they go where the smoke is. Under this proposed smoking
ban, smoking would still be allowed in private vehicles and homes. If smoking parents cannot easily smoke
outside,they are �oing to end up smoking in the last place we want it: in their homes and cars and around their
kids. What is worse—a parent smoking next to their caz on a sidewalk or a pazent smoking behind the wheel
with their kids buckled in? What is worse—a parent smoking on the sidewalk abutting their home or a parent
smoking in their house and around their kids? I know the city is aiming to curb smoking by further stigmatizing
ii with the ban, but these unintended consequences are real and will happen. I would much rather walk by a
smoker on the street and have a breath of his sidestream smoke (already heavily diluted by the outdoor air)than
know the parent is smoking around their kids in a confined place. Is this really what you want your law to
accomplish?
Third, 1 see this law as the start of a really slippery slope. Where will the bans end?What's next—a ban on fat
people ordering fattening foods? This is rcally an extreme case of government overstepping its bounds. Indoor
smoking is a recognized health risk so the government banncd it—great! Outdoor smoking is not a proven
health risk, and as far as I'm concerned an annoyance. But there are lots of annoying things in this world. I'm
annoyed by parents who keep their crying infants and screaming toddlers in restaurants—could you please ban
that because it ruins my meals? I cannot step food into an Abererombie& Fitch store because the music is
blasting so loud I can't even hear the person next to me—since that damages my hearing, can you ban that too
please? Seriously, where will it end?
Where I will agree with the city is that when smokers are too close to a door or open window, their smoke can
easily enter into a building. I was just at I,AX airport and there was so much smoke in the baggage claim
coming in from outside that they might as well have allowed it inside. So here's my solution: ban outdoor
smoking from within a reasonable distance—say 15 feet—from any door or open window. Further, ban
smoking in outdoor lines like for movies and ATMs. Outdoor restaurant and bar patios could continue to offer a
smoking option to their customers so long as the tables were meeting this reasonable distance requirement. This
is a fair solution. Smokers will have a fair place to smoke yet the law will ensure that they must smoke tar
enough away from a building's intake so that their smoke will not enter the building. This is a fair solution to
smokers and nonsmokers alike.
A total outdoor smoking ban is really uncalled for. It is not based on science; our knowledge of the health risks
are based on smoky indoor places. It will most certainly force smoking parents to smoke more around their kids
in confined places like homes and cars. Finally,the total outdoor ban is an unnecessary restriction when all
indoor places are already smoke-free and outdoor smokin�is hardly a monumental problem. Having a
reasonable distance in the law is fair because it allows smokers to smoke yet nonsmokers will never have to
walk through a could of smoke to get to a building. This is a fair solution. Banning smoking everywhcre
outdoors, even on sidewalks, is silly and not good policy.
I urge the city to not ban smoking in all outdoor p(aces and rather ban smoking within a reasonable distance of
ati buildinbs.
2
And if the city does go forward with the ban, I will have to thank the city for providing me with a smoke-free
sidewalk so I can better enjoy inhaling the street's carbon emissions,diesel emissions, and the city's good old
smog.
Sinccrely,
Ryan Zalaskus
3
Klassen, Rachelle
From: Gilligan, Sheila
Sent: Monday, June 23, 2008 1:55 PM
To: Klassen, Rachelle
Subject: FW: Contact Us Submission
-----Original Message-----
From: InformationMail
Sent: Monday, June 23, 2008 12:01 PM
To: InformationMail
Subject: Contact Us Submission
Submission information
-----------------------------------------
Submitter DB ID : 175
Submitter's language : Default language
IP address : 207.200.116.12
Time to take the survey : 12 min. , 39 sec.
Submission recorded on : 6/23/2008 12:01:25 PM
Survey answers
-----------------------------------------
Your Contact Information
First name: * Laurie
Last name: * Savage
E-mail Address: * pecanpaula(alaol.com
Address line 1 79815 Pecan Valley
Address line 2 Not answered
City LaQuinta
State CA
Zip code: * 92253
Phone number 771-0539
I Am a:
Palm Desert Business Owner []
Palm Desert Resident []
Comments:
As a LaQuinta resident, and a smoker, I may have to adjust my shopping trips to exclude
Palm Desert if your tight restrictions are approved. Probably will miss the Westfield Mall
the most and certainly the one and only Movie Theater. We frequently dine in PD, but, we
have many other options, so, that will not be too big of a deal. Some of my favorite shops
are on E1 Paseo and my husband will probably appreciate my cutting that out.
Your choice, but, I can tell you I am a considrate smoker and most are. . .always some who are
not, but then, there are rude people who clutter our streets, too, in many other ways.
1
Smokers are easy to pick on. . .it is very popular to do so these days. . .but, I can tell you
and you can admit, there are many rude, offensive people among us who would never put a
cigarette close to their lips.
Good luck to you if you make that choice. Personally, we have family living close to
Calabasas and when we visit, we do not shop/dine or drive through Calabasas.
2
Klassen, Rachelle
From: Gilligan, Sheila
Sent: Thursday, June 26, 2008 11:48 AM
To: Klassen, Rachelle
Subject: FW: Contact Us Submission
-----Original Message-----
From: InformationMail
Sent: Thursday, 7une 26, 2008 10:19 AM
To: InformationMail
Subject: Contact Us Submission
Submission information
-----------------------------------------
Submitter DB ID : 176
Submitter's language : Default language
IP address : 207.200.116.12
Time to take the survey : 2 min. , 50 sec.
Submission recorded on : 6/26/2008 10:18:37 AM
Survey answers
-----------------------------------------
Your Contact Information
First name: * Rex
Last name: * Toltschin � �
E-mail Address: * toltschin@aol.com ,� -��,T�
Address line 1 74568 Nevada Circle East �y� ='--c
�__
Address line 2 Not answered � �r�,�:
City Palm Desert �v ��r�r�
State CA � ��''�::
Zip code: * 92260 � �:,=," �
Phone number 760 341 5479 N �'��:;�
c7-,•,
O :r�
O �
I Am a:
Palm Desert Business Owner []
Palm Desert Resident [x]
Comments:
The proposed smoking ban being considered today is absolute insanity on the part of our
Council. A complete waste of time and energy on the part of our city - while we have
important issues needing our civic attention.
NO on the ordinance.
i