HomeMy WebLinkAboutOrd No. 1200 - Regulation & Prohibition of Smoking �'�-'-;;>:-"�, /' � 'v � ;
o�.e�L���1�.�,...�...�..�1..�.�-..�../�!•—.v.�•r�-�
t
�„��" �^a�s ��'i�w� ��,�... ...� „�,.
CITY OF PALM DE E�� �.��,�,,,�� �2 /(� 4C�c/,
F�a��T�����;��.;,.<._�
DEPARTMENT OF COMMUNITY EVELOPM
STAFF REPORT
REQUEST: REVISION OF CHAPTER 8.36, REGULATION AND PROHIBITION
OF SMOKING, OF THE PALM DESERT MUNICIPA� CODE.
SUBMITTED BY: Lauri Aylaian, Director of Community Development
DATE: 12 November 2009
CONTENTS: Ordinance No. i2oo
Current Smoking Ordinance
Second Hand Smoke Control Ordinance Comparison Matrix
Recommendation
That the City Council waive further reading and pass Ordinance No. 1200
to second reading, revising and restating Chapter 8.36, Regulation and
Prohibition of Smoking, of the Palm Desert Municipal Code.
Ad-Hoc Smokinq Committee Recommendation
That the City Council adopt the proposed ordinance to improve the protection of non-
smokers, including children, from the hazardous effects of secondhand smoke, while
providing smokers with opportunities for smoking in designated public places.
Executive Summary
In June 2008 the City Council passed an ordinance prohibiting use of shared air spaces
between areas where smoking is permitted and areas where it is prohibited. They also
deferred until a future date action on a proposed ordinance that would have
dramatically restricted smoking in public areas in the city, to allow time for a
subcommittee to propose an acceptable alternative to the ordinance. The ad-hoc
smoking subcommittee has developed a draft ordinance based upon input from
committee members, who included staff, business owners, elected officials,
representatives of health organizations, law enforcement, and private citizens interested
in the subject. This staff report introduces the ordinance that resulted from the
subcommittee's work.
Staff Report
Smoking Ordinance Revisions
12 November 2009
Page 2 of 5
Backqround
In April 2008, an amendment to the City's ordinance regulating smoking was
considered by the City Council. The amendment was proposed to eliminate problems
with secondhand smoke that arise when two spaces -- one that permits smoking and
one that prohibits it -- share a common air handling system. In the discussion that
surrounded the consideration of that amendment, the City Council directed staff to
prepare an ordinance that would ban smoking in the City of Palm Desert.
When that ordinance was brought forward, a number of individuals and business
owners expressed both concern and opposition, and the City Council asked to have the
interested parties involved in finding an acceptable alternative. The Ad-Hoc Smoking
Subcommittee that formed as a result of this direction included representatives from the
City Council, staff, business owners, the president of the Chamber of Commerce,
private citizens, and representatives from the Code Enforcement and Police
Departments, and from public and non-profit health organizations.
The Ad-Hoc Smoking Subcommittee met on two occasions, and studied ordinances
restricting smoking in a number of California cities and counties. They were also
presented with information concerning the impacts of secondhand smoke on the health
of individuals, and on the economic impact on communities and businesses where
smoking restrictions have been enacted.
Discussion
Regulation of smoking is a balancing act. On one hand, unbiased scientific studies
have consistently concluded that smoking and exposure to secondhand smoke pose
significant threats to public health. Children are particularly susceptible to a host of
health-related issues when exposed to tobacco smoke. On the other hand, 13% of the
people in California are smokers, and they are confronted with ever-increasing
restrictions on where and when they are permitted to consume tobacco, which is a legal
substance and from which government agencies receives tax revenue. Additionally,
Palm Desert is a destination resort community, and many visitors here come from
places where smoking is more prevalent and more acceptable than it is in California.
During the last twenty years, the interests of non-smokers have prevailed in many
areas, such that exposure to smoke in businesses, office settings, and entertainment
venues has been significantly reduced. Nonetheless, there are certain circumstances
wherein those who choose not to smoke cannot avoid breathing tobacco smoke, and
here the interests of the two groups continue to come into conflict.
Under direction from the City Council to prepare an ordinance farther restricting
smoking in Palm Desert, staff looked for ways to incrementally improve the separation
of smokers from those who do not want to be exposed to secondhand smoke. Staff
g:\planning\lauri aylaian\staff reports\smoking ordinance 11-12-09.doc
Staff Report
Smoking Ordinance Revisions
12 November 2009
Page3of5
identified several cities in California that aggressively restrict smoking, and compiled
those restrictions for the sake of comparison. The experiences of these cities informed
the Ad-Hoc Smoking Subcommittee as it made recommendations for drafting a revised
ordinance. In particular, Belmont, Burbank, Calabasas, Santa Monica, San Luis Obispo
and Beverly Hills were considered.
A matrix summarizing the requirements of the cities identified above is also attached to
this report. It lists areas where each city permits and prohibits smoking, and the
enforcement mechanisms used. Where staff was able to get advice or "lessons
learned" information from the cities, it is included in the matrix.
There are several pivotal areas in which smoking restrictions are handled differently by
the various jurisdictions named above. The areas are:
• At hotels, including in guest rooms and meeting/conference areas
• In common areas for multi-family residences
• On outdoor patios and seating areas for bars and restaurants
• On public sidewalks, and
• Within specified distances from the public entrances to public and private
buildings.
For the sake of comparison, the following table summarizes the restrictions imposed in
these areas by each of the named cities, as well as the restrictions recommended by
the Ad-Hoc Smoking Committee and contained in the draft ordinance.
�� � C�iStallCe
� Nlutti-��mily t�utdr�c�rs � ����� from Public �
Pu��ic �
Ci�y Hotels Cc�mmon c�ri B�rs ar�d Entrar�ce� t+�
� Sidewalks
� r �rea�s R��taurar�#� : Privat+�
( � ����, Buildin s �������
,�._�:_ ,
i Permitted in
i Belmont 10% of guest Prohibited Permitted Permitted � 20'
� rooms j
_ - --� — --.._.... ------- ----.._.._______ _ _._._........_......____----�.._._.....�_-----.._..----..._._.._._....._....
- --
( Beverly Hills Permitted Permitted Prohibited permitted ; 5' from dining
_ ---------.---__._......._.____.____ —_._______
areas
-------- --__ _______._..__._._._.___.___ -
_._._.
Permitted in Permitted in Prohibited in
� Burbank Permitted designated Downtown 20'
guest rooms
areas Burbank
_......... . _._ . . _._ _...._.. -----__ __..
_.---- _ _______ _.-- ___ _......
20% of guest � i
Calabasas rooms; Prohibited Prohibited Prohibited � 20'
I separate ; I
floor or win�- -___------ __ ; � i
_____................_..._._.__...._.__.._..—�-----_____. , ---------___. _.------�__... .--- ----....__.._.... __.......____----
( Palm Desert ; ; Permitted in �,
Permitted Permitted I designated Permitted
(current) ; I (ambiguous)
, areas
i..___.___ _____-------�--- -_- ______.--------- ---w_.___... --- _.._.___________�__ _---------.._._—I
g:\planning\lauri aylaian\staff reports\smoking ordinance 11-12-09.doc
Staff Report
Smoking Ordinance Revisions
12 November 2009
Page 4 of 5
� �� -- �_�-E3istanc+�
� ` Mult�-F�mil� ��. � C���dc�a�r� � �� � � frc�rr� Pub�i�
� �i Hc�t�ts, �c�rnm�r�� Pu�rli+� �
tY �a��rs �r�� E��anc�s.ta
i � ���ev�ratk� �
Areas � �+���ur�ni�� �� P'ri�ra�e
( � � �
� ������ � �_ E�uilc��n�s_ ������.
Prohibited in � �
City-owned In designated
G multi-family area, which
Palm Desert In designated units, except for may not be
(proposed) areas designated area Within 20' of Permitted 20'
near pool
comprising no primary
more than %4 of � entrance.
_ �ool deck area.
___ ___.;_......___..._......__._.............._._...---- -_,.___......___---- ______.._...._._...._... -----------...-----...
San Luis Permitted in Permitted
i Obispo ; guest rooms except in city- Permitted Permitted 0'
owned units
---- ___-- -__._
-- -___- ---__ __ _
Prohibited
@ Beach
Santa Monica : Permitted Prohibited Prohibited and Third 20'
Street �
Promenade
__..._._..---._.._...-------.._..-------=-------------__....._.._._..._..............__....----------------____......._...........__......._._....----._ �. _ ____.._....___.._...---.__....._.._.�
Fiscal Analvsis
The fiscal impact of smoking regulations fall into two categories: direct costs to the City
associated with enforcement of the regulations, and indirect costs that are attributable
to any changes in spending behavior at local businesses as a result of the regulations.
Both categories of cost are difficult to quantify, but general information is provided here.
Costs of Enforcement: The Police and Code Enforcement Departments respond to
very few complaints of violation of the current smoking ordinance - generally fewer than
ten per year. Because of the low priority assigned to these complaints and the short
duration of each violation, enforcers do not arrive at the scene of the violation while it is
occurring. Under the proposed ordinance, staff anticipates there would be an initial
flurry of complaints that may last several months, followed by only a nominal increase in
the calls for service associated with smoking violations. During the initial period of
heightened activity, shift work may be required for members of the Code Enforcement
team. There will also be increased administrative costs for notifying businesses of the
new ordinance and for review and approval of designated smoking areas for shopping
malls.
Costs Associated with Changes in Sa/es Revenue: According to Health Economics,
critics of smoke free bar and restaurant laws often claim that a prohibition on smoking
reduces bar revenues. However, tax revenue data from 1990 to 2002 suggests that the
g:\planning\lauri aylaian\staff reports\smoking ordinance 11-12-09.doc
Staff Report
Smoking Ordinance Revisions
12 November 2009
Page 5 of 5
actual effect is the opposite: smoke free bar and restaurant laws are associated with an
increase in revenues. (Health Economics 13: 1273-1281, 2005, John Wiley & Sons,
Ltd.) At least 45 California cities and counties have enacted ordinances that restrict or
prohibit smoking at outdoor areas of bars and restaurants. A number of studies have
been conducted on the impact on bar and restaurant revenue resulting from these
ordinances, and from ordinances in cities as varied as New York City and EI Paso,
Texas. These studies consistently indicate that smoke-free policies do not adversely
impact the hospitality industry. A detailed list of studies, and links to the studies
themselves, can be found online at: www.cdc.gov/tobacco/data statistics/fact sheets
/secondhand smoke/protection/hospitality/index.htm.
Conclusion
Staff and the Ad Hoc Smoking Subcommittee recommend adoption of the draft area
because it will: reduce exposure of children and other non-smokers to secondhand
smoke; provide areas where most restaurants that offer outdoor dining and want to
allow patrons to smoke, can do so while not endangering the health of non-smokers;
provide consistent and healthful regulation of smoking in the common areas of City-
owned multi-family residential units; and facilitate enforcement of smoking restrictions
by adding clarifying language in a number of areas. Findings relative to the implications
on health of smoking and secondhand smoke can be found in the draft ordinance.
Submitted by:
Lauri Aylaian, Director of Community Development
Approva �
C vG
John ohlmuth, City Manager
r`
i
t.
g:\planning\lauri aylaian\staff reports\smoking ordinance 11-12-09.doc
Second Hand Smoke Control Ordinances
Rrahibited:
1. Public Places (Civic Center, Parks)
2. Places of Employment
3. Multi-Unit Residences Common Areas
4. Enclosed or Unenclosed places of hotels, businesses, restaurants and bars, and other Public
Accommodations
Permitted:
1. Private Residences, unless used as a child-care facility or health care facility
2. Multi-Unit Residences, limit 20% of units. No smoking on balconies, porches or any other area open to
public air. May have an outdoor smoking area with size limits and distance to building openings.
3. Hotel units, 20% of the units. Units must be separate wings or floors. Cannot be interspersed with non-
smoking rooms.
� 4. Designated unenclosed area in shopping mall common area, with size limits and distance requirements
� from buildin o enin s.
.Q Enforcem�nt:,',
� 1. Misdemeanor, may be an infraction based on prosecutor
� ' 2. Cit rosecutor, cit attorne , an eace or code enforcement officer ma enforce
U
City Comments: This City of 25,00U residents had a lot o#public support for a non-smoking ordinance.
When they began the process, they surveyed all businesses with differentsmoking opti�ns, They had very
little response oth�r than tobacco owners. They moved forward with the smoking ban'and once it was
adopted a city empfayee physically went to each business with'the ordinance and explained the new
standards and how�t impacted the employees who smoke. They handte enforcement through complaints
at businesses where the employees are not following the ordinance.ln those cases, the person is not
usually caught in the aet so the business owner will be fined for not providing designated smoking areas as
defined in the ordinance. Other than that, enforcernent is only at,major public places like high 5chools or
the mall unless a specific complaint or noticeable violation is taking plaee. In mast cases cade
enforcernent is dealing with'the businesses and#he police deal with the schoois. The mall area has
security that enforces#he ordinance. ' ' '
Pro�ibited:
1. All public beaches
2. Santa Monica Pier, except designated areas
3. All public parks
� 4. All outdoor service areas
t�
'= 5. All outdoor service dinning areas
O 6. Within 20 feet of the entrance, exit or open window of any building open to the public.
g 7. Third Street Promenade
� 8. Any farmers market
C 9. Multi-famil residence common areas
� Permitted Use "unless o#hervvise rahibited b 1aw:
�
1. An area otherwise not rohibited b law or local ordinance.
Enforcement:
1. Infraction; fine in the amount of$250
Ci Comments: None rovided
Page 1
Second Hand Smoke Control Ordinances
Prohibi�+�d:
1. Smoking in open air dining, within 5 feet of open air dining (except while actively passing through).
Permitted:
1. Outdoors on no more than 25% of hotel swimming pool deck area.
2. Open air code does not apply to open air dining that is immediately adjacent to and accessory to a
N ; rivate smoker's loun e.
�
= Permit#ed Use�'untess otherwise prohibited by law:
�,, 1. Any area otherwise not prohibited by law or local ordinance.
�
� Enforcement:
� 1. The city prosecutor, any peace officer or city code enforcement officer.
� 2. Infraction
City Camments: The biggest concern of,businesses'was faf the European visitors, who insist on being
able ta smoke-- particularly around the paal and aft�r dinner. �usiness owners tend to"look the other
way°on enforcement. 'The ordinance was implemented in s�urnmer and'took effect six months later to
allow hotels to warn guests at the time af registration of fhe new law. Designated smoking areas around
25%of the pool deck was included irr fhe ordinance as a concession to business concerns.
P�'c�hibited:
1. City facilities and parks.
2. Downtown Burbank, all sidewalks, paseos, and other pedestrian areas accessed by the general public,
except within designated smoking areas.
3. Chandler Bikeway and within 20 feet of the bikeway.
4. Outdoor dinning areas, except within designated smoking areas
" 5. Outdoor service areas.
Y 6. Outdoor gathering and event areas open to the public, 60 minutes before the event and 60 minutes after
� the event.
� 7. Outdoor shopping areas and centers, except in designated areas.
� 8. Within 20 feet of any entrance, exit, open window, drive-through window, walk-up service windows, air
m intake, or other opening of a building or enclosed space that is open to, and while open to the public.
Permitted Us� unless otherwise 'rohibited b law:
1. An area otherwise not rohibited b law or local ordinance.
Enforcement:
1. Chief of Police or his or her designee.
2. Misdemeanors; Infractions
3. Fine of no more than $1,000 or im risonment for no more than six months, or both.
Ci Comments: None' rovided. '
Page 2
Second Hand Smoke Control Ordinances
Frohibitetl:
1. Public places (elevators, museums, galleries, public transportation facilities, and public restrooms).
2. Waiting rooms, sleeping rooms or pubfic hallways of every private or public health care facility.
3. All buildings, vehicles or other enclosed areas occupied by city staff, owned or leased by the city, or
otherwise operated by the city, except where designated by city administrator.
4. Within any building primarily used for movies, stage drama, lecture, musical recital or other similar
performances whenever open to the public, except for smoking which is part of a stage performance.
5. Within all public areas in every retail store, including service establishments, retail food production and
marketing establishments, grocery, and drug stores.
6. Indoor spaces of all restaurants and bars.
7. Public areas of laundromats.
' 8. Public areas of all businesses, non-profit entities, professional offices and other offices, banks, hotels
� and motels.
y 9.An owner who ma declare the entire establishment or facilit to be non-smokin .
� Permitted:
0 1. Private residences, except when used as a child-care facility or health care facility.
' Nt 2. Hotel or motel rooms rented to guests.
J ' 3. Retail tobacco stores.
4. A private enclosed office workplace occupied exclusively by smokers, even though such an office
= workplace may be visited by a nonsmoker.
c1�
�/3 5. Any area exterior to the buitding in which the establishment or facility is located.
6. An enclosed rooms in a facilit that are bein used for entirel rivate functions.
Enforcemer�t:
1. City administrative officer or his or her designee
' 2. Civil enalt , not to exceed $500 er violation.
City Comments: The Chamber of Commerce pushed to adopt the first indoor smoking ban in the State,
seeing this as a way to strengthen their brand in healthy living_ Many restaurants have extended the band
to their outdoor patios, Staff reports'that the current ordinance seems more stringentthan it is. It generally
follows State law and focus�s on government buildings/locatians. They get many complaints from people
smoking'in the park areas and outside windows of businesses, so the Gity Council has asked to revise the
ordinance. l�he modified ordinance will be presented in November. The`Chamber reports that the bars are
relatively indifferent on the issue. The police mostly deal with enforcernent thraugh complaints when they
violate state law. They are Iooking at Calabasas now as the most restrictive model, and are'working with
the police department and local tobacco controt office for enforcement'concerns.
Page 3
Second Hand Smoke Control Ordinances
�rohib�tea:
' 1. Public places
2. Places of employment
3. Multi-unit residences common areas, except that a landlord or common interest development may
designate a portion of the outdoor area a smoking area. Smoking area has certain criteria for approval.
4.Individual units of multi-unit residence, if such units share at least one common floor or ceiling with
another such unit.
5. Service areas
6. Prohibited within 20 feet of an entrance used by the public or an operable window, except while actively
passing on the way to another destination and so long as smoke does not enter any indoor area in which
smokin is rohibited.
� Perrrii�ted untess otherwise roh�bited b I�w:
C 1. During theatrical productions, if smoking is an integral part of the story in the theatrical production.
a
� 2. Detached single-family homes and the lot they are sited on, except those used as child care or health
� care facilities.
m 3. 10% hotel and motel guest rooms with certain requirements.
4. Significant tobacco retailers, if at all times minors are prohibited from entering the store.
5. Individual units of multi-unit residences which do not share any common floors or ceilings with any other
such unit.
6. Any city-designated outdoor smoking area.
7. Automobiles
8. On streets and sidewalks, unless being used as outdoor workplaces or city-sponsored events such as
arades and fairs.
Enforcement:
1. Peace officer or code enforcement officer may enforce.
2. Individual Infraction of$100 fine per violation. Other violations may constitute a misdemeanor with city
attorne discretion.
Cit -Gomments: None rovided.
Prohibited.
� 1. All public places and places of employment, except in designated smoking areas.
'p 2. No designated smoking areas that have a common or shared air space with enclosed areas in which
Usmokin is rohibited.
,�, �c@ '�1�1"it'�i'��`
. , : , , ,
...: :
= 1. Private offices, including work place, 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,
� bar areas and stores that deal exclusively in tobacco products and accessories.
U 2. Existing restaurants that were under lease on or before January 1, 1977.
.� 3. Any owner or person having control of a business or other establishment may apply to the City for an
Nexem tion of the ordinance due to uni ue or unusual circumstances or conditions.
� Permitted Use,;unfess otherwise rohibited b law:
� 1. Designated areas in public places and in places of employment, except in waiting rooms of inedical or
� health care facilities, child care facilities.
�, Enforcement:
O. 1. Owner, operator or manager can post No Smoking signs.
0 2. Employers' responsibility to disseminate information of the ordinance to the employees.
� 3. Code, police, and fire personnel can issue citations.
�"` 4. Violations can be an infraction in accordance with Cha ter 1.12 of the Munici al Code.
V City Comments: Ambiguaus wording creates uncertainty aboutthe'distance from entries at which
' smokin is ermitted:
Page 4
ORDINANCE 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:
1
• The total economic burden of smoking in the United States is $193 billion; and
• 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
2
• Strong smoking regulations for restaurants decrease the number of children who
transition from experimenting with smoking to becoming actual smokers; and
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
3
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,
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. "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.
C. "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.
D. "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.
E. "Employer" means any person, business, entity or nonprofit entity that retains the
service of one or more employees.
F. "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.
G. "Multi-unit residence" means a residential property containing two (2) or more
units.
H. "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.
4
I. "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.
J. "Person" means any natural person, business, cooperative association, nonprofit
entity, personal representative, receiver, trustee, assignee, or any other legal entity including
government agencies.
K. ""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.
L. "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.
M. "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.
N. "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.
O. "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.
5
P. "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.
Q. "Smoke," or "smoking" means and includes the carrying of a lighted pipe, or the
lighting of a pipe, cigar or cigarette of any kind.
R. "Unenclosed area" means any area that is not an enclosed area.
8.36.030 Prohibition of Smokinq 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:
1. Public places;
2. 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 Desiqnation of smokinq 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
6
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 Postinq of siqns.
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.
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.
7
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—Penaltv.
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."
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,
8
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 _day of , 2009, by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RICHARD A. SPIEGEL, MAYOR
ATTEST:
RACHELLE KLASSEN, CITY CLERK
9