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AGENDA BILL Agenda Item No. 7(A) Date: August 19, 2014 To: El Cerrito City Council From: Karen Pinkos, Assistant City Manager Suzanne Iarla, Community Outreach Specialist Subject: Consideration of Smoking Pollution Protection Ordinance ACTION REQUESTED Introduce by title, waive any further reading, and approve an ordinance amending the El Cerrito Municipal Code (ECMC) by adding Chapter 8.06, Smoking Pollution Protection Ordinance. BACKGROUND In early 2013, during the discussion on strategies for fulfilling the Strategic Plan Goal D, Ensuring the Public’s Health and Safety, both the City Council and members of the public identified “Explore innovative and best practices for promoting public health”, specifically referencing the regulation of secondhand smoke, as an objective for the City. Since that time, City staff, assisted by EC STARS 2013 Intern Amel Alkaheli, have been researching and gathering information for a proposed Smoking Pollution Protection ordinance for the City Council’s consideration. Staff obtained data from other California cities, Contra Costa County, and non-profit organizations including the American Cancer Society and American Lung Association, and conducted an extensive community outreach program to develop provisions to be considered by the City Council as part of a draft ordinance. This outreach included: • Community input on desired levels of restrictions o Presentation at Parks and Recreation Commission Meeting, July 2013 o Presentation at Environmental Quality Committee Meeting, August 2013 o Online survey, conducted Fall 2013 to Spring 2014 o Community Meeting at City Hall, February 2014 • Targeted outreach to landlords, tenants, Contra Costa Health Services, Chamber of Commerce, Save the Bay, and California Apartment Association • City Council study session, May 20, 2014 • Community Workshop at City Hall, June 5, 2014 At the City Council meeting of May 20, 2014, staff presented the results of the research, surveys, and feedback from meetings and correspondence to the Council and outlined various options for regulating smoking within City limits. The City Council provided direction on the several categories to be included within a draft ordinance, to include prohibiting smoking in all parks, recreation areas, and open space, within all commercial areas, and within multi-family housing of two units or more. The Council ---PAGE BREAK--- Agenda Item No. 7(A) Page 2 specifically directed staff to include prohibition of smoking medical marijuana and the use of electronic smoking devices, or “e-cigarettes”. Additionally, the City Council also directed staff to conduct research regarding smoking on all sidewalks and public through-ways, including non-commercial areas, while also considering options for defining a non-smoking perimeter around schools. All multi-family dwelling units should be 100% smoke free with a phased in transition period of twelve months or when a lease expires, whichever is less. The Council also directed staff to bring back an ordinance to address regulating the sales of tobacco and e-cigarettes and raise the age for the purchase of tobacco products and e-cigarettes to 21, and to investigate funding an enforcement officer, signage and education. Staff has developed a draft Smoking Pollution Protection ordinance based on the City Council’s direction for 100% smoke free public places, commercial areas, and multi-unit residences. A separate ordinance that will address regulating tobacco sales and licensing tobacco retailers will be presented to the Planning Commission within the next few months in order to address specific regulations through the Zoning Ordinance as well as provide recommendations to the City Council for their consideration. ANALYSIS The City Council expressed support for regulating smoking because of the risks to the public health through smoking and secondhand smoke, the environmental risks of cigarette butt litter to our waterways, the need for trash reduction, the financial effects of smoking both economically and as demonstrated in increased healthcare costs, and the threat to public safety by posing a fire danger. Feedback from the El Cerrito community has shown that the vast majority of respondents and participants in the various public meetings support these findings and agree that regulation of smoking is necessary. Per the City Council’s direction, the proposed Smoking Pollution Protection ordinance includes provisions for prohibiting smoking in public places, commercial areas, and multi-unit residences by categorizing regulations in City-owned facilities, enclosed spaces, and unenclosed spaces. It should be noted that “smoke” and “smoking” includes all forms of tobacco, marijuana, and any other weed or plant, including vaporizing via electronic smoking devices. 100% Smoke Free Parks, Open Space, and Public Places • Parks, playgrounds, and sports fields • Recreation Areas • Open Space • Trails • All City-owned facilities, property, grounds, and parking lots • Public sidewalks, both commercial and residential • City and other public events, including farmers’ markets, festivals, food events, recreation events, or any event attended by the general public The draft ordinance completely prohibits smoking in all public places, recreational areas, and property owned by the City of El Cerrito. The ordinance includes a provision for ---PAGE BREAK--- Agenda Item No. 7(A) Page 3 prohibiting smoking within a “reasonable distance”, defined as 25 feet, as a buffer zone around any areas that prohibit smoking either through this ordinance or through state or federal law. This reasonable distance requirement would be in place for both enclosed and unenclosed areas. 100% Smoke Free Commercial Areas • Places of employment: public, private, and nonprofit of more than one employee • Shopping Centers • Outdoor dining areas • Sidewalks • Service areas, including bus stops and other outdoor locations where people congregate (ATM lines, taxi stands, etc.) Commercial areas are defined as those districts zoned as “commercial and transit- oriented mixed-use districts” in the Zoning Ordinance, and the ordinance is intended to prohibit smoking in these entire areas where commercial activity occurs. The provision for prohibiting smoking in “places of employment” is meant to enhance current state law, which has several exemptions and loopholes that permit smoking in a wide variety of workplaces and does not expressly prohibit the use of electronic smoking devices in enclosed workplaces. “Places of employment” also includes outdoor work areas and construction sites. Commercial areas will also include the reasonable distance buffer zone. 100% Smoke Free Multi-unit Housing and Common Areas • All existing units • All new units to be built • All indoor and outdoor spaces on the property including common areas, patios, balconies, garages, carports, and shared spaces such as laundry and eating areas • Includes Hotels/Motels “Multi-unit” is defined as two or more units. Any provision that refers to multi-unit residences will take on October 1, 2015, or upon entering a new lease or lease renewal of a unit, whichever comes first. Landlords would be required to provide disclosure to residents and signage for all of the common areas. This ordinance does not create additional liability for landlords provided they are in compliance with the provisions outlined for multi-unit residences and common areas. The ordinance also prohibits ash receptacles within a place where smoking is prohibited so as not to imply that smoking is allowed. The only exception included in this ordinance for the use of smoking is within in a theatrical production, if the theater manager/director certifies that smoking is an essential part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience. Enforcement and Next Steps The provisions related to prohibiting smoking in public places, commercial areas, places of employment, and other enclosed and unenclosed areas are proposed to become ---PAGE BREAK--- Agenda Item No. 7(A) Page 4 effective January 1, 2015, in order to allow the City and all impacted businesses and employers sufficient time to comply with the regulations, including developing a signage program. Those provisions related to smoking in multi-unit residences would be phased-in more gradually, with landlords afforded an additional nine months from the effective date to implement the no-smoking provisions for existing rental units or upon lease renewal, whichever comes first, and must be in compliance beginning October 1, 2015. This allows landlords 12 months from the passage of this ordinance to comply, per City Council direction. Landlords will be required to include smoking prohibitions in new and renewed leases and rental agreements. Staff will verify signage required by multi-unit residences during regularly scheduled bi-annual rental inspections. Violations will be punishable as infractions and subject to fines, may also be enforced through civil and private enforcement, and will be conducted via administrative citation as per ECMC Sections 1.08 and 1.14. Per the ECMC, the City Manager may designate enforcement officers to issue administrative citations, and the El Cerrito Police Department and code enforcement personnel will be primarily responsible for enforcing the ordinance. Penalties for non-compliance start at $100 for the first violation and can be up to $500 per violation. Remedies are also available through the civil court system, which may be brought by the City Attorney or by private parties. Since secondhand smoke laws in other communities are typically complaint-driven and self-enforcing, violations will be enforced on a complaint basis, as staff resources allow, and allegations of violations of smoking in individual rental units in a multi-unit residence can be handled through the civil enforcement process by aggrieved parties (neighboring tenants, owners, or landlords). As other communities have learned, outreach and education is a key component to obtaining compliance. Staff will initiate the following actions to support educating the public regarding the provisions of the ordinance: • In addition to standard public noticing, a press release will be issued advising of the provisions of the ordinance • Landlords, tenants, business and housing associations, and property management firms will be contacted and provided a copy of the ordinance and staff report • City staff will develop signage for City-owned facilities, parks, open space, and • A page on the City s website will be created to provide information regarding the new laws, including links of the ordinance, staff report, presentations, and minutes and video of City Council meetings; FAQ; downloadable "no-smoking" signs; links to smoking cessation resources, and other information and resources that will be helpful to the public • Notice of the ordinance requirements will be included with information distributed with business license renewal forms and on the City’s website STRATEGIC PLAN CONSIDERATIONS Adoption of the proposed Smoking Pollution Protection Ordinance would help fulfill Goal E, Preserve the Public’s Health and Safety, and Goal F, Foster Environmental Sustainability Citywide, as detailed in the City of El Cerrito Strategic Plan, adopted ---PAGE BREAK--- Agenda Item No. 7{A) April 2013. Specifically, adoption of the proposed Ordinance would contribute to achieving the following strategies: • Explore innovative and best practices for promoting public health smoking ordinances, nutrition, and obesity prevention). Adoption of the proposed Ordinance would complete one example stated in this strategy. • Implement the City's Climate Action Plan. Adoption of the proposed Ordinance would contribute to meeting Objective W-1 of the Climate Action Plan (reducing waste in El Cerrito). FINANCIAL CONSIDERATIONS Costs associated with implementing the ordinance include the purchase and installation of signs, the development of necessary forms, and increased staff time for education and outreach, inspections, and dealing with complaints. Proper signage is considered a critical component for obtaining compliance with the ordinance, and staff will evaluate the most effective use of signage to support compliance efforts. Other cities implementing similar regulations have estimated signage costs at $15,000. This money is currently unbudgeted but could come from undesignated General Fund balance or from potential grants. The costs for forms and staff time will be absorbed by existing departments involved with implementing and enforcing the ordinance. LEGAL CONSIDERATIONS The City Attorney has reviewed the draft Ordinance and found that legal considerations have been addressed. Attachment: 1. Proposed Smoking Pollution Protection Ordinance Page 5 ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 1 ORDINANCE NO. 2014–XX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EL CERRITO TO REGULATE SMOKING WITHIN THE CITY OF EL CERRITO SECTION 1. Findings. WHEREAS, tobacco use causes death and disease and continues to be an urgent public health challenge, 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 separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers 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 an estimated 50,000 deaths among nonsmokers each year in the United States; and • Exposure to secondhand smoke increases the risk of coronary heart disease and stroke by about 20% to 30%, 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, including increased healthcare expenditures, medical costs, and lost productivity; and ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 2 WHEREAS, exposure to secondhand smoke anywhere has negative health impacts, increases air pollution levels, and does occur at significant levels outdoors, and WHEREAS, cigarette butts are a major and persistent source of litter, pose a health threat to young children, frequently end up in storm drains that flow into streams, rivers, creeks, San Francisco Bay, and ultimately the ocean; adversely impacts the health of both pets and wildlife, and can take up to several years to degrade; and WHEREAS, cigarettes present a dangerous fire hazard in that every year, men, women and children are killed in home fires caused by cigarettes and other smoking materials; and improperly disposed of cigarettes can easily start fires in outdoor open spaces where there is a risk of wildfire; and WHEREAS, electronic smoking devices often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products; and WHEREAS, existing studies on electronic smoking devices’ vapor emissions and cartridge contents have found a number of dangerous substances, and conclude that exposure to vapor from electronic smoking devices may cause passive or secondhand vaping; and WHEREAS, society is becoming less tolerant and less accepting of smoking, particularly in El Cerrito, where a majority of participants in surveys and community meetings indicated a need to regulate smoking within the City limits; and WHEREAS, though widely perceived as a comprehensive smokefree air law, the state smokefree workplace law (California Labor Code section 6404.5) still has several exemptions and loopholes that permit smoking in a wide variety of workplaces, disproportionately impacts low-income and minority populations, and does not expressly prohibit the use of electronic smoking devices in enclosed workplaces; and WHEREAS, California cities and counties have the legal authority to adopt local laws that make all indoor places of employment nonsmoking; and WHEREAS, laws restricting smoking and the use of tobacco products have recognizable benefits to public health and medical costs, and ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 3 WHEREAS, state law prohibits smoking within 25 feet of playgrounds and tot lots and expressly authorizes local communities to enact additional restrictions; and WHEREAS, there is no Constitutional right to smoke; and WHEREAS, this proposed Ordinance will preserve and enhance the environment within the City of El Cerrito and is exempt from the requirements of the California Environmental Quality Act (“CEQA”), as amended, pursuant to Section 15061(b)(3) or Section 15308 of the CEQA Guidelines. NOW THEREFORE, the City Council of the City of El Cerrito does hereby ordain as follows: SECTION 2. Amendment of Municipal Code. Title 8 of the El Cerrito Municipal Code is hereby amended to add a new Chapter 8.06 and shall read as follows: 8.06.010 - Title. This Ordinance shall be known as the El Cerrito Smoking Pollution Protection Ordinance. The City of El Cerrito hereinafter shall be called "City." This Ordinance shall be applicable in the incorporated territory of the City. 8.06.020 - Definitions. The following definitions apply to this Ordinance: A. “Business” shall mean any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes or that has an employee, as defined in this section. B. “Commercial area” means those commercial districts described in chapter 19.07 of the El Cerrito Municipal Code or any property zoned as commercial. C. “Dining area” means any indoor or outdoor 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. “Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic smoking device” does not include any product specifically ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 4 approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. 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 for an employer or nonprofit entity. F. “Employer” shall mean any person, partnership, corporation, municipal corporation, association, nonprofit or other entity who employs or retains the service of one or more employees, or supervises volunteers. G. "Enclosed area" means all space between a floor and ceiling where the space is closed in on all sides by solid walls or windows that extend from the floor to the ceiling. An enclosed area may have openings for ingress and egress, such as doorways or passageways. An enclosed area includes all spaces within that area, such as hallways and areas screened by partitions that do not extend to the ceiling or are not solid. H. "Landlord" means any person who owns property let for residential use, who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors. I. “Multi-unit residence” means property containing two or more units, including but not limited to apartments, condominiums, duplexes, senior citizen housing, nursing homes, hotels and motels; except the following specifically excluded types of housing: 1. a single-family dwelling as defined in chapter 19.06; 2. a single-family dwelling with a detached or attached in-law or second unit. J. “Multi-unit residence common area” shall mean any indoor or outdoor common area of a multi-unit residence accessible to and usable by residents of different units, including but not limited to halls and paths, lobbies, laundry rooms, common cooking areas, outdoor eating areas, play areas, shared patios, shared balconies, shared restrooms, elevators and stairwells, swimming pools, carports, garages, and parking areas. K. “Nonprofit entity” shall mean 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, educational, 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 public agency is not a nonprofit entity within the meaning of this section. ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 5 L. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity and including government agencies. M. “Place of employment” shall mean any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation, including, for example, indoor and outdoor work areas, residential and commercial construction sites, vehicles used in employment or for business purposes, taxis, buses, employee lounges, conference and banquet rooms, bars, restaurants, bingo and gaming facilities, long-term health facilities, warehouses, and private residences that are used as childcare or healthcare facilities subject to licensing requirements. N. “Playground” shall mean any park or recreational area designed in part to be used by children that has play or sports equipment installed or has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds, or on City grounds. O. "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage. P. “Public place” means any area or place, publicly or privately owned, which the public is invited or in which the public is permitted, that is open to the general public regardless of any fee or age requirement. Q. “Public sidewalk” means a paved pathway for pedestrians that is publicly owned or in the public right-of-way, including but not limited to within a commercial or residential area. R. “Reasonable distance” shall mean a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. This distance shall be a minimum of twenty-five (25') feet. S. “Recreational Area” means any area, including streets and sidewalks, that is publicly owned, controlled or used by the City and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes but is not limited to parks, parklets, picnic areas, playgrounds, sports fields, open space, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, and tennis courts. T. “Service area” means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes but is not limited to areas including or adjacent to information kiosks, automatic teller machines ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 6 (ATMs), ticket lines, bus stops or shelters, transit stops, mobile vendor lines or taxicab stands. U. "Smoke" means the gases, particles, or vapors released into the air as a result of the combustion, electrical ignition, or vaporization of a tobacco product, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the tobacco product. "Smoke" includes but is not limited to tobacco smoke, electronic cigarette or electronic smoking device vapors, and marijuana smoke. "Smoke" excludes incense or similar products inhaled solely for olfactory purposes as long as those products do not contain tobacco or nicotine. V. "Smoking" means engaging in an act that generates smoke or vapor from a tobacco product, marijuana, or any other weed or plant. "Smoking" includes inhaling, exhaling, burning, possessing, holding, or carrying any lighted cigar, lighted cigarette, lighted pipe, lighted hookah pipe, operating electronic cigarette or electronic smoking device, or any other smoke inhalation device of any kind; "Smoking" includes smoking marijuana for medical purposes. W. "Tobacco product" means any of the following: 1. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, clove cigarettes, or any other preparation of tobacco. 2. Any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, including but not limited to electronic cigarettes or electronic smoking devices. “Tobacco product” does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. X. “Unenclosed area” means any area that is not an Enclosed Area. Y. “Unit” means a personal dwelling space consisting of essentially complete independent living facilities for one or more individuals, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family dwelling; and an in- law or second unit. “Unit” does not include a rented room in a single-family dwelling. ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 7 8.06.030 – City facilities. A. Smoking is prohibited in all buildings, vehicles, and other enclosed areas occupied by City employees, owned or leased by the City, or otherwise operated by the City. B. Smoking is prohibited in all outdoor areas owned or leased by the City, including parking lots, sidewalks, and the grounds of all buildings, facilities, or areas owned or leased by the City. 8.06.040 – Prohibition of Smoking in Enclosed Areas. A. In addition to prohibitions under State or Federal law, smoking is prohibited in the enclosed areas of the following places within the City of El Cerrito: 1. Places of employment 2. Public places 3. Multi-unit residence common areas 4. Units within all multi-unit residences B. Any places exempted by the California smokefree workplace law (Labor Code Section 6404.5(d)) are not exempt under this chapter. Smoking is prohibited by this chapter in all places exempted by that State law, except as provided below. 1. Smoking at theatrical production sites is not prohibited by this subsection if the theater manager/director certifies that smoking is an essential part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience. C. The prohibitions set out in subsection A.3 and A.4 shall not be operative until October 1, 2015 or at the time of expiration of an existing lease of a unit within the multi-unit residence, whichever is sooner. 8.06.050 – Prohibition of Smoking in Unenclosed Areas. A. In addition to prohibitions under State or Federal law, smoking is prohibited in the unenclosed areas of the following places within the City of El Cerrito: 1. Throughout all commercial areas 2. Recreational areas 3. Service areas 4. Dining areas 5. Places of employment 6. Multi-unit residence common areas 7. All public sidewalks throughout the City ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 8 8. Public events, including but not limited to arts and crafts shows, auctions, civic and community events, fairs, farmers' markets, festivals, flea markets, food events, recreation events, rummage sales, second hand sales, street fairs, and swap meets, or any other event which may be attended by the general public B. Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area. C. The prohibition set out in subsection A.6 of this section shall not be operative until October 1, 2015. D. Smoking is prohibited within a reasonable distance of any enclosed or unenclosed area where smoking is prohibited by this chapter. 8.06.060 – Other Requirements and Prohibitions. A. Notwithstanding any other provision of this chapter, it shall be a violation of this chapter to use an electronic smoking device in any place within the City subject to the prohibition on smoking contained in this chapter and in California Labor Code section 6404.5, as that section may be amended from time to time. B. No person, employer, or nonprofit entity shall knowingly permit smoking or use of tobacco product in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law, unless otherwise required by state or federal law. C. No person, employer, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking or use of tobacco product is prohibited by law. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking or use of tobacco product in violation of any provision of this chapter. D. A person, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous “No Smoking” or “Smokefree” sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. Notwithstanding the above, for purposes of this section, the City Manager or his/her designee shall be responsible for the posting of a reasonable number of signs in recreational areas owned, leased in whole or in part by the City. Notwithstanding this provision, the absence of signs shall not be a defense to a ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 9 charge of smoking or the use of tobacco products in violation of any other provision of this chapter. E. With respect to each multi-unit residence, the owner, in cases where the units may not be sold individually, or the person responsible for maintenance of the common area, in cases where the units may be sold individually, shall: 1. Within thirty (30) days of the effective date of this section, notify the occupants and owners of units in writing by mail or delivery to the unit of the prohibitions imposed by this chapter 2. Post "No Smoking" or “Smokefree” signs, with letters of no less than one inch in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar) indicate that smoking is prohibited within units in the multi-unit residence and within the common area shall be clearly and conspicuously posted in multi-unit residence common areas and at entrances and exits. Such signs shall be maintained by the person or persons with legal control over the multi-unit residence common areas and entrances and exits. Signs must be posted in sufficient numbers and locations in the multi-unit residence common areas and at entrances and exits to make areas where smoking is prohibited obvious to a reasonable person. Signs are not required at the individual entrance and exits of each multi-unit residence. The absence of signs shall not be a defense to a charge of violation of any provision of this chapter. F. Every lease or other agreement for the occupancy of a unit in a multi-unit residence entered into, amended, or renewed shall include: 1. A clause stating that smoking is prohibited in the unit 2. A clause stating that it is a material breach of the lease or agreement to violate any law regulating smoking while on the premises, smoke in the unit, or smoke in any multi-unit residence common area in which smoking is prohibited 3. A clause stating that all occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses. 4. A form prepared by an entity such as the California Apartment Association Form 34 meets the requirements for lease terms as outlined and is an option for use to comply with this section. G. A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to: the landlord, and any occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 10 H. This chapter shall not create additional liability for a landlord for a person's violation of this chapter provided that the landlord has fully complied with the required disclosure, sign posting, and other provisions of this chapter. I. No person, employer, or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter. J. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation. 8.06.070 – Enforcement and Violation – Penalty. A. Any violation of this ordinance is punishable as specified in Chapters 1.08 or 1.14 of the El Cerrito Municipal Code or by any other applicable law. B. The City Manager or his or her designee has primary responsibility for enforcement of this Ordinance. Any peace officer or Code Enforcement Official also may enforce this chapter. C. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. E. Any Person may act as a Private Enforcer, acting for the interests of itself, its members, or the general public may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any Person who has violated this chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including: awarding damages; and issuing an injunction or a conditional judgment. SECTION 3. Compliance with the California Environmental Quality Act. Pursuant to Title 14 of the California Administrative Code, the City Council finds that this Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) for the following reasons: under Section 15061 it is not a project which has the potential for causing a significant effect on the environment; under Section 15308, it is an authorized action by an agency with regulatory authority for the purpose of assuring the maintenance, restoration, enhancement, or protection of the environment. ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 11 SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision will not affect the validity of the remaining portions of the Ordinance. The City Council of the City of El Cerrito hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Ordinance would be subsequently declared invalid. SECTION 5. No Conflict with Federal or State Law. Nothing in this Ordinance is intended to create any requirement, power or duty that is in conflict with any federal or state law. SECTION 6. Effective Date. This ordinance shall take effect and be enforced January 1, 2015, and prior to the expiration of fifteen days from the passage thereof, the ordinance or a summary thereof shall be posted or published as may be required by law, and thereafter the same shall be in full force and effect. THE FOREGOING Ordinance was introduced at a regular meeting of the City Council on August 19, 2014, and passed by the following vote: AYES: NOES: ABSTAIN: ABSENT: ADOPTED AND ORDERED published at a regular meeting of the City Council held on the September , 2014 and passed by the following vote: AYES: NOES: ABSTAIN: ABSENT: APPROVED: Janet Abelson, Mayor ATTEST: ---PAGE BREAK--- Agenda Item No. 7(A) Attachment 1 12 Cheryl Morse, City Clerk IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on September XX, 2014. Cheryl Morse, City Clerk ORDINANCE CERTIFICATION I, Cheryl More, City Clerk of the City of El Cerrito, do hereby certify that this Ordinance is the true and correct original Ordinance No. 2014-XX of the City of El Cerrito, that said Ordinance was duly enacted and adopted by the City Council of the City of El Cerrito at a meeting of the City Council held on the day of September 2014; and that said ordinance has been published and/or posted in the manner required by law. WITNESS my hand and the Official Seal of the City of El Cerrito, California, this day of September, 2014.