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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) Page 5 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. Reviewed by: Scott Hanin, City Manager Attachment: 1. Proposed Smoking Pollution Protection Ordinance