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HomeMy Public PortalAbout19) 10C Ord 14-994 amending definition of smoking to include e-cigCity Council June 17, 2014 Page 2 of 5 3. On December 4, 2012, City Council adopted Ordinance No. 12-964 modifying Chapter 2 ("Public Health Code") of Title 3 ("Public Safety") of the Temple City Municipal Code by adding Article C ("Second-Hand Smoke Control Ordinance"), and adopted Ordinance No. 12-965, adding Article D ("Tobacco Retailer Permit Ordinance") to Title 5, Chapter 2 of the Temple City Municipal Code. 4. On March 10, 2014, the Ad Hoc Committee met with staff to discuss amending Section 3-2C-2 ("Second-hand Smoke Control Ordinance") and Section 3-5D-9 ("Park Activities: Behavior") in order to extend the City's second-hand smoking regulations to include all electronic smoking devices. ANALYSIS: Over the last few years, the City has enacted several amendments aimed at maintaining and enhancing the City's quality of life. An important focus has been to adapt existing laws to adequately respond to growing concerns by City officials and the public regarding the control of second-hand smoke and access to tobacco products by minors. City Council passed Ordinance No. 12-964 on December 4, 2012, prohibiting smoking of tobacco and marijuana products in a number of locations throughout the City, including City property, enclosed public places, and outdoor dining areas. The Ordinance banned smoking of tobacco and marijuana products within 20' feet of the aforementioned and other locations. At the same time, the City also passed a new regulation (i.e., Ordinance No. 12-965) on tobacco retailers meant to assist in the prevention of the illegal sale and distribution of tobacco and nicotine to minors. In light of recent studies that examine the dangers of electronic smoking devices, and resident complaints of persons using electronic smoking devices in city parks and public spaces, as well as regulations passed by other Southern California cities, staff met with the Ad Hoc Committee in March 2014 to consider extending the City's current smoking regulations to include electronic smoking devices. The committee directed staff to prepare a draft amendment and present it to the City Council. The proposed Ordinance is based on ordinances adapted in other jurisdictions as well as a number of studies addressing tobacco use and electronic smoking devices. Electronic Smoking Devices Promoted as a new and safer way of smoking (sometimes marketed as a means of achieving smoking cessation), e-cigarettes are essentially nicotine-delivery products which can expose the public to the same health risks caused by tobacco products. The FDA has expressed concerns about the safety of electronic smoking devices after testing found that some devices contain toxins and carcinogens (i.e. lead, nickel, and chromium). Recent scientific study confirmed that electronic smoking devices that contain nicotine also emit nicotine in the vapor that is released and may be involuntarily inhaled by bystanders. City Council June 17, 2014 Page 3 of 5 Prohibiting electronic smoking devices in already designated smoke-free locations is necessary in order to protect non-users, including children and vulnerable populations, from involuntary inhalation of these chemical vapors. City staff is also concerned that the increased use of electronic smoking devices in smoke-free locations may increase the social acceptability of smoking, particularly by youth, and reverse the progress that has been made over the years to discourage smoking. It should be noted that the Los Angeles County Department of Public Health supports amending local smoke-free policies to include electronic smoking devices. To date, at least 40 cities and counties in California have enacted ordinances to include electronic smoking devices in their existing smoke- free laws. Current Applicable Regulations The City's Second-hand Smoking Ordinance currently prohibits smoking of tobacco and marijuana products in the following locations within the City: • City property-including within City vehicles; • Enclosed public places including public and private property that is open to the general public (e.g., restrooms and elevators); • Service areas, including public and private areas, designated for people to wait for a transaction, entry, exit, or service (e.g., ATM machines and ticket windows); • Outdoor dining areas; • Outdoor public events; • Outdoor seating areas; • Public transit station or stop; and • Enclosed common areas of multi-unit residential housing complexes -including hallways, enclosed stairwells, elevators, and enclosed fitness rooms. Ordinance No. 12-964 also bans smoking of tobacco and marijuana products within 20' feet (unless a greater distance is provided by State or Federal law) of any of the aforementioned locations (except while actively passing said location on the way to another destination and provided that smoke does not enter any unenclosed area in which smoking is prohibited), and at any children's school (including pre-school, kindergarten, and grades 1-12). Additionally, Ordinance No. 12-964 authorizes the City to enforce the tobacco control regulations and empowers members of the public to file a civil action against a violator of the tobacco control regulations if specific criteria are met (including advance notice to the alleged violator and that the City has not otherwise commenced an action regarding the alleged violation). City Council June 17, 2014 Page 4 of 5 Proposed Amendments Proposed Ordinance No. 14-994 would, in effect, place the same regulations on e- cigarettes and other electronic smoking devices that are already in effect for other tobacco and marijuana products. It would do this by amending two sections of the Temple City Municipal Code. First, it would amend Section 3-2C-2 ("second-hand smoke control") of Article C of Chapter 2 of Title 3 of the Temple City Municipal Code by adding a definition for "electronic smoking device" and modify the already existing definition of "Smoking or to smoke" to include "electronic smoking device" and "electronic cigarette". The change(s) are noted (underlined) below: TCMC 3-2C-2: DEFINITIONS: ELECTRONIC SMOKING DEVICE: shall mean an electronic or battery- operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic pipe, an electronic hookah, or any other product name or descriptor. SMOKING OR TO SMOKE: shall mean possessing or to possess a lighted tobacco product, lighted tobacco paraphernalia, lighted marijuana, or any other lighted weed or plant (including but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, lighted cigarette of any kind), an electronic smoking device of any kind, or the lighting or emitting or exhaling the smoke or vapor of a tobacco product, tobacco paraphernalia, marijuana product, or any other weed or plant (including but not limited to, a pipe, a hookah pipe, cigar, marijuana product, electronic cigarette or cigarette of any kind). Second, it would amend Section 3-5D-9 (Park Activities: Behavior) of Article D of Chapter 5 of Title 3 of the Temple City Municipal Code by including electronic smoking devices in the types of behaviors prohibited in City parks. The second change included in the proposed Ordinance is an amendment to Section 3- 50-9. The change proposed here is the addition of all forms of electronic smoking devices to the existing prohibition on other types of smoking devices. The change(s) are noted (underlined) below: TCMC 3-5D-9-Q: BEHAVIOR: No person in a park or civic center shall, except as express written permission is granted by the Parks and Recreation Commission: Smoke and/or posses a lighted tobacco product, including but not limited to cigars, cigarettes, and any electronic smoking device. City Council June 17, 2014 Page 5 of 5 CONCLUSION: It is recommended that City Council adopt proposed Ordinance No. 14-994 to include electronic smoking devices in the City's Second-Hand Smoke Ordinance and modify the prohibited types of behaviors within City parks. FISCAL IMPACT: After proposed Ordinance No. 14-994 becomes effective on July 2, 2014, the City would possibly generate revenue from the issuance of administrative fines. The increase in revenue would be used to offset the costs incurred from the processing and enforcement of the proposed Ordinance; the amount of revenue is unknown. ATTACHMENTS: A. Ordinance No. 14-994 CITY OF TEMPLE CITY ORDINANCE NO. 14-994 ATTACHMENT A AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY AMENDING SECTION 3-2C-2 ("SECOND-HAND SMOKE CONTROL") OF ARTICLE C OF CHAPTER 2 OF TITLE 3 AND SECTION 3-SD-9 (PARK ACTIVITIES: BEHAVIOR) OF ARTICLED OF CHAPTER 5 OF TITLE 3 OF THE TEMPLE CITY MUNICIPAL CODE WHEREAS, Section VII of Article XI of the California Constitution provides that a City may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, California Government Code Section 38771 provides that legislative bodies of Cities may declare what constitutes a nuisance; and WHEREAS, the City's municipal code currently prohibits smoking in City-owned buildings, structures, parks, recreation facilities, parking lots or structures, city vehicles, in certain open and enclosed public spaces, in enclosed common areas of multi-unit residential housing complexes, within twenty feet (20') of the property line of any real property on which a public or private institution of learning for children exists, but it does not currently address electronic smoking devices and vapor, and WHEREAS, the use of electronic smoking devices is a recent trend that is proliferating in the City of Temple City and is exposing the public to secondhand vapors that have not been scientifically proven as safe; and WHEREAS, electronic smoking devices, commonly referred to as "e-cigarettes," "e- cigars," "e-cigarillos," "e-pipes," "e-hookahs," are electronic devices often made to look like, and be used in the same manner as, conventional tobacco products, with the user exhaling a smoke- like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products; and WHEREAS, electronic cigarettes employ the use of a cartridge, generally containing up to 20 mg of nicotine, to deliver vaporized nicotine to users. Nicotine being a highly addictive neurotoxin included in the Prop 65 list of Chemicals Known to the State to Cause Cancer or Reproductive Toxicity. Some cartridges used by electronic cigarettes can be re-filled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine; and WHEREAS, a recent scientific study confirmed that electronic smoking devices that contain nicotine also emit nicotine in the released vapor and involuntarily expose nonsmokers to nicotine; and WHEREAS, a recent study found a total of 22 elements in vapors produced by electronic smoking devices, and three of these elements (lead, nickel, and chromium) appear on the FDA's "Harmful and Potentially Harmful Chemicals List"; and WHEREAS, a study published in the American Journal of Public Health found similar results to those identified in FDA testing and concluded that the electronic smoking devices tested demonstrated poor quality control, toxic contaminants, misrepresentation of the nicotine delivered and insufficient evidence of the overall public health benefit; and WHEREAS, manufacturers of electronic smoking devices have not submitted clinical studies about the safety and efficacy of these products to the FDA; and, therefore, consumers currently have no way of knowing what types or concentrations of potentially harmful chemicals they are inhaling and exhaling when they use these products; and Page 1 of 6 WHEREAS, the Los Angeles County Department of Public Health supports amending local smoke-free policies to include e-cigarettes because "studies indicate that e-cigarettes pose potential dangers for users, as well as for non-users who passively inhale these chemical vapors"; and WHEREAS, prohibiting the use of electronic smoking devices in smoke-free locations will protect traditionally smoke-free locations such as daycare centers, schools, libraries, public parks, playgrounds and beaches and will prevent people, including children, from involuntarily inhaling nicotine and potentially harmful chemicals scientifically proven to exist in the secondhand vapor of electronic smoking devices; and WHEREAS, the FDA has raised concerns that electronic cigarettes, which are often marketed in appealing fiavors, can increase nicotine addiction among young people and may lead youth to try conventional tobacco products; and WHEREAS, A study published in the Journal of Environmental and Public Health suggests that electronic cigarettes "may have the capacity to 're-normalize' tobacco use in a demographic that has had significant denormalization of tobacco use previously"; and WHEREAS, it is the intent of the City Council of the City of Temple City to enact this ordinance, to provide for the public health, safety, and welfare by regulating the potentially dangerous behavior of smoking electronic cigarettes; and WHEREAS, this ordinance is necessary for the immediate preservation of the public peace, health, and safety of the people of the Temple City. Although the full health impacts of electronic cigarettes are still unclear, various studies suggest that electronic cigarettes pose significant public health and safety risks similar to those associated with traditional cigarettes and tobacco products, and therefore, should be regulated in the same manner. THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 3-2C-2 of the Temple City Municipal Code is hereby amended to read as follows: 3-2C-2: DEFINITIONS The following definitions shall govern construction of this Article unless the context clearly requires otherwise: City building or structure shall mean any building or structure (as these terms are defined by the Temple City Building Code) that the City of Temple City or the Temple City Community Redevelopment Agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. City park shall mean a mini-park, neighborhood park, community park, regional park, bikeway, trail, greenbelt, developed or undeveloped parkland, open space land, open space parcel, or open space area that the City or the Temple City Community Redevelopment Agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said City park. City parking lot or strucutre shall mean a parking lot or structure that the City or the Temple City Community Redevelopment Agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. City recreational facility shall mean an indoor or outdoor area, location, place, Page 2 of 6 site, lot, building, structure, facility, or complex that is open to the general public for one (1) or more recreational or sport activities or purposes, regardless of a fee for admission or use, that the City or the Temple City Community Redevelopment Agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said City facility. City vehicle shall mean any vehicle that is owned, leased or rented by the City, as well as any vehicle that a City employee drives, operates, or has control over in connection with said person's employment with the City. Electronic Smoking Device shall mean an electronic or battery-operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic pipe, an electronic hookah, or any other product name or descriptor. Enclosed area shall mean: A. Any covered or partially covered area having more than fifty (50) percent of its perimeter walled or otherwise closed to the outside (for example, a covered porch with more than two walls) irrespective of whether said walls or other vertical boundaries include vents or other openings; or B. Any space open to the sky (hereinafter, "uncovered") having more than seventy-five (75) percent of its perimeter walled or otherwise closed to the outside (for example, a courtyard), irrespective of whether said walls or other vertical boundaries include vents or other openings. 1. An uncovered space of three thousand (3,000) square feet or more (for example, a field in an open-air arena) is not an "enclosed area" as defined in this Article. Enclosed common area shall mean any "enclosed area" of a Multi-Unit Residential Housing Complex accessible to and usable by residents of more than one unit, including, but not limited to, hallways, enclosed stairwells, lobby areas, elevators, laundry rooms, enclosed common cooking areas, playrooms, enclosed fitness rooms, enclosed swimming pools, and enclosed parking areas. Landlord shall mean any person other than a sublessor who owns real property leased as residential property, who lets residential property, or who manages such property. Marijuana shall have the same definition as set forth in the "California Uniform Controlled Substances Act" (contained within California Health & Safety Code Sections 11000 et seq.). Multi-Unit Residential Housing Complex shall mean a premises that contains two or more units rented or available to be rented and not occupied by a landlord of the premises. Multi-unit residence does not include a condominium as that term is defined in the City's Zoning Code. 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 Page 3 of 6 committed to the promotion of the objectives of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this section. Outdoor dining area shall mean: A. An unenclosed area that is open to the general public, or closed to the public for a private function, where food and/or beverages are offered, served, or consumed, regardless of whether compensation is offered or given in exchange; 1. Outdoor dining area shall include, but shall not be limited to: a) A restaurant, or a bar, or both; b) A standing area; c) A seating area; d) A patio area. 2. Outdoor dining area does not include any unenclosed dining area at a private residence. Outdoor public event shall mean an activity, ceremony, event, fair, function, gathering, meeting, pageant, or program -whether athletic, civic, cultural, charitable, community, entertainment, intellectual, recreational, or social-that: A. Is open to the general public; B. Takes place outside of an enclosed building or structure; and, C. A person, employer, business, nonprofit entity, or the City sponsors, hosts, organizes, or operates. Outdoor seating area shall mean bleachers, benches, or seats located outside of an enclosed building or structure -regardless of whether permanently or temporarily affixed -that is provided for an audience, viewers, spectators, or participants of an event that is adjacent to, in front of, facing, or opposite said event. Private Enforcer is defined in Section 3232.B of this code. Public Place shall mean any area, location, place, site, property, lot, building, structure, facility, or complex -public or private -open to the general public regardless of any fee or age requirement, including, but not limited to, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, polling places, parks, playgrounds, restrooms, elevators, taxis, and buses. Public transit station or stop shall mean an enclosed or unenclosed platform, sidewalk, shelter, bench, or area where people wait for public transportation, such as a train, shuttle, or taxicab. It shall also include, but shall not be limited to, any ancillary area such as restrooms, kiosk area, storage locker area, and pedestrian path or walkway. Reasonable distance shall mean a distance of twenty feet (20'). Recreational area shall mean any public or private area open to the public for Page 4 of 6 recreational purposes whether or not any fee for admission is charged, including without limitation, parks, gardens, sporting facilities, stadiums, and playgrounds. Service area shall mean any area-public or private-designated for one (1) or more persons to wait for a transaction, entry, exit, or service of any kind, regardless of whether such service involves the exchange of money. Service area includes, but shall not be limited to, any area designated for lines or waiting for ATM machines; banks; information kiosks; restaurants and other food service venues; vending machines; tickets or admission to a theater or event; waiting areas at car washes and vehicle service establishments; and valet pick- up areas. Smoking or to smoke shall mean possessing or to possess a lighted tobacco product, lighted tobacco paraphernalia, lighted marijuana, or any other lighted weed or plant (including but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, lighted cigarette of any kind), an electronic smoking device of any kind, or the lighting or emitting or exhaling the smoke or vapor of a tobacco product, tobacco paraphernalia, marijuana product, or any other weed or plant (including but not limited to, a pipe, a hookah pipe, cigar, marijuana product, electronic cigarette or cigarette of any kind). Tobacco product shall mean any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. Unenclosed area shall mean any area which is not an enclosed area. Unit shall mean: (1) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any associated private outdoor spaces such as balconies and patios; and (2) senior citizen housing and single room occupancy hotels, as defined in California Health and Safety Code Section 50519(b)(1), even where lacking private cooking or plumbing facilities. "Unit" does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2). SECTION 2. Section 3-50-9 of the Temple City Municipal Code is hereby amended to read as follows: 3-SD-9: BEHAVIOR No person in a park or civic center shall, except as express written permission is granted by the Parks and Recreation Commission: Q. Smoke and/or posses a lighted tobacco product, including but not limited to cigars, cigarettes, and any electronic smoking device. SECTION 3. This Ordinance shall take effect thirty (30) days after its adoption. The City Clerk, or her duly appointed deputy, shall attest to the adoption of this Ordinance and shall cause this Ordinance to be posted as required by law. Page 5 of 6 PASSED, APPROVED, AND ADOPTED this 1st day of July, 2014. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney I, Peggy Kuo, City Clerk of the City of Tern pie City, hereby certify that the foregoing Ordinance No. 14-994 was introduced at the regular meeting of the Ci!f' Council of the City of Temple City held on the 17'h day of June 2014, its second reading on July 1', 2014, and was duly passed, approved and adopted by said Council at the regular meeting held on July 1'1, 2014 by the following vote: AYES: NOES: ABSENT: ABSTAIN: City Clerk Councilmember- Councilmember- Councilmember- Councilmember- Page 6 of 6