HomeMy Public PortalAbout12) 8.A.2nd Reading and Adoption of 2nd Hand SmokeAGENDA
ITEM 8.A.
COMMUNITY DEVELOPMENT DEPARTMENT
DATE: December 4, 2012
MEMORANDUM
TO: The Honorable City Council
FROM: Jose E. Pulido, City Managd�e
Via: Robert Sahagun, Public Safety and Services Manager
By: Giselle Corella, Management Analyst
SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 12-964, AN
ORDINANCE OF THE CITY OF TEMPLE CITY ADDING ARTICLE C
("SECOND-HAND SMOKE CONTROL ORDINANCE") OF CHAPTER 2
("PUBLIC HEALTH CODE") OF TITLE 3 ("PUBLIC SAFETY") OF THE
TEMPLE CITY MUNICIPAL CODE
RECOMMENDATION:
The City Council is requested to adopt proposed Ordinance No. 12-964 (Attachment "A")
an Ordinance of the City of Temple City, modifying Chapter 2 ("Public Health Code") of
Title 3 ("Public Safety") of the Temple City Municipal Code regarding the regulations that
will promote public health through the addition of Article C ("Second -Hand Smoke Control
Ordinance").
BACKGROUND:
1. On May 19, 2009, City Council received public input urging the City to implement a
smoking ban.
2. On July 21, 2009, City Council adopted Ordinance No. 09-928 prohibiting smoking
in City Parks.
3. On December 10, 2010, a City Codes Review Ad Hoc Committee (i.e., Mayor
Chavez and Council Member Sternquist) was formed to address the challenges
City staff was encountering in its attempts to enforce the City's Municipal Code.
4. During the months of January and February 2011, staff conducted a review of the
entire Municipal Code to identify its deficiencies, and to provide the Ad Hoc
Committee with recommendations to better facilitate compliance.
5. On March 9, 2011, Community Preservation staff met with the Ad Hoc Committee
to discuss the difficulties faced in the enforcement of the Municipal Code. This
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December 4, 2012
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includes inconsistent provisions, ambiguous verbiage and outdated requirements
that no longer reflect the goals of the City, as well as the lack of necessary
enforcement tools needed to mandate compliance from persons who refuse to
voluntarily comply with applicable requirements.
6. From April through October 2011, Community Preservation staff (including City
Prosecutor James Eckart) and the Ad Hoc Committee discussed various methods
of addressing the deficiencies, including possible amendments to the City's
Municipal Code.
7. On November 15, 2011, the City Council approved the first round of proposed
code amendments that would facilitate improved enforcement of the Municipal
Code and subsequent compliance of violations. The ordinances approved were:
Ordinance No. 11-948 — Shopping and Laundry Cart Containment, Retrieval and
Abatement; Ordinance No. 11-949 - Abandoned and Vacant Property Registration,
Maintenance and Security Requirements; and Ordinance No. 11-950 — Public
Nuisance Regulations.
8. On March 20, 2012, the Community Development staff and City Prosecutor James
Eckart met with the Ad Hoc Committee to discuss methods for addressing the
failing ("F") grade Temple City received for insufficient local tobacco control
policies as published by the American Lung Association's State of Tobacco Control
2012 — California Local Grade Results. The Ad Hoc Committee then gave staff
direction to proceed with drafting a Second -Hand Smoke Control Ordinance.
9. On May 1, 2012, the Ad Hoc Committee met with staff and the City Prosecutor to
review the first draft of the proposed Ordinance. Based on the American Lung
Association's State of Tobacco Control 2012 — California Local Grade Results, and
recommendations from the City Prosecutor, the Ad Hoc Committee provided
direction to amend the initial draft based on aforementioned input.
10. On June 19, 2012, the Ad Hoc Committee met with staff and the City Prosecutor to
review the revised first draft of the proposed Ordinance. The Ad Hoc Committee
provided feedback, recommendations, and directed staff to submit the proposed
Ordinance to the City Council for consideration.
11. From the months of July through October 2012, staff met several times with the
City Prosecutor to ensure that the recommended revisions to the proposed
Ordinance were being incorporated based on the Ad Hoc Committee's direction.
12. On November 8 and November 12, 2012, public notices regarding the introduction
and first reading of the proposed Ordinance No.12-964 was published in the
Temple City Tribune.
13. On November 20, 2012, Ordinance No. 12-964 was introduced to the City Council
for first reading, by title only, modifying Chapter 2 ("Public Health Code") of Title 3
("Public Safety") of the Temple City Municipal Code regarding the regulations that will
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December 4, 2012
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promote public health through the addition of Article C ("Second -Hand Smoke
Control Ordinance") through the addition of Article D ("Tobacco Retailer Permit
Ordinance").
14. On November 20, 2012, the City Council unanimously voted to adopt Ordinance No.
12-964 with modified provisions that would increase the "reasonable distance"
definition from 15 feet to 20 feet to reflect consistency with State law and enacting the
"multi -unit housing complex required lease terms" on July 1, 2013 for staff to conduct
a comprehensive public outreach campaign.
ANALYSIS:
During the past months, the City has enacted several amendments (i.e., Property
Maintenance, Shopping Cart Containment, and Vacant Property Registration) to the
Temple City Municipal Code (TCMC) aimed at maintaining and enhancing the City's
quality of life. Staff's review and analysis of the City's Public Health Code, as well as
laws adopted by the State of California, has demonstrated that existing laws have not
been adapted to adequately respond to growing concerns by City officials and the public
regarding the control of second-hand smoke.
Current Smoking Regulations
The TCMC contains general provisions to protect the health and safety of the
community, however, the TCMC lacks adequate verbiage regarding second-hand
smoke which is needed in order to promote a smoke-free and healthy city. The City's
current Public Health Code only provides provisions which regulate food safety,
swimming pools, and phosphates.
The TCMC contains very limited smoking regulations. Those regulations mainly focus
on prohibiting smoking within specific locations and/or events (i.e., parks, civic centers,
a polling place during elections, smoking within fifteen feet of a retail sale of safe and
sane fireworks stands, as well as operating pumpkin and Christmas tree lots). As
previously stated, these regulations do not adequately protect the residents, business
owners, and guests of the City from the health risks posed by second-hand smoke.
Studies and Grades
There have been numerous studies performed by both governmental and non-
governmental agencies which have concluded that second-hand smoke may cause
coronary disease, lung cancer, and respiratory illnesses in non-smoking adults.
According to the Los Angeles County Department of Public Health, exposure to second-
hand smoke is the third leading cause of preventable death in the U.S., killing over
40,000 non-smokers each year.
The American Lung Association has published a State of Tobacco Control (Attachment
"B") report wherein it assigns grades to cities and counties in California based upon
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December 4, 2012
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local tobacco control policies related to three major policy categories: (1) smoke-free
outdoor air, (2) smoke-free housing, and (3) reducing sales of tobacco products. The
grades from these three areas are then used to calculate an "Overall Tobacco Control
Grade" for each municipality. Approximately two thirds of all municipalities in California
(i.e., 355 municipalities) received a failing ("F") grade — including Temple City.
Second -Hand Smoke Control Ordinance Overview
In an attempt to balance the need to protect children, adults, and seniors from the health
risks associated with second-hand smoke and with the desires of those that smoke
tobacco, the proposed Ordinance, would clearly designate smoke-free locations that are
accessible to the public and provide the City and landlords the ability to enforce said
smoke-free areas, while providing for reasonable exceptions to the proposed prohibitions.
The proposed Ordinance explicitly 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.
The proposed Ordinance would also ban 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, the Ordinance lays out the requirements for smoking signage, the disposal
of tobacco product, and the inclusion of a provision in all residential leases for multi -unit
residential housing complexes entered into after July 1, 2013 that advises tenants of the
mandatory smoke-free common areas.
With respect to mandatory smoke-free common areas of multi -unit residential housing
complexes, the Ordinance also requires the inclusion of a lease term declaring that
violations of smoke-free regulations constitutes a material breach of the lease and
declaring other tenants of the complex to be beneficiaries of the smoke-free clauses of
the lease.
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December 4, 2012
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Furthermore, the proposed Ordinance 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).
CONCLUSION:
Although the California Legislature has enacted limited laws to protect persons from the
adverse effects of second-hand smoke, additional regulations are left to local authorities
to protect the children, adults, and seniors who do not receive the protections provided
by the State. Under the existing California law and pursuant to the City's general and
Constitutional police powers, local authorities have great flexibility in adopting smoking
laws that do not otherwise conflict with State regulations — including the ability to enact
a complete ban on smoking.
As noted in the American Lung Association's Table of Comprehensive Outdoor Second -
Hand Smoking Ordinances (Attachment "C") there are over 50 cities and counties in
California with varying degrees of a comprehensive second-hand smoke ordinance. The
neighboring cities of Baldwin Park, Pasadena, and Glendale are among the cities
proactively enforcing smoke-free public spaces. Accordingly, it is imperative that the
City enact a comprehensive and consolidated set of regulations to better address the
exposure from second-hand smoke to residents and guests of the City.
It is recommended that City Council adopt the proposed Ordinance to provide the City
the tools to maintain and increase the public health of its residents and its visitors, and
quality of life standards.
FISCAL IMPACT:
After the proposed Ordinance becomes effective on January 3, 2013, the City will
generate revenue from the issuance of administrative fines if the City Council declares that
nonconsensual exposure to second-hand smoke constitutes a public nuisance. However,
the increase in revenue would be used to offset the costs incurred from the processing
and enforcement of the proposed Ordinance.
ATTACHMENTS:
A. Draft Ordinance No. 12-964
B. State of Tobacco Control 2012 — California Local Grades
C. Table of Comprehensive Outdoor Secondhand Smoke Ordinances
Attachment "A"
CITY OF TEMPLE CITY
ORDINANCE NO. 12-964
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY
ADDING ARTICLE C ("SECOND-HAND SMOKE CONTROL") OF CHAPTER 2
("PUBLIC HEALTH CODE") OF TITLE 3 ("PUBLIC SAFETY") 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 United States Surgeon General, the United States
Centers for Disease Control, and the California Environmental Protection Agency
have each concluded that involuntary smoking by inhaling second-hand smoke
poses a significant public health hazard and can cause lung cancer and heart
disease;
WHEREAS, extensive medical and scientific research confirms that
tobacco smoke is harmful to smokers and non-smokers alike, triggering eye,
nose, throat, and sinus irritation; hastening lung disease, including emphysema;
and causing heart disease and lung cancer;
WHEREAS, the California Legislature enacted the "California
Occupational Safety Health Act of 1973" (contained within the California Labor
Code Sections 6300 et seq.) in order to assure safe and healthful working
conditions in California by, in part, limiting and/or prohibiting the smoking of
tobacco products in "enclosed places of employment';
WHEREAS, California Labor Code Section 6404.5 explicitly provides that
any place that is not defined as a "place of employment' (pursuant to Labor Code
Section 6404.5(d)) or other area where the smoking of tobacco products is not
regulated by Section 6404.5(e) "shall be subject to local regulation of smoking of
tobacco products";
WHEREAS, the California Legislature enacted the "California Indoor
Clean Air Act of 1976" (contained within the California Health & Safety Code
Sections 118875 et seq.) and limited and/or prohibited smoking within certain
specified areas frequented by the public in an effort to combat the health impacts
of tobacco smoking;
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WHEREAS, California Health & Safety Code section 118910 explicitly
provides that "A local governing body may ban completely the smoking of
tobacco, or may regulate smoking in any manner not inconsistent with [the Indoor
Clean Air Act] or any other provision of state law";
WHEREAS, California Civil Code Section 1947.5 explicitly authorizes
landlords of residential dwelling units to prohibit the smoking of tobacco products
on any portion of property where the dwelling units are located, including within
any dwelling unit, or other interior or exterior area;
WHEREAS, California Civil Code Section 1947.5(d) explicitly provides that
Section 1947.5 shall not be construed as to preempt any local ordinance that
restricts the smoking of cigarettes or other tobacco product;
WHEREAS, in 1996, the voters of the State of California approved
Proposition 215, enacting Section 11362.5 of the California Health & Safety Code
("Compassionate Use Act of 1996"), which limits the applicability of Sections
11357 (relating to the possession of marijuana) and Section 11358 (relating to
the cultivation of marijuana) of the Health & Safety Code as they pertain to the
use and/or cultivation of medical marijuana by "qualified patients";
WHEREAS, the possession, use, and cultivation of marijuana for other
purposes remains unlawful under the California Health & Safety Code, and
Federal law prohibits the possession, use, and cultivation of marijuana for
medical and non-medical purposes;
WHEREAS, the City Council of Temple City finds, determines, and
declares that the consumption of marijuana in certain enclosed and unenclosed
areas of the City is injurious to the public health, safety, and welfare, including,
but not limited to, in many of the same manners as the consumption of tobacco
products;
WHEREAS, in recognition of the dangers presented by the consumption
of marijuana — irrespective of the purpose behind the consumption, the California
Legislature (in California Health & Safety Code Section 11362.79) prohibits
"qualified patients" entitled to the protections of the Compassionate Use Act of
1996 from smoking "medical marijuana" in specified areas, including any place
where smoking is otherwise prohibited by law;
WHEREAS, California Health & Safety Code Section 11362.83 provides
that a City is not prohibited from adopting and enforcing any law that is consistent
with the Medical Marijuana Program (contained within California Health & Safety
Code Sections 11362.7 et seq. — and which includes Section 11362.79)
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THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Article C ("Second -Hand Smoke Control") of Chapter 2 ("Public
Health Code") of Title 3 ("Public Safety") of the Temple City Municipal Code is
hereby added as follows:
Article C. Second -Hand Smoke Control
3225 Title.
This Article may be referred to as the City's "Comprehensive Second -
Hand Smoke Control Ordinance".
3226 Purpose and Legislative Findings.
A. Purpose. The purposes of this Article are to:
1. Protect the public health, safety, and general welfare by
prohibiting smoking in public places and in the interior common areas of
multifamily residential housing under circumstances where one (1) or more
persons will be exposed to second-hand smoke;
2. Ensure a cleaner and more hygienic environment for the
City, its residents, its guests, and its natural resources;
3. Strike a reasonable balance between the needs of persons
who smoke and the needs of non-smokers, including children, to breathe smoke-
free air, by recognizing the threat to public health and the environment that
smoking causes, and by acknowledging that, when these needs conflict, the
need to breathe smoke-free air must prevail; and,
4. Recognize the right of City residents, workers, and visitors to
be free from unwelcome second-hand smoke.
B. Findings. The City Council hereby finds, determines, and declares
that:
1. It is estimated that only 15% of a cigarette's smoke is
inhaled by the smoker, while 85% is released into the air for others to breathe;
2. Extensive medical and scientific research confirms that
tobacco smoke is harmful to smokers and non-smokers alike, triggering eye,
nose, throat, and sinus irritation; hastening lung disease, including emphysema;
and causing heart disease and lung cancer;
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3. In 1992, the United States Surgeon General reported that
involuntary smoking by inhaling second-hand smoke (also called "environmental
tobacco smoke") can cause lung cancer in healthy non-smokers and poses a
significant public health hazard;
4. In 2006, the United States Surgeon General concluded that
a risk-free level of exposure to second-hand smoke does not exist, and neither
separating smokers from non-smokers nor installing ventilation systems
effectively eliminates second-hand smoke;
5. The United States Environmental Protection Agency ("US
EPA") has classified second-hand smoke as a Group A carcinogen, the most
dangerous class of carcinogen
6. The United States Centers for Disease Control and
Prevention ("CDC") has concluded that second-hand smoke contains
approximately 70 cancer-causing chemicals
7. The CDC has concluded that second-hand smoke causes
approximately three thousand (3,000) lung cancer deaths per year among adult
non-smokers in the United States, and that even brief exposure can damage
cells in ways that set the cancer process in motion;
8. The CDC has found that second-hand smoke causes
children to suffer from lower respiratory tract illness, such as bronchitis and
pneumonia; exacerbates childhood asthma; and increases the risk of acute
chronic middle ear infections in children;
9. The California Environmental Protection Agency has
concluded that second-hand smoke causes coronary heart disease in non-
smokers;
10. The California Air Resources Board has put second-hand
smoke in the same category as the most toxic automotive and industrial air
pollutants by categorizing it as a toxic air contaminant for which no safe level of
exposure exists;
11. Second-hand smoke is especially hazardous to particular
groups, including those with chronic health problems, the elderly, and children;
12. Inside buildings, tobacco smoke contributes significantly to
indoor air pollution;
13. The aesthetic impacts and odors of second-hand smoke
pose a nuisance and annoyance to non-smokers when in close proximity to
people who are smoking;
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14. Smoking in parks or recreational facilities endangers children
and other users by exposing them to second-hand smoke;
15. Within parks and recreational facilities, discarded cigarette
and cigar butts (which do not readily decompose) pose a particularly hazardous
risk to small children who sometimes ingest the butt or who handle it while it is
still hot;
16. Discarding a lighted cigarette or cigar butt onto the ground in
a City park or recreational facility not only has the potential to cause a fire, but
also is a major source of litter and pollution, by washing into storm drains and
then ultimately contaminating the ocean;
17. In outdoor dining areas; outdoor service areas; outdoor
gathering and event areas; enclosed common areas of Multi -Unit Residential
Housing Complexes; in proximity to entrances/exits, windows, and vents of
buildings open to the public, smoking endangers the health of non-smokers who
are in the same area;
18. Neither the United States Constitution nor the California
Constitution gives a person a constitutional right to smoke;
19. The consumption of controlled substances in certain
enclosed and unenclosed areas of the City poses a risk to the health, safety, and
welfare of the public, including, but not limited to, in many of the same manners
as the consumption of tobacco products
3227 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
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thereto) owns, controls, operates, occupies, manages, or maintains
City recreational facility shall mean an indoor or outdoor area, location, place,
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.
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.
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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 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 3232.6 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.
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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
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, or lighted cigarette of any kind), or the lighting 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, 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).
3228 Smoking Prohibited.
City:
A. Smoking is prohibited in the following areas within the City of Temple
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I . Citv Property. Except as otherwise provided by this Article or by
State or Federal law, no person shall smoke or otherwise permit, allow, or suffer
smoking in any City building or structure, City park or recreational facility, City
parking lot or structure, or City vehicle.
2. Public Areas. Except as otherwise provided by this Article or by
State or Federal law, no person shall smoke or otherwise permit, allow, or suffer
smoking within any of the following areas:
a. Enclosed public place;
b. Service area;
c. Outdoor dining area;
d. Outdoor public event;
e. Outdoor seating area;
f. Public transit station or stop.
3. Enclosed Common Areas of Multi -Unit Residential Housino
Complex. Except as otherwise provided by this Article or by State or Federal
law, no person shall smoke or otherwise permit, allow, or suffer smoking within
any enclosed common area of any Multi -Unit Residential Housing Complex.
B. Nothing in this Section shall be deemed to authorize or allow smoking
in any area where smoking is prohibited by State or Federal law.
3229 Smoking Prohibited Within Reasonable Distances.
A. Except as otherwise provided by this Article or by State or Federal law,
no person shall smoke or otherwise permit, allow, or suffer smoking within twenty
feet (20') of the property line of any real property on which a public or private
institution of learning for children (including pre-school, kindergarten, and grades
1-12) exists, except when the smoking occurs within a private residence located
adjacent to, or within a twenty (20') distance from said institution.
B. Except as otherwise provided by this Article or by State or Federal law,
no person shall smoke or otherwise permit, allow, or suffer smoking within twenty
feet (20') of any area in which smoking is prohibited under Section 3228 of this
Code except while actively passing on the way to another destination and
provided smoke does not enter any unenclosed area in which smoking is
prohibited.
C. Except as otherwise provided by this Article or by State or Federal law,
no person shall smoke or otherwise permit, allow, or suffer smoking within twenty
feet (20') of any entrance, window, or air intake vent to an enclosed area in which
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smoking is prohibited under Section 3228 of this Code except while actively
passing on the way to another destination and provided smoke does not enter
any unenclosed area in which smoking is prohibited.
D. Nothing in this Section shall be deemed to authorize or allow
smoking in any area where smoking is prohibited by State or Federal law.
3230 Other Requirements and Prohibitions.
A. Disoosal of Waste. No person shall dispose of used smoking or
tobacco product within any area in which smoking is prohibited, including within
any reasonable distance required by this Article.
B. Smoker's Waste Receptacles. Except as otherwise provided by
this Article or by State or Federal law, no person, employer, or nonprofit entity
shall cause the presence or placement of a smoker's waste receptacle (for
example, ash trays or ash cans) within any area in which smoking is prohibited
by law, including within any reasonable distances required by this Article.
Notwithstanding the foregoing, the presence of ash receptacles in violation of this
subsection shall not be a defense to a charge of smoking in violation of any
provisions of this Article.
C. Signs. "No Smoking" or "Smoke Free" signs, with letters of not less
than one inch (1") in height or 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) or any alternative signage approved by the City Manager shall
be conspicuously posted by the person, employer, business, or nonprofit entity
who or which has legal or de facto control of such place at each entrance to a
public place in which smoking is prohibited by this Article has occurred, or is
likely to occur. The City Manager shall post signs at each entrance to a public
place in which smoking is prohibited by this Article that is owned or controlled by
the City. Signage required by this subsection shall not be subject to Title 9,
Chapter 1, Article L ("Signs") of this Code. Notwithstanding the requirements of
this section, the presence or absence of signs shall not be a defense to the
violation of any other provision of this Article.
D. Required Lease Terms.
1. Every lease or other rental agreement for the occupancy of a
unit within a Multi -Unit Residential Housing Complex entered into, renewed, or
continued month-to-month on or after July 1, 2013, shall include:
a. A clause stating that smoking is prohibited within any
enclosed common area, and a reference to Section 3228.A.3 of this Code;
b. A clause stating that it is a material breach of the
lease or agreement to cause, permit, aid, abet, or conceal smoking within any
Page 10 of 14
interior common area of the Multi -Unit Residential Housing Complex; and,
C. A clause stating that all lawful occupants of the units
in the Multi -Unit Residential Housing Complex are third -party beneficiaries of the
clauses required by Subsections D.1.a and D.1.b of this Section.
2. The lease or agreement terms required by Subsection D.1 of
this Section are incorporated by force of law into any lease or other agreement
for the occupancy of a unit in a Multi -Unit Residential Housing Complex made on
or after the effective date of this Section which lease does not fully comply with
Subsection D.1 of this Section.
E. Intimidation. No person shall intimidate, threaten, or effect a
reprisal, or retaliate against another person who seeks to attain compliance with
one (1) or more of this Article's provisions.
F. Private Regulations. Nothing in this Article 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.
3231 Penalties and Enforcement.
A. Any person who causes, permits, aids, abets, suffers, or conceals a
violation of any provision of this Article shall be guilty of a misdemeanor offense
punishable in accordance with Chapter 2 of Title 1 of this Code.
B. The City Council declares that nonconsensual exposure to second-
hand smoke constitutes a public nuisance, and that the uninvited presence of
second-hand smoke on real property is a nuisance and a trespass.
C. The remedies provided by this Article are cumulative and in addition to
any other remedy available at law or in equity.
D. The City prosecutor, city attorney, any peace officer, any City Code
Enforcement Officer, or any other City Official designated by the City Manager
may enforce this Article.
3232 Private Enforcement.
A. The City Attorney or City Prosecutor may bring a civil action to enforce
this Article and to obtain the remedies specified below or otherwise in equity or at
law.
B. Any person acting for the interest of himself, herself, or of its members,
or of the general public (hereinafter, "private enforcer") may bring a civil action to
Page 11 of 14
enforce this Article with the remedies specified below, if both of the following
requirements are met:
1. The action is commenced more than sixty (60) days after the
private enforcer has given written notice of the alleged violation of this Article to
the City Attorney and to the alleged violator; and,
2. No person acting on behalf of the City or the State has
commenced or is prosecuting an action regarding the violation(s) which was or
were the subject of the notice on the date the private action is filed.
C. A private enforcer shall provide a copy of his, her, or its action to the
City Attorney within seven calendar days of filing it.
D. Upon settlement or judgment of any action brought pursuant to
Subsection (G) of this Section, the private enforcer shall give the City Attorney a
notice of that settlement or judgment and of the final disposition of the case. No
private enforcer may settle such an action, unless the City Attorney or the court
determines the settlement to be reasonable in light of the purposes of this Article
and any settlement in violation of this requirement may be set aside upon motion
to a court of competent jurisdiction by the City Attorney or City Prosecutor.
E. Upon proof of a violation of this Article, the court shall award the
following:
1. Damages in the amount of either
a. Actual damages according to proof;
b. $250 for each violation of this Article (hereinafter, "statutory
damages") where insufficient or no proof of actual damages has been proved.
Unless otherwise specified in this Article, each day of a continuing violation shall
constitute a separate violation. Notwithstanding any other provision of this
Article, no private enforcer suing on behalf of the general public shall recover
statutory damages based upon a violation of this Article if a previous claim
brought on behalf of the general public for statutory damages and based upon
the same violation has been adjudicated, whether or not the private enforcer was
a party to that earlier adjudication.
2. Restitution to the appropriate party or parties of the gains obtained
by way of violation of this Article.
3. Exemplary damages, where it is proven by clear and convincing
evidence that the defendant is guilty of oppression, fraud, malice, or a conscious
disregard for the public health and safety.
4. Attorney's fees and costs reasonably incurred by a prevailing party.
In any action brought on behalf of the City, Attorney's fees are not recoverable by
any person as a prevailing party unless the city manager, or a designee thereof,
Page 12 of 14
or an attorney for, and on behalf of, the city, elects in writing to seek recovery of
the city's attorney's fees at the initiation of that individual action or proceeding.
Failure to make such an election precludes any entitlement to, or award of,
attorney's fees in favor of any person or the city.
a. Provided that the city has made an election to seek attorney's
fees, an award of attorney's fees to a person shall not exceed the amount of
reasonable attorney's fees incurred by the city in that action or proceeding.
F. Upon proof of at least one violation of this Article, a private enforcer, the
City Attorney, City Prosecutor, any peace officer or code enforcement official
may obtain an injunction against further violations of this Article or as, to small
claims court actions, a judgment payable on condition that a further violation of
this Article occur within a time specified by the court.
G. Notwithstanding any legal or equitable bar, a private enforcer may bring
an action to enforce this Article solely on behalf of the general public. When a
private enforcer does so, nothing about such an action shall act to preclude or
bar the private enforcer from bringing a subsequent action on his, her, or its own
behalf based upon the same facts.
H. Nothing in this Article shall prohibit a private enforcer from bringing a
civil action in small claims court to enforce this Article, as long as the amount in
demand and the relief sought are within the jurisdiction of small claims court.
3233 Severability.
If any section, subsection, paragraph, sentence, clause or phrase of this
Article is declared by a court of competent jurisdiction to be unconstitutional or
otherwise invalid, such decision shall not affect the validity of the remaining
portions of this Article. The City Council declares that it would have adopted this
Article, and each section, subsection, sentence, clause, phrase or portion
thereof, irrespective of the fact that any one or more sections, subsections,
phrases, or portions be declared invalid or unconstitutional.
Page 13 of 14
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.
ORDINANCE NO. 12-964 HAD ITS FIRST READING ON NOVEMBER 20,
2012, ITS SECOND READING ON DECEMBER 4, 2012 AND WAS DULY
PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE
CITY OF TEMPLE CITY AT ITS REGULAR MEETING OF DECEMBER 4, 2012.
Attest
City Clerk
Page 14 of 14
Vincent Yu, Mayor
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