City Council Meeting: July 25, 2006
Agenda Item:8-A
To: Mayor and City Council
From: Marsha Jones Moutrie, City
Attorney
Subject: Council Request That Staff Review
Recommended
Action
Staff recommends that Council direct the City
Attorney’s Office to prepare an ordinance providing the public greater
protection from second-hand smoke, also known as environmental tobacco smoke
(“ETS”) in the following locations: outdoor dining areas; outdoor service
areas; areas within 20 feet of entrances or windows to buildings open to the
public; the Third Street Promenade; and the Farmers Markets.
Executive
Summary
On February 14, 2006
Council directed Staff to review the recent report of the California Air
Resources Board classifying second-hand smoke as a toxic air contaminant;
review recent legislation in other locations; and suggest measures that Council
might take in the area of second-hand smoke regulation.
The Board’s report
provides the most authoritative finding to date of the health dangers of ETS in
Discussion
The
CARB Report
On
January 25, 2006 the Air Resources Board officially identified second-hand
smoke, or ETS, as a “toxic air contaminant” pursuant to Health and Safety Code
Section 39660.
This
action culminated a process of several years during which the Air Resources
Board staff developed a report determining the public’s potential exposure to
ETS, while the Office of Environmental Health Hazard Assessment determines if
exposure to the substance poses a potential health risk. Both agencies then
prepared draft reports which were released for public review and comment. The
revised reports were submitted to a scientific review panel, an independent panel
of nine scientific experts who reviewed the report for scientific accuracy. The
panel approved the report and prepared separate findings which were submitted
along with the staff report to the Air Resources Board for consideration at a
public hearing. The Board then made its final determination that ETS be
classified as a “toxic air contaminant.”
The
panel’s testing of ETS included outdoor locations throughout the state. Among
its findings was that outdoor nicotine (a marker for ETS) concentrations in some
outdoor locations such as outside office buildings, schools, businesses,
airports and amusement parks was comparable to those found inside smokers’
homes.
The
most notable new health finding to come from the scientific studies underlying
the Board’s report was that ETS exposure increases breast cancer in younger,
non-smoking, pre-menopausal women. ETS had already been linked to adult
incidences of lung and nasal sinus cancer, heart disease, eye and nasal
irritation, and asthma.
Among
other facts, the Board’s report also noted the following health statistics
resulting from second-hand smoke exposure each year in
• Over 400 additional lung cancer deaths
• Over 3,600 cardiac deaths
• About 31,000 episodes of children’s
asthma
•
About 21 cases of SIDS
• About 1,600 cases of low birth weight in
newborns
• Over 4,700 cases of pre-term delivery
Now
that ETS has been identified as a toxic air contaminant, the Board’s next step
is to prepare a risk reduction report on potential actions to reduce ETS
exposure in
Implications
of the CARB Report
The Air
Resources Board’s Report is the most significant governmental finding to date
about the health dangers of second-hand smoke in
In 1992
the U.S. Environmental Protection Agency released a landmark report on ETS. The
report found that ETS causes 3,000 deaths a year and classified it as a Class A
carcinogen, the most dangerous class of carcinogen. Numerous government studies
since 1992 have established that ETS is not only a carcinogen but also causes heart
disease and numerous other serious health problems among nonsmokers, especially
children, and kills thousands of people each year.
The
2006 Report marks the first time that the state of
Other
Scientific Studies Released Since Council’s Last Action
International Agency for Research
on Cancer of the World Health Organization (2004): A scientific working group of 29 experts from
12 countries reviewed all significant published evidence related to tobacco
smoking and cancer, both active and involuntary and officially classified ETS
as carcinogenic to humans.
Study published in the British
Medical Journal (2004): This study, conducted over twenty years, found that
exposure to secondhand smoke is even more dangerous than previously thought and
increases the risk of heart disease among non-smokers by as much as 60 percent.
This study is the first to show a direct physical link between secondhand smoke
exposure and an increased risk of heart disease.
Legislation
In Other Locations
Current
The
following is a summary of other local legislation that goes beyond
1. Outdoor dining areas
When Staff last reported to Council
in 2004, seven
A 2001
Statewide Field Institute Poll revealed that 74 percent of all Californians supported
smoke-free outdoor dining areas. More recently, a local survey found that 85 percent of adults in
Locally
at least seventeen restaurants participate in Fresh Air Dining program
(www.freshairdining.com) and voluntarily prohibit outdoor smoking at their
dining areas.
2. Outdoor
service areas
Outdoor waiting areas or “service
areas” are places that people wait in a fixed location for a service. These
include bus stops, ATM lines, and movie theater lines. In 2004 Council
prohibited smoking at outdoor service areas in Santa Monica but only where the
service in question is provided by the government (i.e., primarily bus stops).
Currently there are nine
3. Adjacent
to buildings open to the public
The fastest-growing area of local
outdoor ETS regulation is against smoking in locations that are adjacent to
businesses and other indoor locations where smoking is already prohibited.
As of
2004, when Council last reviewed the issue, two other cities in
4. Shopping
and tourist locations
A growing number of outdoor theme
parks, shopping areas and other popular tourist destinations have prohibited
smoking. Many of these provide designated areas for smoking. Staff is aware of
the following examples:
Tourist destinations:
•
• Sea World
• Six Flags (nationwide)
• Universal Studios – designated areas
•
• The
•
• Dodger Stadium
•
Outdoor Shopping areas:
•
•
•
La Cumbre Shopping Center (Santa Barbara)
• Sacramento Downtown Mall (outdoor dining areas only)
• Ontario Mills (outdoor outlet mall)
Farmers Markets
The California Farmers Markets
Association has its own rule that “smoking is not permitted in produce display
and immediate sales area[s].” In addition, the cities of
5. Hotels
State law requires hotels to
maintain at least 35 percent of rooms as non-smoking. At least eight
In
6. Multi-unit
residential common areas.
To date there has been no
legislation at the state or local level governing smoking inside residences.
However, at least eight cities have prohibited smoking at indoor common areas
of multi-unit residential buildings. (Staff’s position is that these areas
already are covered by state law.) In addition, two cities (Davis and
Calabasas) have banned smoking at outdoor common areas as well. The City of
7. Penalties
and enforcement
Staff
anticipates that enforcement of the proposed ordinance would be handled
similarly to each of the previous areas of ETS regulation in
• Publicity and public education
• Signage
• Grace period and warnings
• Prosecution of violations if necessary
In each
prior area of local regulation and enforcement (bars, parks, beaches and Pier),
a similar pattern of evolution was experienced: initial protest and resistance,
followed by publicity and education, followed by acceptance and compliance.
8. The
Calabasas law
Effective March 17, 2006, the city
of Calabasas adopted the strongest outdoor smoking restrictions in the nation.
Calabasas prohibits smoking in all public places, indoor and outdoor, with two
exceptions: certain designated locations in shopping areas; and in cases where
no non-smokers are present and there is no reason to believe that anyone will
arrive (e.g., due to time of day). Calabasas provides both criminal and civil
remedies for the City Attorney’s Office; and a private civil right of action
for the general public.
Previous Council Actions
Council has taken two prior actions in the area of outdoor ETS
regulation. In April 2003 Council adopted an ordinance that prohibits smoking in
all parks in the City. In March 2004 Council adopted an ordinance prohibiting
smoking at all City beaches, government service waiting areas, and the Santa
Monica Pier.
Recommendations
In
light of the ample existing evidence regarding the many significant health
dangers of ETS; the recent CARB designation of ETS as a toxic air contaminant
and its focus on risks of outdoor ETS; the strong trend among California cities
and other jurisdictions to protect non-smokers from the effects of outdoor ETS;
and the stated public policy of the State of California to end smoking among
Californians, Council should expand the City’s current ETS prohibitions to
provide greater protection to the public and employees.
Staff
recommends that Council prohibit smoking in the following outdoor areas:
1. all outdoor dining areas;
2. all outdoor service areas;
3. within 20 feet of entrances and
windows to buildings open to the public;
4. on the
5. at all Farmers Markets
These
areas share common features that make protection from ETS particularly
important. Dining areas, service lines, and the twenty-foot radius from public
buildings all involve non-smokers who are stationary and are forced to inhale
second-hand smoke when others are smoking nearby. Dining areas and the Farmers
Markets involve the display, purchase and consumption of food and drink. The
Third Street Promenade, like the City’s parks and beaches, is a popular
recreation destination that is prone to excess trash accumulation from cigarette
butts. It also includes numerous benches, dining patios, waiting lines, and
other locations where non-smokers are stationary
Council
could consider possible compromises, if it finds them necessary and
appropriate, that some other cities have employed. Most notably, designated
smoking areas could be employed in the downtown area generally and the Third
Street Promenade in particular. Also, a passing-through exception could be
employed with respect to a 20-foot radius rule and the Third Street Promenade
(as in Berkeley and Davis).
As to
hotels, it appears that local businesses are voluntarily maintaining a
non-smoking room percentage (87%) far greater than required by state law (35%).
Hence there appears no need for legislation of hotels at this time.
As to
multi-unit residential areas, Staff believes that no action is appropriate at
this time due to the fact that virtually no other jurisdictions have regulated
the area and there is insufficient information about the relative pros and
cons.
Public Outreach
Staff
has spoken with the following local agencies to determine their positions on
the recommended areas for outdoor ETS regulation:
Bayside
District Corporation: Staff attended
a recent Board meeting of the Bayside District at which Board members and
members of the public asked questions and voiced concerns about a possible ban
on smoking on the Third Street Promenade. The Board voted 7-1 to oppose such a
ban.
Convention and
Visitors Bureau: Staff spoke with
Misti Kerns, President of the Santa Monica Convention and Visitors Bureau about
the various possible areas of ETS regulation. The primary concern she expressed
was on the issue of signage – both its importance in educating and enforcing
such rules for visitors and also in not having the burden fall on the CVB to
obtain signs. Kerns indicated that most tourists understand smoking
restrictions if they are told beforehand.
California
Restaurant Association: Staff spoke
with Andrew Casana of the CRA about a possible ban on smoking at outdoor dining
areas. He voiced a concern that restaurants might be found liable for smoking
taking place outside and adjacent to outdoor dining areas. He stated that the
CRA would not oppose a ban on smoking at outdoor dining areas.
Pier
Restoration Corporation: The PRC
Board met on June 7, 2006 and decided to take no position on the question of
additional outdoor smoking regulation.
Apartment
Association of Greater
Budget/Financial Impact
No significant cost is associated with the recommended action.
Staff anticipates that signage will be available at no cost or minimal cost to
the City. Publicity, education, and enforcement are expected to entail only
modest amounts of City Staff time and no specific expense.
Prepared by:
Adam
Radinsky, Head, Consumer Protection Unit
Paula
Rockenstein, Consumer Affairs Specialist
|
Approved: |
|
Forwarded to Council: |
|
|
|
|
|
Marsha Jones Moutrie City
Attorney |
|
P. City Manager |
APPENDIX
B
CHAMBER
OF COMMERCE BUSINESS SURVEYS
First survey - 174 responses
(position on banning smoking at these areas):
1. Outdoor dining
areas: 61% favor, 38% oppose
2. Outdoor service
areas: 61% favor, 38% oppose
3. Twenty-foot radius
of building entrances: 63% favor, 35% oppose
4. Increase required
non-smoking hotel rooms: 57% favor, 35% oppose
5.
6. Outdoor stadiums
and theaters: 66% favor, 30% oppose
7. Common areas of
multiunit residentials: 61% favor, 36% oppose
8. New smoking
ordinance (in general): 61% favor, 38% oppose
Chamber staff felt that the first
survey may not have been accurate since more people responded than had
originally been sent the survey. The Chamber therefore conducted a second
survey, which had 38 responses. Those results were:
1. Outdoor dining
areas: 54% favor, 43% oppose
2. Outdoor service
areas: 57% favor, 41% oppose
3. Twenty-foot radius
of building entrances: 54% favor, 43% oppose
4. Increase required
non-smoking hotel rooms: 51% favor, 46% oppose
5.
6. Outdoor stadiums
and theaters: 59% favor, 41% oppose
7. Common areas of
multiunit residentials: 50% favor, 44% oppose
8. New smoking
ordinance (in general): 56% favor, 42% oppose