City Council Meeting: April 8, 2008

Agenda Item: 7-C

To: Mayor and City Council

From: Marsha Jones Moutrie, City Attorney

Subject: Introduction And First Reading Of Ordinance Amending The Outdoor Smoking Ordinance To Make Restaurant Owners And Managers Liable Under Certain Circumstances, Reduce The Amount Of Fines, and Prohibit Smoking On Library Grounds; and Informational Update On Anti-Smoking Legislation Of Other Cities Including Multi-Unit Residential Areas, Tobacco Retailer Licensing, and Non-Binding Resolution Regarding Pharmacy Sales Of Tobacco

Recommended Action

Staff recommends that Council approve at first reading the attached proposed ordinance. Staff also seeks Council direction for possible additional areas of tobacco regulation as described below.

Executive Summary

The proposed ordinance would amend the City’s anti-smoking ordinance to create liability for business owners and managers who knowingly allow smoking in outdoor dining areas; require signage at outdoor dining areas; reduce the fines for all violations of the ordinance from $250 to $100 for first violations; and prohibit smoking on all Library grounds. There is no significant cost associated with the proposed ordinance; the periodic undercover inspections by staff at outdoor dining areas would not involve Police Department personnel.

Staff also presents here information requested by Council on anti-smoking legislation adopted by other cities in three other areas: multi-unit residential housing; tobacco retailer licensing; and a non-binding resolution recommending that pharmacies not sell tobacco products.

Background

Following public discussion at its meeting of December 11, 1007, Council directed staff to prepare an ordinance amending the City’s anti-smoking ordinance to create liability for business owners and managers who knowingly allow smoking in outdoor dining areas; and to prohibit smoking on all Library grounds. Council directed staff to research the possibility of reducing the fine structure of the ordinance and of requiring signage at outdoor dining areas as part of this same amendment. (A copy of the December 11, 2007 staff report is attached as Attachment B.) Council also directed staff to report back with information on anti-smoking legislation adopted by other California cities in three other areas: multi-unit residential housing; tobacco retailer licensing; and a non-binding resolution recommending that pharmacies not sell tobacco products.

Discussion

A. Proposed Ordinance

Business Liability In Outdoor Dining Areas

Pursuant to Council’s direction the proposed ordinance would make business owners and managers liable for knowingly and intentionally allowing smoking at outdoor dining areas. The proposed standard (knowingly and intentionally allowing smoking) is identical to that of the state law that applies to indoor workplaces, Labor Code Section 6404.5.

Staff also recommends including a requirement that outdoor dining areas include no-smoking signs sufficient to apprise all diners of the law. The three Los Angeles-area cities that have made business owners liable in this area, all require such signage. Calabasas requires that signs be conspicuously posted at each entrance and include letters of at least one inch in height or the universal no-smoking symbol. Burbank requires that signs be conspicuously displayed including multiple signs as appropriate for larger areas to ensure that signs be readily visible to all diners. Beverly Hills has a similar requirement to Burbank’s.

Signs are considered helpful to both education and enforcement of no-smoking rules at outdoor dining areas. They facilitate both private enforcement (one diner informing another of the law) and enforcement by employees.

Reduction of Fine Amount

Staff recommends that the fine for violations of the ordinance be reduced from $250 to $100 for first violations; and that subsequent violations within one year be fined at $200 and $500 respectively. This recommendation is based on two factors. First, City Attorney and Police Department staff have received complaints from some cited individuals that the $250 fee is disproportionately high, especially when taking into account the mandatory penalty assessment that the court adds in every criminal case (2.6 times the base fine plus $20), which increases the actual amount paid in some cases to $920. Second, staff has researched the fine structures of other Southern California cities’ anti-smoking laws and confirmed that most cities have the $100-200-500 fine structure for violations within one year (for example, Calabasas, Beverly Hills and Burbank). This is also the fine structure of the state law that prohibits smoking at indoor workplaces.

A base fine of $100 is still relatively high for an infraction. Also, those three cities and the state law all provide that the initial base fine be up to $100, and not a mandatory amount of $100. Council could consider whether to make the $100 base fine mandatory; or whether the fine should be “up to” $100, $200 and $500. In any event, staff believes that it would enhance the efficacy of the overall ordinance if the fines were reduced.

Smoking On Library Grounds

In light of complaints from the public and staff at the Main Library, Council directed staff to add all Library grounds to the list of locations where smoking is prohibited in the ordinance. Staff believes that the prohibition should include a “curb to curb” approach which would protect all ramps, walkways, and other common areas at the City’s libraries.

B. Information On Additional Areas Of Regulation

Multi-Unit Residential Areas

Since the December 11, 2007 Council meeting, several cities have updated or formalized their smoking laws covering multi-unit residential areas:

Calabasas: Prohibits smoking in all common areas and directs landlords to create designated outdoor smoking areas. Declares secondhand smoke a public nuisance. In multi-building complexes, requires 80 percent of buildings (not units) to be completely smoke-free by 2012.

Oakland: Prohibits smoking in all common areas and directs landlords to create designated outdoor smoking areas. Requires owners to designate and disclose all smoke-free units to prospective tenants and condominium buyers.

Belmont: Prohibits smoking in all multi-unit housing including apartments and condominiums. Units which do not share a floor or a ceiling with another unit are exempt. The housing portion of the ordinance will not take effect for 14 months so that current leases can expire and new leases be prepared. (Belmont is the only city to date to prohibit residential smoking this broadly. (The city does not have a rent control law.)

Staff has also organized a chart showing the measures that have been taken to date by other local governments in California covering residential smoking. (See Attachment C.) The following is a summary of those laws:

• Ten California cities have regulated smoking at residential locations.

• Six cities have prohibited smoking at outdoor residential common areas; of these, three cities allow or require property owners to designate outdoor smoking areas.

• Four cities have declared second-hand smoke a public nuisance. This can facilitate legal actions against smokers in some situations.

• Three cities have no-smoking requirements for certain future multi-unit residential construction.

• Two cities require owners to disclose to prospective renters or condominium buyers which units allow smoking and which do not.

Two concerns in this area raised at the previous Council meeting were preserving rent control tenants’ rights and educating landlords about potential legal measures to protect tenants from second-hand smoke while not infringing on smoking tenants’ legal rights. Some have voiced a concern that anti-smoking laws might be used by some landlords to evict rent-controlled tenants. Others have voiced a concern that smoking might be considered a “housing service” for which a tenant would be entitled to compensation for removing, and which could create eviction protections in a tenant. “Housing service” is defined as any “benefit [or] privilege . . . connected with the use or occupancy of any rental unit.” City Charter §1801(d). It is an open question whether a tenant’s right to smoke might be construed as a housing service.

In any event, there are numerous options for potential residential smoking regulation that would not impact the rights of existing tenants.

Staff has received approximately 25 complaints and inquiries from the public on this issue in the past year. Some tenants have complained that their health (or their children’s) is being damaged by other tenants’ smoking and they have requested action by the City to address this problem since no current law directly covers this conduct. These inquiries appear to be increasing in recent months. In addition, staff is informed by S.A.F.E., a local anti-smoking organization focused on residential smoking, that there are other similar complaints in the City.

Regardless of whether Council directs any regulatory action in this area, staff recommends that Council direct staff to conduct public education for landlords, tenants and others in this area to clarify existing rights, responsibilities, and options.

Tobacco Retailer Licensing

An increasing number of California local governments are adopting tobacco retailer licensing ordinances. These laws are intended to help reduce the sale of cigarettes to minors. Although state law already imposes criminal fines for such sales, that law has not appreciably reduced the incidence of the illegal sales. Licensing is seen as a more powerful – and cost-free – way to address the problem. The ordinances require all sellers of tobacco products in a city to pay an annual fee of between $200 and $600 that in turn pays for the administration and enforcement of various requirements aimed at reducing sales of tobacco to minors. The most common requirements of these laws (in addition to prohibiting sales to minors) are banning mobile sales of tobacco products and requiring sales clerks to request proof of age when the customer appears to be below a certain age. They are enforced through inspections and undercover operations. Violations result in various lengths of suspension of the license – meaning the retailer cannot sell tobacco products during that time. Most cities mandate the eventual revocation of the license for multiple violations within a five-year period. Enforcement is typically handled by various combinations of the police department, code enforcement, and (by contract) County health departments.

To date, more than fifty local governments in California have adopted tobacco retailer licensing laws. In 2006, 15 new cities added such laws (including Burbank, Glendale and Davis); in 2007, 13 more cities did so (including Carson, Santa Ana and Riverside).

Attachment D is a summary of the requirements of tobacco retailer licensing laws adopted by selected California cities in recent years.

Resolution Encouraging Pharmacies Not To Sell Tobacco Products

The United States is the only country in the world where pharmacies still sell cigarettes. Hospitals have stopped selling tobacco products. The Los Angeles County Department of Public Health and the American Lung Association are encouraging local governments to adopt non-binding resolutions that encourage all local pharmacies to stop selling tobacco products. By far the largest number of pharmacies that still sell cigarettes are the major chains (Rite-Aid, Sav-On, Longs, etc.).

If Council were to adopt such a resolution, the American Lung Association would send a letter to each pharmacy in the City advising them of the resolution.

Alternatives

As to the proposed ordinance, Council could consider alternatives to reducing the initial fine from $250 to $100. These include keeping the fine as it is; or using an accelerated schedule for subsequent fines only for businesses (in outdoor dining areas). Council could also consider whether to make a $100 fine a mandatory or maximum figure. As to the libraries, Council could consider a more limited scope of the area covered.

As to the three areas of new information provided here, Council could consider various amendments to the City’s anti-smoking ordinance as described above.

Public Outreach

Staff (including City Attorney and City Manager personnel) plan to conduct a major new public education campaign for the overall outdoor smoking ordinance, preferably to coincide with the adoption of the proposed ordinance. The City Manager has approved new funding to pay for this campaign. Staff has released a Request for Proposals for the potential design and help with implementation of this campaign. Staff also continues to work closely with the Police Department and various business groups to coordinate the enforcement and education of the ordinance.

Financial Impacts & Budget Actions

Adoption of the proposed ordinance would have no substantial financial impact. Added enforcement of the outdoor dining area provision would involve periodic staff time for undercover inspections. However, since direct confrontation and citation would not be necessary, no involvement of Police Department personnel with this aspect of the ordinance is expected. As to the Library provision, staff expects that most enforcement will be through informal means; and that required police involvement would be minor.

Prepared by:

Adam Radinsky, Head, Consumer Protection Unit

Attachments: A: Proposed Ordinance

B: December 11, 2007 staff report

C: Chart of other cities’ residential smoking regulation

D: Select summary of tobacco retailer licensing laws

Approved:	Forwarded to Council:
Marsha Jones Moutrie City Attorney	P. Lamont Ewell City Manager