HomeMy WebLinkAbout07-05 CC Ordinance
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ORDINANCE 07-05
AN ORDINANCE OF THE CITY OF TEMECULA
PROHIBITING SMOKING IN PUBLIC PLACES, PLACES
OF EMPLOYMENT, AND CERTAIN OTHER LOCATIONS
AND ADDING CHAPTER 36 TO TITLE 8 OF THE
TEMECULA MUNICIPAL CODE REGULATING SMOKING
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. The Temecula Municipal Code is amended by the addition of a
new Chapter 36 to Title 8 thereto to read as follows:
"CHAPTER 8.36 SMOKING IN PUBLIC PLACES
8.36.010.
Findings and Intent
The City Council finds, determines, and declares that:
A. Tobacco use and exposure to secondhand smoke cause death and
disease and impose great social and economic costs; and
B. More than 440,000 people die in the United States from tobacco-related
diseases every year, making it the nation's leading cause of preventable death; and
C. The World Health Organization estimates that by 2030, tobacco will
account for 10 million deaths per year, making it the greatest cause of death worldwide;
and
D. The United States Environmental Protection Agency has found
secondhand smoke to be a risk to public health and has classified secondhand smoke
as a group A carcinogen, the most dangerous class of carcinogen; and
E. Secondhand smoke is responsible for an estimated 38,000 deaths among
non-smokers each year in the United States, which includes 3,000 lung cancer deaths
and 35,000 deaths due to heart disease; and
F. 87.9% of non-smokers showed detectable levels of cotinine (a metabolite
of nicotine) in their blood, the most likely source of which is secondhand smoke
exposure; and
G. Secondhand smoke exposure adversely affects fetal growth with elevated
risk of low birth weight and increased risk of Sudden Infant Death Syndrome in infants
of mothers who smoke; and
H. Secondhand smoke exposure causes as many as 300,000 children in the
United States under the age of 18 months to suffer lower respiratory tract infections,
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such as pneumonia and bronchitis; exacerbates childhood asthma; and increases the
risk of acute, chronic, middle-ear infections in children; and
I. The total cost of smoking in California was estimated as $475 per resident
or $3,331 per smoker per year, for a total of nearly $15.8 billion in smoking-related costs
in 1999 alone; and
J. Cigarettes, cigars, pipes and other smoking materials are the leading
cause of fire deaths in the United States, causing an estimated 31,200 structure fires
and 830 deaths in 2001; and
K. 84% of Californians are non-smokers; and
L. There is no Constitutional right to smoke; and
M. State law prohibits smoking in virtually all indoor places of employment
reflecting the state policy to protect against the dangers of exposure to secondhand
smoke; and
N. California law declares that anything that is injurious to health or obstructs
the free use of property so as to interfere with the comfortable enjoyment of life or
property is an nuisance; and
O. Local governments have broad latitude to declare nuisances and are not
constrained by prior definitions of nuisance; and
P. It is the intent of the City Council of the City of Temecula in enacting this
Chapter, to provide for the public health, safety, and welfare by discouraging the
inherently dangerous behavior of smoking around non-tobacco users; by protecting
children from exposure to smoking where they live and play; and by protecting the
public from nonconsensual exposure to secondhand smoke in and around their homes;
and
Q. It is the intent of the City Council of the City of Temecula to supplement
applicable state and federal laws pertaining to smoking and not to duplicate, contradict,
or frustrate such laws. This Ordinance shall be construed consistently with that
intention.
8.36.020.
Definitions
For the purposes of this Chapter the following definitions shall govern unless the
context clearly requires otherwise:
"Business" means any sole proprietorship, partnership, joint venture, corporation,
association, or other entity formed for profit-making purposes or that has an Employee,
as defined in this Section.
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"Dining Area" means any area available to or customarily used by the general
public that is designed, established, or regularly used for consuming food or drink.
"Employee" means any person who is employed; retained as an independent
contractor by any Employer, as defined in this section; or any person who volunteers his
or her services for an Employer, association, nonprofit, or volunteer entity.
"Employer" means any person, partnership, corporation, association, nonprofit or
other entity who employs or retains the service of one or more persons, or supervises
volunteers.
"Enclosed" means:
1 . Any covered or partially covered space having more than 50% of its
perimeter area walled in or otherwise closed to the outside such as, for example, a
covered porch with more than two walls; or
2. Any space open to the sky (hereinafter "uncovered") having more than
75% of its perimeter area walled in or otherwise closed to the outside such as, for
example, a courtyard; except that an uncovered space of three thousand (3000) square
feet or more is not Enclosed, such as, for example, a field in an open-air arena.
"Nonprofit Entity" means any entity that meets the requirements of Section 5003
of the California Corporations Code 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 or purposes of the entity and not to private gain. A public
agency is not a nonprofit entity within the meaning of this section.
"Park" means any community park, neighborhood park, special use, or any other
recreational facility maintained by the City of T emecula.
"Person" means any natural person, partnership, cooperative association,
corporation, personal representative, receiver, trustee, assignee, or any other legal
entity.
"Place of Employment" means any area under the legal or de facto control of an
Employer, Business, or Nonprofit Entity that an Employee or the general public may
have cause to enter in the normal course of operations, but regardless of the hours of
operation; including, for example, indoor and outdoor work areas, construction sites,
taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities,
long-term health facilities, and warehouses.
"Playground" means any park or recreational area designed in part to be used by
children that has play or sports equipment installed or has been designated or
landscaped for play or sports activities, or any similar facility located on public or private
school grounds, or on City grounds.
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"Public Place" means any place, public or private, open to the general public
regardless of any fee or age requirement; including, for example, bars, restaurants,
clubs, stores, stadiums, parks, playgrounds, taxis, and buses.
"Reasonable Distance" means a distance of at least twenty-five (25) feet in any
direction from an area in which smoking is prohibited. This distance should be
reasonably sufficient to make it unlikely that secondhand smoke will enter non-smoking
areas.
"Recreational Area" means any area, public or private, open to the public for
recreational purposes regardless of any fee requirement, including, for example, parks,
gardens, sporting facilities, stadiums, and playgrounds.
"Service Area" means any area designed to be or regularly used by one or more
persons to receive or wait to receive a service, enter a public place, or make a
transaction whether or not such service includes the exchange of money; including, for
example, automated teller machines ("ATMs"), bank teller windows, telephones, ticket
lines, bus stops, and cab stands.
"Significant Tobacco Retailer" means any tobacco retailer that derives seventy-
five percent (75%) or more of gross sales receipts from the sale or exchange of tobacco
products and tobacco paraphernalia.
"Smoking" or to "Smoke" means holding or possessing a lighted tobacco product
or paraphernalia (including but not limited to, a lighted pipe, lighted hookah pipe, lighted
cigar, or lighted cigarette of any kind), or any other lighted weed or plant the smoke of
which is commonly inhaled, or the lighting of a tobacco product, tobacco paraphernalia,
or any other weed or plant the smoke of which is commonly inhaled.
8.36.030. Prohibition of Smoking in Public Places, Places of Employment,
and Other Areas
A. Enclosed Places. Smoking is prohibited in the following Enclosed places
except in places listed in subsection 8.36.030(D) below, and except in such places in
which smoking is already prohibited by state or federal law:
1. Public Places;
2. Places of Employment;
3. Enclosed areas that are adjacent to an Enclosed area in which
smoking is prohibited by any other provision of this Chapter, state law, or federal law
and have a common or shared air space; such as, without limitation, openings, cracks,
air ventilation systems, doorways, hallways, and stairways. For these purposes, the
fact that smoke enters one Enclosed area from another Enclosed area is conclusive
proof that the areas share a common or shared air space;
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4. Enclosed areas that have common or shared ventilation, air
conditioning, or heating system with an Enclosed area in which smoking is prohibited.
Notwithstanding any other provision, the fact that smoke enters one Enclosed area from
another Enclosed area is conclusive proof that the areas share a common or shared air
space.
B. Unenclosed Places. Smoking is prohibited in the following Unenclosed
places except in such places in which smoking is already prohibited by state or federal
law in which case the state or federal law applies:
1. Places of Employment;
2. Service Areas;
3. Dining Areas;
4. Parks, Playgrounds, and Recreational areas;
5. Ticket, boarding, and waiting areas of transit depots; and
6. The sites of public events including, for example, sports events,
entertainment, speaking performances, ceremonies, pageants, and fairs, provided
however that this prohibition shall not prevent the establishment of a separate,
designated smoking area set apart from and no larger than the primary event area.
C. Unless otherwise prohibited by law, smoking is permitted in the following
Enclosed places:
1. Significant tobacco retailers, if minors are prohibited at all times
from entering the store.
2. By performers during theatrical productions, if smoking is a part of
the theatrical production;
3. Private residential property, except when designated as non-
smoking under Chapter 30 of Title 17 of this Code or used as a childcare or health care
facility subject to licensing requirements and children, patients, or Employees are
present;
4. Up to twenty-five percent (25%) of hotel and motel guest rooms, if
the hotel or motel permanently designates particular guest rooms as nonsmoking rooms
such that seventy-five (75%) or more of its guest rooms are nonsmoking and ashtrays
and matches are permanently removed from such nonsmoking rooms. Permanent "no
smoking" signage shall be posted in nonsmoking rooms.
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8.36.040.
Reasonable Smoking Distance Required
A. Smoking is prohibited in all Unenclosed areas within a Reasonable
Distance of:
1. Any entrance, opening, crack, or vent into an Enclosed area in
which smoking is prohibited, except while the person smoking is actively passing on the
way to another destination and so long as smoke does not enter any Enclosed area in
which smoking is prohibited.
2. Any Unenclosed area in which smoking is prohibited under
subdivision (B) of Section 8.36.030 of this Chapter except while the person smoking is
actively passing on the way to another destination.
B. The prohibitions in subdivisions (A) of this Section shall not apply to areas
of private property that are not part of a Place of Employment or Public Place.
8.36.050.
Prohibitions and Duties Generally
A. No person, Employer, Business, or Nonprofit Entity shall knowingly permit
the Smoking of Tobacco Products in an area which is under the legal or de facto control
of the person, Employer, Business, or Nonprofit Entity and in which smoking is
prohibited by this Chapter.
B. No person, Employer, Business, or Nonprofit Entity shall knowingly or
intentionally permit the presence or placement of ash receptacles, such as, for example,
ash trays or ash cans, within an area which is under the legal or de facto control of the
person, Employer, Business, or Nonprofit Entity and in which smoking is prohibited,
including, without limitation, inside the perimeter of any Reasonable Distance required
by this Chapter.
C. Notwithstanding any other provision of this Chapter, any owner, landlord,
Employer, Business, Nonprofit Entity, or other person who controls any property,
establishment, or Place of Employment regulated by this Chapter may declare any part
of such area in which smoking would otherwise be permitted to be a nonsmoking area.
D. "No Smoking" or "Smoke Free" signs, with letters of no less than one inch
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)
shall be clearly, sufficiently and conspicuously posted in every Enclosed and
Unenclosed place in which Smoking is prohibited by this Chapter, by the person,
Employer, Business, or Nonprofit Entity that has legal or de facto control of such place.
For purposes of this chapter, the City Manager or designee shall be responsible for the
posting of signs in regulated facilities owned or leased in part by the City.
Notwithstanding this provision, the presence or absence of signs shall not be a defense
to the violation of any other provision of this Chapter.
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8.36.060.
Enforcement
The remedies provided by this Chapter are cumulative and in addition to any
other remedies available at law or in equity.
A. Violations of this Chapter are subject to penalty pursuant to Chapters 1.21
and 1.24 of the Temecula Municipal Code.
B. No Person shall intimidate, harass, or otherwise retaliate against any
Person who seeks to attain compliance with this Chapter. Moreover, no Person shall
intentionally or recklessly expose another Person to secondhand smoke in response to
that Person's effort to achieve compliance with this Chapter.
C. Causing, permitting, aiding, abetting, or concealing a violation of any
provision of this Chapter is prohibited.
D. A violation of this Chapter is hereby declared to be a public nuisance.
E. In addition to other remedies provided by this Chapter or otherwise
available at law or in equity, any violation of this Chapter may be remedied by a civil
action brought by the City, including, without limitation, administrative or judicial
nuisance abatement proceedings, civil or criminal code enforcement proceedings, and
suits for injunctive relief.
Section 2. Environmental Findina. The City Council hereby finds that this
Ordinance is exempt from the requirements of the California Environmental Quality Act
("CEQA"). To the extent that the Ordinance applies to Places of Employment, it
regulates working conditions by ensuring that employees and volunteers are not
exposed to the harmful effects of second-hand smoke and is therefore categorically
exempt from CEQA pursuant to Title 14 of the California Code of Regulations, Section
15324(c). The Ordinance is also exempt from CEQA in its entirety pursuant to Title 14
of the California Code of Regulations, Section 15061(b)(3) because it can be seen with
certainty that there is no possibility that the Ordinance may have a significant effect on
the environment. The Ordinance will have no adverse environmental affects because it
will reduce the public's exposure to the harmful effects of second-hand smoke.
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Section 3. Severabilitv. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance, or its application to any person or
circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this
Ordinance, or its application to any other person or circumstance. The City Council of
the City of Temecula hereby declares that it would have adopted each section,
subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of
the fact that anyone or more other sections, subsections, subdivisions, paragraphs,
sentences, clauses or phrases hereof be declared invalid or unenforceable.
Section 4. The City Clerk shall certify the passage and adoption of this
ordinance and to cause this ordinance to be published as required by law.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of
Teme",'a !hI, 8" day of May, 2007. ~
ATTEST:
[SEAL]
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify
that the foregoing Ordinance No. 07-05 was duly introduced and placed upon its first
reading at a meeting of the City Council of the City of Temecula on the 24th day of April,
2007, and that thereafter, said Ordinance was duly adopted by the City Council of the
City of Temecula at a meeting thereof held on the 8th day of May, 2007, by the following
vote:
AYES:
5
COUNCIL MEMBERS: Comerchero, Edwards, Naggar, Roberts,
Washington
NOES:
o
COUNCIL MEMBERS: None
COUNCIL MEMBERS: None
COUNCIL MEMBERS: None
ABSENT: 0
ABSTAIN: 0
ones, MMC
City Clerk
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