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Item 4.03 - Ordinance Amending Chapter 21, Article II of the MVCC Related to Prohibition and Regulation of Smoking in Certain Places AGENDA: February 14, 2012 4.3 COUNCIL CATEGORY: Consent REPORT DEPT.: City Manager's Office/City Attorney's Office .. TITLE: Adoption of Ordinance Amending CITY OF MOUNTAIN VIEW Chapter 21,Article II of the MVCC Related to Prohibition and Regulation of Smoking in Certain Places RECOMMENDATION 1. Adopt AN ORDINANCE OF THE CITY OF MOUNTAIN VIEW AMENDING CHAPTER 21,ARTICLE II OF THE MOUNTAIN VIEW CITY CODE RELATED TO PROHIBITION AND REGULATION OF SMOKING IN CERTAIN PLACES. (First reading: 6-1; Inks no) 2. Adopt AN ORDINANCE OF THE CITY OF MOUNTAIN VIEW AMENDING CHAPTER 21, ARTICLE II OF THE MOUNTAIN VIEW CITY CODE RELATED TO PROHIBITION AND REGULATION OF SMOKING IN CERTAIN PLACES. (First reading: 4-3;Inks,Macias and Means no) FISCAL IMPACT The City received a grant from the Santa Clara County Public Health Department to develop a policy to reduce exposure to secondhand smoke. Grant funds up to $53,788 are reimbursable to the City through the term of the grant (March, 2002). BACKGROUND AND ANALYSIS On January 24, 2012,the City Council introduced two ordinances to revise the City Code related to prohibition and regulation of smoking. Although the ordinances generally amend the same City Code provisions,the amendments were introduced upon two separate motions and votes by the City Council. The first motion introduced an ordinance to revise the City Code to conform to State law and prohibit smoking in picnic areas in City parks. The second motion introduced an ordinance to prohibit smoking in dining areas and included a reasonable distance requirement or "buffer zone." This is the second reading of the ordinances,which is required by the City Charter. If approved,the ordinances will become law May 15, 2012,90 days after the second reading. AGENDA: February 14,2012 PAGE: 2 PUBLIC NOTICING—Agenda posting. Prepared by: Approved by: OIL Kimberly Castro .ie L. Quinn Youth Resources Manager ity Attorney Nicole Clemens Daniel H. Rich Deputy City Attorney City Manager KC-NC/7/CAM 012-02-14-12M" Attachments: 1. Ordinance with Revisions to Conform to State Law and Prohibit Smoking in Picnic Areas 2. Ordinance to Prohibit Smoking in Dining Areas and Inclusion of a Reasonable Distance Requirement Attachment I ORDINANCE NO. AN ORDINANCE OF THE CITY OF MOUNTAIN VIEW AMENDING CHAPTER 21,ARTICLE II OF THE MOUNTAIN VIEW CITY CODE RELATED TO PROHIBITION AND REGULATION OF SMOKING IN CERTAIN PLACES WHEREAS,tobacco use and secondhand smoke have been repeatedly identified as health hazards, causing death and disease; and WHEREAS, creating smoke-free areas helps protect the health of the Californians; NOW,THEREFORE,it is the intent of the City Council,in enacting this ordinance, to provide for the public health, safety and welfare by discouraging the inherently dangerous behavior of smoking and protecting the public from exposure to secondhand smoke in the City of Mountain View. THE CITY COUNCIL OF THE CITY OF MOUNTAIN VIEW DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Article II,Section 21.47 of Chapter 21 is hereby amended to read as follows: "SEC. 21.47. Definitions. "City vehicle" shall mean any vehicle,including, but not limited to, trucks,vans or automobiles owned by the city. "Employee" shall mean any person who is employed by, or volunteers services to, any employer in consideration for direct or indirect monetary wages or profit. "Employer" means any person who employs the services of an individual person. "Enclosed" means a space or area completely separated by a ceiling,roof(s), and three or more walls that form a continuous perimeter, with appropriate openings for ingress and egress. "Outdoor amphitheater seating area" means any outdoor seating area available to the public at any amphitheater used for public performances. "Picnic area" means any area in a city park where picnic tables are located and designed, established or regularly used for consuming food or drink. -1- "Place of employment" means any enclosed area under the control of a private employer or public employer within the jurisdiction of the city which employees normally frequent during the course of employment, including but not limited to common and private work areas or offices,employee lounges,conference and meeting rooms, auditoriums, classrooms, stairways, elevators, rest rooms,hallways,vehicles, medical facilities, employee cafeterias and other enclosed facilities. "Public places" means enclosed areas within publicly and privately owned buildings, structures, facilities or complexes that are open to, used by or accessible to the general public, regardless of any fee or age requirement. Public places include,but are not limited to,entertainment facilities, personal service establishments (such as tailors, Laundromats and beauty salons), stores, malls,banks, dining establishments, hotels, motels,depots and transit terminals, theaters and auditoriums,enclosed sports arenas, convention centers, museums, galleries, polling places,child-care and day-care centers, schools, hospitals and other health-care facilities of any kind (including clinics, dental,chiropractic or physical therapy facilities), pharmacies, automotive service centers, general business offices,nonprofit entity offices and libraries. Public places further include,but are not limited to,hallways,rest rooms, stairways,escalators, elevators, lobbies,reception areas,waiting rooms, indoor service lines,checkout stations, counters and other pay stations, classrooms, meeting or conference rooms, lecture rooms, taxicabs, enclosed buses and bus waiting lines, enclosed bus and train shelters or other enclosed places open to the public and/or in which members of the general public congregate for service or otherwise frequent. Public places do not include common areas of apartments and condominiums. "Smoke" means the gases and particles released into the air by combustion when the apparent or usual purpose of the combustion is human inhalation of the resulting combustion products, such as, for example, tobacco smoke, and smoke from other controlled substances, except when the combusting material contains no tobacco and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense, and includes vapor from an electronic cigarette. "Smoking" means engaging in an act that generates Smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar or a lighted cigarette of any kind; or lighting a pipe, a hookah pipe,a cigar or a cigarette of any kind. "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco and smokeless tobacco. "Tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is incidental. "Tobacco vending machines" means any electronic or mechanical device or appliance, the operation of which depends upon the insertion of money or other thing -2- representative of value which dispenses or releases a tobacco product and/or tobacco accessories. Section 2. Article II,Section 21.49 of Chapter 21 is hereby amended to read as follows: "SEC. 21.49. Prohibition of smoking in certain places. Except as specified in Sec. 21.52, and except in any place or area where smoking is already prohibited by state or federal law,in which case those laws apply, smoking shall be prohibited in the following places within the city: a. All enclosed public places available to and customarily used by the general public and in all enclosed businesses patronized by the public. b. Places of employment. c. Semiprivate rooms of health facilities. d. Common areas in retirement facilities,and nursing homes. e. Outdoor amphitheater seating areas,including both fixed and informal seating areas,with a view of the stage. f. Picnic areas. Section 3. Section 21.50 of the Mountain View City Code is hereby repealed. Section 4. Article II,Section 21.52 of Chapter 21 is hereby amended to read as follows: "SEC. 21.52. Smoking—Optional areas. Notwithstanding any other provisions of this article to the contrary, and subject to any applicable provisions of state and federal law, in which case those laws apply, the following areas shall not be subject to the smoking restrictions of this article: a. Private residences, except when used as places of business for child or elder care, or as a home business employing one (1) or more employees other than the residents, during the hours the residence is used for business. b. Hotel and motel,inn, or other similar establishment guest rooms rented to guests, in conformance with state law. -3- c. Retail stores that deal primarily in the sale of tobacco products and smoking paraphernalia,in conformance with state law. d. On-stage smoking as part of a stage production,ballet or similar exhibition, in conformance with state law. e. Lobbies and common areas of apartments and condominiums, in conformance with state law. Section 5. Article II, Section 21.55 of Chapter 21 is hereby amended to read as follows: "SEC. 21.55. Penalties. a. The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity. b. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this article to fail to: properly post signs required hereunder; to provide signs for the use of employees in designating their area;to properly set aside required no smoking" areas; or to comply with any other requirements of this article. No person, employer or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, employer or nonprofit entity and in which smoking is prohibited by law, unless otherwise required by state or federal law. c. It shall be unlawful for any person to smoke in any area restricted by the provisions of this article. d. It shall be unlawful for any person or entity to retaliate in any manner against any person who asserts his or her rights under this article. e. Any person who violates subsections b or c hereinabove, or any other provisions of this article, shall be guilty of an infraction, punishable by: 1. A fine not exceeding one hundred dollars ($100) for a first violation. 2. A fine not exceeding two hundred dollars ($200) for a second violation of this article within one (1) year. 3. A fine not exceeding five hundred dollars ($500) for each additional violation of this article within one (1) year. -4- f. Violations of this article are subject to a civil action brought by the city, punishable by a fine of not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation. g. Causing, permitting,aiding, abetting or concealing a violation of any provision of this article shall also constitute a violation of this article. h. Any violation of this article is hereby declared to be a nuisance. i. In addition to other remedies provided by this article or by other law,any violation of this article maybe remedied by an enforcement action brought by the city, including,but not limited to, administrative or traditional nuisance abatement proceedings,civil or criminal code enforcement proceedings and suits for injunctive release." Section 6. The provisions of this ordinance shall he effective ninety (90) days from and after the date of its adoption. Section 7. It is the intent of the City Council of the City of Mountain View to supplement State and Federal law and not to duplicate or contradict such law, and this ordinance shall be construed consistently with that intention. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 8. Pursuant to Section 522 of the Mountain View City Charter,it is ordered that copies of the foregoing proposed ordinance be posted at least two (2) days prior to its adoption in three (3) prominent places in the City and that a single publication be made to the official newspaper of the City of a notice setting forth the title of the ordinance, the date of its introduction, and a list of the places where copies of the proposed ordinance are posted. Section 9. This ordinance is not subject to the California Environmental Quality Act("CEQA") pursuant to Sections 15060(c)(2) of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378 of the CEQA Guidelines because -5- it has no potential for resulting in physical change to the environment, directly or indirectly). The foregoing ordinance was regularly introduced at the Regular Meeting of the City Council of the City of Mountain View, duly held on the 24th day of January,2012, and will be given a second reading and presented for adoption at the Regular Meeting of said City Council,to be held on the 14th day of February, 2012. (SEAL) PUBLISHED: LORRIE BREWER, MMC, CITY CLERK CITY OF MOUNTAIN VIEW NC/7/ORD 012-11-21-110-1A -6- Attachment 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF MOUNTAIN VIEW AMENDING CHAPTER 21,ARTICLE II OF THE MOUNTAIN VIEW CITY CODE RELATED TO PROHIBITION AND REGULATION OF SMOKING IN CERTAIN PLACES WHEREAS, tobacco use and secondhand smoke have been repeatedly identified as health hazards, causing death and disease; and WHEREAS,creating smoke-free areas helps protect the health of the Californians; NOW,THEREFORE,it is the intent of the City Council,in enacting this ordinance, to provide for the public health, safety and welfare by discouraging the inherently dangerous behavior of smoking and protecting the public from exposure to secondhand smoke in the City of Mountain View. THE CITY COUNCIL OF THE CITY OF MOUNTAIN VIEW DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Article II,Section 21.47 of Chapter 21 is hereby amended to add the following: "SEC. 21.47. Definitions. "Dining area means any area, including streets and sidewalks,which is available to or customarily used by the general public, and which is designed, established or regularly used for consuming food or drink. "Reasonable distance" means a distance of 25 feet in any direction from an area in which smoking is prohibited. "Unenclosed area" means any area that is not enclosed." Section 2. Article IL Section 21.49 of Chapter 21 is hereby amended to add the following: "SEC. 21.49. Prohibition of smoking in certain places. g. Dining areas." -1- Section 3. Article II, Section 21.49.5 of Chapter 21 is hereby added to read as follows: "SEC. 21.49.5. Reasonable smoking distance required. a. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, operable window, opening,crack or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and provided smoke does not enter any enclosed area in which smoking is prohibited. b. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under Sec. 21.49 of this Article, 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. The prohibitions in Subdivisions a. and b. shall not apply to unenclosed areas of private residential properties." Section 4. The provisions of this ordinance shall be effective ninety (90) days from and after the date of its adoption. Section 5. It is the intent of the City Council of the City of Mountain View to supplement State and Federal law and not to duplicate or contradict such law, and this ordinance shall be construed consistently with that intention. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 6. Pursuant to Section 522 of the Mountain View City Charter,it is ordered that copies of the foregoing proposed ordinance be posted at least two (2) days prior to its adoption in three (3) prominent places in the City and that a single publication be made to the official newspaper of the City of a notice setting forth the title of the ordinance, the date of its introduction, and a list of the places where copies of the proposed ordinance are posted. Section 7. This ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378 of the CEQA Guidelines because -2- it has no potential for resulting in physical change to the environment, directly or indirectly). The foregoing ordinance was regularly introduced at the Regular Meeting of the City Council of the City of Mountain View, duly held on the 24th day of January, 2012, and will he given a second reading and presented for adoption at the Regular Meeting of said City Council,to be held on the 14th day of February, 2012 (SEAL) PUBLISHED: LORRIE BREWER, MMC, CITY CLERK CITY OF MOUNTAIN VIEW NC/7/ORD 012-11-21-110-2^ -3-