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HomeMy WebLinkAbout8.5 Secondhand Smoke Nuisance CITY CLERK File # D[5][b][Q]-[9][L)] AGENDA STATEMENT CITY COUNCil MEETING DATE: June 6,2006 SUBJECT: Declaration of Secondhand Smoke a Nuisance Report Prepared by Elizabeth H. Silver, Citv Allorney and Leah Peachey. Associate 4110rnev A TT ACHMENTS: None. RECOMMENDATION: qH' Provide Staff with direction as to whether the Staff and City Attorney should return to Council with an ordinance declaring smoking a nuisance, and if so, whether the ordinance should reflect the scope of Option I, Option 2, or Option 3, or provide other direction. FINANCIAL STATEMENT: Options 2 and 3 would require additional legal servi"es. The cost would be detennined on a case~by-"ase basis. DESCRIPTION: At the March 21, 2006 Council Meeting, Councilmember Kasie Hildenbrand requested that Staff prepare a Staff Report on the issue of secondhand smoke, which would allow the City Council the opportunity to "on sider an ordinance that would declare se"ondhand smoke a nuisance. This Staff Report is intended to provide the Council with its options in addressing the issue of secondhand smoke as a nuisance. Dublin's Nuisance Abatement Law Although the Duhlm Municipal Code is silent as to secondhand smoke as a nuisance, it does provide tilT several conditions that constitute a public nuisance, including abandoned vehides, dangerous buildings or structures, vicious dogs, flies, production of unreasonable odor and rodent infcstation, unreasonable noise and weeds. COpy TO: Page I of3 ITEM NO. ~. Cj 8183(111-1) Public Nuisance The California Civil Codc dcfines a nuisancc as "[a]nything which is injurious to health. ..or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment oflifc or property or unlawfully obstructs the free passage or use, in the customary manner, of any .public park, square street or highway" (Civ Code S 3479) Calithrnia Penal Code Scction 370 provides a ncarly idcntieal definition for nuisance. The Civil Code gocs on to clarifY that a public nuisance is one that affects the entire community, neighborhood, or any considerable number of persons at the same time, even if members ofthe community are affected differently (Civ Code S 34RO ) The California Supreme Court held that a nuisance must be substantial and unreasonable to constitute a public nuisance subject to abatement. (People ex rel. Gallo v Acuna (1997) 14 CalAth 1090, 1105.) The Court held that substantiality requires ''proof of significant harm" and defined "harm" as a ''real and appreciable invasion of the plaintiffs interests" that is "definitely offensive, seriously annoying or intolerable." (Ibid.) Pnvate Nuisance The Civil Code defines a private nuisance as all nuisances that are not public nuisances. (Civ Code 9 34Rl.) Like in a public nuisance action, the private nuisance plaintitl'must prove that a normal person within the community would find the nuisance to be substantial--meaning that tlle harm constitutes a real and appreciable invasion of the plaintiffs interests-and unreasonable-meaning that the haml o{the nuisance activity outweighs its social utility The distinction hetween a public and private nuisance is simply that a private nUIsance plaintitfmlght be able to prove harm to his or her interests while the harm might not rise to the level ofhann to the entire community Declaration of Nuisance bv Citv Ordinance Cities have the authority under their police power (CaI.Const., art. Xl, S 7) to declare what constitutes a nuisance by ordinance. (Gov Code, g~ 3R771 ) The effect of such a deelaration is to make the nuisance a nuisance per se, which means that there is no burden of proof on a plaintiff beyond the fact that the nuisance actually exists. (City of Costa Mesa v S1?Uer (1993) 11 Cal.AppA'h 37R, 3R2.) This lesser burden of proof applies if a Clty hnngs an aetwn in court to abate a public nuisance. Once a city has declared something to be a nuisance, an individual who files suit alleging a private nuisance would be able to use this declaration to support his or her private nuisance action as long as the individual sustains a pri vate mjury The Court of I\.ppeal held that "a plaintiff may maintain a privatc nuisance action based on a public nuisance when the nuisance causes an injury to plaintiffs private property, or to a private right incidental to such pnvate propert~" (Newhall Land and Farming Companv v Superior Court 1?/'Fresno Countv (1993) 19 Cal.App.4' 334,342.) EXlsting Secondhand Smoke Ordinances The Technical Assistance Legal Center (T ALCl has drafted a model ordinance that dedares secondhand smoke to be a nUIsance, Although we have not performed statewide research, we know anecdotally of one city that has adopted an ordinance declaring sewndhand smoke to be a public nUlsan"e. The City of Calabasas, California, adopted an ordinance, efleetJVe March 17,2001\ wh,ch declares secondhand smoke to be a public nuisance. (Calabasas Ordmanee No. 2006-217.) The ordinance provides that the public nuisance "may be remedied as such," which generally means that the city could take action to abate secondhand smoke as a public nuisance in court. In addition, the Calabasas ordinance goes beyond the public nuisance declaration to prohibit smokmg in parh"ular areas. The Citv's Options in Addresses Secondhand Smoke as a Nuisance The Council could amend the Dublin Municipal Code to declare secondhand smoke to be a nuisance. If the Council does so, the Council should consider whether it wants to provide for enforcement by the City The Council could indicate its intent that such a declaration is only to assist persons who bring actions for private nuisances. Altcrnatively, it could provide for City enforcement and abatement. If the latter, the Council could establish a policy for City enforcement, whIch could be based on public complaints only or only if Council speclfically authorizes expenditure of funds to enforce the declaration. Finally, the City may provide for abatement of the nuisance by a private party, based on a private nuisance action. Staff requests direction as to whether ilie Council would like to pursue a secondhand smoke ordinance, and ifso, whether the ordinance should reflect the scope of Option I, Option 2, or Option 3,. Option 1: Ordinance declaring secondhand smoke a nuisance, providing for abatement of the nuisance by a private party, based on a private nuisance action, and indicating City policy not to spend City resources to bring abatement actions. Option 2: Ordinance declaring secondhand smoke a nuisance, providing for abatement of the nUIsance by a private party, based on a private nuisance action, and indicating City policy to ahate nuisances only if the Council specifically authorizes expenditure offunds to enforce the declaration. Option 3: Ordinance declaring secondhand smoke a nuisancc and providing for enforcement by established policy, such as complaint-based enforcement only RECOMMENDATION Staffrecommends that the City Council provide Statr with direction as to whether thc Staff and City Attorney should return to Council with an ordinance deelaring smoking a public nuisance, and if so, whether the ordinanec should reflect the scope of Option I, Option 2, or Option 3, or provlde other direction.