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HomeMy WebLinkAboutItem 8.1 SmokingPollutionControlOrd C~TV CLERK F~le # D0~[Q]{2l0 AGIE~DA STATEME~T C~TY COUNC~l MEIET~~G DATlE December 18, 2007 SUBJECr ConSideratIOn of Amendments to the CIty of Dublm Smokmg PollutIOn Control Ordmance Report Prepared by Roger Bradley Admmlstratlve Analyst A'fT ACHMENl'S 1 DublIn MUnICIpal Code Chapter 5 56 - Smokmg PollutIon Control Tobacco Control Ordmances Passcd by Alameda County J un sdl ctI ons State of Cahfonna Smokmg Laws City of Dub 1m Tobacco Retailer License Program OvervIew Smoke Free Housmg Pohcy Table Pohcy and Enforccment OptIOns for MultI-Unit Housmg 2 3 4 5 RECOMMENJI)AlfIO~ Staft recommends that the City Council consIder VIce Mayor HIldenbrand's request to evaluate the need to amend sectIons of the City's Smokmg PollutIon Control Ordmance and provide Staff wIth duectIon as to which changes, If any, should be pursued :!FINANCIAL ST ATEMENl' DIrectIon to research and prepare an Ordmance With all the below changes would reqUIre approximately 30 hours from the City Attorney's Office at a cost of$6,000 and approxImately 60 hours from the City Manager's Office to prepare and research the amendments DlESCRllPTION At the City CounCIl Meetmg on September 18,2007, VIce Mayor Hildenbrand requested that Staff prepare a report for CIty CouncIl's conSIderatIOn outlmmg proposed amendments to the City's current Smokmg PollutIon Control chapter of the Dublm MUnICIpal Code- Attachment 1 Vice Mayor HIldenbrand mdIcated that there arc seven areas ofmterest that she would lIke conSIdered as part ofthese amendments, whIch are listed below For companson purposes, a IIstmg of vanous smokmg related poliCIes adopted by Alameda County JunsdIctIons can be found m Attachment 2 COpy 1'0 Janice lLmne, Tobacco Condron Program, Anameda County Page 1 of5 liTEM NO g, \ r Ilouncll\Agenda Statements\2007 2008\15 :.mokmg ord challgls rinal 3 doc (1/ Reasonable Distance Increase Current Law o Smokmg IS prohIbIted wIthm a reasonable distance, defined as 15 feet, from any mam entrance mto an enclosed area and from any unenclosed area m which smokmg IS prohibited except while actively passmg on the way to another destmatlon and wIthout entenng or crossmg any area m which smokmg IS prohIbited o Reasonable distance means a dlstdnce that ensures that occupants of an area In which smokmg IS prohibited are not exposed to secondhand smoke created by smokers outsIde the area o A reasonable dIstance IS set at 25 feet for playgrounds and tot lot sandbox areas State Law o Smokmg IS prohIbited m an outdoor area wIthm 20 feet of a mam eXIt, entrance, or operable wmdow of a CIty, county, or State owned or leased bUlldmg o Pnvate bUlldmgs are not addressed by State law o In addItIon, a recent State law prohIbIts smokmg wIthm covered parkmg structures Covered parkmg lots are defined as areas that are deSIgnated for the parkmg of vehIcles and are enclosed or contam a roof or celhng Vice Mayor's Proposal o An mcrease III the City's reasonable distance footage to meet the State's publIc bUlldmg standard of20 feet, but thiS standard would be applied to all bUlldmgs CitYWide and where appropnate Tobacco Retailer LlcenslDJ! Current Law o There IS currently no local Tobacco Retailer Llcensmg Ordmance m place o The City currently receives grant fundmg through the Shemffs Office to perform two complIance checks each year at Dubhn's tobacco retailers, ensunng that they are not sellmg tobacco products to mIllors ThiS fund1l1g IS scheduled to cont1l1ue through 2009 State Law o Tobacco retmlers must be IIccnsed by the State Board of Equalization (BOE) for each tobacco retmllocahon o Each retmler must pay a onetIme lIcense fee of $100 for each retmIlocatlOn The lIcense must be renewed annually at no cost to the retmler o The current license program assesses penalties and fines for busmesses that sale tobacco products to m1l10rs Fourth to seventh conVictIons m a 12-month penod each result m a 90 day suspensIOn of the license An eIghth convictIon m a 24-month penod results III the revocatIOn of the retail license o IndiVidual penalties mdY be dssessed upon convlctJon for tobacco sales to mmors VIOlators are subject to eIther a cnmInal actIon for misdemeanor or a CIVil actIOn pumshable by a fine of $200 for the first offense, $500 for a second offense, and $1,000 for a thIrd Both the busmess and the employee may be prosecuted under State law o The State IS only able to take actIon on lIcense related penaltIes If 13% or more of youths were able to purchase cigarettes dunng each year's StatewIde survey o State law states that nothmg preempts or supersedes any local tobacco control law other than those related to the collectIon of state taxes, and that local lIcensmg laws may proVIde for the suspensIOn Page 2 of5 or revocation of a local license for any vIolatIOn of a state tobacco control law (California Busmess and ProfessIOns Code sectlon 22971 3) VIce Mayor's Proposal o Present this as an mformatlonal Item to Council so that Council may consIder such an Ordinance at a future tIme and date should the current compliance-check fundmg though the Shemffs Office expIre ThiS Item would reqmrc tobacco retailers wLthm the CIty to obtam a local license 111 addltlOn to the State's Under such an Ordmance, sellIng tobacco WIthout a license would be a cnme, and the lIcense can be suspended or revoked for vIOlatIons of tobacco control laws o Enforcement would Include at least two random complIance checks each year o Also, the Item would seek to create a broad defimtlOn of tobacco product sales, whIch would 1l1clude the selling of fad tobacco products (candy cigarettes, mcotme water, etc) ThiS would allow the City to regulate and/or outnght prohibit the sale of such products Smoke Free Multl-famllv lImts Current Law o Council has passed a Secondhand Smoke Ordmance, which allows a pnvate CitIzen to purse legal remedies to abate secondhand smoke as a nUIsance o In additIon, smokmg IS prohIbIted wIth1l1 the follow.lpg enclosed places common areas of multI- umt, multI-resIdence, or multI-fanl1ly bUIldmgs mcludmg, but not lImited to, apartments, condomInIUms, retIrement faCIlitIes, and nursmg homes o Smokmg IS also prohlblted m areas that have a common or shared air space WIth other enclosed areas III which smokmg IS prohibIted such as aIr condltIOmng systems, heatmg systems, ventIlatIOn systems, entnes, doorways, hallways, and stamvays State Law o In apartment and condomInmm complexes, the mdoor common areas (mcludmg hallways, staIrwells, laundry rooms, and recreatIon rooms) are subject to workplace smokmg prohIbitIOns contamed m the California Labor Code, If these areas are places of employment V,ce Mayor'~ Proposal o ReqUIre that 50% percentage ofumts m new and eXIstmg multI-famIly rental rcsIdences be deSignated as smoke-free o MultI-famIly rental reSIdences are defined as premIses that contaIn a number as low as two umts, whIch dre not occupIed by d ldIldlord (A reSIdence that IS occupIed by the landlord or owner IS conSidered d pnvdte reSidence and IS exempt) o Umts that are already extant wIll be phased m as smoke-free over a fourteen month penod, or untll the legal occupant vacates the Unit, whichever IS first o ReqUire that apartment complexes dIsclose to prospective tenants the number and location of any smoke-free umts wlthm a complex, location of any smokmg areas, and any procedures for addressmg smokmg-related complamts Page 3 of 5 Smoke Free Cltv Sponsored lEvents Current Law o None, although the CIty has never had a tobacco company sponsor a City event Federal Law o As a result of certam lawsUit settlement agreements, each settlmg tobacco company may engage m only one brand name sponsorshIp many 12-month penod A natIOnal or multI-state senes or tour Will count as one brand name sponsorship o The settlement agreements prohibIt brand name sponsorship of events m whIch the mtended audience IS compnsed of a slgmficant percentage of youth (slgmficant IS not defined), events m whIch partiCipants or contestants are under the age of 18, concerts, and football, basketball, baseball, soccer, or hockey leagues V,ce Mayor's Proposal o ProhIbIt any CIty events from havIng a sponsor that IS affiliated wIth tobacco companies and tobacco related entItIes o ProhIbit smokmg at CIty event locations wIth desIgnated areas for smokers Common Outdoor Areas Current Law o Smokmg IS prohibIted m chIldren's play areas and IS prohIbited wIthm a mmlmum of 25 feet [rom a playground or a tot lot sandbox area State Law o Current law prohIbits smokmg m chIldren's play areas and withIn 25 feet of a playground or a tot lot sandbox area Vice Mayor's Proposal o Expand the preclusIOn of smokmg to common outdoor areas or outdoor areas used by all tenants of multl-fanuly dwellings o Common outdoor areas mclude recreatIon facilities (e g , basketball courts and sWlmmmg pools), common outdoor space (e g , courtyards and paths), and parkIng areas Licensed Care Centers Current Law o Smokmg IS prohIbited wIthm homes that are lIcensed as daycare centers durmg their hours of operatIOn State Law o Current State law prohibits smokIng WIthIn homes that are licensed as daycare umts dunng the hours of operatIOn, and It allows for CItIes to adopt Ordmances that are more stnngent Vlce Mayor's Proposal o ProhIbitIOn of smokmg 24 hours a day and 7 days a week wIthm busmesses that prOVide care services such as chlldcare, adult-care, and healthcare actIvItIes Page 4 of5 Smoke :!Free Parks Current Law o Smokmg IS prohibited m chIldren's play areas and smokmg IS prohibIted wlthm a mmlmum of25 feet from a playground or a tot lot sandbox area State Law o Current law prohibits smokmg m chIldren's play areas and wlthm 25 feet ofa playground or a tot lot sandbox area VIce Mayor's Proposal o ProhibIt smokmg withIn the City's parks as has been done m EmeryvIl1e Livermore has a 100 foot prohlbltJon of smokmg from bmldmgs, tnals, and recredtJon areas RJECOMMENDAl'ION Staff recommends that the City CouncIl consIder Vice Mayor Hlldcnbrand's request to evaluate the need to amend sectIOns ofthc City's Smokmg PollutIOn Control OrdInance and provide Staff With directIOn as to winch changes, If any, should be pursued Page 5 of 5 Chapter 5 56 SMOKING POLLUTION CONTROL 1 ~ 3). Chapter 5 56 SMOKING POLLUTION CONTROL Sections 5 56 010 Title 556020 Findings and purpose 556030 Applicability 556040 Definitions 556050 Prohibition of smoking In public places and places of employment 556060 Duty of employer, business, or nonprofit entity 556070 Reasonable smokmg distance reqUlred-15 feet 5 56 080 Posting of Signs 556090 Retaliation prohibited 5 56 100 PublIC education by city 5 56 110 Public education-CooperatIOn With other agenCies 556115 Tobacco self.servlce displays and tobacco samples prohibited 5 56 120 InterpretatIOn 5 56 130 Enforcement-Administrative officer deSignated 556140 Violation-Penalty 5 56 150 Appeal process 5 56 160 Secondhand smoke-Declaration of nUisance 5 56 010 Title ThiS Chapter shall be known as 'the smoking pollution control ordinance (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1000) 556020 Findings and purpose A The City Council fmds that 1 Numerous studies have found that tobacco smoke IS a major contributor to Indoor air pollution, and 2 Reliable studies have shown that breathing secondhand smoke IS a significant health hazard for certain population groups, including elderly people, individuals With cardiovascular disease, and individuals WIth Impaired respiratory function, including asthmatiCS and those With obstructive aIrway disease, and 3 Health hazards Induced by breathing secondhand smoke Include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstnctlon and bronchospasm, and 4 Nonsmokers With allergIes, respiratory diseases and those who suffer other III effects of breathmg secondhand smoke may experience a loss of Job productiVity or may be forced to take pen odIC Sick leave because of adverse reactions to same, and 5 Numerous studies have shown that a majority of both nonsmokers and smokers deSire to have restrictions on smokmg In publiC places and places of employment, and 6 Smoking IS a documented cause of fires, and cigarette and cigar burns and ash stams on merchandIse and fixtures cause economiC losses to busmesses 1:1~~ ~'I Ivfl~07 10\ Iili ACC~M rENT :n. http I/www codepubltshmg comlca/Dubhn/Dublln05/Dublm055E Chapter 5 56 SMOKING POLLUTION CONTROL 0< 0;(.3:t. B Accordingly, the City Council finds and declares that the purposes of this chapter are 1 To protect the public health and welfare by prohibiting smoking In public places except In deSignated smokmg areas, and by regulating smokmg In places of employment, and 2 To stnke a reasonable balance between the needs of smokers and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have pnonty (Ord 2-94 S 1 (part) Ord 13-86 S 1001) 556030 Applicability All areas and facilities owned by the city shall be subject to the provIsions of this chapter (Ord 18-02 S 2 (part) Ord 2-94 S 1 (part) Ord 13-86 S 1003) 556040 Definitions The follOWing words and phrases, whenever used In this chapter, shall be construed as dehned In this section Bar' means an area that IS devoted to the serving of alcoholic beverages for consumptron by guests on the premises and In which the service of food IS Incidental to the consumption of beverages and In which persons younger than twenty-one (21) years of age are at all times excluded "Business" means any sole propnetorshlp, partnership, JOint venture, corporation or other bUSiness entity formed for profit-making purposes, including retail estabftshments where goods or services are sold as well as profeSSional corporations and other entities where legal, medical, dental, englneenng, archrtectural or other profeSSional services are delivered Dining area" means any area containing a counter or table upon which meals are served or any area deSigned, established, or regularly used for consuming meals Employee" means any person who IS employed by any employer or hired as an mdependent contractor In conSideration for direct or Indirect monetary wages or profit, and any person who volunteers hiS or her services for a nonprofit entity "Employer means any person, partnership, corporation or nonprofit entity, including a municipal corporation, who employs the services of one or more persons Enclosed means closed In by roof and four walls with appropriate openings for Ingress and egress "Nonprofit entity means any corporation, unincorporated association or other entIty created for chantable educational, political, SOCial or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain A public agency IS not a "nonprofit entity within the meaning of thiS section "Place of employment" means any area under the control of a pubhc or pnvate employer that employees may have cause to enter dunng the normal course of employment, Including, but not limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and classrooms, cafeterias and hallways, except that a pnvate residence IS not a place of employment unless It IS used as a child care or a health care facIlity Public place" means any area In which the public IS InVited or In which the public IS permitted, including, but not limited to banks, educational faCIlities, health http /Iwww codepubhshmg comlca/Dublm/DubhnOS/Dubhn0556 html 10/29/2007 Chapter 5 S6 SMOKING POLLUTION CONTROL c3 ~_3ol facIlities, public transportation facIlities, reception areas, restaurants, retail food production and marketing establishments, retail stores, theaters and waiting rooms "Reasonable distance means a distance that ensures that occupants of an area In which smoking IS prohibited are not exposed to secondhand smoke created by smokers outside the area Except as provided below, this distance shall be a minimum of fifteen (15) feet unless the application of the fifteen (15) foot minimum would place the smoker In a potentially unsafe location, In which case a reasonable distance" shall be a location closer than fifteen feet which does not place the smoker In a potentially unsafe location A "reasonable distance shall be a minimum of twenty-five (25) feet from a playground or a tot lot sandbox area "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, pnvate or public school cafetena, and any other eating establishment, organrzatlon, club, boardinghouse or guest house, which gives or offers food for sale to the public, guests, patrons, members or employees Retail tobacco store' means a retail store utilized prlmanly for the sale of tobacco products and accessones "Secondhand smoke means the tobacco smoke created by burning or carrying any hghted pipe, cigar, or cigarette of any kind, and the smoke exhaled by an IndiVidual who engages In smoking Self-service display" means the open display of tobacco products or tobacco paraphernalia In a manner that IS acceSSible to the general public Without the assistance of the retailer or employee of the retailer "Smoking" means the consumption of tobacco by Inhaling, exhaling, burning or carrYing any lighted pipe, cigar or cigarette of any kind 'Sports arena means sports paVilions, gymnasiums, health spas, bOXing arenas, sWimming pools, roller and Ice nnks, bowling alleys and other Similar places where members of the publiC assemble to engage In phYSical exerCise, participate In athletiC competition, or witness sports events 'Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking matenals of all types, cigarette roiling machines, and any other Item deSigned for the smoking or mgestlon of tobacco products "Tobacco product means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, cheWing tobacco, dipping tobacco, bldlS, or any other preparation of tobacco Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia "Tobacco retailing' shall mean the dOing of any of these thmgs ThiS definition IS Without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange Vending machine means any electromc or mechanical deVice or appirance, the operation of which depends upon insertion of money, whether In COin or In paper bill, or other thmg representative of value, which dispenses or releases tobacco products and/or tobacco accessorres (Ord 15-06 991, 2, Ord 18-02 92 (part) Ord 2-94 9 1 (part) Ord 13-86 9 1002) 5 56 050 Prohibition of smokmg m public places and places of employment A Smokmg shall be prohibited In any enclosed publiC place, bUSiness, restaurant, or place of employment wlthm the city of Dublin except In the enclosed places Identified In California Labor Code Section 6404 5(d), or Its successor B Smoking shall be prohibited In the follOWing enclosed places http IIwww GOdepubhshmg comJca/DubhnlDubhn05/Dublm0556 html 10/29/2007 Chapter 5 56 SMOKING POLLUTION CONTROL Lf~ 1 Common areas of multi-unit, multi-residence, or multi-family bUildings including, but not limited to, apartments, condominiums, retirement facIlities, and nursing homes and 2 Areas that have a common or shared air space with other enclosed areas In which smoking IS prohibited such as, without limitation, air conditioning systems, heating systems, ventilation systems, entries, doorways, hallways, and stairways C Smoking shall be prohibited In the following unenclosed places 1 Dining areas that are part of a restaurant, business, nonprofit entity, place of employment, or located In any public place, 2 Children's play areas, 3 Any place where people are uSing or waiting for a serVice, entry, or a transaction whether or not such service Includes the exchange of money including, but not limited to, ATMs, bank teller Windows, telephones tIcket lines, bus stops and cab stands D No person shall provide or place ash receptacles such as, without limitation, ashtrays or ash cans, within an area In which smoking IS prohibited, including, without limitation, Inside the perimeter of any reasonable smoking distance required by thIs chapter E Notwithstanding the exception In subsection A of this section for enclosed places Identlfted In California labor Code Section 6404 5(d) or Its successor, place of employment" shall Include retail or wholesale tobacco shops and private smokers' lounges, as such terms are defined In California labor Code Section 64045(d)(4) (Ord 29-05 ~ 1, Ord 23-05 ~ 1, Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1004) 556060 Duty of employer, business, or nonprofit entity A No employer, busmess, or nonprofit entity shall knowingly or Intentionally permit the smoking of tobacco products In an area which IS under the employer's, business, or nonprofit entity's control and In which smoking IS prohibited B No employer, business, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, Without limitation, ash trays or ash cans, Within an area which IS under the employer's, business', or nonprofit entity's control and In which smoking IS prohibited, Including, Without limitation, inSide the perimeter of any reasonable smokmg distance required by this chapter C Notwlthstandmg any other provIsion of this chapter, any employer, business, nonprofit entity, or other person who controls any area may declare that any part of such area In which smoking would otherwise be permitted IS a nonsmoking area (Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1005) 5 56 070 Reasonable smokmg distance reqUIred-iS feet A Smoking shall be prohibited Within a reasonable distance, as defined In this chapter, from any main entrance Into an enclosed area In which smoking IS prohibIted except while actively passing on the way to another destination and Without entering or crossing any area In which smoking IS prohibited B Smoking shall be prohibited Within a reasonable dIstance, as defined In thIs chapter, from any unenclosed area In which smoking IS prohibited except while actively passing on the way to another destination and Without entering or crossing any area In which smoking IS prohibited (Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1 006) http I/www codepubhshmg comlcafDubhnlDublm05/Dubhn0556 html 10/29/2007 Chapter 5 56 SMOKING POLLUTION CONTROL ?~3;t 556080 Postmg of Signs A 'Smoking or No Smoking signs, whichever are appropriate, with letters of not less than one-Inch (1 n) 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 or outside of every bUilding or other place where smoking IS controlled by this chapter, by the owner, operator, manager or other person having control of such bUIlding or other place When a Sign IS posted on the exterior of a bUilding to Indicate no smoking, It shall Include the distance limitations contained In this chapter B Every theater owner, manager or operator shall conspicuously post signs In the lobby stating that smoking IS prohibited within the theater or auditOrium, and In the case of motion picture theaters, such Information shall be shown upon the screen for at least five (5) seconds prior to the showing of each feature motion picture (Ord 18-02 ~ 2 (part) Ord 2-94 S 1 (part) Ord 13-86 ~ 1007) 556090 RetaliatIOn prohibited No person or employer shall discharge, refuse to hire, or In any manner, retaliate against any employee or applicant for employment because such employee or applicant exerCIses any rights afforded by this chapter (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1010) 5 56 100 PubliC education by city A The City Manager shall engage In a continuing program to explain and clarify the purposes of this chapter to citizens affected by It, and to gUide owners, operators and managers In their compliance With It B The City Manager shall leave the responsibility of conducting a public education campaign regarding the health consequences of smoking to other governmental and health agenCies equipped With the needed expertise to conduct such campaigns (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1011) 556110 PubliC education-Cooperation With other agencies The City Manager shall annually request other governmental and educational agencies having faCIlities wlthrn the city to establish local operating procedures In cooperation and compliance With this chapter The City Manager shall urge federal, state, county and special school dlstrrct agenCies to enforce their eXisting smokrng control regulations and to comply voluntarily With this chapter (Ord 2-94 ~ 1 (part) Ord 1 3-86 ~ 1 01 2) 556115 Tobacco self-serVice displays and tobacco samples prohibited A It IS unlawful for any person to display tobacco products or tobacco paraphernalia by means of a self-service display or to engage In tobacco retailing by means of a self-service display Tobacco retailing by means of a vending machine IS prohibited by this section B No person shall knowingly distribute or furnish WIthout charge, or cause to be furmshed Without charge to the general public, cigarettes or other tobacco products, at any event open to the public, or In any public place Including but not limited to, any rrght-of-way, mall or shopprng center, park, playground and any other dlstrrct, or any park dlstrrct, except In retail tobacco stores (Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part)) http //WWW Godepubhshmg comlcalDubhnlDubhn05IDublm0556 html 10/29/2007 Chapter 5 56 SMOKING POLLUTION CONTROL b ~3.2 5 56 120 Interpretation This chapter shall not be Interpreted or construed to permit smoking where It IS otherwise restricted by other applicable laws (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1013) , 556130 /Enforcement-Administrative officer designated A Enforcement shall be Implemented by the City Manager B Any citizen who desires to regIster a complaint hereunder may InitIate enforcement With the City Manager, or his designees C Any owner, manager, operator or employer of any establishment controlled by this chapter shall have the right to Inform persons Violating this chapter of the appropriate provIsions thereof o Notwithstanding any other provISions of this chapter, a private citizen may bring legal action to enforce this chapter (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1008) 556140 VIolatIOn-Penalty A It IS unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the regulation under this chapter to fall to comply WIth ItS provIsions B It IS unlawful for any person to smoke In any area restTlcted by the provIsions of thiS chapter C Any person who Violates any provIsion of thiS chapter shall be gUilty of an infraction, punishable by 1 A fine not exceeding one hundred dollars ($100), for first Violation, 2 A fine not exceeding two hundred dollars ($200), for a second Violation of thiS chapter Within one (i) year, 3 A fine not exceeding five hundred dollars ($500), for each addltlonal Violation of thiS chapter Within one (1) year (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1009) 5 56 150 Appeal process Administrative deCISions made by the City Manager relating to thiS chapter may be appealed to the City CounCil In accordance With Section 1 04050 of the Dublin Municipal Code (Ord 2-94 ~ 1 (part)) 5 56 160 Secondhand smoke-Declaration of nUisance Secondhand smoke constitutes a nUisance NotwIthstanding any other proVISIons of thiS chapter, a private citizen may bTlng a legal action to abate secondhand smoke as a nUisance (Ord 15 06 ~ 3) "EE] http I/www codepubhshmg comlcaIDubhnlDublm05IDublm0556 html 10/2912007 '1~ Locall'olbacco Control Orcllmances 1111 Alameda CODJInty, August 2007 COUNTY/CITY Ala County Alameda CIty Albany Be rkel &y Dublin Emaryvlll& Fremonl UnlnCOrD BUSinesses with fewe rtha n 6 Sm oke free State law (1) Smok e free Smoke free Smoke free Smoke free Smoke-lree em p I oyees Company vehicles S tate taw (2) Stale law (2) Smoke free Smoke free St~!e I~w (2) Smoke free Smoke-free Hotel Lobby Smoke free Stale law 131 Smoke lree Smoke lree Smoke free Smoke free Sm oke free H olel Rooms 75% &-free 35% S lree 35% S frea 15% S lrea 35% S free {IIB13) 60% smoke lree 60% S lree (AB131 (AB13) mmlmUm Meellng and Stale law (4) State law (4) State law 141 Smoke free Smoke free Smoke free Slale law (41 Ba nq uel Room s Bans smokmg In Bans smokmg In Ul wholesale & retail C Tobacco Shops No proVisIOn No proVISion No provIsIOn No provISion wholesale & retail tobacco .hops and on No proVISion 0 tobeceo shoP'> and on ;:; pnvate smokers 0 pnvale smo~ers lounges Iou nges Gl .... 2 M U III family Smoke free Smoke free Smoke-free ~ endosed No proVOSIO n No provISIOn enelos ed Smoke free ene lased enclosed an d Smoke fre e en closed common areas Gl un enelos ed J!: 0 County facilities C Enlryw ays U) Reasonable 20 ft Other No pro'llSlon Yes No deflIled Ye:; MInimum of Yes Minimum of 15 ft Yes 25 feet Yes No defined "a Distance "",rkplaces footage 20 ft footage C Mmlmumof 15 ft la .c "i:l C Outdoor areas 0 SeNlce Lines No provIsIOn No provISion No provIsion No proVISion Smo~e lree Smoke free Smoke free 0 Gl U) Outdoor areas Sm oke-free No provISion No provIsion Smoke free Smoke free Smoke free 50% Dining Dining Ouldoor areas No provISIOn No proVlSJon No provISion Smoke free Smoke free Smoke free No proVISion Bu s Stops Outdoor areas No proVISIOn No proVlSlOn No provision No pro\flslon No proVISion Smoke-free path No proVIsion Parils playgrounds greenways Outdoor areas Outdoor PubliC places Other "",rkplaces workplaces stadiUms stadiums garages Hookah Bars Not pe rmlled In City Resld enlla I 2411," family Smokln 9 Ba n childcare family care health care In homes NUJsance YES YES .c Vending Mach Banned Over 21 bars Over 21 bars Banned Banned Over 21 Over 21 bars .... ::l T ob Relllller 0 No provISion No provISIOn No pro\flSlon Pa ssed No pro'llSlon No pm'llSlon No provISion ):- Lie ens 109 l:n C Bans smoke U Locallonl ZOning Reslrlcled 14DO It Restncted 1000 feet ::l of Smoke Shops No provIsion shops on Websler No pro'llSlon parks/schools No provISIOn from schoots/perks No pro\flslon 'iJ and Pam streets (II 0:: En fore emeni 208 5916 331 8340 525-7300 981 5330 925-833 6610 59&-3700 790 6800 Inclu des all County operated faclllbes In tIl e County I I AS 131 Labor code 3404 5 Cal~omla Smoke-Free WorJ(place Act bans smoking In all Indoor WOrkplaces With some limIted exceJluons - (1) Allows smoking on~ under some very reslrlcWe condluons Employees can be FT or PT mmors are not allowed no employee req to wor'r<. In tile area air IS exhausled directly outside and employer complies With state and federal venblabon standards (2) SmokIng prohIbited except In lruck cabs when no non smoking employees are present (3) UP to 25 percent or 50 percent (d ependlng on sq footage) may be d eSlg nated smokmg by manag ement (4) Smoking not allowed dunng foodlbeverage selVlce set UP and clean UP I I I I I - AtrtrA<C[l=IJ[M]~[j\I]'i :2 To reporl complain!; conlaCl Alameda Counly Tobacco Control Program (510) 208 5920 or conlaCllhe CIty d.recUy For questions On PoliCY ISSues call Amencan Lung Assoclatoon of Cahfornla ~510) 893 5474 8O;f2Jd Il.ocal Tobacco COI'll1l:ll'oH On:llmall'llces 1111I Alameclla COlllll1lty, AllIglllS1l: 2007 COUNTYI CITY Hayward lIvermo ra Nawark Oakland PIedmont Pleasanton San Leandro Umon CIty BusInesses WIth fewer than 6 Sm oke free Smoke free Smoke free Smoke iTee Slate law 11 I Sm oke Ire e Stale law (1 ) Smoke free employees Compo ny ve h I <;1 es Slale law (21 Smoke free Slale law 12) State law (2) State law (2) Sm oke lree Slate law (2) State law (2) Hotel Lobby Smoke free Smoke free Smoke free Sm oke free Stote low (3) Sm oke iTee Slale law (3) Smoke free Hotel Rooms 35% S lree 75% S Free 76% S fme 350/ S fme 35% S Ime 751. S tme 35% S free 60% S lree {I\B13) (AB131 (AB13) Meeting an d Stale law (4) Smoke free Smoke free Slate law (4) Slate law (4) Smoke-free Stale law (4) Stale law (41 Banquet Room S Ul Ba ns smoking In C T ob.<;<;o Sh op. No plUvI510n No plUvlslOn wh.1e & re 1,1I110 b No provIsion No provIsion No provIsion No provISIOn No provIsion 0 shops & In pnva Ie .;; U 5mokers lounges CIl <>' 0 M u It lamlly Sm oke Ire e Sm oke free Sm oke fre a Smoke-frea Smoke free Smoke-Ire. "- No proVISIO n No proVISK," I'!. common ara.s en closed en closed en closed enclos ed enclo. ed enclosed CIl ~ 0 E Entryw .ys Yes No defined Ves Mln of 20 Yes MIn 0125 Ves No defined Yes No defined II) Reas on able No provIsIOn No proVISion No proVISIOn "g Distance footage leet feel footage footage C I'll .c "a C Outdoor area s 0 Servl ce LIn es Smoke Free Smoke Free Smoke Free No proVlSI"n No proVlSIO n Smoke-Free No proVISion Sm oke-free U CIl II) Ould oor areas 50% 01 n Ing No provISion Smoke Free No proVlSI"n No proVlslOn Smoke-F rea No proVISion 50% Dlnln9 Olnlng Outdoor areas Bus No provIsion Unclear Smoke free No proVlSI"n No proVlSlOn lIncle.r No provIsion No proVlSlOn Stops pravls Ion. (5) prov I sl on s (5) Outdoor areas Under 100 ft from bldgs Pari<s conSideration for trails me amas No proVISIOn No proVlslon No proVl$lon No proVlSIOn No proVISiOn No provISIOn 2007 Outdoor areas Outdoor Other Sta d,ums Sta dlums con struclJon sites Stadium. In Oakland hIlls Hookah Bars Ba n ned Resld enbal NUisance ~ Yen dln9 Mach Oller 21 bars only Banned Banned Over 21 bars only Oller 21 bars on Iy Over 21 bars only Over 21 bars only Banned 0 T ob RetaIl er No proVl$lon No proVISIOn No plUVlSI"n No provISIOn No provIsion No provISIOn No proVJSIOn No proVISIOn >- LlCen Sl n g g) Ii: Re'rncted 1500 It U , Locall onl Zonrng of Restncted 1000 It schools parks 6brw1 No provISIOn No provISIOn No prol'lSlon schnols No provIsion No provISIOn No prov"'lOn ; Smoke Shops p<1Jts church.. et<: e, CUP r"'1 See ~ WIling cOOa E nlon:emenl 293-7073 925-371-m7 194-2345 238-2251 420 3040 925-931-5620 517-3242 471 1365 I I AS 131 Labor code :W04 5 Caldomla Smoke Free Workptace Act bans smoking In all Indoor workplaces With some Ilmlled excepbons ~ (1) Allows smoking only under some very reslncbve condltrons Employees I;8n be FT or PT minors are not allowed no employee req to work In the area air IS exhausted directly outside and employer complies With stale and federal venblabon standards (2) Smoking prohibited except In truck cabs when no non smoking employees are present 1- 3) Up to 25 percent or 50 percent (depending on sq footage) may be deSignated smokIng by management I (4) Smokl ng not allowed d unng foodlbeverag e servtce set up and clean up 5) Language bans smOkIng In bus terminals - not mtel1lreted as bus stops TO report compla,nts conlact Alameda County Tobacco Conlrol Program (510) 208-5920 or conlacllhe aly directly For quesl'Ms M Pohcy ISSUes call Arnencan Lung Assoc"'lon of CalIfornia (510) 8935474 A!>SlmbIy Bill No 846 CHAPTER 342 An ae.t to amend SectIOns 1999430 and 1999433 of to amend the headmg ofChdptu 56 (commencmg with SectIOn 1999430) of Part 26 of DIvISion 5 of to ddd Chapter 32 (cormnencmg wIth SectIon 7596) 10 DIVISIon 7 of Title 1 of dnd to rept-aI Sections 19994 31 and 19994 32 of, the Government Code, relatll1g to tobacco [Appro\ed b) Governor September 8 2003 Flied \'<lth Secrelmy of Slate September 8 2003 1 LfGISLATIVf COUN'>EL S D1GfST AS 846, Vargas Smokmg public bUlldmgs bXlstmg hw prohlblts any stdle t-mployee or member of the publ1c from smokmg a tobacco product 1l1~lde a state own"d or state occupied building, or a state led"ed and state-occupied bUlldmg, a~ defined or wlthm 5 feet of the mam eXlt or entrance of these blllldmg", 01 III a pa%enger vehlde owned by the stdte Thl'> bill would mstead prohibit smokmg mSlde a publ1c building, as defined, and wlthm 20 feet of a malO eXIt, entrance or operable wmdow of a pubhc bUIlding It would al~o proVide that these provIsIOns would not preempt the authority ot any county City City and county, California Commumty CoUcgc campus, campus of tilt. CdhfoffiJa State Umverslty, or campus of the Umver<>lty ofCallfornJa to adopt and enforce additIOnal smoking and tobdlw lOntlOl ordmances, regulation", or pOhCIC" that arc more re~tnctlve Ihan the. "tanddrds reqUlred by thiS bill ThiS bill would also make other tt.chmldl nonsub<;tantlvc, and conformmg change" to these provI"lOns The people of the Stale oj Califorma do enact asfollm'Vs SECTION 1 Chapter 32 (commcnclIlg With Scclion 7596) IS added to DlvlslOn 7 ofTJtIe I of the Government Code to lead CHAPTER 32 SMOKJ1\G IN PL.BUC BUILDINGS 7596 As u"ed 111 thiS chapter (a) "PubllL bUlldmg' mean<; a blllldmg owned and occnplCd, or leased and occuplcd, by the stdte, d county a City a city and county, or a California Commul11ty College dl<;tnct ~~3J- 94 I .----- ----- A TT ACHMENT 3 r{)~32- Ch 342 -2- (I) , ImIde a public buildmg mclude~ all mdoor arca~ of the bUlldmg except for covo td parkmg lots reSldcnllJl space and ~la!( pilson yard 1rea~ In~lde a publlc b1111dmg 11~0 mdudcs any mdoor ~pacc Iw"ed to the state county, 01 llty except f01 cO\iertd parkmg lots and resldenlIal spdec (2) 'ResIdential ~pace mean') a pnvatcllvmg are1 but It doc" not mclude common arcas such as lobbies lounges w31tmg areas, elevators stairwells and restrooms that are a struetlllal pdrt of a multlCompleA bll1ldmg such as a donmtory (b) "State or ~tate agency" mean') a state dgency, as delmed pursuant to Sectton HOOD the LegIslature, the Supreme Court and the Courts of Appeal and edch campus of the (ahforma State Umvcr"lty and the Umverslty of Callfornla (c) Public employee means an employee of a state agency 01 an employee of a county or city 7597 (a) No pubhc employee or member of the pubhc shall smoke any tobal..-<'-o product mSlde a pubhc butldmg or m an ouldoor 31 ca wlthm 20 feet of a mam eXIt, entrance or operable wmdow of a pu bl1c bUlldmg or m a passenger vehicle as defined by SecllOn 46) of the VehIck Code owned by the state (b) Tim sectIOn shall not preempt the authonty of any county, CIty, CIty and county, Cahfomla Commumtv College campu~ campus ofthc Cahforma State Umverslty, or campus of the Umverslty of Califorma to adopt and enforce additIOnal smokmg and tobacco wntrol otdmances regulatlon~ 01 polIcICS that arc more restnctlv", thall the applIcable standards reqUired by thIS chapter 7598 Except as provld",J III SectIon 7597, a pubhc employcc or other person may smoke m any outdoor area of a publIe blllldmg unle<;s othernlse prohIbited by state law or local ordmance and d sign descnbll1g the prohlbmon IS po:;.ted by the state, county, or CIty agency or other appropnate entIty SEC 2 The heddlllg of Chapter 5 6 (wmmencmg With SectIOn- 19994 30) of Part 2 6 of DIVISIOn 5 of the Government Code lS amended to Icad CHAPTFR 5 6 TOBACCO CON I ROL SEC 3 SectIOn 19994 30 of the Government (ode IS amended to read 19994 30 As used m th IS chapter (d) BUlldmg mean::. d bUlldmg owned and OCCUPH.-J, or kdSt..d and occupIed by the "tdte 94 I 1/ ~ ~J- Assembly Bill No 2067 CHAPTER 736 An act to amend ScctlOn 7596 of the Government Code and to amend SectlOn 6404 5 of the Labor Codc, rclatmg to smokmg [Approved by Governor 5>eplcmbcr 29 2006 FIled wIth Secretary of State Seplember 29 20061 LEGISLATIVE CQUN';EL S DIGFST AB 2067 Oropcza Smokmg enclosed spaces ofbmldmgs EXIstmg law prohIbIts smokmg of tobacco products mSlde pubhe buIidmg~, as defined, but excludes covcred parkmg lot~ from thIS prohibitIOn EXIstmg law addItlonally prohIbits smokmg m all enclosed spaces of places of employment as defined ThIS bIll would define covered parkmg lot, for purposes of the exclusIOn from the prohIbItJon WIth respect to pubhc bUlldmgs, to exclude lobbIes, lounges waltlng areas c1evator~, stairwells, and restrooms that arc a structural part of the covered park10g lot thereby makmg these areas subJed to the ~mokmg prohibition ThiS bill would also add a definlt]on of' enclosed space to the law that prohIbits smokmg In enclo~ed spaces of certalO places of employment to Include lobbIes lounges waltmg areas, elevators staIrwells and re~trooms that are a structural part of the bmldmg that IS the place of employment The VIOlatIOn of the prohlbmon against smokmg m enclosed spaces of places of employment IS an mfractlOn pumshable by 1 speCIfied fine By expand10g the scope of an mfractlOn, thiS b1l1 would Impose a state mandated local program The California ConstitutIOn reqmres the state to reimburse local agencies and school dlStncts for certam costs mandated by the state Statutory provmons establish procedures for making that rClmbursement ThiS bill would proVide that no reimbursement IS reqmred by thls act for a speCified reason The pwple of the State of CalifornIa do enact as follows SECTION I SectIOn 7596 of the Governmcnt Code ]s amended to read 7596 As used 10 thiS chapter the followmg terms have the followmg mcanmgs (a) Pubhc bUlldmg means a bUlldlng owned and occupIed or leased and occupied by the state, a county a City, a City and county or a California commumty college dlstnct 95 }o(;f 3d.- Ch 736 -2- (1) 'Inside a pubhc bUlldmg mcludes all mdoor areas of the bUl1dmg ex.\.-ept for covered parkmg lots and resldentlal space Insldc a pubhc bUlldlllg also mcludes any Indoor space leascd to the state county or City, except for covered parkmg lots and resldenl1al spacc (2) ReSldent131 space means a pnvate hvmg are'l, but It does not Include common areas such as lobbies lounges waltmg areas clev'ltors, stamvells and restrooms that 1.re a structural part of a multtcomplex bUlldmg such as a domlltory (3) (A) Covered parking lot means an area deSIgnated for the parkmg of vehicles that IS enclosed or contams a roof or ceIling CoverGd parkmg lot does not mclude lobbIes lounges waltmg arcas, elevators, stamvells and restrooms that are a structural part of the parkmg lot or a bUlldmg to which It IS att'lched (B) The apphcatlon of thIS subparagr'lph ~haJl not supersede or render mapphcable permItted .'.moklng of tobacco products under thiS chapter wlthm any other part of a covered parkmg lot not spcclfically hsted In subparagraph (I) (b) State or state agency mC'lns a state agency, as deli ned pursuant to SectlQn I 1000 the LegIslature the Supreme Court and the courts of appeal and each eampu<; of the Cahfom13 State Umverslty and the Un lverSI ty of Cahfornla (c) Pubhc employee means an employee of a state agency or an employee of a county or CIty SEe 2 SectIOn 6404 5 of the Labor Code IS amended to read 64045 (a) The LegIslature finds and declares that regulatIOn of smoking In the workplace IS a mattcr of stateWide mterest and concern It IS the mtent of the Legls1ature 10 enactmg thIS sectlOn to prohibIt the smokmg of tobacco products 10 all (100 percent of) enclosed places of employment In thIS state as covered by thiS sectton, thereby el1mmatmg the need of local governments to cnact workplace smokmg restnctlOns wllhm theIr respectIve JunscllctlOns It IS further the mtent of the LegIslature to create a umform stateWide standard to restnct and prohIbIt the smokmg of tobacco products 10 enclosed places of employment, as speCIfied 10 thIS sectlOn, 10 order to reduce employee exposure to envIronmental tobacco smoke to a level that WIll prevent anythmg other than mSlgmfieantly harmful effects to exposed employees and also to ehmmate the confUSIOn and hardship that can result from enactment or cnforcement of dlsparate local workplace smokmg restnctlOns Notwlthstandmg any other proVISIOn of thIS sectlOn, It IS the mtent of the Leglslamre that any area not defined as a 'place of employment pursuant to subdlvlslOn (d) or m whIch the smokmg of tobacco products IS not regulated pursuant to subdIVISIon (e) shall be subject to local regulatIOn of ~mokmg of tobacco products (b) No employer shall knowmgly or 1OtenhOnally permit and no person shall engage III the smokmg oftobacco products 10 an enclosed space at a place of employment Enclosed space mcludcs lobbIes, lounges, waltmg 95 I ::, ~ 2d-- -3- Ch 736 areas, elevators stamvells and restrooms that are a structural part of the bmldmg 1.nd not specifically defined In subdlVlslOn (d) (c) For purpose~ of thIs sectIOn an employer who permllS 1.ny nonemployee access to hIs or her place of employment on a regular baSIs Ins not acted knowingly or intentIOnally m vIOlatIOn ofth]s sectIOn Ifhe or she has taken the followmg reasonable steps to prevent smoking by a nonemployee (I) Posted clear and promment SIgns, as follows (A) Where smoking IS prolub]ted throughout the bmldlng or Structurl 1. sIgn sl1.tmg No smoking shall be posted at edGh entrance to the bmldmg or structure (B) Where smokmg ]s penmtted m designated areas of the bUlldmg or structure a sign statmg Smokmg IS prohIbited except In designated area<; shall be posted at each entrance to the bmldmg or structure (2) Has requested whcn appropnate, that a nonemployee who 1S <;mokmg refram from smokmg In the enclosed workplace For purpose<; of thiS subdiVISIOn reasonable steps docs not mclude (A) the phYSical ejectIOn of a nonemployee from the place of employment or (8) any reqUlrement for makmg a request to a nonemployee to refram from smoking under circumstances mvolvmg a nsk of phYSical harm to the employer or any employee td) For purposes of th]<; sectIOn, place of employment docs not mclude any of the follOWing (I) Sixty-five percent of the guestroom accommodattons m a hotel motel or s]mllar transwnt lodgmg establishment (2) Areas of the lobby In a hotel motel, or other s]mliar transient lodging establishment desIgnated for smoking by the estabhshment An establishment may permIt smokmg In a deSignated lobby area that docs not exceed 25 percent of the total floor area of the lobby or, If the total area of the lobby IS 2 000 square feet or less, that does not exceed 50 percent of the total floor area of the lobby For purposes of thiS paragraph lobby means the common pubhc area of an estabhshment In whIch registratIOn and other Similar or related transactIOns or both are conducted and m which the estabhshment's guests and members of the pubhe typically wngregate (3) Meetmg and banquet rooms In a hotel, motel, other transient lodging establishment Similar to a hotel or motel, restaurant or pubhc conventIOn center except whlie food or beverage functIOns are taking place, mcludmg setup service, and cleanup actiVities or when the room ]S being used for exhibIt purposes At tlmes when smoking IS not permitted In a meeting or banquet room pursuant to thiS paragraph, the estabhshment may penmt smokmg m comdors and prefunctlOn areas adjacent to and servmg the meetmg or banquet room If no employee ]S statIOned m that COrridor or area on other thdn a passmg baSIS (4) Retatl or wholesale tobacco shops and pflvate smokers lounges For pllrpo<;e<; ofth]s paragraph 95 It( ;f3;L Ch 736 -4- (A) Pnvate smokers lounge means any enclosed area m or attached to a retail or wholes lie tobacco shop th1.t IS dedicated to the use of tobacco products, mcludmg, but not limited to clgars and pipes (8) RetaIl or wholesale tobacco shop means any busmes~ estabh <;hmcnt thc mam purpose of which IS the sale of tobacco products mcludlng but not hmlted to, cigars, pipe tobacco and smoking accessones (5) Cabs of motortrucks as defined In Section 410 of the Vehicle Code or truck tractors as defined In SectIOn 655 of the Vehicle Codl If no nonsmokIng employees are present (6) Warehouse faclhtles For purposes of thiS paragraph 'warehouse faclhty means a warehou<;e facIlity WIth more than 100,000 square feet of total f100rspace and 20 or fewer full-time employee<; workIng at the facIlity, but does not Include any area Within a faclhty that IS utIl1zed as offiee spacc (7) Gaming clubs, In whIch <;mokmg IS pennrtted by subdlVlslOn (f) For purposes of this paragraph gamIng club means any gammg club, as defincd In SectIOn 19802 of the Business and ProfesslOns Code, or bmgo facthty, as dell ned m SectlOn 326 5 of the Penal Code, that restnets access to minors under 18 year<; of age (8) Bars and taverns In which smoking IS permitted by subdivISIOn (D For purposes of thIS paragraph, bar or tavern means a faethty pnmanly devoted to the servmg of a\cohohc beverages for consumptIOn by guests on the premises In WhlCh the scrvmg of food IS mCldental 'Bar or tavern mcludes those faclllt1es located Within a hotel motel, or other slmllar transient occupancy establishment However when located WithIn a bUilding In conjunctIOn WIth another use, mcludmg a restaurant bar or tavern mcludes only those areas used pnmanly for the sale and servlce of alcoholic beverages Bar or tavern docs not mclude the dmmg areas of a restaurant regardless of whether alcoholic beverages are served therem (9) 1 heatncal productIOn Sites, lf smokmg IS an Integral part of the story m the theatncal productIOn (10) Medical research or treatment sites If smokmg IS Integral to the research and treatment bemg conducted (11) Pnvate resldence<;, except for pnvate reSidences hcensed as family day care homes dunng the hours of operation as family day care homes and m those areas where children are present (12) Patient smoking areas In long term health care facl litles as defined m SectIOn 1418 of the Health and Safety Code (13) Breakrooms designated by employers for smokmg, proVided that all of the follOWing condltlons are met (A) Air from the smoking room shall be exhausted duectly to the outside by an exhaust fan Air from the smoking room shall not be reCirculated to other parts of the bUilding (B) The employer shall comply With any ventilatIOn standard or other standard utllIzmg appropnate technology including but not limited to 95 15 ~ 3c:;l. -5- Ch 736 mechamcal electromc and blOtechmcal systems adopted by thc OccupatlOnal Safety and Health Standards Board or the federal Environmental Protection Agency If both adopt mconslstent standards, the ventilatIOn standards of thc Occupa t]onal Safcty and Health Standards Board shall be no less stnngent than the st1ndards adopted by the federal Environmental ProtectlOn Agency (C) The smokmg room shall be located m a nonwork area where no one, as part of hIs or her work responslbllttles IS reqUired to enter For purpo~es of this subparagraph, work respOnS]bll1tles does not mclude any custodml or mallltenance work carned out m the bre1kroom whcn ]t IS unoccupied (D) There are sufficient nonsmoklllg breakrooms to accommodate nonsmokers (14) Employers with a total of five or fewer employees either full time or part tIme may perml t smokmg where all of the followmg cond]tlOns are mct (A) The smokmg arCd I~ not acccss]ble to mmors (B) All employees who enter the smokmg area consent to pemllt smokmg No one as part of his or her work responS]b]litles shall be reqUired to work m an area where smokmg IS permltted An employer who IS determmed by the dlV]SlOn to have used coercIOn to obtam consent or who has reqUired an employee to work m the smokmg area shall be subject to the penalty prov]slons of SectIOn 6427 (C) Air from the smokmg area shall be exhausted directly to the outside by an exhaust fan AIr from the smokmg area shall not be reCirculated to other parts of the bUl Idmg (D) The employer shall comply wIth any ventllat]on standard or other standard utlhzmg appropnate technology, mcludlllg, but not limited to, mechamcal electromc, and blOtechlllcal systems adopted by the OccupatIOnal Safety and Health Standards Board or the federal Environmental ProtectIOn Agency If both adopt mconslstent standards, the ventilatIOn standards of the OccupatIOnal Safety and Health Standards Board shall be no less stnngent than the standards adopted by the federal EnvIronmental ProtectIOn Agency ThIs paragraph shall not be construed to (I) supersede or render mapplicable any conditIOn or hmltatlOn on smokmg areas madc applicable to specific types of busmess establishments by any other paragraph of thiS subd]v]slOn or (II) apply m heu of any otherwise appl1cable paragraph of thIs subdivIsIOn that has become moperatlve (c) Paragraphs (13) and ( 14) of subdlVlslOn (d) shall not be construed to reqUire employer<; to prOVIde reasonable accommodatIOn to smokers or to provide breakrooms for smokers or nonsmokers (f) (I) Except as otherwIse provided III thIS subdivIsIOn, smokmg may be permitted III gammg clubs as defined m paragraph (7) of subd]VISIon (d) and III bar~ and taverns as defi ned In paragraph (8) of subdlVlslOn (d) until the earlier of the followmg (A) January 1 1998 95 /G "13~ Ch 736 -6- (8) The date of adopllOn of a reguhtlOn (I) by the OccupatlOna I Safety and Health Standards Board reducmg the permissible employee exposure level to environmental tobacco ~moke to a level that w1l1 prevent anythlllg other than 1n~lglllficantly harmful cffects to expo~cd employees or (ll) by the federal Envlronmental ProtectIOn Agency cstablIshmg a standard for reductIOn of permlsslble exposure to envlronmcntal tobacco smoke to an exposure level that wlll prevent anything other than mSlgmficantly harmful effects to exposed persons (2) If a regulatIOn specified m subparagraph (B) of paragraph (1) IS adopted on or before January I 1998 smokmg may thereafter be pemlltted III gammg clubs and m bars and taverns subject to full complIance with, or confom11ty to, the standard III the regulatlOn wlthm two years follOWing the date of adoptIOn of thc regulatIOn An employer fmllllg to achieve complIance with or conformity to the regulatIOn wlthm thiS two year penod shall prohIbIt smoking In the gaming club, bar, or tavern untJI (,ompl1ance or confom11ty IS achieved If the OccupatIOnal Safety and Health Standards Board and thc federal Envlronmental ProtectIOn Agency both adopt regulatIOns speclfied m subparagraph (B) of paragraph (1) that are inconsistent the regulatIOns of the OccupatlOnal Safety and Health Standards Board shall be no less stringent than the regulatIOns of the federal EnVironmental ProtectIOn Agency (3) If '{ regulatIOn speclfi cd m subparagraph (B) of paragraph (I) IS not adopted on or before January I 1998 the exemptions speclficd III paragraphs (7) and (8) of subdlVlslOn (d) shall become lnoperatlVe on and after January I, 1998, until a regulatIOn 15 adopted Upon adoptlOn of sue h a regulatIOn on or after January I, 1998, smokmg may thereafter be permltted In gammg clubs and In bars and taverns subject to full compl1ance With, or conformity to the standard In the regulatlOn wlth1l1 two year<; followmg the date of adoptIOn of the regulatIOn An employer f311mg to achieve comphance With, or conformity to, the regulatIOn wlthm thiS two-year peflod ~hal1 prohibit smokmg m the gammg club, bar, or tavern until complIance or conformity I~ achieved If the OccupatIOnal Safety and Health Standards Board and the federal EnVIronmental ProtectIOn Agency both adopt regulatlOns spcclfi ed m subparagraph (8) of paragraph (1) that are inCOnSistent, the regulatlOns of the OccupatIOnal Safety and Health Standards Board shall be no less stnngent than the regulatIOns of the federal EnVironmental ProtectIOn Agency (4) From January I, 1997, to December 31, 1997, mcluslve, smokmg may be permitted In gammg clubs as defined m paragraph (7) of subdiVISIOn (d) and m bars and taverns as defined m paragraph (8) of subdiVISIOn (d) subject to both of the follOWing eondJtlOns (A) If practicable the gammg club or bar or tavern shall establish a deslgnated nonsmokmg area (B) If feaSible no employee shall be reqUIred, m the perfonnance of ordmary work responslbtlmes, to enter any area In which smokmg IS permitted 95 1<><1 c;f 3d- -7- Ch 736 (g) The smokmg prohlbltlOn set forth m thIs section shall constitute a UnIfOrnl <;tatcwlde standard for regulatmg the smokmg of tobacco products In enclosed places of employment and shall supersede and render unnecessary the local enactment or enforcement of local ordmances regulating the smokmg of toblCCO products m enclosed places of employment Insofar as the smokmg prohlbltlOn set forth m thIs sectlOn 1S apphcable to all {lOO percent) places of employment wlthm this state and therefore prov1des thc maximum degree of coverage the practIcal effect of thIS section IS to ehmmate the nccd of local governments to enact enclosed workplace smokmg restnetlOn<; wlthm their respective JunsdlctlOns th) Nothmg m thIs sectIon shall prohibit an employer from prohlbnmg smokmg m an enclosed place of employment for any reason (I) The enactment oflocal regulatlOn ohmokmg of tobacco products m cnclosed places of employment by local govemmwts shall be suspended only for 'Is long as, and to the extent that the (l00 percent) smokmg prohlbmon provided for m thiS SCl-tIon rcmams m effect ]n the event thiS sectiOn IS repealed or modified by subsequent leglslatIvc or Judicial actlOn so that the (100 percent) smokmg prohlbltlOn IS no longer apphcablc to all ene losed p lace<; of employment m Caltfomla local governments shall have the full nght and authonty to enforce prevlOusly enacted and to enact and enforce ncw, restnetlons on the smokmg of tobacco products m enclosed places of employment wltllln their JunsdlctlOlls, mcludmg a complete prohibition of smokmg Notw1thstandmg any other provlslOn of thiS section, any area not defined as a place of employment or m whIch smokmg IS not regulated pursuant to subd1vlslon (d) or (c), shall be subject to local regulatlOn of smokmg of tobacco products (j) Any vlOlatlOn of the prohlbltlOn set forth m subdlv1slOn (b) IS an mfraction pUnishable by a fine not to exceed one hundred dollars ($100) for a first VIOlatIOn two hundred dollars ($200) for a second VIOlatIOn wlthm one year and five hundred dollars ($500) for a thIrd and for each subsequent VIOlatIOn wlthm one year ThiS subdlVlSlQn shall be enforced by local law enforcement agencies, mcludmg, but not hmlted to, local health departments as detenmned by the local govcrnmg body tk) Notwtthstandmg SectlOn 6309 the diVISIon "hall not be reqUired to respond to any complamt regardmg the smokmg oflObacco products man enclosed space at a place of employment unless the employer has been found gUilty pursuant to subdiVISIon (j) of a thIrd vlOlatlOn of subdivIsion (b) wlthm the prevIOus year (f) If any provISIon of thiS act or the appl lcatlOn thereof to any person or circumstances IS held mvahd that mvahdlty shall not affect other prov1SlOns or applicatIons of the act that can be given effect Without the mvahd proVISIon or appltcatlon, and to thiS end the proVISIons of thIS act are severable SEC 3 No reimbursement IS reqUired by thiS act pursuant to Section 6 of ArtIcle XIlI 8 of the CalifornIa ConstltutlOn because the only costs that may be mcuITcd by a local agency or school dlstnet Will be mcuITed 95 /8. 13d.- Ch 736 -8- because this 1Ct crLate~ a new cnme or mfractlOn ehmmates a cnme or mfractlOn or changes the penalty for a cnme or mfractlOn, wlthm the meamng of SectIOn 17556 of the Government Code or changes the definItIOn of a cnme wlthm the meanmg of SectIOn 6 of Article Xlll B of the Cahfornla ConstitutIOn o 95 ~ 0 (1) C -< (J 0\ - N ::J 0 0 -....) )>005 0 =f .f,q .Q.:'OQ ::J - 1'0 ::J ....... 0 c<r-([) C ::r 0 " ~5)>0 0 0 ro 3CD-Vl - w ro ([) 0 (l) ::J 0....... 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some or all of the policy provISions outlined In this Table Although none of the options Independently will solve all 01 the problems associated with drifting smoke In multi Unit hOUSing most commUnities are likely to begin by passing only a few of these policy options and then proceed to pass the other more extensive policies over time ThiS Table IS deSigned to help coalitions and commUnities working to create smokefree housmg determine which policy opllon or set 01 policy options IS appropriate for them ThiS IS a strategic campaign question, and not a legal one It reqUires coalitions to evaluate their decIsion makers understand their political enVIronment assess their allies consider their resources and understand their community As you begin thiS diSCUSSion With your coalition members thiS Table IS Intended to be a tool to help you evaluate what combination of policies IS reasonable and achievable In your community The diSCUSSion below of the advantages and disadvantages conSiders the potential level of support for these different policy/enforcement optIons and a community s ability to organize around them For qUick reference listed below are the policy and enlorcement options Included In thiS Table Polley Ootlons 1 No Smoking Common Areas (page 1) 2 Non Smoking Units (page 3) Senior HOUSing (page 5) Affordable HOUSing (page 5) Market Rate HOUSing (page 6) EXisting HOUSing (page 6) New HOUSing (page 6) 3 Smokefree Buffer Zones (page 7) 4 Disclosure ReqUirement (page 8) 5 NUisance Ordinance (page 9) Enforcement Ootlons 6 Local Government Enforcement (page 11) 7 ReqUired Lease Terms (page 12) 8 Private Enforcement (page 13) Polley POlicy DISCUSSion Descnptlon 1 No Smoking Common Areas Would prohibit AdvantaCles smokmg In all ThiS IS a popular policy option (See Poll Results on page 2) ThiS may be a good first Indoor and step on the road to passing other smokefree hOUSing policies outdoor common areas Current state law already bans smokmg In Indoor common areas If they are workplaces ThIS policy option would extend thiS prohibition to all Indoor common Also allows a areas whether they are workplaces or not and would also prohibit smokmq In Page 1 of 13 Last updale.; f;{7107 ~ iJ'li ~ <<b!HI INil ~!i\lIif' 5 t9 ( ~ J~ landlord to designate an outdoor smoking area outdoor common areas (such as courtyards entryways pool areas and parking lots) There are many commUnities that have already passed these types of potlcles This makes It easier to pass this policy In your community because It provides an example to show decIsion makers the policy works (See Real Life Examples) This common sense approach may be comfortable for policy makers because It does not Invotve regulatmg activity inside anyone s home DlsadvantaCles This policy option does not address the root of the problem which IS secondhand smoke drifting Into an apartment from neighboring apartments or balcomes and patios If smoking IS banned In outdoor areas smokers may be driven back Into their apartments where they may expose thelf families and neighbors to secondhand smoke In general this would be a hard policy to enforce because It ]S not easy to pinpOint violators The smoker would need to be caught In the act of smoking In order for an enforcer to know who was responsible for the dnltlng smoke On the other hand you may be able to spot regular violators relatively easily Prohibiting smoking In Indoor common areas would provide few public health benefits because most Indoor common areas are already smokefree through the state law prohibiting smoking In enclosed workplaces Poll Results The Center polled 600 apartment tenants In 2004 They were asked about smoking In Indoor and outdoor common areas Only 39% of those polled were aware that mdoor common areas were already non smoking 67% support making outdoor common areas (entryways sWimming pools courtyards) non smoking In addltlon the Center conducted a poll of 300 apartment owners & managers In 2005 When they were asked about smokIng In mdoor and outdoor common areas 74% of owners/managers polled were aware that Indoor common areas were currently non smoking 67% support making outdoor common areas (entryways sWimming pools courtyards) non smoking The Center also polled 400 Hlspamc/Latlno apartment renters In August 2006 TheIr response to smoking In common areas was 85% of those polled favor making outdoor common areas (entryways SWimming pools courtyards) non smokmg (For more Informatton VISit www cahformalung org/thecenter) Real Life ExamDles Over 70 communities In California already prohibit smoking In all Indoor common areas of multi unit hOUSing bUlldmgs (beyond those that are already workplaces) In addition five commUnities m California proh]blt smoklnq In all mdoor and outdoor Page20f 13 laS! updale<j 617/07 2 Non Smoking Umts Would require new and eXIstIng multi unit rental housing containing a speCified number of units to designate a percentage of units as non smoking (The TALC sample ordinance suggests that eXisting bUildings with 1 0 or more units make 50% of the Units non smoking In new bUildings 75% of the units non smoking) You must decide whether to use thiS ordinance for market rate housing or a speCified kind of housing (government subsidized semor etc) and whether to Include eXisting Page 3 of 13 Last updated 6/7/07 o<ol~3J common areas of multi unit bUildings These commUnities are Calabasas Contra Costa County EmerYVllle San Mateo County and Temecula Several communities prohibit smoking In all Indoor common areas but only some outdoor common areas 01 multi Unit buildings These communities are Arcata DaVIS Healdsburg laguna Woods and Mann County Enforcement ThiS polley can be passed with Just the baSIC Enforcement provISion (see page 11) which means only the [oca' government can enforce thiS ordinance Another enforcement option IS the lease Terms prOVISion (see page 12) which would require that the smoking restriction be Included In the lease agreement ThiS would allow the landlord as well as other tenants to enforce the no smoking lease terms against violators A Private Enforcement option (see page 13) can also be passed allOWing any private citizen (even one who does not live In the bUilding or who was not exposed to secondhand smoke) to enforce the ordinance through a laWSUit AdvantaQes ThiS option IS the one likely to protect the most Californians from secondhand smoke exposure There are numerous voluntary examples that can be used to demonstrate to policy makers and the community at large that requIring non smoking Units and non smoking sections can be a very successful pohcy ThiS Will strengthen your argument that thiS policy Will work community Wide Public support IS highest for creating non smoking units than for any other policy option (See Poll Results) For the most part thiS policy IS likely to be self enforCing because renters can choose to move Into units that are either smoking or non smoking depending on their preference There IS strong support among tenants for eVicting tenants who Violate the non smoking poliCY If they are given multiple warnings In order to overcome opposition It IS Important to clarify that smokers may rent a non smoking Unit so long as they do not smoke In the Unit The enforcement of thiS option can be constructed so that the first Violation IS Just a warning ThiS ameliorates the problem of guests aCCidentally smoking In the unit DlsadvantaQes ThiS policy proposal Will stimulate Significant OppOSition landlords Will be concerned about whether they Will be able to rent all their units about whether they Will be responsible for enforCing the non smoking proVISion and whether they Will be held liable by non smoking tenants If someone Violates the smoking restnctlon The Issue of what to do about eXisting tenants who smoke may create political problems or weaken the ordinance · The ordinance has a grandfather clause that allows current smoking tenants to continue smoking In their Unit for as long they live In the unit even If It IS deSignated as non smoklna Althouah thiS clause may be necessary thiS would weaken any d.312ol or Just new housmg The pros and cons of this choice are discussed below The percentage of units to be designated non smoking and the minimum sIZe of the bUildings to be regufated are policy chOices Thmkmg strategically about your community you must decide how to handle smokers whose umts are In areas of a bUlldmg that IS to become non smokmg policy by failing to protect many non smokers from secondhand smoke exposure Alternatively rather than being for an indefinite penod of time the grandfather clause can be set for a speCific time penod such as SIX months or a year Another option would be to offer smoking tenants an Incentive to move to a designated smoking Unit However Incentives could make the ordinance more costly and Increase opposition Poll Results 69% of tenants polled favor a law that would reqUire all apartment bUildings to offer non smoking sections (where all units patios and balconies In the section were non smoking) (Results from the Center poll of 600 apartment tenants In 2004 For more informatIOn VISit www caltfornlafung org/thecenter) 57% of owners/managers polled would favor a law that would reqUire all apartment bUildings to offer non smoking sections (where all Units patiOS, and balCOnies In the section were non smoking) (Results from the Center poll of 300 apartment owners & managers conducted In 2005 For more Informalion VISit www caltfomla{unQ orQ/thecenter) 82% of Latino renters polled favor a law that would require all apartment bUildings to offer non smoking sections (where all Units patios and balconies m the section were non smoking) (Results from the Center poll of 400 Hispanic/Latino renters conducted m 2006 For more mformatlon VISit www caflfornlaluna ora/thecenterJ Real LIfe ExamDles The City of Temecula passed a policy In May 2007 that reqUires 25 percent of all new and eXisting multi unit hOUSing to be deSignated as non smoking units The County of Sacramento passed a resolution In Apnl 2007 that encourages apartment owners to make 50 percent of their umts non smoking or entire apartment bUildings non smoking The City of Thousand Oaks adopted a policy In September 2004 reqUiring that one third of Units In new affordable hOUSing be non smoking The city updated thiS policy In March 2007 to reqUire two thirds of newly constructed publicly assisted rental hOUSing and one half of new supportIVe hOUSing be smokefree The Housmg AuthOrity of the City of Rancho Mirage made one eXisting senior hOUSing bUlldmg and all future senior hOUSing buildings non smoking The City of Sacramento adopted a policy In December 2006 thaI encourages apartment owners to make 25 percent of their Units non smoking or entire apartment bUlldmgs non smoking The HOUSing Authonty of the City of Madera deSignated two out of three semor bUildings as non smoking The Santa Barbara HOUSing Authonty adopted a smokefree pohcy for a senior hOUSing apartment complex Enforcement ThiS policy can be passed With Just the baSIC Enforcement provJSJon (see page 11) which means only the local qovernment can enforce thiS ordinance Page 4 of 13 Last updated 617107 Page 5 of 13 Last updated 6fl/Ol e2lf ~ 3) The local government could enforce the non smoking reqUirement against a tenant who violates the law by smoking In a non smoking Unit The local government could enforce the law against a landlord for failing to set aSide the reqUired percentage of non smokmg unlls Another enforcement option IS the Lease Terms provIsion (see page 12) which would reqUire that the smoking restriction be Included In the lease agreement This would allow the landlord as well as other tenants to enforce the no smoking lease terms against violators A Pnvate Enforcement opllon (see page 13) can also be passed allowing any private citizen (even one who does not live In the bUilding or who was not exposed to secondhand smoke) to enforce the ordinance through a laWSUit Non Smoking Umts Senior HOUSing Non Smokmg Umts Affordable HOUSing Advantaaes By fOCUSing away from broader market rate hOUSing not as many people would be affected and therefore the ordinance may not encounter as much public oppOSItion Seniors often have seriOUS health conditions that could be made worse by secondhand smoke ThiS could make the argument for thiS policy stronger Dlsadvantaaes Because thiS type of policy would only encompass a small percentage of rental hOUSing It would not cover all of the people who need protection from drifting secondhand smoke such as families In addition It may be extremely difficult to relocate seniors who currently smoke In a unit that IS to be deSIgnated non smokmg Advantaaes By fOCUSing away from market rate hOUSing not as many people are affected and therefore the ordinance may not encounter as much public opposition Because government money IS used to pay for the building or for subsidizing the rent some people may see thiS as a stronger reason for why government should be mvolved In ItS regulation ThiS view could make thiS ordinance a good first step In thiS policy area Low Income resIdents of multi Unit hOUSing are particularly vulnerable to drrftlng secondhand smoke Low Income residents have few alternative hOUSing opllons have a harder time moving and are more fearful of complaining to a landlord In addition there are often higher rates of smoking In thiS population which creates more opportunities for exposure to dnftlng smoke Dlsadvantaaes Because thiS type of policy would only encompass a small percentage of the market It would not be covering all of the people who need protection from secondhand smoke 025 ~ 3d- Tenants nghts groups may be uncomfortable because such a policy might result In eVicting those who have very limIted housing options It may be harder to find mdlvldual tenants In these populations willing to speak out People may be concerned that this policy will make It harder for low Income lenants to find the type of housing they need because their pool of potential housing will be narrowed even more by the designation of non smoking vs smoking Units Non-Smoking AdvantaQes Umts More people will likely be covered by thiS option than under a Market Rate subset of the housing market such as senior or affordable Housing housing DlsadvantaQes Because thiS option covers more people IllS likely 10 face more opposition Opponents may be able to make a stronger case that thiS IS an Improper restnctlon on what people can do In their own home Non Smoking AdvantaCles UnIts By covering eXlstmg housing thiS policy option deals directly with EXlsllng Housing problems that people are currently facing In their homes ThiS would provide a large pool of non smokmg options for people looking for rental housing DlsadvantaQes With eXisting housing there are likely to be many smokers who are fearful that their current Unit may become non smoking ThiS IS likely to create significant Opposition to your poliCY Your campaign team Will need to thmk strategically to deCide what to do with those smokers In an apartment unit that IS newly designated as non smokmg Those who currently smoke In their units can be grandfathered m or provided incentives as discussed above Non Smoking AdvantaQes Umts ThiS poliCY option eliminates the political problems posed by New Housmg current tenants who smoke (see above) By only covering new housmg It IS easier to make entire bUlldmgs (rather than Just sections of a bUilding) non smoking because there are no current smokers to deal With ThiS would provide non smokers With stronger protection DecIsion makers might like thiS as a first step because It covers fewer people and Will likely have fewer opponents ThiS policy begins to proVide a pool of smokefree housing for those seeking It Page 6 0113 Last upel aled 617107 cJ'~JJ- Dlsadvantaoes All of the tenants who are being affected now by dnfllng secondhand smoke will have no relief In their current situation In some established communities there may be no new multi Unit hOUSing being built 3 Smokefree Buffer Zones Would ereate a smokefree buffer around the windows and doors of non smoking units and Indoor common areas where smoking IS prohibited Would result In prohibiting smoking on balconies or patios near non smoking units This policy option does not make very much sense as a stand alone policy While It can be passed by Itself Ideally It would be passed with or after non smokmg Units or smokefree common areas have been established The distance established as a buffer zone IS a strategic poltcy choice An alternate choice IS to pass the buffer around the entire apartment bUlldmg (rather than Just the non smokmg units) Page 7 of 13 LaSI updaled 6fl107 AdvantaQes This option addresses the large number of current complaints about people smoking on balconies and patios and exposing people In neighbOring apartments to secondhand smoke It should be easy to find people willing to testify In favor of such an ordinance This policy IS a good companion piece to the deSignation of units as non smoking (see above) This may serve to encourage the landlord to separate any non smoking Units even further than required from smoking Units In order to aVOid overlapping balconies This may be one of the easiest policies to enforce because Violators (espeCially those who Violate regularly) will likely be easy to spot by managers or tenants Dlsadvantaoes As a stand alone policy this does not address the fundamental problem of smoke drifting from nelghbonng apartments In fact because thiS polley would prohibit people from smoking outSIde on balconies or patios thiS policy may drrve smokers Indoors where they may expose their families and neighbors to secondhand smoke Because of thiS potential for Increased smoking Indoors thiS policy may be more difficult to pass politically Depending on the layout of the bUilding thiS policy may make It difficult to find a legal place to smoke on the grounds of the multi unit hOUSing complex For enforcement purposes It may also be difficult to know whether a smoker IS Within the boundary established as a buffer Poll Results When polled both tenants and owners/managers understood that secondhand smoke drifted InSide from outdoors 72% of apartment tenants thought that secondhand smoke could dnft inSide an apartment Unit from outSide (Results from the Center poll of 600 aparlment tenants In 2004 For more mformatlon VISit www califormalung org/thecenter) 80% of owner/managers thought that secondhand smoke could dnft from outSide an apartment bUilding mto an apartment (Results from the Center poll of 300 aparlment tenants In 2005 For more information VISit wwwcalifornlalung org/thecenter) 82% of LaMo renters thought that secondhand smoke could dnft from outSide an apartment building mto an apartment (Results from the Center poll of 400 Hlspamc/Latlno renters conducted In 2006 For more information VISit wwwcaMormalung org/thecenter) ~7 ~ 3J- Real Life Examples There are no examples of this type of policy In the multi unit housing context However the State of California has recognized the fact that secondhand smoke drifts Indoors from around entrances and eXits of bUlldmgs and as a result has banned smoking within 20 feet of a main eXit entrance or operable Window of a government bUilding (Government Code section 7596) In addItIon there are some local ordinances that also restnct smoking around Windows and doorways Enforcement ThiS policy can be passed With Just the basIc Enforcement provISion (see page 11) which means only the local government can enforce thiS ordinance Another enforcement option IS the lease Terms prOVISion (see page 12) which would reqUire that the smoking restriction be Included In the lease agreement ThiS would allow the landlord as well as other tenants to enforce the no smoking lease terms against Violators A Pnvate Enforcement opllon (see page 13) can also be passed allOWing any private Citizen (even one who does not live In the bUlldmg or who was nol exposed to secondhand smoke) to enforce the ordinance through a lawsuit 4 Disclosure Requirement Would reqUIre landlords to disclose to potential tenants the location of designated smoking and non smoking Units and designated smoking areas To claf/fy thiS option does not reqUire landlords to fmd out whether tenants are smokers Instead thiS would merely reqUIre landlords to disclose the status of a rental umt - whether the umt IS deSignated as smokmg or non smokmg Page 8 of 13 Last updale<J 6f7m7 Advantaaes ThiS policy allows non smokers to make Informed decislons about whether or not to rent a Unit based on where the smoking and non smoking units are located By disclOSing that there are non smoking and smoking umts thiS approach could Increase awareness of the Issue and of people s right to live In a non smoking environment Landlords may be more favorable to thiS approach because thiS option allows each owner to deCide what percentage of the bUilding s units If any to deSignate as non smoking ThiS policy option would be strongest In conjunction With an ordmance reqUiring a certain percentage of non smoking units (see above) However, thiS policy option could be passed separately (before the non smoking units policy) ThiS would reqUire a landlord to pOint out which Units are smoking and which umts he/she has voluntanly deSignated as non smoking ThiS could Increase awareness of dnftlng secondhand smoke and perhaps lead to the estabhshment of more voluntary poliCies Dlsadvantaaes Because there IS no reqUirement that landlords deSignate any portion of umts as non smoking thiS policy does not do anything to stop drifting smoke The ordinance puts a burden on the landlord to keep track of which apartment units are smoking and non smoking landlords are unlikely to welcome additional legal reqUirements that they must meet The landlord may be concerned that he may be held liable If he pOints out a harm (e 9 where the smoking units are) and does nothing to remedy the SItuation ThiS may be true With other poliCY options but It IS most true With thiS one O?~~ Poll Results The Center asked tenants If they supported disclosure of whether tenants smoked In Units adjoining the Unit they were eonsldermg leasing Note This IS different than the policy option In the TALC sample ordinance which less controverSially only requires the disclosure of whether the unit IS a deSignated non smoking Unit or not Although the option that was polled raises many more privacy concerns It was stili supported by tenants 61 % of those polled supported thiS policy 36% opposed (Results from the Center pof! of 600 apartment tenants In 2004 For more informatIOn VISit www califormalung orglthecenter) Real LIfe Examoles Disclosure requirements are common m hOUSing lease agreements although none currently eXist for exposure to secondhand smoke For example disclosures are made for lead paint shared utility arrangements the eXistence of the Megan s Law database known asbestos hazards dangerous mold and notICe of periodic pest control Enforcement The local government can enforce the ordinance If they find eVidence that a landlord has not given potential tenants the floor plan IdentifYing the locations of the smoking and non smoking Units (see page 11) A Private Enforcement option (see page 13) can also be passed allowmg any private citizen (even one who does not live In the bUilding) to enforce the ordinance agamst the landlord through a laWSUit 5 NUisance Ordinance Would speCifically IdentIfy secondhand smoke as a nUisance Domg so makes It easier to prove a case should someone wanl to bnng a laWSUit for exposure to secondhand smoke It IS a strategic deCISion whether or not to go With the general nUisance option (as the TALC ordmance does) or a housmg specifiC nUIsance ootlOn (as the Page 9 of 13 last upo;lale<i 617/07 AdvantaQ8S ThiS provIsion as written In the TALC sample ordinance prOVides broad protection from secondhand smoke anywhere In the city or county not Just m multi unrt reSidences It allows anyone who IS exposed to secondhand smoke Without their consent to take the smoker to court seekmg money damages or a court order to prevent future smoking Some policy makers may be more comfortable With thiS option because It IS not telling people what they can do In their own home It IS addressmg the Issue In a more general way Even If the law were not used much passing a nUisance law would create publiC awareness of the problem of dnlllng smoke and ItS ramlllcallOns The TALC ordinance only requires one non consensual exposure to be a nUisance The nUisance policy option would proVide protection from dnftlng secondhand smoke to people liVing In condominiums which many of the other policy options do not DlsadvantaQ8S ThiS law reqUires tenants to take legal action to get help If It IS not used the law does not protect anyone Tenants may be reluctant to sue thelf neighbors for fear of retaliation from the neighbor Although there IS a provIsion In the ordinance that makes It unlawful to retaliate It IS unlikely that thiS Will make people feel entirely comfortable IndiViduals mav not have the necessary time money, Of familiarity With the court State of Utah did) Page10ot13 LaSI updaled 6/7107 v{q~ system required to act The poll results demonstrate that this IS not a popular policy option with tenants and owner/managers The scope of a nUisance law IS broad and so IS the potential opposition Opposition could come from well beyond the housmg mdustry Poll Results For more InformaMn on the poll results on nUisance please contactlhe Center at thecenter@californlalung 0 rg Real life Examples The State of Utah has passed a nUisance law that applies only to housing slluaMns not to all secondhand smoke exposure (Unfortunately thiS law IS very restnctlve about what constitutes a nUisance e g the secondhand smoke has to dnft In more than once m each of two or more consecutive seven day penods ) In September 2006 the City of Dublin passed an ordmance that designates secondhand smoke a nUisance ThiS law makes It easier for residents to take legal action against another resident who exposes them to secondhand smoke In February 2006 the City of Calabasas passed an ordmance that designates secondhand smoke as a pubhc nUisance ThiS law makes It easier for residents to take legal action agamst another resident who exposes them to secondhand smoke The City of Emeryvllle declared secondhand smoke a nUisance m December 2006 but the ordinance renders that declaration almost useless by exemptmg the Individuals and situations where a nUisance law would be most useful NOise and smell are other common nUisance provIsions that tenants can enforce against each other Enforcement Anyone who has been exposed to non consensual secondhand smoke can sue (m either small claims court or regular court) In the housing context thiS allows a tenant who has been exposed to secondhand smoke to sue the smokmg tenant In the non housing context a Citizen could sue anyone who IS exposmg them to secondhand smoke Without their consent Local government could enforce the nUisance provISion against the person who was generating secondhand smoke and creating the nUisance (see page 11) A Private Enforcement option (see page 13) can also be passed allOWing any pnvate Citizen (even one who does not live In the bUilding or who was not exposed to secondhand smoke) to enforce the ordinance through a lawsUit c30~ 32 ,<&.rlU, . ~.... crl\ll!f,"~I"~ ,t ,~ ~~:~ dJ;w evl1l"'41blla~C1lP\llkMf!l t-,,~C~ ENFORCEMENif OF SMOKEFREE HOUSING POLICIES - A CLOSER LOOK SupplemeriHllrmable,6f Enforcement Options for Smokefree Housing Ordinances . "'i. ..,..w The descriptions below are Intended to help those seeking further clarification on the enforcement provIsions described In the main body of the policy table None of the enforcement provISions below are stand alone policies they should be passed In conjunction with one of the policy options from the table This Information follows the TALC sample ordinance enforcement sections Including Enforcement, Required Lease Terms, and Pnvate Enforcement Every JUriSdiction should and probably will Include the basIc Enforcement section because this allows the local government to enforce their laws The other two policies descnbed allow additional people to enforce the law against violators Lease Terms extends this enforcement ability to the landlord and other tenants In the building and the Private Enforcement provIsion extends the right of enforcement to the public (It IS Important to remember that regardless of the enforcement options described below the landlord can voluntanly write any of the non smoking requirements Into the lease and can then enlorce It ) 'lEnforcenient Descnptl()n Enforcement DIScussion 6 Local Government Enforcement Allows a local government agerlcy to enforce the law A tenant who observes a Violation of the ordinance would call the specified enforcement agency to report the Violation The local government could enforce the ordmance In two ways The first IS for an employee of the designated local enforcement agency to come to the housing complex actually see the vlolaMn taking place and Issue a cltaMn to the Violator The second way to enforce the ordinance Page 11 0113 Last updated 6f7107 Advantaaes There IS precedent to having a local agency enforce smoking related laws and ordinances Under the California Smoke Free Workplace Act each local JUrisdiction has designated an agency (enVIronmental health sheriff s office fire department) to ensure compliance With this law This should be easy to pass because the government will want to be able to enforce ItS own laws This helps both tenants and landlords aVOid confrontation and enables a tenant to aVOid an uncooperative landlord by allowing the government agency to follow up on any reported Violations The government can hold a landlord responsible for falling to comply With their responsibilities under the ordinance (such as not designating non smoking unlls not prOViding a floor plan for new reSidents or for knowingly" permitting smoking In common areas) Olsadvantaaes Requires a city offiCial (police officer or other designated local enforcement agency employee) to actually come to the complex and see the Violation for him/herself In order to Issue a citation IS through a CIvil action m the tnal court where the city attorney or county counsel would file a lawsuit agamst the person violating the ordmance 7 Required Lease Term Requires that every non smoking unit have a non smoking provIsion In the lease Also requires a clause stating that It IS a breach of the lease agreement to violate any law restnctlng smoking on the premises This allows a landlord to enforce these lease terms against Violating tenants by bnnglng an eViction action m tnal court In addition all other tenants In the housmg complex would become beneflclanes of the lease which gives them the nght to enforce the non smoking provISion against a violating tenant (even If they themselves are not exposed to the smoke) The tenant could go to trial court to get an Injunction or to small claims court to recover monetary damages Page 12 of 13 LaSI updated 617107 3} ~ 3..2 The probability of local government uSing their limited resources to enforce this ordmance by either method (citation or cIvil action) IS not very high Poll Results None available al this time Real Life Examples This enforcement mechanism IS the way that most every other law In a community IS enforced Advantactes Putting the non smokmg provISion m the lease and allowmg landlords and tenants to enforce the lease terms creates more opportunities and avenues for enforcement Tenants suffermg from drifting tobacco smoke no longer must rely solely on the government to step In and enforce the law Since the landlord IS neither solely responsible for enforcing nor reqUired to enforce the non smoking provISion In the lease owners and managers may not oppose the ordinance as strongly Without their oppOSItion It Will be easier to pass a non smoking units policy that Includes this enforcement provIsion Because of the fear of bemg sued thiS provISion may serve as a strong deterrent for people thmkmg about smoking In a non smoking unit Dlsadvantaaes Poll results demonstrate that allowmg tenants to sue other apartment residents IS an unpopular approach (See Poll Results) ThiS law may be unsuccessful because It may go unused by tenants who are exposed to secondhand smoke because they are reluctant to sue their neighbors There IS a concern that enforcement actions by landlords Will be less frequent because they are not ultImately responsible for enforCing the law Tenants may be reluctant to sue their neighbors for fear of retaliation from the neighbor Although there IS a provIsion In the ordmance that makes It unlawful to retaliate It IS unlikely that thiS Will make people feel entirely comfortable IndiVIduals may not have the necessary time money or famlllanty with the court system reqUired to act Poll Results There are no poll results specifically on thiS enforcement option However poll results for other poliCY options show that both tenants and apartment owners/managers do not support approaches that rely on one tenant SUing another Owners and tenants were surveyed about their support for enforcement and eViction of tenants They were asked whether a tenant should be eVicted from their apartment If there were a law limiting smokmg In apartments and the tenant had signed a lease that specifies that smoking IS not permitted but then repeatedly violated the law 70% of tenants felt that the tenant should be eVicted from their apartment a Private Enforcement Allows any pnvate citizen to enforce the ordinance through a lawsUit This person does not have to live In the building or have been exposed to secondhand smoke A SUit could be brought agamst either a landlord or a tenant In small claIms or tnal court Page 13 of 13 Last updated 6f7107 3~3;L 80% of owners/managers felt that the tenant should be eVicted from their apartment 60% of Latino renters thought that the tenant should be eVicted from their apartment Then owners and tenants were asked about a three step process for enforCing these laws (Step one would be educating all tenants about the apartment buildmg s non smoking poliCies Step two would be three separate warnings If a tenant violates the bUilding s non smokmg policy along With Information about local programs to help people stop smoking The final step would be eViction If there IS a fourth Violation) 71% of tenants thought thiS was fair for apartment dwellers 66% of owners/managers thought thiS would be workable (Results from the Center po!! of 600 apartment tenants conducted In 2004 po!! of 300 apartment owners & managers In 2005 and poll of 400 Hlspamc/Latlno renters conducted In 2006 For more information VISit www califormafung org/thecenter) Real life Examoles There are no examples of thiS type of enforcement In smokelree housing However there are other examples of Similar enforcement options which allow tenants to sue In small claims court for example for excessive nOise Advantaaes ThiS policy option adds additional enforcers which could Increase the chances of the ordinance being enforced ThiS allows a tenant who feels uncomfortable sumg and fears retaliation to get a local organization or some other IndiVidual to sue on their behalf Allows someone to sue Without haVing to prove actual damages A person would not have to prove harm from exposure to secondhand smoke Just that the exposure occurred and It was against the law Dlsadvantaaes Because thiS opens tenants and landlords up to so many more potential laWSUits It seems likely that there Will be serious OppOSition to thiS policy among the community and policy makers Poll Results None available at thiS time Real life Examoles In February 2006 the City of Calabasas passed an ordmance restricting smokmg In Indoor and outdoor common areas of apartments The ordinance Includes provIsion that allows private enforcement In addition the tobacco retailer licenSing ordinance In EI Cajon Includes thiS type of enforcement An mdlvldual may sue a retaller for vlolatmg the licenSing law