HomeMy WebLinkAboutItem 6.1 Second Hand Smoke
CITY CLERK
File # D[5Jm-~[Q]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: August 15, 2006
SUBJECT:
ATTACHMENTS:
RECOMMENDATION: _ /' 1.
#F 2.
3.
4.
5.
FINANCIAL STATEMENT:
DESCRIPTION:
Proposed Ordinance Declaring Secondhand Smoke a Nuisance
Report Prepared by Elizabeth H Silver, City Attorney and
Leah Peachey, Associate Attorney
1.
Ordinance Amending Section 5.56.040 and Adding Section
5.56.160 to the Dublin Municipal Code to Declare
Secondhand Smoke a Nuisance
Resolution Establishing the City's Enforcement Policy for
Dublin Municipal Code Section 5.56.160 Relating to
Secondhand Smoke- Nuisance Declaration
2.
Open the public hearing
Receive Staff presentation
Receive public testimony and close public hearing
Deliberate
Waive the reading and INTRODUCE the Ordinance
declaring secondhand smoke a nuisance (Attachment I)
This Ordinance provides solely for a private right of enforcement,
which involves no cost to tl1e City.
At its June 6,2006 Council Meeting, the City Council voted to direct Staff to return to Council with an
Ordinance declaring secondhand smoke a nuisance and providing for abatement of the nuisance by a
private party.
City's Current Law Relating to Secondhand Smoke
Dublin Municipal Code (DMC) Chapter 5.56, relating to Smoking Pollution Control, prohibits smoking in
any enclosed public place, business, restaurant and certain places of employment. (DMC, ~ 5.56.050.A.)
The DMC also prohibits smoking in enclosed places including common areas of multi-unit, multi-
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residence or multi-family buildings, such as condominiums, retirement facilities and nursing homes, and
in areas that have common or shared air space with other enclosed areas. (DMC ~ 5.56.050.B.) Finally,
the DMC prohibits smoking in certain unenclosed places, including dining areas that are part of a
restaurant, business, nonprofit entity, place of employment or located in any public place, children's play
areas, and any place where people are waiting for service, entry or a transaction, such as a bank teller
window or bus stop. (DMC ~ 5.56.050.C.) The DMC also imposes a reasonable smoking distance of 15
feet from any main entrance into an enclosed or unenclosed area where smoking is prohibited. (DMC ~
5.56.070.)
No part ofthe current Smoking Pollution Control ordinance regulates smoking in private residences or in
the outdoor areas surrounding private residences. Thus, despite the current prohibition against smoking in
several public and common areas of the City, the Smoking Pollution Control ordinance leaves residents
without recourse in addressing secondhand smoke exposure in their private residences and yards.
Proposed Ordinance Declaring Secondhand Smoke a Nuisance
The proposed Ordinance declares secondhand smoke a nuisance, and provides for abatement of such
nuisance by a private citizen (Attachment I). The Ordinance defines secondhand smoke as "the tobacco
smoke created by burning or carrying any lighted pipe, cigar, or cigarette of any kind, and the smoke
exhaled by an individual who engages in Smoking."
In addition, the proposed Ordinance amends the current definition of "Smoking" in order to limit its
application to tobacco smoke. The DMC's current definition of smoking includes the burning or carrying
of "any combustible substance." (DMC, ~ 5.56.040.) However, the proposed Ordinance limits the
definition of "Smoking" to: "the consumption of tobacco by inhaling, exhaling, burning or carrying any
lighted pipe, cigar or cigarette of any kind."
Effects of Secondhand Smoke on Nonsmokers
Two recent developments in the study of secondhand smoke demonstrate the detrimental effect of
secondhand smoke on public health.
United States Surgeon General Comprehensive Scientific Report on Secondhand Smoke
Most recently, on June 27,2006, the United States Surgeon General issued a comprehensive scientific
report entitled The Health Consequences of Involuntary Exposure to Tobacco Smoke. The report
concludes that there is no risk-free level of exposure to secondhand smoke. In a news release announcing
the report, Surgeon General Richard Carmona was quoted as saying, "The health effects of secondhand
smoke exposure are more pervasive than we previously thought. The scientific evidence is now
indisputable: secondhand smoke is not a mere annoyance. It is a serious health hazard that can lead to
disease and premature death in children and nonsmoking adults."
The report concludes that only smoke-free environments can ensure protection from secondhand smoke;
and that mitigation measures such as separating smokers from nonsmokers, cleaning the air, and
ventilating buildings cannot eliminate exposure of nonsmokers to secondhand smoke.
The report further concludes that nonsmokers exposed to secondhand smoke increase their risk of
developing heart disease by 25 to 30 percent, and that secondhand smoke causes a 20 to 30 percent
increase in the risk of lung cancer from for those living with a smoker. The report also adopts the
estimates of the California Environmental Protection Agency concluding that secondhand smoke accounts
for 46,000 premature deaths from heart disease and 3,000 premature deaths from cancer in the United
States each year. The report addresses the particularly severe effects of secondhand smoke on children,
concluding that children exposed to secondhand smoke are at an increased risk for sudden infant death
syndrome (SillS), acute respiratory infections, ear problems, and more severe asthma.
California Air Resources Board Identifies Secondhand Smoke a Toxic Air Contaminant
In addition, on January 26,2006, the California Air Resources Board (ARB) formally identified
secondhand smoke as a Toxic Air Contaminant (TAC) based on a comprehensive report regarding
exposure and health effects of secondhand smoke. T AC is an air pollutant that may cause or contribute to
an increase in deaths or serious illness, or that may pose a present or potential hazard to human health. As
part of the report, the Office of Environmental Health Hazard Assessment established links between
exposure to secondhand smoke and adverse health effects, including premature births, low birth-weight
babies, and SIDS.
Now that secondhand smoke is identified as a T AC, the ARB will evaluate the need to reduce exposures
to secondhand smoke, including a review of current mitigation measures such as state and local anti-
smoking programs and public education efforts regarding exposure.
Environmental Protection Agency and California Environmental Protection Agency
Finally, the Environmental Protection Agency (EP A) has classified secondhand smoke as a known cause
of cancer in humans (Group A carcinogen). Furthermore, the California Environmental Protection
Agency estimates that secondhand smoke causes between 150,000 and 300,000 lower respiratory tract
infections in infants and children under 18 months of age, resulting in between 7,500 and 15,000
hospitalizations each year, and causes 1,900 to 2,700 SIDSdeaths in the United States each year.
City's Authority to Declare Nuisance and Effect of Declaration
Cities have the authority under their police power (Cal. Const., art. XI, ~ 7) to declare what constitutes a
nuisance by ordinance. (Gov. Code, ~~ 38771.) Although the DMC is silent as to secondhand smoke as a
nuisance, it does provide for several conditions that constitute a public nuisance, including abandoned
vehicles, dangerous buildings or structures, vicious dogs, flies, production of unreasonable odor and
rodent infestation, unreasonable noise and weeds.
The effect of such a declaration is to make the nuisance a nuisance per se, which means that there is no
burden of proof on a plaintiff beyond the fact that the nuisance actually exists. (City of Costa Mesa v.
Soffer (1993) II Cal.AppAth 378,382.) Without such declaration, a plaintiff must prove that the nuisance
is substantial and unreasonable to constitute a public nuisance subject to abatement. (People ex rel. Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1105.) In other words, the declaration of nuisance means that the
plaintiff need not demonstrate a particular level of exposure as unreasonable; rather, the plaintiff need
only demonstrate that the secondhand smoke exists.
Once a city has declared something to be a nuisance, an individual who files suit alleging a private
nuisance would be able to use this declaration to support his or her private nuisance action as long as the
individual sustains a private injury. The Court of Appeal held that a plaintiff may maintain a private
nuisance action based on a public nuisance when the nuisance causes an injury to plaintifrs private
property or health. (Newhall Land and Farming Company v. Superior Court of Fresno County (1993) 19
Cal.AppAth 334, 342.)
Upon declaration of secondhand smoke as a nuisance, a private plaintiff may I) seek abatement of the
nuisance by court order (an injunction), or 2) seek money damages for the harm caused to the plaintiff, or
3) seek both abatement and damages.
The plaintiff may bring the nuisance lawsuit in small claims court without an attorney. The plaintiff must
prove: I) the party responsible for the secondhand smoke; 2) the secondhand smoke actually exists; 3) the
amount of damages the plaintiff has suffered, so long as less than $7,500, which is the maximum amount
of damages that maybe sought in small claims court. (Code ofCiv. Proc. ~ 116.221.) The plaintiff may
seek an award of damages for items such as the cost of dry cleaning, re-painting, air purifiers, fans, or
hospital bills for health care triggered by the smoke. However, the plaintifrs medical and future damages,
such as illness, may be difficult to quantify and prove in court.
Small Claims courts do not issue injunctions. However, the small claims court may enter a conditional
judgment, providing the defendant a choice between meeting certain court-imposed conditions or paying a
penalty. (Code Civ. Proc. ~ 116.220(b).)
However, if the plaintiff would like to request a court-ordered injunction, which is a court order
commanding or preventing an action, against the defendant's creation of secondhand smoke, then the
plaintiff would need to pursue this order in Superior Court and may represent himself or herself in pro per
or hire an attorney.
Enforcement of Proposed Ordinance Declaring Secondhand Smoke a Nuisance
In directing Staff to return to Council with an Ordinance declaring secondhand smoke a nuisance, the City
Council expressed its desire that the Ordinance authorize enforcement by a private party, but at this time
no City resources or staff time should be expended for enforcement of the Ordinance. Thus, the proposed
Ordinance authorizes enforcement by private citizens through a legal action to abate secondhand smoke as
a nuisance (Attachment I).
In order to establish a policy of enforcement by the City, the City Council may adopt that attached
Resolution (Attachment 2) upon second reading and adoption of the Ordinance. The attached Resolution
establishes a policy of enforcement by the City which provides that no City resources or staff time shall be
expended to abate secondhand smoke as a nuisance.
RECOMMENDATION
Staff recommends that the City Council: 1') open the public hearing; 2) receive Staff presentation; 3)
receive public testimony and close public hearing; 4) deliberate; 5) waive the reading and INTRODUCE
the Ordinance declaring secondhand smoke a nuisance (Attachment I).
/oPLf
ORDINANCE NO. - 06
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
******************
AMENDING SECTION 5.56.040 AND ADDING SECTION 5.56.160
TO THE DUBLIN MUNICIPAL CODE
TO DECLARE SECONHAND SMOKE A NUISANCE
RECITALS
WHEREAS, secondhand smoke, also known as environmental tobacco smoke, is a mixture of the
smoke given offby burning cigarettes, pipes, and cigars, and the smoke exhaled from the lungs of
smokers; and
WHEREAS, on June 27,2006, the United States Surgeon General issued a report concluding that
there is no risk-free level of exposure to secondhand smoke (the "Surgeon General Report,,);1 and
WHEREAS, the Surgeon General Report estimates that approximately 127 million children and
nonsmoking adults were exposed to secondhand smoke in 2000, including almost 22 million children
aged 3 through 11 years, and 18 million nonsmoking youth aged 12 through 19 years;2 and
WHEREAS, the Surgeon General Report concludes that for non-smoking adults, exposure to
secondhand smoke: I) increases the risk of coronary heart disease by 25 to 30 percent,3 and 2) causes a 20
to 30 percent increase in the risk oflung cancer for those living with a smoker;4 and
WHEREAS, the Surgeon General Report adopted estimates of the California Environmental
Protection Agency concluding that secondhand smoke accounts for 46,000 premature deaths from heart
disease and 3,000 premature deaths from cancer in the United States each year;5 and
WHEREAS, the Surgeon General Report concludes that children exposed to secondhand smoke
are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear
problems, and more severe asthma;6 and
WHEREAS, the Surgeon General Report concludes that a smoke-free environment is the only
way to fully protect nonsmokers from the dangers of secondhand smoke because mitigation measures
I United States Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco
Smoke: A Report of the Surgeon General (2006) pp.649-650.
2Id. at p. 154.
3Id. at p. 532.
4Id. at p. 445.
5Id. at pp. 484 and 532.
6Id. at pp. 242-243.
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such as separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate
exposure of nonsmokers to secondhand smoke; 7 and
WHEREAS, on January 26, 2006, the California Air Resources Board (ARB) formally identified
secondhand smoke as a Toxic Air Contaminant, which is an air pollutant that may cause or contribute to
an increase in deaths or serious illness, or that may pose a present or potential hazard to human health;
and
WHEREAS, upon identification of secondhand smoke as a Toxic Air Contaminant, the ARB will
develop a risk reduction report on the potential actions to reduce secondhand smoke exposures in
California, which will review state and local anti-smoking programs, public education efforts regarding
exposure, and identify additional opportunities to reduce risk; and
WHEREAS, the Environmental Protection Agency (EP A) has classified secondhand smoke as a
known cause of cancer in humans (Group A carcinogen);8 and
WHEREAS, the California Environmental Protection Agency estimates that secondhand smoke
causes between 150,000 and 300,000 lower respiratory tract infections in infants and children under 18
months of age, resulting in between 7,500 and 15,000 hospitalizations each year, and causes 1,900 to
2,700 SillS deaths in the United States each year;9 and
WHEREAS, the Dublin Municipal Code (DMC) prohibits smoking in public places, certain
places of employment, enclosed common areas of multi-unit buildings and certain unenclosed areas, but
does not prohibit smoking in or around private residences; and
WHEREAS, the DMC does not provide any recourse for residents who are exposed to
secondhand smoke within their homes and on their residential property; and
WHEREAS, the City Council desires to declare secondhand smoke a nuisance, thereby enabling
private parties to abate secondhand smoke as a nuisance, without the involvement of City resources or
staff time in abating such nuisance.
NOW, THEREFORE, the City Council ofthe City of Dublin does hereby ordain as follows:
Section 1. Amendment of Section 5.56.040. The definition of "Smoking" in Section 5.56.040 is
hereby amended as follows:
7Id. at pp. 649-650.
8 Ibid.
9 California Environmental Protection Agency. Health Effects of Exposure to Environmental Tobacco Smoke. September
1997.
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"Smoking" means the consumption of tobacco by inhaling, exhaling, burning or carrying any
lighted pipe, cigar or cigarette of any kind, or any other combustible substance.
Section 2. Amendment of Section 5.56.040. Section 5.56.040 is hereby amended to add the
following definition:
"Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe,
cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in Smoking.
Section 3. Addition of Section 5.56.160. Section 5.56.160 is hereby added to the Dublin
Municipal Code to read as follows:
8.56.160
Secondhand Smoke--Declaration of Nuisance.
Secondhand smoke constitutes a nuisance. Notwithstanding any other provisions ofthis chapter, a
private citizen may bring a legal action to abate secondhand smoke as a nuisance.
Section 4: Effective Date. This Ordinance shall take effect and be enforced thirty (30) days
following its adoption.
Section 5: Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be
posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this 5th day of September, 2006.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
835012-1
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*****************
ESTABLISHING THE CITY'S ENFORCEMENT POLICY FOR
DUBLIN MUNICIPAL CODE SECTION 5.56.160 RELATING TO
SECONDHAND SMOKE-NUISANCE DECLARATION
WHEREAS, on August 1,2006, the City Council of the City of Dublin ("City") amended Dublin
Municipal Code Chapter 5.56 related to Smoking Pollution Control to declare secondhand smoke a nuisance
("Ordinance"); and
WHEREAS, a city's declaration of nuisance may be enforced through an abatement action brought by
the city, and/or by an abatement action brought by a private citizen; and
WHEREAS, the Ordinance authorizes enforcement by a private citizen; and
WHEREAS, at this time, the City Council does not desire to expend City resources or staff time to
enforce the Ordinance.
NOW, THEREFORE, the City Council ofthe City of Dublin does RESOLVE as follows:
I. Policy of Enforcement by City. The City shall not expend City resources or staff time to enforce the
provisions of Section 5.56.160 of the Dublin Municipal Code relating to Secondhand Smoke-Nuisance
Declaration.
2. Effective Date. This Resolution shall take effect immediately.
3. Severability Clause. The provisions of this Resolution are severable and if any provision,
clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any
person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect
or impair any of the remaining. provisions, clauses, sentences, sections, words or parts thereof of the
ordinance or their applicability to other persons or circumstances.
PASSED, APPROVED, AND ADOPTED this 5th day of September 2006, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN :
Mayor
ATTEST:
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InltDENT ~
City Clerk