HomeMy WebLinkAboutItem 6.2 SmokingPublicPlaces
CITY CLERK
File # D~I6J[O]-[9]lQ]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 1, 2005
SUBJECT:
PUBLIC HEARING: Ordinance Amending Section 5.56.050 of the
Dublin Municipal Code, Relating to Smoking in Public Places
Report Prepared by Elizabeth H Silver. City Attorney
A TT ACHMENTS:
1. Urgency Ordinance Number 23-05
2. Proposed Ordinance Amending Section 5.56.050 of the
Dublin Municipal Code, Relating to Smoking in Public Placcs
~
1.
2.
3.
4.
Open public hearing and hear Staff presentation
Take testimony from public
Close public hearing and deliberate
Waive the reading and ADOPT the Ordinance Amending
Section 5.56.050 of the Dublin Municipal Codc, Relating to
Smoking in Public Places (Attachment 2)
RECOMMENDA TJON:
FINANCIAL STATEMENT: None.
DESCRIPTJON:
The City's Current Law Relating to Smoking in Public Places
The City currently regulates tobacco use through Chapter 5.56 of the Dublin Municipal Code
entitled "Smoking Pollution Control." In relevant part, the Municipal Code provides, "Smoking shall be
prohibited in any enclosed public place, business, restaurant, or place of employment within the city of
Dublin except in the enclosed places ident!/ìed in Cal!fornia Labor Code Section 6404.5(d), or its
successor [emphasis added]." (Municipal Code § 5.56.050 (A).)
Duc to the exception elause in eluded in the Municipal Code, several types of enelosed places are
exempt from the City's smoking prohibition. In fact, California Labor Code Section 6404.5(d) lists 14
ditTerent enelosed places that are not subject to the smoking prohibition because they are not "places of
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COpy TO:
ITEM NO.
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Page 1 of5
employment." Because the City effectively adopts the exemptions provided in the Labor Code, 14
diffcrcnt cncloscd arcas that arc nor considered "places of employment" are nor subject to the smoking
prohibition in the City. One such exception includes "retail and wholcsale tobacco shops and privatc
smokers' lounges." (Lab. Codc § 6404.5(d)(4).) Other exceptions, where smoking is now permitted by
virtue of the Municipal Code's reference to Labor Code section 6404.5(d) includc: 65 percent of the guest
room accommodations in a holel, motel, or other lodging establisluncnts; smoking-designated areas in the
lobby, mccting rooms and banquct rooms of such hotels or motels; cabs of motortrucks; warehouse
facilities; theatrical productions sites if smoking is an integral part ofthc story; medical and research
treatment sites if smoking is integral to the research or treatment bcing conducted; private residences
unless licensed as a family day carc homc; paticnt smoking areas in long~teml health care facilities; and
brcakrooms dcsignated by employers for smoking provided several conditions are met.
Proposed Ordinan£~j>.lI19!lding the Dublin Municipal Code
At the October 4, 2005 City Council meeting, the City Council passcd an Urgency Ordinance
(Ordinance 23-05, Attachment 1) amending Section 5.56.050 of the Dublin Municipal Code relating to
smoking in public places. Thc urgcncy ordinance added subsection E. to Section 5.56.050,1 providing that
retail or wholesale tobacco shops and smokers' lounges are subject to thc smoking prohibition in "places
of employment" as defined by thc Labor Codc Section 6404.5. (Lab. Code § 6404.5(d).)
The City Council passed the Urgency Ordinancc in response to an inquiry or inquiries regarding
thc potential pcrmitting and establislunent of retail or wholesale tobacco shops and private smokers'
lounges within the City. Prior 10 the October 4th Council Mecting, the City did not regulate such tobacco
bar-type establisbments because Municipal Codc Section 5.56.050 exempted from its smoking prohibition
all enclosed places identified in Labor Codc Scction 6404.5(d). Section 6404.5(d) of the Labor Code lists
14 enclosed placcs that are not "places of employment," jncluding "retail or wholesale tobacco shops and
private smokers' lounges." (Lab. Code § 6404.5(d)(4).)
The Urgency Ordinance was passed based on several urgency findings rclated to the health and
safety of City residents, including the negative effects of smoking on tobacco-users and those exposed to
sccondhand smokc.
The effect of the Urgency Ordinancc is that smoking is now prohibited in retail or wholesale
tobacco shops and privatc smokers' lounges. The Urgency Ordinance containcd a statement that it was
the Councjl's intenl to prohihit smoking in all retail or wholesale tobacco shops and private smokcrs'
loungcs, rcgardless ofwhcther the establishment constitutes a "place of employmcnt." In other words,
whether the tobacco shop or smokers' lounge is owner-operated or operates with employees, the
prohibition on smoking would apply to such an establishment. Furthermore, the Council intended this
prohibition to apply to all tobacco shops and smokers' lounges, notwithstanding the small business
exception of the Labor Code. (Lab. Code § 6404.5(d)(14).) Therefore, the prohjbition on smoking in
retail or wholesale tobacco shops or smokcrs' lounges applies to all such establishments, cven ifthe
business has five or fewer employees.
At thc October 4, 2005 City Council meeting, the City Council also introduced the regular
ordinance amending Section 5.56.050 ofthe Dublin Municipal Codc rclating to smoking in public places
I Orùinance 23-05 provides:
"E. Notwithstanding the exception in subsection A ahove for enclosed places identified in California LahOT Code
Section 6404.5( d) Or it successor, "place of employment" shall include retail or wholesale tobacco shops and private
smokers' lounges, as ,ueh tern" are defined in California Labor Code section 6404.5(d)(4)."
(Attachment 2). The Staff rccommends that the City Council adopt the introduced ordinance through the
nonllal process, thcrcby amcnding Scction 5.56.050 of the Dublin Municipal Code relating to smoking in
public places. The text of the proposed ordinance is identical to that ofthe Urgency Ordinance passed at
thc Octobcr 4th City Council Mccting.
It is important to note that the proposed amcndmcnt to Chapter 5.56 does not affect a retail
owner's ability to sell tobacco products. The Municipal Code only prohibits the smoking of tobacco, not
its sale. (Duhlin Municipal Code § 5.56.050(A).) Additionally, thc proposed ordinance would prohibit
smoking in "retail or wholcsalc tobacco shops," which are defined as businesses that bave a main purpose
of selling tobacco products. (Lab. Code § 6404.5 (d)(4)(B).)
The Citv's Authority to Rcgulatc Tolm.ç,çJLUse
The City has authority to rcgulatc thc smoking of tobacco pursuant to its constitutionally-granted
police power. The California Constitution provides that a "city may make and enforcc all local, police,
sanitary, and othcr ordinanccs and rcgulations not in conflict with the general laws." (Cal. Cons!., art XI,
§ 7.) The regulation of tobacco smoking protects the health and safety ofthe local residents, and is a valid
exercise of police power. (City of San Jose v. Dept. of Health Services (1998) 66 Cal.App.4th 35, 43 (City
of San Jose).)
Additionally, the City has thc statutory authority to regulate or ban completely the smoking of
tobacco under the California Indoor Clean Air Act. (Health & Saf § 118910.) The Act not only dcclares
thc California Lcgislature's intent not to prccmpt the ficld oftobacco smoking regulation, it goes further
to vest authority in the local government to "ball completely the smoking of tobacco, or.. .regulatc tobacco
smoking in any manner not inconsistent with this article and Article 3 (commencing with Scction 118920)
or any other provision of state law." (Health and Saf. Code § 118910). In fact, the Act explicitly permits
local ordinances to go beyond State law in regulating tobacco use. (Health and Saf. Code § 118940.)
Tn City of San Jose, the Court of Appeals held that the language of the California Indoor Clean Air
Act clearly demonstratcd the Legislaturc's intcnt to grant local government the power to regulate tobacco
smoking. (City of San Jose. supra, 66 Cal.App.4th at p. 42.) The Court reasoncd that thc Legislature's
grant of power was bascd on thc uniquc knowledge and ability the local government brings to solving
local problems such as tobacco smoking. (Ibid.) Therefore, the City is empowcred by state statute to use
its understanding oflocal conditions in creating a smoking ordinance that benefits City residents, which
includes prohibiting smoking in retail and wholesale tobacco shops and private smokers' lounges.
Regulating Smoking in "Places ofEmDlovment"
The Labor Code prohibits tobacco smoking in "places of employment," but as discussed above,
the Code exempts several establishments from the definition of"placc ofcmployment." (Lab. Code §
6404.5(d).) When an establishment fa11s outside the definition ofa "place of employment" the Labor
Codc cxprcssly cmpowers the local governmcnt to rcgulatc tobacco smoking in such an establishment.
(Lab. Code § 6404.5(a).)
In 1993, tlle City of San Jose adopted an ordinance that banned smoking in all buildings accessible
to the public or which were places of employment. (City 6JSan Jose, supra, 66 CaI.App.4th at p. 39.) The
next year, the state Legislature adopted Labor Code Section 6404.5, which also banned smoking in
"places of employment," but exempted several establishments from the smoking ban. In response to the
Labor Code exemptions, San Jose added a stop-gap measure to its smoking ordinance, which provided for
complete enforcement of the smoking ban, even in those establishments cxcmpted by the Labor Code.
(Ibid.) In other words, San Jose maintained a more restrictivc smoking ordinance than the State's
regulation of smoking in places of employment.
The Department of Health Services sued when San Jose sought to enforcc thc smoking ban at the
Westgate Convalesccnt Ccntcr. (City of San Jose, supra, 66 Cal.App.4th at p. 39.) The Department of
Health Services claimed that San Jose's ordinance was preempted by state law undcr thc Labor Code.
Howevcr, the Court of Appeals upheld San Josc's more restrictive smoking ordinance as not preempted
by state law. (ld. at pp. 43-44.) The Court found that Westgate Convalescent Center was a "Iong~tcnn
health care facility" and thereby exempt £i'om the definition of "place ofemploymcnt." (ld. at p. 44.)
Therefore, the Labor Code, by its own terms, empowered the City of San Josc to regulate tobacco
smoking at the convalescent center. (Ibid.)
Similarly, the City has the altthority to regulatc thcsc Labor Code exempt establishments, but [he
City does not exercise this authority under the current Municipal Code Section 5.56.050. lnstcad, the
Municipal Code (Municipal Code Section 5.56.050) adopts the Labor Code's exemptions. (Lab. Code §
6404.5(d).)
Two important exemptions that thc Municipal Code adopts include: 1) retail or wholesale tobacco
shops and private smokcrs' lounges (Lab. Code § 6404.5(d)(4)), and 2) employers with a total of fivc or
fewer employees (Lab. Code § 6404.5(d)(l4).) Under current Municipal law, smoking is permitted in
both these types of establishments.
In responsc to an inquiry or inquirics rcgarding the potential permitting and establishment of retail
or wholesale tobacco shops and private smokers' lounges within the City, Staff recommends that the City
Council close this loophole by making such establishments "places of employment." By making retail
and wholesale tobacco shops and private smokers' lounges "placcs of cmployment," such establishments
will not be exempted from the Labor Code and instead, the prohibition of smoking in "places of
employment" will apply.
However, the City Council need not go the step further to make small businesses oftïvc or fewer
employees subject to the "places of employment" ban. The small business exemption contains limiling
language that makes it inoperable when applied to a business which is otherwise regulatcd.¡ (Lab. Code §
6404.5(d)(14)(D).) Since the proposed ordinance will prohibit smoking in retail and wholesale tobacco
shops and private smokcrs' loungcs, a business-owner may not circumvent this prohibition by using thc
small business exemption. (Lab. Code § 6404.5(d)(14)(D); See 82 Ops.CaI.AUy.Gen 190, 192~93 (1999)
(bar or tavern owner with five or fewer employees is not exempt from the provisions ofthc Labor Code
Section 6404.5).) This is cspccially true because of the statement of the Council's intent in the draft
ordinance.
Regulating Smoking in Establishments other than "Places of Emplovment"
2 The Labor Code provides:
"This paragraph shall not be constmed to (i) supersede or render inapplicable any eondihQn 01' limitahon on smQking
artas made applicable tQ specific type' Qfbusiness establishments by any other paragraph of this subdivision or (ii)
apply in lieu of any otherwise applicable paragraph of this subdivision that has become inoperative." (Lab. Code §
6404,5(d)(14)(D).)
Thc currcnt Municipal Code's prohibition 011 smoking applies to "any enclosed publiç place,
business, restaurant, or place of employment within the city of Dublin. .." (Municipal Code § 5.56.050).
Under the Labor Code, a "place of employment" is "any place, and the premiscs appurtenant thereto,
where employment is carried on..." (Lab. Code § 6303(a).) lfa business falls outside of this definition,
then it is subjcct to the smoking prohibition as a "business" under Municipal Code Section 5.56.050.
Under the Municipal Code, a "business" is defined as "any sole proprietership, partnership, joint venture,
corporation or other business entity formed for profit-making purposes." (Municipal Code § 5.56.040.)
For example, if an individual claims to operate a business as an owner-operated enterprise with no
employees, it maYl10t be a "place of employment." Howevcr, an owner-operated business constitutes a
solc proprietorship that would be subject to the prohibition on smoking as a "business" under the current
Municipal Code Section 5.56.050. The proposed Ordinallce would not change the effcct of this smoking
prohibition on "businesses."
Conclusion
The effect ofthe ordinance will be to amend the Dublin Municipal Code Section 5.56.050 entitled
"Prohibition of Smoking in Public Placcs and Places of Employment." The amendment will add
subsection E. to Section 5.56.050, which makes retail and wholesale tobacco shops and private smokers'
lounges "places of employment" for purposes of the Labor Codc, thereby prohibiting smoking in such
cstablishmcnts.
RECOMMENDATION:
Staff recommends that the Council open the public hearing and receive Staffs presentation; close
the public hearing; deliberate; and waivc the reading and adopt the ordinance (Attachment 2).
785909_1.])OC;114.100I
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ORDINANCE NO. 23 - 05
AN ORDINANCE OF THE CITY OF DUBLIN
* ~ * . . . ~ . . ft * * *
AN URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN AMENDING SECTION 5.56.050
OF THE DUBLIN MUNICIPAL CODE,
RELATING TO SMOKING IN PUBtlC PLACES
WHEREAS, it is the intention of the City Council of the City of Dublin to prohibit smoking in retail
or wholesale tobacco shops and private smokers' lounges as authorized by Labor Code section 64045(1)
and Health and Safety Code section 118910 and 118940.
NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows:
Seetioll .:
Amendment to Section 5.56.050 of the Dublin Munìciual Code
Section 5.56.050 of the Dublin Municipal Code is amended by adding subsection E, to read as
follows:
"E. Notwithstanding the exception in subsection A above for enclosed places id011tified
in California Labor Code Section 64'J4.5(d) or it successor, "place of employment" shall
include reto.il or wholesale tobacco shops and private smokers' lounges, as such tetTIJS are
defined in California Labor Code section 6404.~(d)(4)"
Sed ion 2:
Severabilitv
The provisloos of this Ordinance are severable and if any provision, clauBe, sentence, word or part
thereof is held illegal, invalid, unconstitutional, or inapplicabfe to any person or circumstances, such
illegality, invalidity, unconstitutionality, or inapplicability shall not affect Of impair any of the remaining
provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to
other persons or circumstances.
Section 3:
Effective Date .nd Postinu or Ordinance
This Ordinance shall take effect immediately. This ordinance is adopted as an urgency ordinance
pursuant to subdivision (h) ofGovemment Code section 36937, to take effect immediately, and is for the
immediate pre~ervation of the public peace, health II.I1d welfare. The facts constituting the urgency are the
following: Canœr causally relatcd to smoking tobacco Is the second-leading cause of death in thc United
States. Secondhand smoke increases the risk for lung cancer and coronary heart disease in non-smokers.
The City of Dublin has received inquiries regarding the permitting and establishment of retail and
wholesale tobacco shops and private smokers' lounges and other businessca permitting smoking on the
premises within the City. The City of Dublin does not regulate the location and land use impacts of retail
and wholesale tobacco shops and private smokers' lounges and other businesses permitting smoking on
the premises within the City. Absent the adoption of this urgency ordinance. the establishment and
operation of retail and wholesale tobacco shops and private smokers' lounges and other businesses
permitting smoking on the premises within the City would result in the hannful effects identified above.
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ATTACHMENT
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As a result of the harmful primary and secondary effects associated with tobacco use and the current and
immediate threat such effects pose to the public health, safety, and welfare, it is necessary to prohibit
smoking in retail and wholesale tobacw shops and private smokers' lounges and other businesses.
Section 4:
Postio!! of Ordinance
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 39633 of the Govemment Code of
Cali fornia_
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Dublin on this 4'" of
October, 2005, by the fol1owin¡ votes:
A YES: Council members Hildenbrand, McCormick, Oravetz and Mayor Lockhart
NOES: None
ABSENT: Vice Mayor Zika
ABSTAIN: None
ArrEST:
~II~~~' "
City lerk Fawn Holman
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ORDINANCE NO. _-~
AN ORDINANCE OF THE CITY OF DUBLIN
*************
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN
AMENDING SECTION 5.56.050 OF THE DUBLIN MUNICIPAL CODE,
RELATING TO SMOKING IN PUBLIC PLACES
WHEREAS, it is the intention of the City Council ofthe City of Dublin to prohibit
smoking in rctail or wholesale tobacco shops and private smokers' lounges as authorizcd
by Labor Code section 6404.5(i) and Health and Safety Code sections 118910 and
118940.
NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows:
Section 1:
Amendment to Section 5.56.050 of the Dublin Municipal Code
Section 5.56.050 of the Dublin Municipal Code is amended by adding subsection E,
to rcad as follows:
"E. Notwithstanding the exception in subsection A above for enclosed
places identified in California Labor Code Section 6404.5(d) or it
successor, "place of employment" shall inc lude retail or wholesale tobacco
shops and privatc smokcrs' loungcs, as such tem1S are defined in
California Labor Codc scction 6404.5(d)(4)."
Section 2:
Severabilitv
The provisions of this Ordinance are severable and if any provision, clausc, 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 affcct 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.
Section 3:
Effective Date and Postine of Ordinance
This Ordinance shall take effect and be in force thirty (30) days from and after the
date of its final adoption. The City Clerk of the City of Dublin shall causc this Ordinance
to be posted in at least three (3) public places in the City of DlIblin in accordance with
Scction 39633 ofthc Government Code of California.
ATTACDMENTL
45Ò~
PASSED, APPROVED, AND ADOPTED BY thc City Council of the City ofDLlblin
on this of 2005, by thc following votcs:
ATTEST:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
City Clerk
785593_2.DOC:114.1001