HomeMy WebLinkAbout7.2 Smoke Pollution Ord~~~~ \
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CITY CLERK
File # ^^S ~ 0^- ~1^Q
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 16, 2009
SUBJECT: Consideration of Amendment to the City of Dublin Smoking
Pollution Control Ordinance
Report Prepared by Roger Bradley, Administrative Analyst
ATTACHMENTS:
RECOMMENDATION:
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FINANCIAL STATEMENT:
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1) Staff recommends that the City Council consider Vice Mayor
Hildenbrand's request to amend the City's Smoking
Pollution Control Ordinance to prohibit smoking within the
total property area of private residences licensed to operate as
care centers; and
2) If appropriate, direct Staff to prepare a Municipal Code
Amendment proposal prohibiting smoking within the total
property area of private residences licensed to operate as care
centers.
None
DESCRIPTION: At the May 5, 2009 City Council Meeting, Vice Mayor Hildenbrand
requested that Staff prepare a report, for the City Council's consideration, outlining a proposed
amendment to the Smoking Pollution Control Ordinance, Chapter 5.56 of the Dublin Municipal Code that
would consider banning smoking within the total property area of private residences that are licensed to
operate as care centers on a 24-hour-a-day and 7-day-a-week basis. This report is in response to that
request.
Staff has held preliminary discussions about this item with the City Attorney's Office to receive an
opinion about any legal preemption that would prevent the City Council from prohibiting smoking within
the total property area of private care homes as proposed. The City Attorney's Office indicated that there
is no statute or case law that would clearly prohibit such regulation, but it did indicate that banning
smoking within the total outdoor area of private care homes would require the establishment of a clear
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ITEM NO.
F:\Council\Agenda Statements\2008-2009\as-smoking ord changes.total prop area.doc
nexus between the ban and the justification for its existence. Presently, Dublin would be the first City, of
which Staff is aware, to have taken this step; thus, there does not appear to be a precedence for this action.
Previously, the City Council adopted an ordinance prohibiting smoking within private homes that operate
as licensed care centers on a 24/7 basis. This was in response to the State law allowing smoking within
daycare homes after their hours of operation as a care center. In this case, a clear nexus was established by
showing that the residual contaminates from smoking were present within the home long after smoking
had ceased. Thus, the City Council found that there was a health risk to individuals receiving care in such
locations and that there was a need to protect the public from exposure to a health hazard at a private
residence.
Under the current proposal, it may be more difficult to establish a specific health hazard, especially if the
intent is to ban smoking within the total property area at all private residences that operate as licensed care
centers. Where children are present, the City Council may find that cigarette butts present a choking and
ingestion hazard and is justification for banning smoking at such locations. For adult care facilities, such
reasoning is not valid. In addition, many adult care facilities house smokers that are rehabilitating and/or
are elderly. The City Council may wish to take this into consideration as prohibiting smoking at such
locations may place an undue burden upon such individuals, as they would have to leave the property area
to smoke. Defining the justification for a ban as protection from secondhand smoke may open the
argument about smoke generated from other sources such as barbeques, etc. As a result, Staff would
recommend, if the City Council is interested in proceeding, only prohibiting smoking within the total
property area of private homes licensed to operate as daycare centers.
Current laws relevant to this issue are listed below.
Dublin Municipal Code Chapter 5.56
• Smoking is prohibited within private residences that are licensed to operate as care centers 24
hours a day and 7 days a week.
• Smoking is prohibited within 20 feet of any entrances, exits, operable windows, vents or other
openings of private residences that are licensed to operate as care centers. Outside of this range, a
care center operator may smoke anywhere on the property, but given the high density of Dublin
housing, may serve as a near to total ban of smoking in the outdoor area.
State Law -Health & Safety Code 1596.795
• Current State law prohibits smoking within homes that are licensed as daycare units during the
hours of operation, and it allows for cities to adopt Ordinances that are more stringent.
• Smoking is prohibited on the premises of commercial daycare centers. The term "Premises" is
defined within the Dublin Municipal Code as the land and any improvements upon it.
Vice Mayor's Proposal
• Prohibition of smoking 24 hours a day and 7 days a week within the total property area of private
residences that are licensed to operate as care centers.
RECOMMENDATION: Staff recommends that: 1) the City Council consider Vice Mayor
Hildenbrand's request to amend the City's Smoking Pollution Control Ordinance to prohibit smoking
within the total property area of private residences licensed to operate as care centers; and 2) if
appropriate, direct Staff to prepare an Amendment to the Dublin Municipal Code prohibiting smoking
within the total property area of private residences licensed to operate as care centers.
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