HomeMy WebLinkAbout2010-08-16_EQUAC_AgendaCITY OF NEWPORT BEACH
ENVIRONMENTAL QUALITY AFFAIRS
COMMITTEE AGENDA - REVISED
DATE /TIME: Monday, August 16, 2010
7:00 p.m.
LOCATION: Police Department Auditorium
870 Santa Barbara Drive
This committee is subject to the Ralph M. Brown Act. Among other things, the Brown Act requires that the
Commission's agenda be posted at least 72 hours in advance of each meeting and that the public be allowed to
comment on agenda items before the Commission and items not on the agenda but are within the subject matter
jurisdiction of the Commission. The Commission may limit public comments to a reasonable amount of time,
generally either three (3) or five (5) minutes per person.
It is the intention of the City of Newport Beach to comply with the Americans with Disabilities Act (ADA) in all
respects. If, as an attendee or a participant at this meeting, you will need special assistance beyond what is normally
provided, the City of Newport Beach will attempt to accommodate you in every reasonable manner. Please contact
Leilani Brown, City Clerk, at least 72 hours prior to the meeting to inform us of your particular needs and to determine
if accommodation is feasible (949- 644 -3005 or (brown @newportbeachca.gov).
Roll Call
1. Minutes of April 19, 2010 (attachment 1)
2. Minutes of June 21, 2010 (attachment 2)
3. Smoking Regulations (attachment 3 — handouts from presentations on June 21, 2010)
4. Coastal /Bay Water Quality Committee Representatives' Report
5. Economic Development Committee Representative's Report
6. Report from Staff on Current Projects
7. Public Comments
8. Future Agenda Items
9. Adjournment
NEXT MEETING DATE: September 20, 2010
`Attachments can be found on the City's website http: / /www.newportbeachca.gov. Once there, click on Agendas
and Minutes then scroll to and click on Environmental Quality Affairs. If attachment is not on the web page, it is
also available in the City of Newport Beach Planning Department, 3300 Newport Boulevard, Building C, 2nd Floor.
Any writings or documents provided to a majority of the Environmental Quality Affairs Committee regarding any item on this agenda will be made
available for public inspection in the Planning Department located at 3300 Newport Blvd., Newport Beach, CA 92663 during normal business
hours.
Attachment No. 1
Minutes of April 19, 2010
�aEWPO�
Nancy Gardner, Council Member
°4 T�
CITY OF NEWPORT BEACH
m
ENVIRONMENTAL QUALITY AFFAIRS COMMITTEE
X
Laura Curran
DRAFT MINUTES April 19, 2010
The Environmental Quality Affairs Committee held at the City of Newport Beach Police
Department Auditorium, 870 Santa Barbara Drive, on Monday, April 19, 2010.
Members Present:
A
Nancy Gardner, Council Member
E
Barbara Thibault
X
Michael Henn, Council Member
X
Laura Curran
X
Arlene Greer, Chair
X
Vincent Le ore
X
Kimberly Jameson
X
Kevin Nolen
X
Kevin Kell
A
Sandra Haskell
E
Michael Smith
X
Kathy Harrison
X
Ed Reno
X
Timothy Stoaks
A
Nick Roussos
X
Jay Myers
X
Joan Penfil
X
Charles McKenna
X
Bruce Asper
E
Debra Stevens
A
Merritt Van Sant
E
Michael Alti
Staff Representatives:
X James Campbell, Principal Planner
Guests:
Chairperson Greer called the meeting to order at 7:05 p.m.
1. Minutes of February 22, 2010
Joan Penfil moved and Bruce Asper seconded to approve the minutes of February 22, 2010,
as submitted.
Motion passed unanimously
2. Banning Ranch Presentations
a. Banning Ranch Conservancy — Stephen Ray provided an overview of the
Conservancy's efforts to secure funding for the acquisition of the Banning
Ranch property to preserve the site as habitat and open space as a component
of the overall River Park concept. He noted the Conservancy's goal to save the
land from development due to the elimination of critical habitat and open space.
b. Newport Banning Ranch — Mike Mohler provided an overview of the Newport
Banning Ranch project that consists of the preservation of 65% of the 400 acre
property as open space, environmental remediation /restoration efforts,
consolidated oil production, 1,375 residential units, 75,000 square feet of
commercial development and a 75 room hotel. He indicated that the comments
from EQAC on the Notice of Preparation will be addressed in the forthcoming
EIR being prepared by the City.
3. Coastal /Bay Water Quality Committee Representative's Report
Council Member Henn reported that the Committee received a presentation from the Utilities
Department on the City's water wells in Fountain Valley. The Committee also heard a
presentation on the Poseidon desalination plant proposed in Huntington Beach. Council
Member Henn indicated that should the Poseidon facility come on -line in the future, its water
production, combined with the City's wells, should make the City 100% independent from
State water resources.
4. Economic Development Committee Representative's Report
Chairperson Greer reported that EDC had discussed sales and use taxes and the importance
of transient occupancy taxes and the continuing efforts to secure hotel stays in the City for
future Rose Bowl and BCS national championship football games. Transient occupancy tax
revenue is on the rise and restaurants who participated in the recent Restaurant Weeks
experienced increased sales. The next Restaurant Week will be in January of 2011.
Chairperson Greer went on to report that the Marriott Hotel in Newport Center is planning an
expansion of their ballroom spaces and that the City is examining its way- finding signs to
improve their effectiveness. It was reported to the EDC that the blighted property on the north
side of Coast Highway east of Dover Drive has been sold and the new owners are developing
plans for redeveloping the site. Lastly, Chairperson Greer reminded the Committee 2010
Newport Beach Film Festival begins this week, April 22, 2010, and the Newport to Ensenada
Race starts this Friday, April 23, 2010.
5. Report from Staff on Current Projects
Jim Campbell reported that the draft EIR for the Banning Ranch project is expected to be
released for public review in mid -June.
6. Public Comments
None
7. Future Agenda Items
May — Smoking Ban update.
8. Adjournment
Chairperson Greer adjourned the meeting at 8:35 p.m.
Attachment No. 2
Minutes of June 21, 2010
�aEWPO�
Nancy Gardner, Council Member
°4 T�
CITY OF NEWPORT BEACH
m
ENVIRONMENTAL QUALITY AFFAIRS COMMITTEE
X
Laura Curran
DRAFT MINUTES June 21, 2010
The Environmental Quality Affairs Committee held at the City of Newport Beach Police
Department Auditorium, 870 Santa Barbara Drive, on Monday, June 21, 2010.
Members Present:
X
Nancy Gardner, Council Member
X
Barbara Thibault
E
Michael Henn, Council Member
X
Laura Curran
X
Arlene Greer, Chair
E
Vincent Lepore
X
Kimberly Jameson
E
Kevin Nolen
E
Kevin Kell
Harbor High School Heart Club
A
Sandra Haskell
A
Michael Smith
A
Kathy Harrison
X
Ed Reno
E
Timothy Stoaks
X
Nick Roussos
X
Jay Myer
A
Joan Penfil
E
Charles McKenna
X
Bruce Asper
E
Debra Stevens
A
Merritt Van Sant
A
Michael Alti
Staff Representatives:
Guests:
X
James Campbell, Principal Planner
Gary Sherwin, Newport Beach Conference
and Visitors Bureau
Natalie Wolfs, MSW /MPA, Regional
Program Director, American Lung
Association
Abby Michelsen, President, Newport
Harbor High School Heart Club
Due to lack of quorum, Chairperson Greer adjourned the meeting to the next scheduled
meeting of July 19, 2010.
Attachment No. 3
Smoking Regulations— Handouts From
Presentations on June 21, 2010
Studies conducted by both the U.S. Surgeon General and the National Institute of
Occupational Safety and Health have found that the simple separation of smokers
and nonsmokers in public places does not provide adequate protection for '
nonsmokers: The facts are startling. Exposure to tobacco smoke, both first and
secondhand, is a major risk factor for cardiovascular diseases. The risk of death from
coronary heart disease increases by up to 30 percent among people regularly
exposed to environmental tobacco smoke.
The American Heart Association strongly supports the effort to establish smoke -free
outdoor areas to reduce exposure to the hazards of secondhand'smoke and protect
public health. According to the CDC, 35,000 Americans die annually from heart
disease that results from exposure to secondhand smoke. These are preventable
deaths, and it is the responsibility of states and communities to enact policies to
protect citizens who have already chosen not to smoke.
The American Heart Association is dedicated to supporting state and local action to
protect non - smokers from environmental tobacco smoke. I look forward to working
with you on this critical issue for the improved health of all Newport Beach residents
and visitors.
Sincerely
eB n
American Heart Association
Board of Directors - Western States Affiliate
June 15, 2010
Western States Affiliate
Orange County
Ms. Arlene Greer P.O. sox 6W6
Chairwoman Irvine, CA 928164WO
Tel 949 850 55
Environmental Quality Affairs Committee Fax 949 856 3364
City of Newport Beach http9Aw mamedeanheartorg
Cardbvaaoutardlmawand
3300 Newport Blvd.
straka crnkn mote tNas each
Newport Beach, CA 92663
ysarthan 0a next seven
,err combbied
Dear Ms. Greer:
mat9Jaafonorasson why
On behalf of the American Heart Association, I kindly request the support of the
wo are cornndked to re"g
Environmental Quality Affairs Committee to establish a smoke -free outdoor policy
wonaryheartdrsease, stroke
in the City of Newport Beach.
and dsk by 2&p ucenr by dxr
year2oto.
There is no longer any doubt that exposure to secondhand smoke poses serious
health risks. Secondhand smoke, the third leading cause of preventable death in the
United States, kills an estimated 53,000 nonsmokers each year.
Studies conducted by both the U.S. Surgeon General and the National Institute of
Occupational Safety and Health have found that the simple separation of smokers
and nonsmokers in public places does not provide adequate protection for '
nonsmokers: The facts are startling. Exposure to tobacco smoke, both first and
secondhand, is a major risk factor for cardiovascular diseases. The risk of death from
coronary heart disease increases by up to 30 percent among people regularly
exposed to environmental tobacco smoke.
The American Heart Association strongly supports the effort to establish smoke -free
outdoor areas to reduce exposure to the hazards of secondhand'smoke and protect
public health. According to the CDC, 35,000 Americans die annually from heart
disease that results from exposure to secondhand smoke. These are preventable
deaths, and it is the responsibility of states and communities to enact policies to
protect citizens who have already chosen not to smoke.
The American Heart Association is dedicated to supporting state and local action to
protect non - smokers from environmental tobacco smoke. I look forward to working
with you on this critical issue for the improved health of all Newport Beach residents
and visitors.
Sincerely
eB n
American Heart Association
Board of Directors - Western States Affiliate
forTobacco Policy TABLE OF 00MPREHENSIVE 0JTNI
& Organizing The twenty-five cities and counties with comprehensive ordinances are listed on the table below, which
w....e.a...as. details each outdoor area where a community prohibits smoking in its ordinance. When there are limitations
or exceptions to the full definition of the seven possible outdoor areas, it Is noted with an asterisk
Recreation
Dining Areas Entryways
Public Events
Service Areas Sidewalks
Worksites
Areas
Richmond
X X
X
X
X
June 2009
Martinez
X %
X
X
X
X
Aprl 2009
Pasadena
X X
X
X
X
October 20D8
Glendale
X. X
X
%
X
X
October 20D8
Dublin
X X
X
%'
X
October 2008
Thousand Oaks
X. X
X
X'
X
July 2008
Lama Linda
x X
X
x
x x
x
June 2008
Albany
X° X
X
X
X X'
X
May 2008
Hayward
x X
X
x
x x
May 2008
Novato
X' X
X
X
X
X
Aprl 2008
Berkeley
X X
X
x X'
X
December 2007
Ross
X %
X
X
X
December2007
Belmont
x x
X
X
X
X
October 2007
El Cajon
X X
X
X
X X
X
August 2007
Temecula
X X
x
x
X
X
May 2007
Burbank
X. X
X
X
X' X'
April 2007
Baldwin Park
X X
X'
%
X
February 2007
Emeryville
X X
X
X
X
December 2006
Laguna Woods
X' X
X
X
X
November 2006
Merin County
X' %
X
%
X
X
November 2006
Contra Costa County
X X
X
X
X
October 2006
Santa Monica
X X
X'
X
X X'
October 2006
Mammoth Lakes
X X
X
X
X
X
June 2006
Santa Rosa
X %
X
X
X• X'
June 2006
Calabasas
% X
%
X
% X
%
February 2006
'Glendale - dluws tar mention of devs'ggnoted ado" section In aadoor owns
'eubik-
'Bnbank -nikwo �essumns d Badly lot a designated oudoot waking eocular late can cover
mcreatiunarcnsdoee Nfindudo eomrmadty polka
'ThoultaM mm -oases taetautams to apply lot a pen it Iw a do0lgnvtetl ou%low arria"
up to 40% at dining area
awbaik- WAim wrote
poRdtlan dom NO 0xiudo IndMdud lets doM In
tombs II tannin cwuda.. w0 rnet
Pubdc 1-w0y
'ihwsaN coke - e,a"root Tots Onlyapply to reaaaland ranee ruder out aty:f au'Jacrar.
'aurbank- any pate its waraW:g an ddowzsam devn:nam aumvdt
ay Make are under oacpaaele fukolicl n
eakwinPark- only poNite wnokkgat lunette nuv *aw
'NdVy - Varna exce,nioale tor pendtdlg PNlfkg k oudoor areas at 6drld-nkN eve it tends
'IJiguna Kt)ad3. Mly aapne31. re3kamntn. net tA9
eMtlldoMS we met
'MaM County -oaom exceptiem In Mmdnng smokng at outdoor 6nkg of
bars it certain
AlGnny -ody pmndls o idpogl rn ddawdko 0tllacant to school ptopenyy BN ddowdka on
conddom wo mat
'sane
SokN AVCnM between Son PaMO AVenW oN N0 City of Baakday furled'rcdwW bwtlw
' Novo: o - mmve nxceptbre Iw cenndag mnddrg N adtlow wear in sirM -ebN 0.ve II emtvin
MMIm -any ponds wNNh o d larders tnMns
'Santa Mmdta -wdy apMSea n sidawdka w one Thad Santa PromeMtlo
Ctlkldeatl we real
'$w11r P19a- arNlda rrar51m11VEk0r1 MIV 4CIMee davTtay.T IM511 tMA
'eskdey -only prM014 Onto" an sdowaad k cnmmeraol prom
-settle Rosa - * appa. n sidewdko d JKk ma0 ON! Jet. Way
This material was made possible by funds received from the California Dement of Public
Health. under conttac1 #09- 11173.
,b >,:•rae oil sy,^ 0 tend irrl
i,w-'e:
Judy aeaa
HEALTH &
ECONOMIC
CONSEQUENCES
Smoking - Related
Health Care Costs
The total adult health - related cost of smoking
was estimated to be $18.1 billion in California
in 2004. This estimate is half of the total
expenditures allocated for health and human
services in the 2008 -2009 California budget.
This equates to an additional $500 health -
related expenditure per California resident, or
$3400 per smoker .4
• The direct health care costs associated
with smoking in California were estimated
to be $9.6 billion in 2004.4
• In addition, productivity losses due
California Department of Public Health to smoking - attributed early death or
California Tobacco Control Program illnesses were estimated to be $8.5
cdl)h.ca.gov /programs/T6bacco billion in California; this does not include
secondhand smoke or burn deaths.4
• In 2004, approximately 1.2 billion packs
of cigarettes were sold in California.' If
Smoking. causes ischemic heartdisease, cancer, smokers were to pay for these smoking—
stroke, and chronic lower respi story diseases related health care costs, the price of
-_ which are the leading causes of death and a pack of cigarettes would need to be
�disahifftyamo> - adults Smokinp- attributed increased by $9.70.
diseases are an economic burden due notonly
to health care expenses, but also productivity
losses related to disability or early death.'
In 2004, approximately 35,000 deaths in
California, among adults aged 35 and older,
were attributed to smoking,` not including
death by secondhand smoke or burns. In
comparison to other causes of death for
the same time period and age group, this
represents:
• Eight times the death from all infectious
diseases combined, including FIN- related
deaths.
• Seven times the death from unintentional
injuries.
• Four times the death from the endocrine,
nutritional, and metabolic diseases
combined, including diabetes - related deaths.
Health Consequences of Smoking
According to the Center for Disease Control
and Prevention, 36,687 adults aged 35
and older died annually from smoking in
California in the 2000 -2004 period;6 this
means an average 481,529 years of potential
life lost (YPLQ annually in the 2000 -2004
period:' 6
• The smoking- related death rate was three
times higher for men than for women in
California between 2000 - 2004.46
• The three most common causes of
smoking - attributable death were lung
cancer; followed by chronic obstructive
lung disease and then ischemic heart
disease during 2000 - 2004.3.4.7
• Smoking causes and /or worsens chronic
Cost of Smoking, 2004
Amhulalor.
10%
t,20LOpo;au,
Ilutpiml
N.duwlvup Torre:. 29 %.
4r% 35.014,00,000
S
e; 47,550A00
_ - Nuraing name
l%
5524.000,000
5% 7 %s
s%
5892,000,000 51,320,000.000
5w=swoking,Nulb.,.bl0 hlanalii); hbNidry, 4nd FmnoMC CaNS15.kMMFCI. Aatzsed an htarth 25.2009.
Preyred h," V rrb uryummuof 11,brzH zlih,Gli(mnuro6l�Cwuml P,vse,m Srylmdtcr1W9.
Tobacco Related Deaths California and
the Rest of the United States 2001 -2004
.150 G G0r•mu
400 384.1 ■ us -cn
0
350 327.4
c 300 235 263.2
750 1,
100 185.7 1—
167.6
s' 150
100
so
0
Men Women Overall
Nww Nma are age adiuuwl.
5wrte: Svmkmg . le Mary, h , amt hwumd0 G015MM t Feb. 25, 200,
h- GNwI Dq pxl or wfil Nno-b. Gewnu rnmcro twoI Fr mg4, 5,pun ,uw
2009.
Leading Causes of Death in California, 2005
Age -
Cause of death Count ( %) adjusted
rate*
Tobacco related
Ischelmic heart disease
Trachea, lung, bronchus cancer
Chronic Obstructive Pulmonary
Diseases (COPD)
Stroke
Diabetes
Other tobacco related neoplasms
Non - Tobacco related
Non - tobacco related neoplasms
Non - tobacco related cardiovascular
diseases
External causes of mortality (Injury, etc)
Non - tobacco related respiratory
diseases
Alzheimer
45,059(19 %,) 176.0
13,350(6%) 52,7
12,562 (5 %)
49.8
11,680 (594)
46.0
7,689(3%)
26.8
1,210(1%)
5.0
41,176 (18 %) 1576
30,685 (13 %) 119.0
16,815(7%) 60.1
11,040(5%) 43.3
7,706(3%) 30.1
All other non - tobacco related diseases 33,812 (15 %) 133.8
Total 232,784 (100 %) 900.2
- Age adjusted ram per 100.000. 2000 US Standard popuiallon.
Source: Centers for Dlsease Control and Prevention, National Center for Healdr Statistics.
Compressed Mortality Pile 1999.2005. CDC WONDER On-line Database, compiled from
Compressed Mortality File 1999 -2005 Series 20 No. 2K. 2008. Accessed at hitp:/Av°nder.cdc
gwkmf -icdl O.MmI on lure 30, 2009,
obstructive lung diseases like emphysema, bronchitis, and asthma
and increases the chances of getting both upper and lower
respiratory infection'
Smoking causes ischemic heart disease and stroke, which are leading
causes of death and physical limitation in active Californians:Z'
Smoking causes many different types of cancer. The association
with lung/bronchus cancer is the strongest, followed by cancer of
the larynx, mouth, throat, esophagus, pancreas, kidney, bladder,
stomach, cervix, and acute myeloid leukemia.'
Trends in Tobacco - Related
Diseases in California,
1988 -2005
Since the 1988 passage of Proposition
99 in California, adult smoking rates
declined by more than 40% from
22.7% to 13.3% in 2008.0 AS smoking
rates declined, mortality and morbidity
rates for diseases related to smoking
have also declined? This parallel trend
supports the causal association between
these conditions and smoking.
• From 1988 to 2005, lung cancer
incidence declined from 70.0 to 53.9
per 100,000 in California 0,10
• Likewise, lung cancer deaths were
decreased from 54.1 to 41.7 per
100,000 in Califurnia between 1900
and 2005 9,1°
• Death rates related to chronic lung
diseases also decreased from 11.5 to
4.5 per 100,000 from 1988 to 2005,
respectively.'
• Since 1988, deaths related to ischemic
heart diseases decreased from 187.3
to 65.8 per 100,000 in 2005?
• Similarly, stroke deaths decreased
from 42.1 to 24.7 per 100,000
between 1988 and 2005?
References
'I. National Center for Health Statistics. Health,
United States, 2007 With Chartbook an Trends in
the Health of Americans. Hyattsville, MD: 2007.
Available at http: / /wwlacdc.gov /nehs /data /hus/
hus07.pdfedam09. Accessed MOP009.
2. National Center for Health Statistics. Health,
United Stales, 2008 With Charlbook Hyattsville,
MD: 2009. Available at hop: / /www.cdc.gov/
nchs/data/hus/hus08.pelf. Accessed 3/112009.
3, U.S. Department of Health and Human
Services, Centers for Disease Control and
Prevention, National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking
and Health. The 2004 Surgeon General's Report; The
Health Consequences of Smoking: what it means to
you.2004. Available at hitp:#w%vw.cdc.gov /tobacco/
dala_smtistiu /sgr/sgr 2004 /00_pdfs /SGR2004_
Whatitmeanstoyou.pdf. Accessed 3/1712009.
4. Smoking - Attributable Mortality, Morbidity, and
Economic Costs (SAMMEC). Available at hup://apps.
nccd.cdc.gov /slatesystem /. Accessed) 3 /9/2009.
S. Lightwood IM. Diana A, Glantz SA (2008) Effect of
the California Tobacco Control Program on Personal
Health Care Expenditures. PLoS Mod S(6): 0178.
6. Adhikari B, Kahende I. Malarcher A. Husten C,
Asman K.CDG Stale - Specific Smoking- Attributable
Mortality and Years of Potential Life Lost - United
States, 2000 -2004. MMWR (2009).56(02); 29 -33.
7. CDC. Smoking- auribulable mona lfty, years of
potential life lost, and productivity losses- United
Stales, 2000 -2004. MMWR (2008). 57(45):1226-8.
B. Behavioral Risk Factor Surveillance System (BRFSS)
1984 -1992, BRFSS and California Adult Tobacco Survey
data is combined for 1993 -2008. The data is weighted
to the 2000 California population. Note
change of smoking definition
in 1996 that included
more occasional
smokers. Prepared HEALTH &
by: California
Department Public Hll t, ECONOMIC
Public HeaOh,
California
Tobacco COn SEQLU V CES
Control
Program,
March 2009. knit' ""1 1p{3f�]7F�r.GYI OD IR�']fl` ¢ !"n'l'il'li
9. CDC QTAiO )C<d4'Irnl�G' ++ Il1
WONDER. 9?k R:Y-k +Q3i.( NF-1 T M.
Compressed
Mortality File.
Available at cdph.ca.gov /programs/Tobacco
hup:/Avonder.
cdc.gov /morSQL
hind. Accessed ,` +?,w
4/7/2009.
10.Califomia Cancer
Registry. Available it hltp:H
www.cancer- rates.info /ca /.
Accessed 4/7/2009.
Survey of 552 Orange County Residents on Protection from
Secondhand Smoke
Outdoor Bars
1321
2.39
79.87%
/Restaurants
Outdoor malls
1344
2.43
81.16%
Waiting Lines
1411
2.56
85.21%
Entrances
1455
2.64
87.86%
Parks & Rec
1366
2.47
82.48%
Outdoor MUH
1400
2.54
84.54%
common areas
Inside MUH Units
1337
2.42
80.74
% MUH Units
1382
2.5
83.45%
SHS= Nuisance
1317
2.39
79.53%
Intercept surveys from 2008 -2010, results are not scientific
* Scoring scale: 3= Strongly agree, 2= somewhat agree, 1= somewhat disagree, 0= strongly disagree
Rate of Smoking VS Rates of Conditions Affected by Secondhand Smoke
Smoking Rate
Asthma
Diagnosis
Asthma
Symptoms in
last yr among
those with
asthma
Heart Disease
Cancer
All
13.1 % **
13.6%
CHIS*
2007
All
13%
13.6%
CHIS
2007
All
89.9%
.90.5%
CHIS
2007
All
5.7%
6.3%
CHIS
2005
All
9.5%
8.7%
CHIS
2005
*CHIS: California Health Interview Survey * *All results are within 95% confidence intervals
EA RAT. N. RES t1 U,Q CE.
000%
EARTH RESOURCE .
1
EARTH RESOURCE FOUNDATION
2010 Summer Campaigns
"Teaching Environmental Responsibility Where You Live, Work & Play"
www. earthresource. org
Youth Against Styrofoam (YAS)
• Re- visit Newport Beach restaurants to document their compliance with
the Newport Beach Styrofoam Ban
Complete City of Irvine restaurant survey and study. Ordinance hopefully
on City Agenda by July or August
Begin and complete City of Costa Mesa restaurant survey and study.
Begin outreach to City Council in collaboration with the Costa Mesa Green
Task Force, a newly formed business and citizen association
Collaborate with Clean Seas Coalition for a wave of local ordinances
statewide
"Sea Turtle Don't Shop" Campaign
• Support the passage of AB1998 — Statewide Plastic Bag Ban
• Establish an educational program for grocery store clerks and baggers
"Hold on to Your Butt"
• Continue to collect amount of cigarette butts on Newport Beach beaches,
streets and sidewalks through our cleanup efforts and our partners
• Promote, in collaboration with Surfrider, the Butt Flicker
Hotline 1 -877-211 -butt
Newport Beach Adopt a Beach Program and Zero Trash Coalition
• Continue supporting the Adopt a Beach Captains
• Re- launch the Adopt A Beach Program with assistance from the City —
presenting at Water Quality Committee in July
• Zero Trash Coalition: Earth Resource Foundation, Zero Trash- Newport
Beach, Surfrider Foundation, Surterre Properties, Keep California
Beautiful, El Ranchito, Sharkeys, etc.
• Monthly First Saturday Beach Cleanups
• Reporting to City of results and needs for a successful Zero Trash
Newport Beach
• Involvement of businesses in environmental stewardship
"Zero in on Zero Waste — Don't Let Your Bottomline Go To Waste"
• Zero Waste Conferences and workshops
Supporting AB32 Zero Waste Initiatives and CalRecycle Mandatory
Commercial Recycling Ordinances
Training, Consulting and Waste Audits for Businesses
Zero Waste Plans for Cities (Burbank, Glendale, GreenWise Sacramento)
P.O. Boa 12364, Costa Mesa, CA 92627 949 -645-5163 www.earthresource.org
[Today's date]
Senator Simitian
Chair, Senate Environmental Quality
State Capitol, Room 2205
Sacramento, CA 95814
Fax: (916) 322 -3519
RE: AB 1998 (Brownley) Single -Use Bag Reduction Act:
Dear Senator Simitian:
On behalf of [name of your organization] I write to express our support of the Single -Use Bag
Reduction Act (Assembly Bill 1998] as amended. AB 1998 Is scheduled to be heard before the
Senate Environmental Quality Committee. AB 1998 would ban plastic single -use carryout bags
and require and require recycled paper carryout bags be sold at supermarkets, retail pharmacies,
and convenience stores throughout the state.
[Name of organization] is concerned with the environmental and economic impacts of plastic bag
pollution in inland and coastal communities throughout the state. Californians use an estimated 19
billion single -use plastic bags every year. The state spends an estimated $25 million annually to
clean up and landfill these littered bags, which does not include the hundreds of millions of dollars
that local governments continually spend to clean littered streets and waterways.
We can no longer recycle our way out of this problem. Despite efforts to expand recycling
programs, less than 5% of single -use plastic bags are currently being recycled. The rest of these
bags end up in our landfills or as litter, clogging stormdrain systems, and making their way to our
waterways and ocean. It is estimated that 60-80% of all marine debris, and 90% of Floating debris
is plastic. Plastic lasts for hundreds of years in our environment and may never biodegrade in the
ocean. As a result, it poses a persistent threat to wildlife. Over 267 species worldwide have been
impacted by plastic litter, including plastic bags.
Paper bags are not a viable alternative to plastic bags. Paper bag production contributes to
deforestation, greenhouse gas emissions, and waterborne wastes from the pulping and paper
making process. Even compostable plastic bags made of plant -based sources have not proven to
degrade in the ocean. Instead, they require industrial composting facilities, and only a small
number of cities currently support the infrastructure to collect and dispose of compostable bags
properly.
San Francisco, Malibu, Fairfax, and Palo Alto have banned plastic bags and at least 20 more cities
in California are considering this approach. Rather than taking a piecemeal city -by -city approach,
AB 1998 will create one uniform policy for addressing all types of single -use bags to encourage
consumers to use reusable bags, the most sustainable alternative.
California has a critical role to play in becoming a true leader in eliminating plastic bag waste and
preventing the proliferation of plastic pollution in our communities. The passage of AB 1998 will be
a major step in breaking our addiction to single -use bags.
Sincerely,
[name, title, organization]
0
phlp))
public health law & policy
technkc d asvost.c-�,nce �egnM cenIe
There Is No Constitutional Right to Smoke
February 2004
Revised April 2005
I. INTRODUCTION
Laws that limit how and where people may smoke should survive a legal challenge claiming that
smoking is protected by the state or federal constitution. Smoking is not mentioned anywhere in
either constitution. Nevertheless, some people may claim that there is a fundamental "right to
smoke."' These claims are usually made in one of two ways: (1) that the fundamental right to
privacy in the state or federal constitution includes the right to smoke, or (2) that clauses in the
state and federal constitutions granting "equal protection" provide special protection for smokers.
Neither of these claims has any legal basis. Therefore, a state or local law limiting smoking
usually will, be judged only on whether the law is rational, or even plausibly justified, rather than
the higher legal standard applied to laws that limit special constitutionally protected rights.
II. THERE IS NO 1' UNDAMENTAL RIGHT TO SMOKE
The argument that someone has a fundamental right to smoke fails because only certain rights
are protected by the constitution as fundamental, and smoking is not one of them. The U.S.
Supreme Court has held that "only personal rights that can be deemed `fundamental' or 'implicit
in the concept of ordered liberty' are included in the guarantee of personal liberty." Z These rights
are related to an individual's bodily privacy and autonomy within the home.
Proponents of smokers' rights often claim that smoking falls within the fundamental right to
privacy, by arguing that the act of smoking is an individual and private act that government
cannot invade. Courts consistently reject this argument. The privacy interest protected by the
U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and
educating of children .3 Very few private acts by individuals qualify as fundamental privacy
interests, and smoking is not one of them.°
Developed by the Technical Assistance Legal Center (TALC), a project of Public Health Law & Policy (PHLP). This material
was made possible by funds received from the California Department of Public Health, under contract #04- 35336.
PHLP is a nonprofit organization that provides legal information on matters relating to public health. The legal information
provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a
lawyer in their state.
www.phlpnet.org • talc @phlpnet.org • (510) 302 -3330
Example: A firefighter trainee challenged a city fire department requirement that trainees must
refrain from cigarette smoking at all times, by arguing that "although there is no specific
constitutional right to smoke, [there is an] implicit ... right of liberry or privacy in the conduct
of I I private life, a right to be let alone, which includes the right to smoke. "s The court,
however, disagreed and distinguished smoking from the recognized fundamental privacy
rights 6The court went on to find that the city regulation met the fairly low srnndard for
regulating non - fundamental rights because there was a perfectly rational reason for the
regulation, namely the need for a healthy firefighting force.
111. SMOKERS ARE NOT A PROTECTED GROUP OF PERSONS
The second common constitutional claim made by proponents of smokers' rights is that laws
regulating smoking discriminate against smokers as a particular group and thus violate the equal
protection clause of the U.S. or the California constitutions. No court has been persuaded by
these claims.
The equal protection clauses of the United States and California constitutions, similar in scope
and effect,' guarantee that the government will not treat similar groups of people differently
without a good reason.8 Certain groups of people — such as groups based on race, national origin
and gender— receive greater protection against discriminatory government acts under the U.S.
and California constitutions than do other groups of people.9 Smokers have never been identified
as one of these protected groups. 10 Generally, the Supreme Court requires a protected group to
have "an immutable characteristic determined solely by the accident of birth.i11 Smoking is not
an "immutable characteristic" because people are not bom as smokers and smoking is a behavior
that people can stop. Because smokers are not a protected group, laws limiting smoking must
only be rationally related to a legitimate government purpose.[`
Example: New York City and New York State enacted laws prohibiting smoking in most
indoor places in order to protect citizens from the well- documented harmful effects of
secondhand smoke. The challenger argued that the smoking bans violated the Equal Protection
Clause because they cast smokers as "social lepers by, in effect, classifying smokers as second
Class citizens. "la The court responded that "the mere Fact that the smoking bans single out and
place burdens on smokers as a group does not, by itself, offend the Equal protection Clause
because there is no ... basis upon which to grant smokers the status oFa protected class. "14
The court proceeded to uphold die smoking bans since they were rationally related to the
legitimate government purpose of promoting the public health.
The equal protection clause not only protects certain groups of people, the clause also prohibits
discrimination against certain fundamental "interests" that inherently require equal treatment.
The fundamental interests protected by the equal protection clause include the right to vote, the
right to be a political candidate, the right to have access to the courts for certain kinds of
proceedings, and the right to migrate interstate. 15 Smoking is not one of these recognized rights.
If a government classification affects an individual right that is not constitutionally protected, the
classification will be ugheld if there is any reasonably conceivable set of facts that could provide
a rational basis for it.' So long as secondhand smoke regulations are enacted to further the
government goal of protecting the public's health from the dangers of tobacco smoke, the
regulation should withstand judicial scrutiny if challenged. 17
IV. CONCLUSION
There is no constitutional right to smoke. Claims to the contrary have no legal basis. The U.S.
and California constitutions guarantee certain fundamental rights and protect certain classes of
persons from all but the most compelling government regulation. However, no court has ever
recognized smoking as a protected fundamental right nor has any court ever found smokers to be
a protected class. To the contrary, every court that has considered the issue has declared that no
fundamental "right to smoke" exists. So long as a smoking regulation is rationally related to a
legitimate government objective such as protecting public health or the environment, the
regulation will be upheld as constitutional.
Common usage of the term "rights" conflates two distinct legal meanings: those rights that are specially provided
for or protected by law (e.g., free speech); and those rights that exist simply because no law has been passed
rcalricting them (e.g., the right to use a cell phone while driving). The latter type of right is always subject to
potential regulation. Therefore, this memo addresses only those rights provided for or protected by law. This
memo also does not address whether an employer may refuse to employ someonewho smokes. While prohibiting
smoking at work is permissible, Cal. tabor Code §96(k) protects employees from discrimination based on off -
work conduct, though one court held that this statute does not create new rights for employees but allows the state
to assert an employee's independently recognized rights. Barbee v. Household Auto. Finance Corp., 113 Cal.
App. 4th 525 (2003).
Roe v. Wade, 410 U.S. 113, 152 (1973).
See, for example, Griswold v. Connecticut, 381 U.S. 479, 484 (1964) (recognizing the right of married couples to
use contraceptives); Meyers v. Nebraska, 262 U.S. 390 (1923) (recognizing the right or parents to educate children
as they see fit); and Moore v. East Cleveland, 431 U.S. 494 (1977) (protecting the sanctity of family
relationships).
City ojNorth Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla. 1995) (city requirement that job applicants affirm that
they had not used tobacco in preceding year upheld because "the 'right to smoke' is not included within the
penumbra of fundamental rights protected under [the federal constitution's privacy provisions) ").
5 Grusendorjv. City ofOklabonto City, 816 F.2d 539, 541 (1 Oth Cie 1987).
"Id. The court relied heavily on the U.S. Supreme Court decision Kelley v, Johnson, 425 U.S. 238 (1976). In Kelley,
the Court held that a regulation governing hair grooming for male police officers did not violate rights guaranteed
under the Due Process Clause even assuming there was a liberty interest in personal appearance.
U.S. Const. amend. XIV, Cal. Const. art.] §7. See Serrano v. Priest, 5 Cal. 3d 584, 597 n.11 (197 1) (plaintiff's
equal protection claims under Article 1 § I I and §21 of stale constitution are "substantially equivalent" to claims
under equal protection clause of Fourteenth Amendment of U.S. Constitution, and so the legal analysis of federal
claim applies to slate claim).
s Equal protection provisions generally permit legislation that singles out a class for distinctive treatment "if such
classification bears a rational relation to the purposes of the legislation." Brown v. Merlo, 8 Cal. 3d 855, 861
(1973).
9 See, for example, Brown v. Board ojEducatian, 347 U.S. 483 (1954) (race); Sugarman v. Dougall, 413 U.S. 634
(1973) (exclusion of aliens from a state's competitive civil service violated equal protection clause); Craig v.
Boron, 429 U.S. 190 (1976) (classifications by gender must serve important governmental objectives and must be
substantially related to the achievement).
r° Even some potentially damaging classifications, such as those based upon age, mental disability and wealth, do
not receive any special protections. See, for example, City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432 (1985) (mentally disabled adults are not protected under Equal Protection Clause); San Antonio Independent
School Dist. v. Rodriguez, 411 U.S. I (1973) (education and income classifications are not protected).
rr Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
r_ Fagan v, Axelrod, 550 N.Y.S. 2d 552, 560 (1990) (rejecting the argument that a state statute regulating tobacco
smoking in public areas discriminated against members of a subordinate class of smokers on the basis of nicotine
addiction by holding that "the equal protection clause does not prevent state legislatures from drawing lines that
treat one class of individuals or entities differently from others, unless the difference in treatment is 'palpably
arbitrary' "). Note, too, that nonsmokers also are not recognized as a protected class, so equal protection claims
brought by nonsmokers exposed to smoke in a place where smoking is permitted by law are unlikely to succeed.
u NYC C.L.A.S.H.. Inc, v. New York, 315 F. Supp. 2d 461, 480, 482 (S.D.N.Y. 2004).
14 Id. at 492.
is See, for example, Baker v. Corr, 369 U.S. 186 (1962) (improper congressional redistricting violates voters' rights
under equal protection); Turner v. Fouche, 396 U.S. 346 (1970) (all persons have a constitutional right to be
considered for public service); Shapiro v. Thompson, 394 U.S. 618 (1969) (residency requirement for receipt of
state benefits violates equal protection).
E People v. Leung, 5 Cal. App. 4th 482, 494 (1992).
Dutchess /Putnam Restaurant & Tavern Assn, Inc. v. Putnam County Dep't of Health, 178 F. Supp. 2d 396, 405
(N.Y. 2001) (holding that County code regulating smoking in public places does not violate equal protection
rights); City of Tuscan v. Grezaf, 23 P.3d 675 (200 1) (upholding ordinance prohibiting smoking in bars but not
in bowling alleys because it is rationally related to legitimate government interest); Operation Badlae+ v. Licking
County Gen. Health Dist. Bd. of Health, 866 F.Supp. 1059, 1064 -5 (Ohio 1992) (upholding ordinance prohibiting
smoking except in bars and pool halls); Rossie v. State, 395 N. W.2d 801, 807 (Wis. 1986) (rejecting equal
protection challenge to statute that banned smoking in government buildings but allowed it in certain restaurants).
public
health lave & policy
technical
assistance legal center
Smokefree Outdoor
Areas Ordinance
A Model California Ordinance
Regulating Smoking in Outdoor
Areas (with Annotations)
Jume 2009
Developed by the Technical Assistance Legal Center (TALC),
a project of Public Health Law & Policy.
This material was made possible by funds received Bom the
California Department oEPublic Health, under contract #04-35336.
Public Health Law & Policy is o nonprofit organization thus provides legal information on matters
relating to public health. The legal infonnalion provided in this document does not constitute legal
advice or legal representation. For legal advice, readers should consult a lawyer in their slate.
www.phlpnet.org • talc@phlpnet.org • (5 10) 302 -3330
INTRODUCTION
The Technical Assistance Legal Center (TALC) developed this Model Ordinance to help
California cities and counties limit tobacco use and unwanted exposure to secondhand smoke in
outdoor areas. As the dangers of tobacco use and secondhand smoke become increasingly well
documented, one of the most important steps a community can take to protect and improve its
residents' health is to create more smokefree or tobacco-free spaces. By addressing outdoor
tobacco use, this Model Ordinance also helps limit tobacco - related litter.
To assist cities and counties create smokefree and tobacco -free outdoor areas, this Model
Ordinance includes:
• Extensive findings based on the latest scientific information documenting the health
risks associated with tobacco use and exposure to secondhand tobacco smoke;
• Prohibitions on smoking in outdoor places including parks and other recreational
areas, restaurant patios, bus stops, public event sites, and common areas of multi-unit
housing;
• Optional language that can be included to prohibit all tobacco use in outdoor places;
• Requirements for posting No Smoking signs; and
• Robust enforcement mechanisms including the option for private individuals and
organizations to enforce the no- smoking provisions of this ordinance.
The Model Ordinance offers a variety of options. In some instances, blanks (e.g., [ _ ] )
prompt you to customize the language to fit your community's needs. In other cases, the
ordinance offers you a choice of options (e.g., [ choice one / choice two ] ). Some of the
ordinance options are followed by a comment that describes the legal provisions in more detail.
Some degree of customization is always necessary in order to make sure that the ordinance is
consistent with a community's existing laws. Your city attorney or county counsel will likely be
the best person to check this for you.
The Model Ordinance is very broad and covers every conceivable outdoor space, but it can be
customized to fit the specific needs of your community. Some of the comments in the Model
Ordinance describe how to narrow the scope of the smoking restrictions, should that be
necessary. In addition, optional language is available to broaden the scope of the ordinance to
restrict not only smoking but all tobacco use.
TALC has also developed a separate ordinance to create smokefree multi -unit housing by
limiting smoking inside units and common areas, as well as other ordinances specifically
designed to create smokefree recreational areas and beaches. Some of the areas covered by those
ordinances are also included in this Model Ordinance. If you would like to adopt a
comprehensive or more customized approach, some aspects of other TALC ordinances can be
combined with this ordinance. If you have questions about how to adapt this ordinance for your
community, please contact TALC for assistance at (510) 302 -3380 or via e-mail at
talc @phlpnet.org.
Model California Ordinance Regulating Smoking in Outdoor Areas page 2
Tprhnirnl Accictanra l ponl ('enlpr— limp')ON
AN ORDINANCE OF THE [ CITY / COUNTY [ OF [ _ [
AMENDING THE [ _ ] MUNICIPAL CODE TO REGULATE
SMOKING [ AND TOBACCO PRODUCT USE J IN OUTDOOR PLACES
The[ City Council of the Ciri /Board of Supervisors of the C unty ] of [ _ ] does ordain
as follows:
COMMENT: This is introductory boilerplate language that should be
adapted to the conventional form used in the jurisdiction.
SECTION 1. FINDINGS.
The [ City Council of the City / Board of Supervisors of the Courtly ] of [ _ ] hereby finds and
declares as follows:
WHEREAS, tobacco use causes death and disease and continues to be an urgent public
health challenge, as evidenced by the following:
• Tobacco- related illness is the leading cause of preventable death in the United States,I
accounting for about 443,000 deaths each year;2 and
Scientific studies have concluded that tobacco use can cause chronic lung disease,
coronary heart disease, and stroke, in addition to cancer of the lungs, larynx,
esophagus, and mouth -I 3 and
• Some of the most common types of cancers including stomach, liver, uterine cervix,
and kidney are related to tobacco use ° and
WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as
evidenced by the following:
• The U.S. Surgeon General concluded that there is no risk -free level of exposure to
secondhand smokers and
'US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco
Use: The Nation's Leading Cause of Preventable Death 2008, p. 2. Available at:
%v%v%v.cdc.gov/iiccdphp/publicatiotis/aag/pdi7osh.pdf.
1 US Department of Health and Human Services, Centers for Disease Control and Prevention. "Smoking- Auributable
Mortality, Years of Potential Life Lost, and Productivity Losses — United States, 2000-2004." Morbidity and
Mortality Weekly Report, 57(45): 1226-1228, 2008. Available at:
wn,%v.cdc.gDv/niniwr/previexvlrninwrhbnVmm5745a3.htm.
r US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco
Use: The Nations Leading Cause of Preventable Death 2008, p. 2. Available at:
%"vw.cdc.gov/jiccdplip/publicatioiis/aagtpdflosILpdE
4 L.eistikow B, Zubair K, et al. "Male Tobacco Smoke Load and Non -Lung Cancer Mortality Associations in
Massachusetts." BMC Cancer, 8:341, 2008. Available at: w%%w.biomedcentral.com/1471- 2407/8/341.
5 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of
brvolunmq +Exposure to Tobacco Smoke. A Report of the Surgeon General 2007. Report highlights available at:
wtvw.surgeongeiiera 1. gov / library/ secondliaiidsnioke /factsheets /factsheet7.limit.
Model California Ordinance Reebvlatine Smoking in Outdoor Areas —page 3
Trrhnirnl Acckiamv I real re.,pr —bur 7no9
• The California Air Resources Board placed secondhand smoke in the same category
as the most toxic automotive and industrial air pollutants by categorizing it as a toxic
air contaminant for which there is no safe level of exposure;6 and
• The California Environmental Protection Agency included secondhand smoke on the
Proposition 65 list of chemicals known to the state of California to cause cancer, birth
defects, and other reproductive harm;7 and
Whereas exposure to secondhand smoke causes death and disease, as evidenced by the
following:
• Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers
each year in the United States;8 and
• Exposure to secondhand smoke increases the risk of coronary heart disease by
approximately thirty percent;9 and
• Secondhand smoke exposure causes lower respiratory tract infections, such as
pneumonia and bronchitis in as many as 300,000 children in the United States under
the age of 18 months each year;10 and exacerbates childhood asthma;] I and
[ Include the following findings about smokeless tobacco ifyour community will be
incorporating the optional language to create completely tobacco free outdoor spaces. ]
WHEREAS, smokeless tobacco is not a safe alternative to smoking and causes its own share
of death and disease, as evidenced by the following:
Smokeless tobacco use causes leukoplakia, a disease causing white patches to form in
the user's mouth that can become cancerous; 12 smokeless tobacco products are known
6 ResoluLion.06 -01, Cal. Air Resources Bd. (2006) at 5. Available at: vmv.arb.ca .gov /regact/ets2006 /resO6Ol.pd�
See California Environmental Protection Agency, Air Resources Board. News Release, California Identifies
Secondhand Smoke as a "Toxic Air Contaminant. "Jan. 26, 2006. Available at:
www. arb.ca.gov /newsreUnr012606.htm
California Environmental Protection Agency, Office of Environmental Health Hazard Assessment. Chemicals
Known to the State to Cause Cancer or Reproductive Toxicity. 2006, p. 8 & 17. Available at:
www.oeliha.ca.gov/prop65/prop65_ListtfilesIP65singleO8llO6.pdE
s US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet —
Secondhand Smoke. 2006. Available at:
wxvw.cdc.gov /tobacco/ data — statistics /fact_ sheets / secondhand _smoke /general_ facts/index.htm.
7 Bamoya J and Glantz S. "Cardiovascular Effects of Secondhand Smoke: Nearly as Large as Smoking." Circulation,
111: 2684 -2698, 2005. Available at: www. circ. ahajournals.org/cgUcontent/fulUI l l /20/2684.
° US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco
Use: The Nation's Leading Cause of Preventable Death 2008, p. 2. Available at:
www.cdc.goN,/necdphp/publicafiojis/aag/pdf/osh.pdf
I t US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet —
Secondhand Smoke. 2006. Available at:
w%vw.cdc.gov /tobacco /data statistics/6ct sheets/secondhand smoke/general facts /index.lamt.
Iz National Cancer Institute. Smokeless Tobacco and Cancer: Ouestions and Answers. 2003, p. 2. Available at:
www.smokefree. gov[Docs2 /SmokelessTobacco_Q8 A.pdf.
Made] Califomia Ordinance Regulating Smoking in Outdoor Areas —page 4
Trchnirni Acsiclanre I Pont ('enter —hmn 7nnQ
to cause lung, larynx, esophageal, and oral cancer; 13 and the regular use of snuff
doubles the user's risk of cardiovascular disease and death; 14 and
Prolonged use of snus, a form of smokeless tobacco, contributes to high blood
pressure, a factor of cardiovascular disease, and to a higher likelihood of suffering a
fatal stroke;'Sand
WHEREAS, tobacco use and exposure to secondhand smoke impose great social and
economic costs, as evidenced by the following:
• The total annual economic burden of smoking in the United Slates is $193 billion; 16
and
• From 2001 -2004, the average annual health care expenditures attributable to smoking
were approximately $96 billion; 17 and
• The medical and other costs to nonsmokers due to exposure to secondhand smoke
were estimated at over $10 billion per year in the United States in 2005 ;18 and
• The total annual cost of smoking in California was estimated at $475 per resident or
$3,331 per smoker per year, for a total of neatly $15.8 billion in smoking- related costs
in 1999 alone; 19 and
• California's Tobacco Control Program saved the state and its residents $86 billion in
health care expenditures between the year of its inception, 1989, and 2004, with
savings glowing yearly; 20 and
WHEREAS, exposure to secondhand smoke anywhere has negative health impacts, and
exposure to secondhand smoke does occur at significant levels outdoors, as evidenced by the
following:
13 US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco
Use: The Nation's Leading Cause of Preventable Death 20011, p. 2. Available at:
mv%v.cdc.gov/ticcdphp/pubticatiorE/aaglpdf/osILpdf
4 Hatsukami DK and Severson HH. "Oral Spit Tobacco: Addiction, Prevention, and Treatment." Nicotine and
Tobacco Research, 1(1):21 -44, 1999.
s Karolinska Institutet. `Prolonged Use of Swedish Moist Snuff Increases Risk of Fatal Cardiovascular Disease and
Stroke." Medical News Today, November 15, 2007. Available at:
wuw. tiled ica htewstoday. cont/artic I es/88868.plip.
'('Centers for Disease Control and Prevention. News Release, Slightly Louer Adult Smoking Rates. 2008. Available
at: www.cdc.gov /media/pressrel /2008 /t9S1113.ltm.
I' Centers for Disease Control and Prevention. Netvs Release, Slightly LoaerAdult Smoking Rates. 2008. Available
at: www.cdc.gov /media/pressrel /2008 /rOSI 113.11m.
s Behan DF, Eriksen MP and Lin, Y. Economic Effects of Environmental Tobacco Smoke Schaumburg, IL: Society
of Actuaries, 2005, p. 2. Available at: www.son.org/ files/ pdt7ETSRepoi-tFiniLDi -af(17iiial ° /`2O3).pdf.
19 Max W. Rice DP, Zhang X, et al. The Cost of Smoking in California, 1999. Sacramento, CA: Tobacco Control
Section, Cali forms Department of Health Services, 2002, p. 74. Available at:
http :l/ repositories. cdlib. orgicgi /viewcontent.cgi7article= 10268xontext= ctcre.
'a Lightwood 1M, Dinno A and Glantz SA. `Effect of the Califomin Tobacco Control Program on Personal Health
Care Expendi lures. "PLoSMod, 5(8): e178, 2008. Available at:
www.p losntedicine.org/m•licle /i nfo:doi/ 10.1371 /iournal.pmed.0050178.
Model California Ordinance Regulating Smoking in Ouldoor Ards —page 5
Tmhniral A"ionwe I ronl rmrPr h~ 7M0
• Levels of secondhand smoke exposure outdoors can reach levels attained indoors
depending on direction and amount of wind and number and proximity of smokers;2I
and
• Irritation from secondhand smoke begins at levels as low as 4 micrograms per cubic
meter, and in some outdoor situations this level can be found as far away as 13 feet
from the burning cigarette; 22 and
• To be completely free from exposure to secondhand smoke in outdoor places, a
person may have to move nearly 25 feet away from the source of the smoke, about the
width of a two lane road ;23 and
• Studies on a cruise ship have found that even while cruising at 20 knots and with
unlimited air volume, outdoor smoking areas contained carcinogens in nearly the
same amounts as inside the ship's casino where smoking was allowed; 24 and
WHEREAS, cigarette butts pose a health threat to young children, as evidenced by the
following:
• In 2004, American poison control centers received nearly 8,000 reports of children
poisoned by the ingestion of cigarettes, cigarette butts, and other tobacco products; 25
and
• Children who ingest cigarette butts can experience vomiting, nausea, lethargy, and
gagging ;" and
'-I Klepeis NE, Ott WR, and Switzer P. Real -Time Monitoring of Outdoor Environmental Tobacco Smoke
Concentrations: A Pilot Study. San Francisco: University of California, San Francisco and Stanford University,
2004, p. 34, 80. Available at: http: / /exposurescience.org/ pub /reports/Outdoor_ETS_Final.pdf, See also Klepeis
NE, Ott WR and Switzer P. "Real -Time Measurement of Outdoor Tobacco Smoke Particles. "Journal of Air and
Waste Management Association, 57: 522 -534, 2007. Available at:
www. a shaust. org. a u/pdfs /OutdoorSHS0705.p dE
'2 Jmtker MH, Danuser B, Mona C, et al. "Acute Sensory Responses of Nonsmokers at Very Low Environmental
Tobacco Smoke Concentrations in Controlled Laboratory Settings." Environmental Health Perspectives, 109(10):
1046 -1052, 2001. Available at: www. pubmedcentral .nih.gov /picrendecfcgi ?artid= 1242082&blobtype=pdf,
Repace JL. 'Benefits of Smoke -Free Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and
in Motor Vehicles." If illiam Mitchell Law Review, 34(4): 1621 -1638, 2008. Available at:
http: / /tobacco.haal tli.usyd.edu.au/ site /supersit& contact /pd fsMi1Gan MitcheilRepace.pdf
13 Repace JL.'Benefits of Smoke -Free Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and
in Motor Vehicles." William Mtchell Law Review, 34(4): 1621 -1638, 2008. Available at:
htip : / /tobacco.lealtKusyd.edu.au/ site /supersitelcontact/pdf MiUiamMitclieltRepace.pdf
'- "Repace JL. `Benefits of Smoke -Free Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and in
Motor Vehicles." William Mitchell Law Review, 34(4): 1621 -1638, 2008. Available at:
http : / /tobacco.IealtILusyd.edu.au /site/supersite /contacttpdb WilliarrMitcheltRepace.pdf
25 American Association of Poison Control Centers. 2004 Annual Report ofihe American Association of Poison
Control Centers Toxic Exposure Surveillance System Elsevier Inc., 2004, p. 645. Available at:
www. po isoii. o rg/prevent/documentstTES S ° /u2OAnnua l ° /n2ORep ort%2O2004.pd f.
76 US Department of Health and Human Services, Centers for Disease Control and Prevention. "Ingestion of
Cigarettes and Cigarette Butts by Children —Rhode Island, January 1994 -July 1996." Morbidity and Mortality
Weekly Report, 46(06): 125 -128, 1997. Available at: www.cdc.gov /mntwr /preview /nimwrhuu000046181.huu.
Model Caliromia Ordinance Regulating Smoking in Outdoor Areas —page 6
Te.0miral Acciclnnre I P.On1 renter —Inane 90119
WHEREAS, cigarette butts are a major and persistent source of litter, as evidenced by the
following:
• It is estimated that over two billion cigarette butts are discarded everyday worldwide,
and that Americans alone discard more than 175'million pounds of cigarette butts
every year; 27 and
• Cigarette butts are often cast onto sidewalks and streets, and frequently end up in
storm drains that flow into streams, rivers, bays, lagoons and ultimately the ocean; 28
and
• Cigarette filters, made of plastic cellulose acetate, take approximately 15 years to
decompose; 29 and
WHEREAS, laws restricting the use of tobacco products have recognizable benefits to public
health and medical costs, as evidenced by the following:
• Cities with smokefree laws see an appreciable reduction in hospital admittances for
heart attacks in the months and years after such laws are passed; 30 and
• Smoking bans help people reduce the number of cigarettes they smoke or quit
altogether; 31 and
• Strong smoking regulations for restaurants decrease the number of children who
transition from experimenting with smoking to becoming actual smokers; 32 and
WHEREAS, creating smokefree areas helps protect the health of the 86.7% of Californians
who are nonsmokers; 33 and
WHEREAS, society is becoming less tolerant and less accepting of cigarette smoking, as
evidenced by the following,
A 2008 survey of California voters found that 75% thought that secondhand smoke is
harmful, 64% were bothered by secondhand smoke, and 73% support laws restricting
2' Surfrider Foundation, San Diego Chapter, Hold on to Your Butt, www.surfridersd.org/hotyb.php.
2s Surfrider Foundation, San Diego Chapter, Hold on to Your Butt, www.surfridersd.org/hotyb.php.
29 Surfrider Foundation, San Diego Chapter, Hold on to Your Butt, wmv.surfridersd.org/hotyb.php.
30 US Department of Health and Human Services, Centers for Disease Control and Prevention. "Reduced
Hospitalizations for Acute Myorcardial Infarction After Implementation of a Smoke -Free Ordinance — City of
Pueblo, Colorado, 2002 — 2006." Morbidity and Mortality Weekly Report, 57(51 &52): 1373 -1377, 2009.
Available at: www.cde.gov /mntwr/ preview /mmwrhhnl/nun5751a Lhtm; Glantz SA "Meta - Analysis of the Effects
of Smokefree taws on Acute Myocardial Infarction: An Update." Preventive Medicine, 47(4): 4521153, 2008.
'1 Neighmond P. "Smoking Bans Help People Quit, Research Shows." National Public Rado, October 25, 2007.
Available at: t vt vw. npcorgltemplates /story/story.php?storyld= 15610995.
32 Siegel M, Albers AB, Cheng DM, et al. "Local Restaurant Smoking Regulations and the Adolescent Smoking
Initiation Process: Results of Multilevel Contexual Analysis Among Massachusetts Youth." Archives of
Pediatrics and Adolescent kkdicine, 162(5): 477AS3, 2008. Available at: http://archpedi.ama-
assn.org/cgi/repri nt/ 162/5/477. pdE
33 Hong M, Barnes RL and Glantz SA Tobacco Control in California 2003 -2007: Missed Opportunities. San
Francisco: Center for Tobacco Control Research and Education, 2007, p. 9. Available at:
http: / /repositories.cdl ib.orgcgi /viewcontent.cgi ?article =1074 8,context =ctcm
Model California Ordinance Regulating Smoking in Outdoor Areas—page 7
Te .hnirnl Aeciclanre I Pml renter —horn 7nn9
smoking in outdoor public places;" and
• People living in cities with strong smokefree air laws are more likely to believe
smoking is not acceptable and that smokers should attempt to quit smoking; 35 and
• As of 2008, there are 187 California cities and counties with local laws restricting
smoking in at least one outdoor area; 6 and
WHEREAS, state law prohibits smoking within 25 feet of playgrounds and tot lots and
expressly authorizes local communities to enact additional restrictions; 37 and state law prohibits
smoking within 20 feet of entryways and operable windows of government buildings; 38 and
WHEREAS, there is no Constitutional tight to smoke;39
NOW THEREFORE, it is the intent of the [ City Council / County Board of Supervisors ], in
enacting this ordinance; to provide for the public health, safety, and welfare by discouraging the
inherently dangerous behavior of smoking [ and tobacco use ] around non - tobacco users,
especially children; by protecting the public from exposure to secondhand smoke where they
live, work, and play; by reducing the potential for children to wrongly associate smoking [ and
tobacco use ] with a healthy lifestyle; and by affirming and promoting a healthy environment in
and around the [ Citv's / Coun 's ] outdoor places.
SECTION U. [ Article / ate J of the [ _ ] Municipal Code is hereby amended to read
as follows:
Sec. [ _ ( *]) J. DEFEVITIONS. The following words and phrases, whenever used in this
[ article shall have the meanings defined in this section unless the context clearly
requires otherwise:
(a) "Business" means any sole proprietorship, partnership, joint venture, corporation,
association, or other entity formed for profit-making purposes.
(b) "Common Area" means every Unenclosed Area of a Multi -Unit Residence that
residents of more than one Unit of that Multi -Unit Residence are entitled to enter or use,
including, for example, paths, courtyards, playgrounds, swimming pools, parking lots, and
picnic areas.
31 Goodwin Simon Victoria Research. Study of California Volers'Attitudes About Secondhand Smoke Exposure.
Sacramento: Center for Tobacco Policy & Organizing, 2008, p. 1 -3. Available at:
www. ceilter4tobaccopolicy.org/_files/ files/ Resultsn/o 20of"/ o20SHS %20Poll %20November%202008.pdf.
35 Indiana University. News Release, Indiana University Research at American Public Health Association Meting.
October 27, 2008. Available at: http:// newsinfo. iu. edu /tips/pap/nomlaU9085.1itm1 #3.
36 California Clean Air Project, Califomin Secondhand Smoke Policy Database,
h ttp: //c cap. a tr. o rg'ind ex. c fin? fuses ction =po l i cydb. ho m e.
37 Cal. Health & Safety Code § 104495 (West 2008).
33 Cal. Gov't Code § 7597 (West 2008).
39 Public Health Law & Policy, Technical Assistance Legal Center. 97nere Is No Constitutional Right to Smoke 2005.
Available at:littp: / /talc.p]Aaw.org/pdf 5les/0051.pdf
Model California Ordinance Regulating smoking in Outdoor Areas —page 8
Tarhnirnl Acciclnn" I "nl (`rntKr Imp 7anq
[ "Common Area" means every Enclosed Area or Unenclosed Area of a Multi -Unit
Residence that residents of more than one Unit of that Multi -Unit Residence are entitled to
enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and
stairs, communes rooms and playgrounds, gym facilities and swimming pools, parking
garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and
shared eating areas. ]
COMMENT: If you would like to prohibit Smoking in all
Common Areas of Multi -Unit Residences, indoors and
out, you can use the bracketed alternative language for
this definition. If you choose this option, please contact
TALC for assistance in editing Section (('2)] of this
ordinance for internal consistency, i.e., ensuring that the
title and relevant subsections appropriately reference
Enclosed and /or Unenclosed Areas.
Note that California Labor Code section 6404.5 (the state
smokefree workplace law) may already prohibit Smoking
In indoor Common Areas if the Multi -Unit Residence has
Employees, such as maintenance workers, property
managers, or others who work on -site.
The definition of Common Area does not include
balconies, patios, or decks of individual Units because
these are not shared areas.
(c) "Dining Area" means any area, including streets and sidewalks, which is available
to or customarily used by the general public or an Employee, and which is designed,
established, or regularly used for consuming food or drink.
COMMENT: This definition covers all Dining Areas, indoors
and out, but Section L_('2)(a)] of this Model
Ordinance prohibits Smoking only in outdoor Dining
Areas. Smoking in indoor Dining Areas is already
prohibited by state law (Labor Code section 6404.5) and
possibly by your communitys local ordinances.
(d) `Employee" means any Person who is employed or retained as an independent
contractor by any Employer or Nonprofit Entity in consideration for direct or indirect
monetary wages or profit, or any Person who volunteers his or her services for an Employer
or Nonprofit Entity.
COMMENT: This definition makes clear that volunteers
and independent contractors are Employees for
purposes of this section.
(e) `Employer" means any Business or Nonprofit Entity that retains the service of one
or more Employees.
(f) "Enclosed Area" means an area in which outside air cannot circulate freely to all
parts of the area, and includes an area that has:
Model California Ordinance Regulating Smoking in Outdoor Areas -page 9
Trrhniral A.ciclnnrr I ranl r pw" —hnv JnnO
(1) any type of overhead cover whether or not that cover includes vents or other
openings and at least [ three 3 ] walls or other vertical boundaries of any
height whether or not those boundaries include vents or other openings; or
(2) [ four 4 ] walls or other vertical boundaries that exceed [ six ] feet in
height whether or not those boundaries include vents or other openings.
COMMENT: This definition describes "enclosed" places
that are not covered by the prohibitions in this ordinance.
(The definition of Unenclosed Area includes all areas
that are not Enclosed Areas.) This definition is narrow so
that most areas will be considered Unenclosed Areas
and therefore subject to this ordinance.
The number of walls and the height threshold can be
customized to meet the needs of your community, and
changing these numbers will affect the scope of the
ordinance. Reducing the number of walls in this definition
would broaden the definition of Enclosed Area, which
would result in narrowing the definition of Unenclosed
Area, thereby limiting the scope of the outdoor Smoking
restrictions in this ordinance.
An area that is partially covered by anything would be
analyzed under subparagraph (1), whereas only areas
that are totally uncovered would be analyzed under
subparagraph (2). It can be difficult to apply Labor Code
section 6404.5 to areas that are surrounded by lattice,
hedges, and other nonsolid structures. For purposes of
this ordinance any vertical boundary, regardless of
composition, constitutes an "other vertical boundary" for
application of this definition.
NOTE: If the Municipal Code already has Smoking
restrictions, it may contain a definition of "enclosed."
Review the Code and make any necessary modification
to existing definitions and/or operative provisions to
ensure consistency with the new definition.
(g) "Multi -Unit Residence" means property containing two (2) or more Units[, e, xcent
the following specifically excluded types of housing:
(1) a hotel or motel that meets the requirements set forth in California Civil Code
section 1940(b)(2);
(2) a mobile home park;
(3) a campground;
(4) a marina or port;
(5) a single -family home;
(6) a single - family home with a detached or attached in -law or second unit when
permitted pursuant to California Govermnent Code sections 65852.1, 65852.150,
65852.2 or an ordinance of the [ City / ttL ] adopted pursuant to those sections;
and
(7) _ ]•
Model California Ordinance Regulating Smoking in Outdoor Areas page to
Tenhniral Acciclanm I ennl ('enter —luny 9009
COMMENT: This definition is intended to be used in
conjunction with the definition of Unit in this Model
Ordinance, which makes clear that this term is limited to
dwelling spaces.
Because the definition of Unit is so broad and includes all
types of dwelling places —from rooms in a hotel to tents
at a campground —a community may want to limit the
types of dwelling places covered by this Model
Ordinance. The optional language provides examples of
the types of exceptions that communities are likely to
consider.
Note that the definition of Multi -Unit Residence without
any exemptions would Include the following types of
dwelling places: apartments, condominiums,
townhomes, co-ops, and co-housing; affordable housing
(for seniors, for disabled tenants, for Section 8, etc.);
long -term health care facilities, assisted living facilities,
hospitals, and family support facilities; hotels, motels,
single room occupancy ( "SRO ") facilities, dormitories,
and homeless shelters; mobile home parks,
campgrounds, marinas, and ports; single - family homes
and single - family homes with an in -law unit.
(h) "Nonprofit Entity" means any entity that meets the requirements of California
Corporations Code section 5003 as well as any corporation, unincorporated association or
other entity created for charitable, religious, philanthropic, educational, political, social or
similar purposes, the net proceeds of which are committed to the promotion of the objectives
or purposes of the entity and not to private gain. A government agency is not a Nonprofit
Entity within the meaning of this [ article / cha t�ef I
COMMENT: This definition is broader than the IRS
designation of a nonprofit organization in order to cover
more informal groups and associations.
(i) "Person" means any natural person, Business, cooperative association, Nonprofit
Entity, personal representative, receiver, trustee, assignee, or any other legal entity including
government agencies.
COMMENT: The Municipal Code may contain a definition
of "person "; review any existing definition of "person" in
the Municipal Code to determine whether to include this
definition in your ordinance.
This definition incorporates all entities defined as a
Business in this ordinance. In addition, it includes the
City and County.
0) "Place of Employment" means any area under the legal or de facto control of an
Employer, that an Employee or the general public may have cause to enter in the normal
course of the operations, regardless of the hours of operation.
Model California Ordinance Regulating Smoking in Outdoor Areas —page I I
Terhniral Ac6unnrr 1 evnl r`r.w —Iunv Winn
COMMENT: This definition is broad enough to cover all
areas of a workplace, indoors and out. Section [
_( *2)(a)] of this Model Ordinance prohibits Smoking
only in the Unenclosed Areas of workplaces; if your
community also wants to restrict Smoking in indoor
workplaces exempted by the state smokefree workplace
law (e.g., retail tobacco shops, warehouses, hotel
lobbies, etc.) please contact TALC for assistance.
(k) "Public Place" means anyplace, publicly or privately owned, which is open to the
general public regardless of any fee or age requirement.
COMMENT: This is a very broad definition and is intended
as a "catch -all" to include all public areas that do not fall
within any other definition in this Model Ordinance.
This definition includes all Public Places, indoors and
out, but Section L_( *2)(a)] of this Model Ordinance
prohibits Smoking only in outdoor Public Places.
This definition is also broad enough to include all streets
and sidewalks, even when they are not being used as an
event site or to provide a service to the public. Section
L_( *2(a)(6)] contains optional language that can be
used to exclude streets and sidewalks from most
Smoking restrictions.
(t) "Reasonable Distance" means a distance of [ twenty -five (25) ] feet in any direction
from an area in which Smoking is prohibited.
COMMENT: The number of feet constituting Reasonable
Distance can be changed to ensure a sufficient buffer
from drifting Smoke.
(m) "Recreational Area" means any area [ , including streets and sidewalks, ] that is[
publicly or privately owned / owned or operated by the [ CCU / C un o ] ] and
open to the general public for recreational purposes, regardless of any fee or age requirement.
The term `Recreational Area" includes but is not limited to parks, picnic areas, playgrounds,
sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding
trails, swimming pools, roller- and ice - skating rinks, skateboard parks, amusement parks, and
beaches.
COMMENT: This definition can apply to all recreational
areas that are open to the general public, whether on
public or private land. If the community wants to limit the
reach of the ordinance to only include publicly owned or
operated recreational facilities, then select the phrase
"owned or operated by the City/ County of_"
This definition can also be expanded to encompass
streets and sidewalks that are used as Recreational
Areas by adding the optional bracketed language
Model California Ordinance Regulating Smoking in Outdoor Areas —page 12
Terhniml Accictanrr I coal r'rnler —hive 9009
including streets and sidewalks ".
This definition includes all Recreational Areas, indoors
and out, but Section L_( *2)(a)] of this Model
Ordinance prohibits Smoking only in outdoor
Recreational Areas.
This definition includes beaches, which is not defined in
this Model Ordinance. If you would like to include a
separate, more specific definition of the term "beach,"
please see the definition included in TALC's "Model
California Ordinance Regulating Smoking and Tobacco
Use on Beaches,' available on TALC's website at
www.phlpnet.org.
(n) "Service Area" means any publicly or privately owned area, including streets and
sidewalks, that is designed to be used or is regularly used by one or more Persons to receive a
service, wait to receive a service or to make a transaction, whether or not such service or
transaction includes the exchange of money. The term "Service Area" includes but is not
limited to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or
shelters, mobile vendor lines or cab stands.
COMMENT: This definition includes all Service Areas,
indoors and out, but Section [ ( *2)(a)] of this Model
Ordinance prohibits Smoking only in outdoor Service
Areas.
(o) "Smoke" means the gases and particles released into the air by combustion when
the apparent or usual propose of the combustion is human inhalation of the resulting
combustion products, such as, for example, tobacco smoke, marijuana smoke, and crack
cocaine smoke, except when the combusting material contains no tobacco and the purpose of
inhalation is solely olfactory, such as, for example, smoke from incense.
COMMENT: This is a special definition that is more limited
than the Common understanding of what "smoke" is. For
example, smoke from a fireplace or a barbeque grill is
not "Smoke" for the purposes of this ordinance because
the smoke generated by those activities is not produced
for the purpose of inhaling it. The limitation placed on
"Smoke" by this definition is important to avoid
unintended consequences, such as inadvertently
prohibiting the burning of incense.
This definition includes marijuana, but Smoking
marijuana for medical purposes can be excluded from
the prohibitions of this ordinance should a community
decide to do so. Please contact TALC for assistance in
drafting a medical marijuana exception.
(p) "Smoking" means engaging in an act that generates Smoke, such as, for example:
possessing a lighted pipe, a lighted hookah pipe; a Lighted cigar, or a lighted cigarette of any
kind; or lighting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.
Model California Onlimice Regulating Smoking in Outdoor Areas —page 13
Tr .hniral Accidnnrr I "al renlrr —h,nr 7na9
COMMENT: This definition includes marijuana, but
Smoking marijuana for medical purposes can be
excluded from the prohibitions of this ordinance in some
circumstances; please contact TALC for assistance.
(q) "Tobacco Product" means any substance containing tobacco leaf, and any product
or formulation of matter containing biologically active amounts of nicotine that is
manufactured, sold, offered for sale, or otherwise distributed with the expectation that the
product or matter will be introduced into the human body, but does not include any cessation
product specifically approved by the United States Food and Drug Administration for use in
treating nicotine or tobacco dependence.
COMMENT: This definition is written broadly to include
nontraditional tobacco and nicotine products such as
nicotine water and nicotine lollipops, but without
interfering with the FDA's mission of approving products
intended to benefit public health, such as nicotine
patches and other nicotine cessation products.
(r) "Unenclosed Area" means any area that is not an Enclosed Area.
COMMENT: This definition establishes the scope of the
ordinance very broadly, and includes all areas that are
not defined as Enclosed Areas.
(s) "Unit" means a personal dwelling space, even where lacking cooking facilities or
private plumbing facilities, and includes any associated exclusive -use Enclosed Area or
Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio. "Unit"
includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-
term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in
a single room occupancy ( "SRO ") facility; a room in a homeless shelter; a mobile home; a
camper vehicle or tent; a single- family home; and an in -law or second unit.
COMMENT: This definition is intentionally extremely broad.
It is designed to capture all conceivable "dwelling
spaces" as the examples illustrate. However, because of
the way that this model ordinance is designed, any
limitations on the types of housing covered by the
ordinance should be added to the defined term "Multi-
Unit Residence" and not here. For example, some
"mobile homes" in mobile home parks may be included
in this definition and even cited in the examples, but
nevertheless, "mobile homes" can be specifically
excluded from the ordinance under the definition of
"Multi -Unit Residence."
See. [ _ ( *2) ]. PROHIBITION OF SMOKING [ AND TOBACCO PRODUCT USE ]
IN UNENCLOSED AREAS
COMMENT: If a community wants to prohibit the use of all
Tobacco Products in addition to Smoking, then include
the optional bracketed text referring to the use of
Model California Ordinance Regulating Smoking in Outdoor Areas —page 14
Trrhnir l Accivsnrr I Pont r'vmar —hme 90n9
Tobacco Products each time it is referenced in the
ordinance.
(a) Smoking [ and the use of Tobacco Products ] is prohibited in the Unenclosed Areas of
the following places within the [ City / C n o _ ], except places where Smoking [ or
the use of Tobacco Products ] is already prohibited by state or federal law, in which case
those laws apply:
COMMENT: The "except places where..." language
avoids potential preemption issues by making clear that
the local ordinance is not duplicative of existing law but
rather 'fills in" gaps In existing state or federal law.
(1) Recreational Areas;
(2) Service Areas;
(3) Dining Areas;
(4) Places of Employment;
(5) Common Areas [ _ provided that a Person with legal control over a Common Area
may designate a portion of the Unenclosed Area of the Common Area as a designated
Smoking area if the area meets all of the following criteria:
COMMENT: The bracketed optional language would permit
landlords or property managers, for example, to locate a
designated Smoking area in the outdoor portion of the
Common Area of a Multi -Unit Residence. By allowing for
an outdoor Smoking area, residents will have a place to
go where they will not expose their family members or
other residents to Smoke.
(a) the area must be located a Reasonable Distance from any Unit or
Enclosed Area where Smoking is prohibited by this f article / chapter 1 or
other law; by binding agreement relating to the ownership, occupancy, or use
of real property; or by designation of a Person with legal control over the
property. In the case of a nonsmoking area created by agreement or
designation, this provision does not apply unless the Person designating the
Smoking area has actual knowledge of, or has been given notice of, the
agreement or designation. A designated Smoking area may require
modification or elimination as laws change, as binding agreements are created,
and as nonsmoking areas on neighboring property are established.
COMMENT: This clause limits where a Smoking area can
be located in order to prevent drifting Smoke from
entering smokefree areas. As written, it Includes areas
on neighboring property that are designated as
nonsmoking by contract (e.g., a smokefree lease term
for a rental unit next to, but not a part of, the Multi -Unit
Residence) and areas on neighboring property
Model California Ordinance Regulating Smoking in Outdoor Areas —page 15
Trrhniral Aeciemnre 1 M.l rAnipr i mP innO
Idesignated by a property owner or lessee as nonsmoking
(e.g., a neighboring business).
(b) the area must not include, and must be a Reasonable Distance fi•om,
Unenclosed Areas primarily used by children and Unenclosed Areas with
improvements that facilitate physical activity including, for example,
playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
(c) the area must be no more than [ten percent (10 %) ] of the total
Unenclosed Area of the Multi-Unit Residence for which it is designated;
(d) the area must have a clearly marked perimeter:
(e) the area must be identified by conspicuous signs;
(fl the area must be completely within an Unenclosed Area; and
(g) the area must not overlap with any Enclosed or Unenclosed Area in
which Smoking is otherwise prohibited by this [ article / c a to ] or other
provisions of this Code, state law, or federal law ]; and
(6) Other Public Places [ , when being used for a public event, including a fanners'
market, parade, craft fair, festival. or any other event which may be attended by the
general public/, provided that Smoking is permitted on streets and sidewalks being usi
prohibited by this f article 1 chanter 1 or other law ]
COMMENT: This is a very broad restriction, which can
capture all Public Places that are not otherwise
specifically defined in the ordinance. If your community
would like to limit the Smoking restrictions to Public
Places that are being used as a public event site, include
the single- underlined optional language. Your community
may wish to tailor the public event description in this
section to include and/or cross - reference any existing
local permit ordinance requirements.
This definition of Public Place is also broad enough to
cover streets and sidewalks, even when those areas are
not used as an event site or to provide a service to the
public. If your community does want such a broad
restriction, include the double - underlined optional
language. Regardless of which option you include in your
ordinance, Smoking on some streets and sidewalks will
be restricted by the ordinance if they are within the
Reasonable Distance requirement or subject to another
nonsmoking law.
If you would like to further customize the Smoking
restrictions in your community (such as restricting
Smoking in certain commercial districts or establishing
"smokers' areas "), appropriate language can be included
Model California Ordinance Regulating Smoking in Outdoor Areas —page 16
Tnnhniral Acciclnnrel eml r'enier —hmP wing
In this subsection. Please contact TALC for assistance in
drafting language to fit the needs of your community.
(b) Nothing in this [ article / ] prohibits any Person, Employer, or Nonprofit
Entity with legal control over any property from prohibiting Smoking [ and Tobacco Product
use ] on any part of such property, even if Smoking [ or the use of Tobacco Products ] is not
otherwise prohibited in that area.
[(c) The Director of [ _] or his/her designee shall engage in an ongoing educational
program to explain and clarify the purposes and requirements of this [ article / chanter ], as
well as providing guidance to Persons, Employers, and Nonprofit Entities about compliance.
However, lack of such education shall not be a defense to a violation of this [ article / cater
1-1
COMMENT: This optional provision would require that the
city or county provide education to those affected by this
ordinance. You should Identify which government official
should be in charge of this program.
Sec. [ _ ( *3) 1. REASONABLE SMOKING DISTANCE REQUERED
(a) Smoking in all Unenclosed Areas shall be prohibited within a Reasonable Distance
from any doorway, window, opening, crack, or vent into an Enclosed Area in which Smoking
is prohibited, except while actively passing on the way to another destination and provided
Smoke does not enter any Enclosed Area in which Smoking is prohibited.
COMMENT: This creates a buffer zone around Enclosed
smokefree areas, allowing Smoking only if passing
through the zone.
(b) Smoking in Unenclosed Areas shall be prohibited within a Reasonable Distance from
any Unenclosed Areas in which Smoking is prohibited under Sec. [ _ ( *2) ] of this
[ article / c)1a>zter ], except while actively passing on the way to another destination and
provided Smoke does not enter any Unenclosed Area in which Smoking is prohibited.
[ (c) The prohibitions in subdivisions (a) and (b) shall not apply to Unenclosed Areas of
private residential properties that are not MuIG -Unit Residences. ]
COMMENT: Subsection (c) is optional; include it if you
want to allow Smoking on private residential properly that
Is located within the Reasonable Distance parameters.
As written, subsections (a) and (b) would prohibit
Smoking on private residential property, other than multi-
unit housing, within twenty -five feet of an area in which
Smoking Is prohibited, For example, if a backyard of a
private home abutted an area where Smoking Is
prohibited, subections (a) and (b) will prohibit Smoking in
that private backyard.
Model California Ordinance Regulating Smoking in Outdoor Antes —page 17
Trrhniral Ac4vnnre I ronl rrnt"_hire wno
See. [ _ ( *4) 1. OTHER REQUIREMENTS AND PROHIBITIONS
(a) No Person, Employer, or Nonprofit Entity shall knowingly permit Smoking [ or the
use of Tobacco Products ] in an area which is under the legal or de facto control of the
Person, Employer or Nonprofit Entity and in which Smoking [ or the use of Tobacco
Products ] is prohibited by law, unless otherwise required by state or federal law.
COMMENT: This provision makes anyone who is in control
of an area responsible for any Smoking done in violation
of this and other no- smoking laws. Thus, enforcement
actions can be taken against a Business, landlord,
Employer, or Nonprofit Entity, in addition to the individual
tobacco user, if they knowingly break the law.
(b) No Person, Employer, or Nonprofit Entity shall knowingly or intentionally permit the
presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within
an area under the legal or de facto control of the Person, Employer or Nonprofit Entity and in
which Smoking [ or the use of Tobacco Products ] is prohibited by law, including, without
limitation, within a Reasonable Distance required by this [ article / cha tamer ] from any area in
which Smoking [ or the use of Tobacco Products ] is prohibited. Notwithstanding the
foregoing, the presence of ash receptacles in violation of this subsection shall not be a
defense to a charge of Smoking [ or the use of Tobacco Products ] in violation of any
provision of this [ article / cha�teto ].
(c) No Person shall dispose of used Smoking or Tobacco Product waste within the
boundaries of an area in which Smoking is prohibited, including inside the perimeter of any
Reasonable Distance required by this [ article / chanter ].
(d) A Person, Employer, or Nonprofit Entity that has legal or de facto control of an
Unenclosed Area in which Smoking [ or the use of Tobacco Products ] is prohibited by this
[ article / c i e ] shall post a clear, conspicuous and unambiguous "No Smoking" [ or No
Use of Tobacco Products ] or "Smokefiee" [ or "Tobacco- Free" ] sign at each point of ingress
to the area, and in at least one other conspicuous point within the area. The signs shall have
letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section
shall include the Reasonable Distance requirement set forth in Sec. [ _ ( *3) ]. [ At least one
sign with the [ City / Coun ] phone number where complaints can be directed must be
Conspicuously posted in each place in which Smoking is prohibited. ] For purposes of this
section, the City Manager or his /her designee shall be responsible for the posting of signs in
regulated facilities owned or leased hi whole or in part by the [ CN/ ].
Notwithstanding this provision, the presence or absence of signs shall not be a defense to a
charge of Smoking [ or the use of Tobacco Products ] in violation of any other provision of
this [ article / c a ].
COMMENT: Communities concerned about enforcement,
and with the funds to print local signs, may wish to
include the bracketed sentence, which requires signs to
Modd California Ordinance Regulnting Smoking in Outdoor Areas —page IS
Trchnirnl Accivnnre I Pont r enirr —Inns inno
Ihave the phone number for complaints. Note that this will
be more expensive than using standard signs.
(e) No Person, Employer, or Nonprofit Entity shall intimidate, threaten any reprisal, or
effect any reprisal, for the purpose of retaliating against another Person who seeks to attain
compliance with this [ article / chi I.
(f) Each instance of Smoking [ or Tobacco Product use ] in violation of this [ article /
cater ] shall constitute a separate violation. For violations other than for Smoking, each day
of a continuing violation of this [ article /chanter ] shall constitute a separate violation.
Sec. [ _ ( *5) J. PENALTIES AND ENTORCEMENT.
(a) The remedies provided by this [ article / cater ] are cumulative and in addition to
any other remedies available at law or in equity.
COMMENT: The following provisions are designed to offer
a variety of options to the drafter and to the enforcing
agency. Drafters may choose to include some or all of
these options. Once the ordinance Is enacted, the
enforcing agency will have the discretion to choose
which enforcement tools to use. As a practical matter,
these enforcement options would not be applied
simultaneously, although multiple remedies might be
used against a particularly egregious violator over time.
(b) Each incident of Smoking [ or use of Tobacco Products ] in violation of this [article /
chanter ] is an infraction subject to a [ one hundred dollar ($100) ] fine [ or otherwise
punishable pursuant to section of this code ]. Other violations of this [ article / c a e ]
may, in the discretion of the [ City Prosecutor /District Attomev ], be prosecuted as
infractions or misdemeanors when the interests of justice so require. Enforcement of this
chapter shall be the responsibility of [ _ ]. In addition, any peace officer or code
enforcement official also may enforce this chapter.
COMMENT: The first sentence establishes the penally for
the core type of violation: Smoking where it is prohibited.
The fine amount can be modified but cannot exceed
$100 for a first infraction. It is separated from the main
enforcement provision that follows, so that law
enforcement officers can simply write a ticket for Illegal
Smoking. The second sentence, sometimes called a
"wobbler," affords the prosecuting attorney discretion
whether to pursue a violation as an infraction (like a
parking ticket) or a misdemeanor (a crime punishable by
up to a $1,000 fine and /or six months in County Jail).
Alternatively, violations can be set as either an infraction
or a misdemeanor In all circumstances. Misdemeanors
are more serious crimes for which a jury trial is available
to defendants. Fines and other criminal penalties are
established by the Penal Code and are typically reflected
in the general punishments provision of a local code.
Model California Ordinance Regulating Smoking in Outdoor Areas —page 19
Terhniml Ag6,mnre 1 eoal renter— IIInP. 7nno
This provision also designates a primary enforcement
agency, which is recommended, but remains flexible by
permitting any enforcement agency to enforce the law.
(c) Violations of this [ article / chi ] are subject to a civil action brought by the [ City
/County of _ ], punishable by a civil fine not less than [ two hundred fifty dollars ($250) ]
and not exceeding [ one thousand dollars ($1,000) ] per violation.
COMMENT: This provision provides civil fines for violating
the ordinance. It requires that a traditional civil suit be
filed by the city or county (possibly in small claims court).
The fine amounts Can be adjusted but cannot exceed
$1,000 per violation. See California Government Code
section 36901.
(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this
[ article / chi ] shall also constitute a violation of this [ article / cha»ter ].
COMMENT: This is standard language that is typically
included in a city or county code and may be omitted if
duplicative of existing code provisions.
(e) Any violation of this [ article /chapter ] is hereby declared to be a nuisance.
COMMENT: By expressly declaring that a violation of this
ordinance is a nuisance, this provision allows
enforcement of the ordinance by the city or county via
the administrative nuisance abatement procedures
commonly found in municipal codes.
Note that this declaration merely says that violating the
ordinance qualifies as a nuisance (e.g., when Smoking in
a Recreational Area, the violation is the nuisance, not the
Smoke). It is not the same thing as a local ordinance
declaring Smoke a nuisance. Please contact TALC for
more information on how a local ordinance can declare
that all nonconsensual exposure to secondhand smoke
is a nuisance.
(f) In addition to other remedies provided by this [ article /chanter ] or by other law, any
violation of this [ article / c a to ] may be remedied by a civil action brought by the [ City
Attorney /County Counsel ], including, but not limited to, administrative or judicial nuisance
abatement proceedings, civil or criminal code enforcement proceedings, and suits for
injunctive relief.
COMMENT: It is common to provide that the local
government's lawyers may go to court to seek
injunctions and other penalties in addition to fines. The
express provision for injunctive relief lowers the showing
required to obtain a preliminary or permanent injunction
as described in IT Corp. v. County of Imperial, 35 Cal. 3d
63 (1983).
Model Cali romia Ordinance Regulating Smoking in Outdoor Antes --page 20
Terhninl Aceicmnrr.l ronl r'enlvr —Lmn 9009
A public agency should think carefully about the
nuisance abatement procedure it chooses in enforcing
this ordinance after it is adopted. A local government
may provide for treble damages for the second or
subsequent nuisance abatement judgment within a two -
year period, as long as the ordinance is enacted
pursuant to Government Code section 38773.5. See
Government Code section 38773.7. Treble damages are
not available, however, under the alternative nuisance
abatement procedures in Government Code
section 38773.1 (nuisance abatement liens) and Health
& Safety Code section 17980 (abatement of substandard
buildings). Government Code section 38773.7
(authorizing treble damages) establishes a procedure for
nuisance abatement where the cost of the abatement
can be collected via the property tax roll as a special
assessment against the property on which the violation
occurs.
[ ( ) Except xcept as otherwise provided, enforcement of this [article /cater ] is at the sole
discretion of the [ gly / Coun ]. Nothing in this [ article /chapter ] shall create a tight of
action in any Person against the [ C� /Coq ] or its agents to compel public enforcement
of this [ article / chi ] against private parties. ]
COMMENT: This is an optional provision, which makes
clear that a City or County cannot be liable to any Person
for failure to enforce the Smoking restrictions in this
ordinance.
(h) Any Person acting for the interests of itself, its members, or the general public may
bring a civil action to enjoin a violation of this [ article/ ] by a landlord, Employer,
Business, or Nonprofit Entity or to enjoin repeat violations of this [ article / ch�te� ] by an
individual.
COMMENT: This provision enables private citizens to go to
court to seek compliance with the ordinance through an
injunction (a court order to do or not do something).
Money damages are not an available remedy. Because
an injunction is the only remedy available, small claims
court is not an appropriate venue for filing a lawsuit
under this provision.
Note that while a landlord, Employer, Business, or
Nonprofit Entity may be sued for one violation of this
ordinance, an individual can be sued only for repeat
violations. This limitation is intended to address concerns
about the potential for abusive lawsuits.
SECTION III. STATUTORY CONSTRUCTION & SEVERABILITY. It is the intent of
the [ City Council / Board of Supervisors ] of the [ City / C un ] of [ _ ] to supplement
applicable state and federal law and not to duplicate or contradict such law and this ordinance
shall be construed consistently with that intention. If any section, subsection, subdivision,
paragraph, sentence, clause or phrase of this ordinance, or its application to any person or
Model California Ordinance Regulating Smoking in Outdoor Areas —page 21
Terhniral 4ecialn.r 1 sort ('enter I me2nn9
circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or its
application to any other person or circumstance. The [ City Council / Board of Supervisors ] of
the [ C / ] of [ _ ] hereby declares that it would have adopted each section,
subsection, subdivision, paragraph, sentence, clause or phrase hereof independently, irrespecfive
of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences,
clauses or phrases hereof be declared invalid or unenforceable.
COMMENT: This Is standard language.
Model Cali ronnia Ordinance Regulating Smoking in Outdoor Areas page 22
Trrhnirnl Acciclanre I eoa] f`rmer —limn Wnno