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HomeMy WebLinkAboutCM Smoking Ordinancecrrr of Agenda Item No: 6.a 1 UL -0" Meeting Date: October 1, 2012 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: CITY MANAGER Prepared by: Rebecca Woodbury, Management Analyst City Manager Approval. 1" SUBJECT: CONSIDERATION OF AN ORDINANCE REPEALING SAN RAFAEL MUNICIPAL CODE (SRMC) CHAPTER 8.14 ENTITLED "INDOOR AIR AND HEALTH PROTECTION" AND ADDING A NEW CHAPTER 9.04 ENTITLED "CLEAN INDOOR AND OUTDOOR AIR AND HEALTH PROTECTION." RECOMMENDATION: Conduct a public hearing and pass to print an ordinance repealing San Rafael Municipal Code (SRMC) Chapter 8.14 entitled "Indoor Air and Health Protection" and adding a new Chapter 9.04 entitled "Clean Indoor and Outdoor Air and Heath Protection." BACKGROUND: Numerous studies have shown that exposure to secondhand smoke and smoking can result in significant health risks. In 1993 the United States Environmental Protection Agency (EPA) found secondhand smoke to be a risk to public health, and classified secondhand smoke as a Group A carcinogen, the most dangerous class of carcinogen'. In 2009, the World Health Organization (WHO) estimated that without regulation, by 2030 tobacco will account for 8 million deaths per year, making it the greatest cause of death worldwide2. In 2010, there were an estimated 7,600 smoking-related fires in residential buildings in the United States resulting in an estimated 350 civilian deaths, 950 civilian injuries and $286 million in direct property damage according to the United States Fire Administration3. In addition to the impacts of smoking related fires, smoking can increase residential cleaning, maintenance, repair, and insurance costs that may be passed down to renters in the form of higher rents. A 2011 study conducted by UCLA found that smoke-free regulations in multi -unit residential buildings could save property owners up to $18 million a year statewide on the cost of cleaning apartments vacated by tenants who smoke4. "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders." Environmental Protection Agency. EPA;600/6-90/006F. December 1992. htto:,www.ega.00v ncea;'ets odfs/acknowl.odf L "Report on the global tobacco epidemic, 2011: warning about the dangers of tobacco." World Health Organization. WHOMMH TF1/11.3. July 2011. http:;.www.who.int;tobacco,`olobal reoort2011,enJndex.html "Smoking -Related Fires in Residential Buildings (2008-2010)." United States Fire Administration. Topical Fire Report Series: Vol. 13, Issue 6. June 2012. htto:. www. usfa.fema.00v: download s;odf,statistics, v13i6.odf ° "Estimates of Smoking -Related Property Costs in California Multiunit Housing." Michael K. On Allison L. Diamant, Qion P Y 9.,, 9• g Zhou, Hye-Youn Park, and Robert M. Kaplan. American Journal of Public Health: Vol. 102, No. 3, pp. 490-493. doi: 10.2105 AJPH.2011.300170. March 2012. httq:,',aiph.achapublications.orq. doi. abs,10.2105 AJPH.20i 1.300170. FOR CITY CLERK ONLY File No.: - Council Meeting: t Disposition:c- SAN RAFAEL CITY COUNCIL AGENDA REPORT / Paae: 2 Cigarette waste is also a major cause of litter and most cigarette filters are made of cellulose acetate and are not biodegradabie5. Cigarette butts are the number one item picked up during San Rafael Coastal Cleanup Days and in 2012 the San Rafael Clean Program conducted a "Bounty for Butts" program collecting 230,000 discarded cigarette butts within two months time. Previous Direction from Council. The City Council directed staff to pursue amendments to strengthen secondhand smoke and smoking regulations as part of the priority and goal setting in January 2012. On April 16, 2012 staff gave Council an informational presentation about possible updates to the City's regulations regarding smoking and secondhand smoke. Staff provided background on the subject and the American Lung Association's annual report card for the City of San Rafael. This staff report, including the American Lung Association's 2012 grades for Marin jurisdictions and grading methodology can be accessed online here: htti)://citvofsanrafael.granicus.com/MetaViewer.r)hr)?meta id=18877&view=&showr)df=l. At the April 16 meeting, Council gave staff direction to prepare an ordinance that strengthens outdoor air regulations and adds regulations to prohibit smoking in multi -family apartments. They requested that regulations apply to 100% of residential properties with 2 units or more, including condominiums. American Lung Association Scorecard. The 2012 annual State of Tobacco Control report produced by the American Lung Association (ALA) rated San Rafael a "C" grade for overall tobacco control. There are three components of this grade: Smokefree Outdoor Air, Smokefree Housing, and Reducing Sales of Tobacco Products. San Rafael scored an "F" for Smokefree Outdoor Air, a "D" for Smokefree Housing, and an "A" for Reducing Sales of Tobacco Products. Staff believes that the amendments outlined in this report will result in "A" grades in all three categories. ANALYSIS: After receiving input from the Council and the public, staff developed the proposed ordinance to strengthen San Rafael's smoking regulations for indoor and outdoor air. The goals of these changes are to enhance protections for people against the dangers of secondhand smoke, reduce fire hazards, and reduce property damage caused by tobacco smoke. In view of these goals, staff has proposed moving the City's smoking regulations from Title 8 ("Morals and Conduct") to Title 9 (Health and Sanitation). Significant Elements of Proposed Ordinance. The proposed ordinance includes a variety of new regulations. The following elements garnered significant attention by staff and various stakeholders: Parks. Currently, the municipal code prohibits smoking within 100 feet of playgrounds. The proposed ordinance prohibits smoking entirely in all park and recreation areas, with the exception that the City may provide for designated smoking areas for community centers. Staff originally considered creating 200 -foot buffer zones around areas that are heavily used, but ultimately deemed that option too difficult to enforce. Staff heard a variety of concerns about this prohibition. Some social service providers thought that even a large buffer area seemed unreasonable with regards to real impacts of secondhand smoke. Other concerns were raised about the impact on the patrons of community centers located inside parks. ■ Downtown. Currently, the municipal code prohibits smoking in outdoor areas immediately adjacent to entrances or exits of buildings where smoking is prohibited, but does not specify what "immediately adjacent" means. The proposed ordinance prohibits smoking on all sidewalks and pedestrian areas and public places (such as plazas or paseos) in Downtown. Staff originally proposed a 20 foot buffer area around entryways but heard concerns that a "Cigarette Butts and the Case for an Environmental Policy on Hazardous Cigarette Waste". Novotny. T.E.; hum. K.: Smith, E.; Wang, V.: Barnes. R. International Journal of Environmental Research and Public Health: 6(5):1691-1705. May 2009. htIM:. www.mdoi.com.1660-460;'6:5;1691. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 buffer area might be confusing considering the multitude of entryways in the Downtown area. The buffer area provision is still included in the proposed ordinance for areas outside of Downtown. "Downtown" is defined as the area bounded by Hetherton Street between Mission Avenue and Second Street, Second Street between Netherton and the beginning of Miracle Mile, Fourth Street from the beginning of the Miracle Mile to H Street, H Street between Fourth Avenue and Mission Avenue, and Mission Avenue between H Street and Hetherton Street. Multi -Unit Residences. Currently, the municipal code prohibits smoking in indoor common areas of multi -unit residential properties. The proposed ordinance prohibits smoking in all duplexes and multi -family residential units as well as indoor and outdoor common areas of these properties. There is an allowance for a "designated smoking area" if it meets certain criteria. Staff originally proposed prohibiting smoking in 75% of units on properties of 16 units or more. Council directed staff to prohibit smoking in any unit with a shared wall, thus the current proposal. Staff heard concerns about the ordinance being used as a form of eviction and that mediation between tenants can often times be time consuming, but does not believe the proposed ordinance creates an unusual risk of such problems. Other comments included the suggestion that disputes be handled "in-house" by property managers and landlords before a tenant receives government issued notices, and that general letters to all tenants can serve as a friendly reminder of the policy before singling out individual violators. Staff can encourage this kind of enforcement through educational and informational materials (Exhibit 6). Staff also heard the desire for residential properties to comply as quickly as possible, rather than wait until the one-year compliance requirement. Staff supports this but believes that a one-year compliance date will be helpful for some property owners to come into compliance. Designated Smoking Areas. The proposed ordinance allows residential properties, places of employment, community centers, and public events to create designated smoking areas provided that they conform to a set of criteria. Staff heard concerns that certain properties may not be able to meet the criteria, hence leaving no place for residents or patrons to smoke. Although not provided in the proposed ordinance, the Council could consider providing a procedure to allow a property owner to apply for an exception where strict compliance with the standards for placement of a designated smoking area is impossible. Enforcement. The proposed ordinance will be complaint -based. The City will post signage in parks and downtown to serve as public notification. Stickers will be available for merchants to post at their entrances. Property owners of duplex and multi -unit residential properties will be required to post signs and tenants must sign agreements either in the form of a lease or lease addendum. If property owners have difficulty enforcing the ordinance or tenants believe the landlord is not enforcing appropriately, initial complaints may be filed with the County of Marin which will send out notification letters. Second complaints will be handled by the City through the Code Enforcement Division. Staff heard concerns about "heavy-handed enforcement," and some people's inability to pay fines, but does not believe the proposed ordinance creates an unusual risk of such problems. Electronic Cigarettes. An electronic cigarette, or e -cigarette, can be defined as an electronic oral device, such as one composed of a heating element, battery, and/or electronic circuit, which provides a vapor of nicotine or any other substances, and the use or inhalation of which simulates smoking. An e -cigarette does not contain tobacco, and therefore does not emit tobacco smoke. Marin jurisdictions are divided over the regulation of e -cigarettes with regards to smoking. Marin County and Mill Valley include e -cigarettes in their smoking definitions, thereby prohibiting their use as they do regular cigarettes. The County, however, SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4 as an accommodation to smokers, has a special provision allowing e -cigarettes to be smoked within a multi -family residential unit, but not in outdoor areas where smoking is prohibited. Sausalito, Larkspur and Novato do not regulate e -cigarettes with regards to smoking. Currently, the San Rafael Municipal Code regulates only smoke from or sale of "tobacco products" as defined in sections 8.14.030(19) and 8.15.005(A), and does not address e - cigarettes at all. (Novato, Sausalito, Mill Valley, and Marin County include products containing nicotine in their definition of tobacco products; Larkspur does not.) In consideration of its stated goals, the proposed ordinance does not include any regulation of e -cigarettes since they do not emit secondhand smoke, fire hazards appear to be low, and there is no, or very minimal, litter potential as there is with regular cigarettes. Additional concerns and comments gathered at the stakeholder and town hall meetings included: ■ Concerns that if construction workers cannot smoke on worksites, they may smoke in front of people's homes. This concern was addressed by requiring a 20 -foot buffer area around working construction crews rather than prohibiting smoking on entire worksites. ■ Outreach materials should be translated into other languages. Smokefree Marin has indicated that it can translate materials into several other languages, including Spanish and Vietnamese. ■ Concerns that designated smoking area rules may not work for smaller properties. As noted above, the Council could consider adding a provision allowing the City to make exceptions where strict compliance with designated smoking area standards is not possible. This would entail a new review process. Staff concluded that there are not adequate resources to cover this new process. ■ Concerns that having ash receptacles on the sidewalks near businesses and no smoking signs nearby will be confusing. Business owners will likely remove the ash receptacles, potentially forcing people to throw their butts on the ground. Staff initially considered prohibiting the placement of ash receptacles in areas where smoking is prohibited; however staff removed this provision due to concerns about undermining the San Rafael Clean Program and other City efforts to control litter and fire hazards. • Concerns that although smoking is a legal activity, this ordinance leaves few places for people to smoke. The ordinance does substantially limit where smoking is allowed, however it is still allowed in some places. The ordinance includes a section 9.04.050 (C) that outlines where smoking is allowed. Summary of Changes. The following table summarizes the recommended changes relating to outdoor air regulations. Staff expects this recommendation would result in 20 points and achieve an "A" grade on ALA's scorecard. Smokefree Outdoor Air Component Staff recommendation Points Outdoor Dining Prohibition of smoking in all outdoor dining areas. 4 Areas Entryways Prohibition of smoking 20 feet from entryways (doors and windows). 4 Public Events Prohibition of smoking at all public events, but designated smoking 3 areas permitted. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5 Recreation Areas Prohibition of smoking in recreation areas, such as parks, 4 playgrounds, sports fields and courts, picnic areas, and dog parks. Prohibit smoking in open space. Outdoor service Prohibition of smoking in all service areas (bus stops, ATM and 4 areas ticket lines, etc). Worksites Prohibition of smoking within 20 feet of working construction crews. +1 bonus Public Places Prohibition of smoking in public plazas and other public places. n/a Sidewalks Sidewalks and other pedestrian areas in Downtown. +1 bonus The following table summarizes the recommended changes relating to multi -family housing regulations. Staff expects this recommendation would result in 14 points and achieve an "A" grade on ALA's scorecard. Smokefree Multi -Family Housing Component Staff recommendation Points Nonsmoking Units Require 100% of multi -family units (apartments and condominiums) 4 to be declared nonsmoking, in all properties of 2 units or more. Nonsmoking Prohibition of smoking in all indoor and outdoor common areas, but 4 Common Areas allow for designated smoking areas. Disclosure N/A — 100% of units smokefree. 4 Nuisance Declare secondhand smoke in violation of this ordinance a public +1 nuisance. bonus Housing Authority Require 100% multi -family housing authority units to be declared +1 Units nonsmoking. bonus Other changes include: ■ Prohibition of smoking in 80% of all hotel rooms. ■ Prohibition of littering smoking waste (i.e. cigarette butts) citywide. ■ Signage required where smoking is prohibited. Public Outreach and Input. City staff, working closely with the County, conducted outreach with major stakeholders including: ■ Chamber of Commerce Governmental Affairs Committee ■ Social Service providers (Ritter Center, St. Vincent's de Paul, Legal Aid of Marin, Homeward Bound, Partnership to End Homelessness, Buckelew Programs) ■ Marin Builder's Association ■ Marin Alano Club ■ Federation of Neighborhoods ■ Downtown Business Improvement District ■ Marin Bocce • Transit agencies (Golden Gate Transit, SMART) Information about the draft ordinance was mailed to all owners of residential properties of two or more units, condominium owners, downtown businesses, bars, Canal Alliance, Canal Welcome Center, Marin Housing Authority, Fair Housing of Marin, Marin Association of Realtors, and the San Rafael Pacifics. A town -hall meeting was held on August 23. If the Council adopts this ordinance, informational outreach material can be provided for affected parties. Exhibit 5 is a draft informational brochure that outlines the provisions of the ordinance. Exhibit SAN RAFAEL CITY COUNCIL AGENDA REPORT / Paae: 6 6 is a draft implementation handbook for smokefree housing. Signage templates will be provided online in multiple languages and window decals can be provided to businesses. Enforcement. Enforcement of this ordinance will be complaint -based. Violations in residential units can be handled "in-house" through property managers and landlords. The County will assist in handling initial complaints by issuing warning letters and supporting property owners with mediation tools. If matters persist beyond the County -issued warning letter, the City's Code Enforcement staff can issue administrative citations. This will likely alter the administrative and staffing duties of the Code Enforcement Division, which is not currently equipped to handle enforcement of new smoking regulations. The division has 2.3 (full time equivalent) employees dedicated to the Housing Inspection Program and 0.7 (full time equivalent) employees dedicated to all other code enforcement issues. Adding enforcement of this ordinance would increase the need for code enforcement investigations and inspections. The level of enforcement would be contingent on code enforcement priorities. This would likely fall under the category of non -urgent health and safety. Code enforcement officers, however, do not have the authority to demand identification from individuals who are smoking in violation of the ordinance. Due to staff limitations, Police resources cannot be involved in the enforcement of this ordinance. Nor can staff that are working in our parks or at our special events. Staff can work with the County of Marin on providing materials, education and outreach to merchants and businesses. The City can post signs in certain areas, such as Downtown and park entrances. Violations are subject to an administrative citation issued by the City, punishable by an administrative fine not less than one hundred dollars ($100) for the first violation, two hundred dollars ($200) for the second violation within one (1) year), and five hundred dollars ($500) for a third violation and any subsequent violation within one (1) year. NOTICING / CORRESPONDENCE: As the proposed ordinance amendment is citywide, a town -hall meeting was held on Thursday, August 23. Notice of the town -hall meeting was mailed to all residential property owners of properties with 2 or more units, including condominium owners; all businesses within Downtown; and all bars within the City. A Notice of Public Hearing for this Council meeting was published to the Marin Independent Journal. A copy of the notice is attached (Exhibit 3). Correspondence received to date is provided in Exhibit 4. Some of the correspondence includes questions and inquiries about the proposed ordinance amendments. In these cases, staff has provided a direct response to the author. ENVIRONMENTAL REVIEW: Action on this ordinance is covered by the `general rule' that the California Environmental Quality Act (CEQA) applies only to projects which have the potential to cause a significant, physical environmental environment. Pursuant to CEQA Section 15061(b)(3), the ordinance is not subject to environmental review. FISCAL IMPACT: This ordinance will alter the administrative and staffing duties of code enforcement officers. To the extent the City plans to pursue enforcement of a new ordinance, there will be a need for additional code enforcement investigations and inspections. Additionally, there will be costs incurred for independent hearing officers and City Attorney prosecution of administrative enforcement proceedings. The City would not likely be able to recover its hearing officer costs and attorney's fees in such proceedings. The City is expected to incur approximately $12,000 in costs related to signage. These funds are not currently budgeted in the City's General Fund, so staff will incorporate this expense in the mid -year SAN RAFAEL CITY COUNCIL AGENDA REPORT / Paae: 7 budget review. Outreach and informational materials as well as decals for businesses are expected to be provided by the County. OPTIONS: The City Council has the following options to consider on this matter: 1. Adopt the ordinance amendment as proposed or with modifications 2. Continue action for additional information and response to Council comments and concerns 3. Deny the proposed ordinance amendment RECOMMENDED ACTION: It is recommended that the City Council: 1. Open the public hearing and accept public testimony on the project; 2. Close the public hearing; 3. Pass ordinance (Exhibit 1) to print. EXHIBITS: 1. Proposed Ordinance 2. Current SRMC Chapter 8.14 3. Public hearing notice 4. Correspondence 5. Draft informational brochure 6. Draft smokefree housing implementation booklet ORDINANCE NO. 1908 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL REPEALING SAN RAFAEL MUNICIPAL CODE (SRMC) CHAPTER 8.14 ENTITLED "INDOOR AIR AND HEALTH PROTECTION" AND ADDING A NEW CHAPTER 9.04 ENTITLED "CLEAN INDOOR AND OUTDOOR AIR AND HEALTH PROTECTION," WHEREAS, in 1993 the United States Environmental Protection Agency (EPA) found secondhand smoke to be a risk to public health, and classified secondhand smoke as a Group A carcinogen, the most dangerous class of carcinogen; and WHEREAS, in 2009 the World Health Organization (WHO) estimated that without regulation, by 2030 tobacco will account for 8 million deaths per year, making it the greatest cause of death worldwide; and WHEREAS, in 2010, there were an estimated 7,600 smoking-related fires in residential buildings in the United States resulting in an estimated 350 civilian deaths, 950 civilian injuries and $286 million in direct property damage according to the United States Fire Administration; and WHEREAS, smoke-free regulations in multi -unit residential buildings could save property owners up to $18 million a year statewide on the cost of cleaning apartments vacated by tenants who smoke, according to a 2011 UCLA study; and WHEREAS, most cigarette filters are made of cellulose acetate and do not biodegrade, and in 2012 the San Rafael "Butts for Bounty" program collected 230,000 discarded cigarette butts within two months time; and WHEREAS, the Council of the City of San Rafael directed staff to pursue amendments to strengthen regulations concerning secondhand smoke and smoking as part of the priority and goal setting in January 2012; and WHEREAS, on April 16, 2012, the Council of the City of San Rafael heard an informational presentation from the City Manager's Office recommending the preparation of a draft ordinance to amend the San Rafael Municipal Code to include the prohibition of smoking in outdoor dining areas, recreation areas, service areas, entryways, worksites and multi -family properties; and WHEREAS, on August 23, 2012, a town -hall meeting was held in the City Hall Council Chambers to receive public comments on the proposed Ordinance; and WHEREAS. at the town -hall meeting on the matter of smoking in public places and multi -family properties, numerous attendees, including residents, property managers and owners, and a representative from the American Lung Association, spoke regarding the harmful effects of secondhand smoke and smoking in public places and multi -family properties: NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES HEREBY ORDAIN AS FOLLOWS: DIVISION l: New Chapter 9.04 entitled "Clean Indoor and Outdoor Air and Health Protection" is hereby added to the San Rafael Municipal Code to read in its entirety as follows: 9.04.010 Title This chapter shall be known as the City of San Rafael Clean Indoor and Outdoor Air and Health Protection Ordinance. 9.04.020 Purpose and applicability The city council finds and declares that the purposes of this chapter are: A. To protect the public health, safety and general welfare, B. To guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke, The city council further finds that it is within the City of San Rafael's basic police power to implement and enforce the provisions of this chapter. 9.04.030 Definitions As used in this Chapter, the following words and phrases shall be construed as defined in this section, unless the context or use of such words or phrases clearly indicates a different meaning or construction intended in the particular case: "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area. "Business" means any sole proprietorship, joint venture, corporation or other form of business entity formed for profit making purposes. "City" means the City of San Rafael "City Manager" means the city manager of the City of San Rafael. "Common Area" means every indoor or outdoor area of a multi -family residence that residents of more than one unit of that multi -family residence are entitled to enter and/or use, including, but not limited to. halls and paths, lobbies and courtyards, elevators and stairs, community 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. "Designated Smoking Area" means an area meeting the requirements of Section 9.04.090 of this chapter where smoking is permitted, as designated by an employer. landlord. or other person with legal control of the premises. "Dining Area'" means any area, including streets and sidewalks. that 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. N "Duplex" for purposes of this chapter means one structure on a single lot containing two (2) dwelling units with a shared wall, each of which is functionally separate from the other. "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for an employer. "Employer" means any person, partnership, corporation, including a municipal corporation, business, or non-profit entity, which employs the services of one or more individual persons or utilizes volunteers. "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) that extend from the floor to the ceiling. "Landlord'" means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that "Landlord" does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi -family residence. "Multi -Family Residence" for purposes of this chapter means residential property containing three (3) or more units with one or more shared walls, floors or ceilings, including for example, rental complexes, residential cooperatives or condominium complexes, senior citizen residences, assisted living complexes and skilled nursing facilities. "Multi -Family Residence" does not include the following specifically excluded types of housing: A. a hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2); B. a mobile home park; C. a campground; D. a marina or port; E. a single-family home; and F. a single-family home with a detached in-law or second unit when permitted pursuant to California Government Code sections 65852.1, 65852.150, or 65852. "New Unit" means a unit that is issued a certificate of occupancy / final inspection more than 180 days after November 14. 2012 and also means a unit that is leased or rented for residential use for the first time more than 180 days after November 14, 2012. "Non -Profit Entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character -building, political, social, religious or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a "Non -Profit Entity" within the meaning of this section. "No Smoking Sign" means a sign containing the words "No smoking" or the international "No smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it). "Open Space" means any lot or area of land or water essentially unimproved and set aside. dedicated, designated or reserved for public or private use or enjoyment. or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space. "Person'' means any individual, partnership, cooperative association. private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. -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 `t operation, regardless of the hours of operation, including, but not limited to, indoor, vehicles used in employment or for business purposes, taxis, employee cafeterias, lounges and restrooms, conference and banquet rooms—or other dining areas, warehouses, long-term health care facilities, and lobbies and hallways. A private residence is not a "Place of Employment" unless it is used as a day services center or a child care or health care facility licensed by the State of California. "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control. "Public Event" means an event which is open to and may be attended by the general public, including but not limited to such events as farmers' markets, parades, craft fairs, festivals, concerts, performances or other exhibitions, regardless of any fee or age requirement. "Public Place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement. "Recreation Area" means any area that is publicly or privately owned and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "Recreation Area" includes, but is not limited to, parks, picnic areas, playgrounds, sports fields and courts, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, spas, roller- and ice-skating rinks, skateboard parks, amusement parks, sports arenas, and beaches. "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 wait for or receive a service or make a transaction, whether or not such service or transaction involves the exchange of money. The term "Service Area" includes but is not limited to the San Rafael Transit Center, information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, cab stands, or enclosed lobbies or vestibules. "Smoke" means the gases and particles released into the air by combustion when the apparent or usual purpose of the combustion is human inhalation of the resulting combustion products, including, but not limited to, tobacco smoke. "Smoking" means engaging in an act that generates smoke, including but not limited to, lighting and/or possessing a lighted cigar, a lighted cigarette, a lighted pipe, or a lighted hookah pipe. "Sports Arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, baseball stadiums, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events. "Unenclosed Area" means anv area that is not an enclosed area, as defined in this section. "Unit" for the purpose of this chapter 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-lativ or second unit. 4 9.04.040 Application of chapter to City -owned Vehicles and Facilities All City -owned vehicles, including jitneys and buses and other means of public transit under the authority of the City, and all enclosed facilities owned and controlled by the City, including jails, and any board, council, commission and agency of the city shall be subject to the provisions of this ordinance. 9.04.050 Prohibition of Smoking in Public Places, Places of Employment, and Certain Other Areas A. Enclosed Areas. Smoking shall be prohibited in the enclosed areas of the following places within the city limits of the City of San Rafael except in places listed in subsection C below, and except in such places in which smoking is already prohibited by state or federal law in which case the state or federal law applies: 1. Places of Employment. 2. Public Places. 3, Recreation Areas. 4. Common Areas. B. Unenclosed Areas. Smoking shall be prohibited in the unenclosed areas of the following places within the city limits of the City of San Rafael except in such places in which smoking is already prohibited by state or federal law in which case the state or federal law applies: 1. Public places, including public plazas. 2. Within 20 feet of a working road or building and construction crew. 3. Recreation areas. 4. Open space. 5. Service areas. 6. Dining areas. 7. 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 criteria set out in section 9.04.090. 8. Public events, provided that the event sponsor may designate a portion of the unenclosed area of the public place being use for the event as a designated smoking area if the designated smoking area is at least 20 feet from any portion of the public place established for the preparation, service or consumption of food or drink, and at least 100 feet from any portion of the public place established as a play area for children or a place to gather to witness a concert or similar exhibition; and provided further that smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law. 9. Sidewalks and other pedestrian areas and public places in Downtown San Rafael accessible to the general public, except while actively passing on the way to another destination. a. For the purposes of this section. Downtown San Rafael means the area defined by Netherton Street between Mission Avenue and Second Street. Second Street between Hetherton and the beginning of Miracle Mile. Fourth Street from the beginning of the Miracle 5 Mile to H Street, H Street between Fourth Street and Mission Avenue, and Mission Avenue between H Street and Hetherton Street. b. This prohibition applies to sidewalks along public and private streets, pedestrian alleys, walkways providing access from parking lots and structures to stores or sidewalks, and all other pedestrian paths or areas that are accessible to the general public within and around the perimeter of the area defined in subsection (a) above. C. Unless otherwise prohibited by law, smoking is not prohibited in the following enclosed areas: 1. Smoking is not prohibited in up to twenty percent (20%) of guestroom accommodations in a hotel, motel, or similar transient lodging establishment if the hotel or motel permanently designates particular guestrooms as nonsmoking rooms such that eighty percent (80%) or more of guestrooms are permanently nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "No Smoking" signage shall be posted in nonsmoking guestrooms. 2. Smoking at theatrical production sites, as part of the production and not by members of the audience, is not prohibited by this subsection if smoking is an integral part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience. 3. Smoking inside a retail tobacco store is not prohibited if: a. The retail tobacco store does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the business premises; b. The retail tobacco store prohibits minors from entering the store at all times; and c. The premises of the retail tobacco store are an independent freestanding building unattached to any other structure or use. 4. Smoking inside a detached, single-family home is not prohibited, except those used as a day services center or a child care or health care facility licensed by the State of California; 5. Smoking inside private vehicles is not prohibited. D. Notwithstanding any other provisions of this section, nothing in this chapter prohibits any person, landlord. employer, or non-profit entity with legal control over any property or facility from declaring the entire property or facility as nonsmoking and prohibiting smoking on any part of such property or facility. even if smoking is not otherwise prohibited in that area. 9.04.060 Nonsmoking Buffer Zones A. In all unenclosed areas where smoking is otherwise permitted. smoking shall nevertheless be prohibited within 20 feet 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. 6 B. In all unenclosed areas where smoking is otherwise permitted, smoking shall nevertheless be prohibited within 20 feet from any unenclosed areas in which smoking is prohibited under Section 9.04.050(8) of this chapter, except while actively passing on the way to another destination. C. The prohibitions in subdivisions A and B of this section shall not apply to unenclosed areas of private residential properties that are not duplexes or multi -family residences. D. Smoking is prohibited in unenclosed areas of a duplex or multi -family residence, including exclusive -use areas such as balconies, porches, decks, and patios, within 20 feet from any doorway, window, opening, or other vent into an enclosed area where smoking is prohibited by this chapter or other law, or 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. 9.04.070 Smoking Restrictions in New and Existing Units in Duplexes and Multi - Family Residences A. All new units of a duplex or multi -family residence are hereby designated nonsmoking units, including any associated exclusive -use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. B. All units of a duplex or multi -family residence that are not new units, including any associated exclusive -use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of November 14, 2013. C. Smoking in a designated nonsmoking unit is a violation of this chapter. 9.04.080 Required and Implied Lease Terms for All New and Existing Rental Units in Duplexes and Multi -Family Residences A. Every lease or other rental agreement for the occupancy of a new or existing unit in a duplex or multi -family residence entered into, renewed, or continued month-to-month after November 14, 2012, shall include the provisions set forth in subsection B below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice. B. Every lease or other rental agreement for the occupancy of a new or existing unit in a duplex or multi -family residence entered into, renewed, or continued month-to- month after November 14, 2012, shall be amended to include the following provisions: 1. A clause providing that as of November 14, 2013, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of November 14. 2013." 2. A clause prox iding that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than in a designated outdoor smoking area. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists." 3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property." 4. A clause expressly conveying third -party beneficiary status to all occupants of the multi -family residence as to the smoking provisions of the agreement. Such a clause might state, "Other occupants of the property are express third -party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law." C. Whether or not a landlord complies with subsections A and B above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections A or B apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsections A or B. D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a duplex or multi -family residence, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to: 1. The landlord; and 2. Any occupant of the premises who is exposed to smoke or who suffers damages as a result of the breach. E. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. 9.04.090 Designated Smoking Areas Multi -family residences, duplexes, places of employment, City owned or controlled public place, and public events may designate an outdoor area where smoking is permitted if the area meets all of the following criteria: A. The area is located at least 20 feet from any unit or enclosed area where smoking is prohibited by this chapter 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 premises. A designated smoking area may require modification or elimination as laws change, as binding agreements are created. and as nonsmoking areas on neighboring premises are established. B. The area does not include, and is at least 100 feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, swimming pools, and school campuses; C. The area includes no more than ten percent (10%) of the total unenclosed area of the multi -family residence for which it is designated: D. The area has a clearly marked perimeter; E. The area is identified by conspicuous signs; F. The area is completely within an unenclosed area; and G. The area does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law. 1-1. Notwithstanding anything in this section to the contrary the city manager may in his or her discretion establish a designated smoking area in any publicly owned or operated public place in any appropriate location in or on a City owned or controlled public place. 9.04.100 Smoking Prohibited by Law in Units and Common Areas A. Smoking in a common area, on or after November 14, 2012, other than in a designated smoking area established pursuant to Section 9.04.050(B)(5), is a violation of this chapter. B. Smoking in a new unit of a duplex or a multi -family residence, on or after November 14, 2012, is a violation of this chapter. C. Smoking in a unit of a duplex or a multi -family residence that is not a new unit, on or after November 14, 2013, is a violation of this chapter. 9.04.110 Other Requirements and Prohibitions A. No person, landlord, or employer shall knowingly permit smoking in an area which is under his or her legal or de facto control and in which smoking is prohibited by this chapter, unless otherwise required by state or federal law. B. Section 9.12.034 of this Municipal Code prohibits littering Citywide. Therefore, no person shall dispose of used smoking or tobacco product waste in or upon any street, sidewalk or other public place within the City of San Rafael. C. A person, landlord, or employer who has legal or de facto control of premises in which smoking is prohibited by this chapter shall post on those premises a clear, conspicuous and unambiguous "No Smoking" or "Smoke-free" sign at each point of ingress to the area where smoking is prohibited, and in at least one other conspicuous point within that area. "No Smoking" signs are not required inside or at doorways of designated nonsmoking units, except in hotel or motel guestrooms as required in 9.04.050(0)(1). The signs shall not exceed five (5) square feet in area; 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 any buffer zone requirement set forth in Section 9.04.060. At least one sign with the County of Marin 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 required in facilities owned or leased in whole or in part by the City, in such locations as may be determined by and in the sole discretion of the city manager or hisiher designee. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter. 9 D. No person, landlord, or employer shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to Smoke in response to that person's effort to achieve compliance with this chapter. 9.04.120 Enforcement and Penalties Any violation of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance, and shall be enforceable pursuant to Chapters 1.40, 1.42, 1.44, or 1.46 of this code, or by any other judicial and administrative penalties and remedies available to the City under State Law. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation. The remedies provided by this chapter are not intended to preclude any other remedy available at law or in equity. 9.04.130 Other Applicable Laws This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. DIVISION 2: Chapter 8.14 of the San Rafael Municipal Code entitled "Indoor Air and Health Protection" is hereby repealed in its entirety. DIVISION 3: This Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to the State CEQA Guidelines, since it can be seen with certainty that there is no possibility that this Ordinance or its implementation would have a significant effect on the environment (14 Cal. Code Regs. Section 15061(b)(3)). DIVISION 4: If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence. clause, or phrase thereof. irrespective of the fact that any one or more sections, subsections, sentences. clauses, or phrases be declared invalid. DIVISION 5: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council meeting at which it is adopted. 10 This Ordinance shall be in full force and effect thirty (30) days after its final passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of the Councilmembers voting for or against same, in the Marin Independent Journal, a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for and against the Ordinance. GARY O. P%IILLIPS, Mayor ATTEST: ESTHER C. BEIRNE, City Clerk The foregoing Ordinance No. 1908 was read and introduced at a regular meeting of the City Council of the City of San Rafael on Monday, the 1 st day of October 2012, and was ordered passed to print by the following vote, to wit: AYES: Councilmembers: Connolly, Heller, Levine, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 15th day of October, 2012. ESTI- ER C. BEIRNE, City Clerk San Rafael, California, Code of Ordinances >> Title 8 - MORALS AND CONDUCT >> Chapter 8.14 - INDOOR AIR AND HEALTH PROTECTION >> Chapter 8.14 - INDOOR AJR AND HEALTH PROTECTION Sections: 814]J1O'Title. 814.020 Flndinosand ourooae. 814D30 Definitions. 814{}4O-AoP|ioedonofchapter toch*ownadvehicles and facilities. 814850 Prohibition ofomokinqinpublic places. 814.O6O-Reou|adonofamokinnino|mmaeofern o|ovment. 814.O7O-Smokin000Uone|areas. 8.14.080-Pootinqofsiona. 814.OQO-Renu|odnothe sale oftobacco orododa. 814108 -Enforcement. 814110 Violations and oena|dea. 814120 NonrataUabon. O14138 Public education. 8]414D - Governmental oqennvc000enaUon. 81415O - Other apo|ioab|elaws. 8141O8 - Effective date. This article shall be known as the "City of San Rafael Clean Indoor Air and Health Protection The city council does find that: 1The U.S. Environmental Protection Agency has classified environmental tobacco smoke aoone ofonly twelve (12)Class Acarcinogens 1owhich there isnosafe level of exposure; 2. Numerous scientific studies have found that tobacco smoke iS8major &OOt[ibUtOrtQ indoor air pollution; 3. Reliable scientific studies, including studies bvthe Surgeon General 0fthe United States and studies commissioned and assessed by the U.S. Environmental Protection Agency, have shown that breathing sidestrearn or secondhand smoke is a significant health hazard k]nonsmokers; particularly to children and teens, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; 4. Within minutes, short-term exposure to sidestream smoke may cause the human body to experience over contraction of the heart, thickening of the blood and arteries, increased chance mfheart attack orstroke, depression ufthe immune system, and cell mutations from the mutagens and carcinogens in smoke; o' Health hazards induced by exposure to environmental tobacco smoke include lung and other forms of cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, broncho -constriction and broncho -spasm, and that the most common cause of premature death from environmental tobacco smoke is heart disease; 0' Reliable scientific studies assessed by the U.S. Environmental Protection Agency have found that sidestrearn and secondhand tobacco smoke causes the death of at least fifty-three thousand (53,000) nonsmokers annually and is a leading cause of premature death and disability among nonsmokers; 7' Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestrearn or secondhand tobacco smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; . o' Persons, particularly employees, have a right to a smoke-free environment if they desire; 9' Tobacco smoking is a leading cause of fires, and cigarette and cigar burns and ash stains onmerchandise and fixtures cause economic losses tobVeineoses' . 10' Substantial scientific evidence exists that the direct use oftobacco products causes cancer, heart disease, and various other medical diseases. The Surgeon General ofthe U.S. has found that tobacco -caused diseases are the leading cause of premature, preventable death and disability inthe U.S.; 11' The National Centers for Disease Control have found that at least four hundred thirty- four thousand (434,000) Americans die each year from tobacco -caused diseases. The Surgeon General of the U.S. and the U.S. Department of Health and Human Services have found that a majorityofthose Americans who die oftobacco-caused diseases become addicted tonicotine intobacco products asadolescents before the age oflegal consent; 12' The National Institute on Drug Abuse has concluded that the nicotine in tobacco products ieapowerful addictive drug and identifies nicotine addiction aathe most widespread example ofdrug dependence inthe U.S.; 13' The Surgeon General of the U.S. has found that nicotine in tobacco products is as addictive aecocaine and heroin. Accordingly, the city council finds and declares that the purposes of this chapter are: To protect public health, safety and general welfare; —To guarantee the rightofnonsmoker90obreathmtobaccoamoke-free@ir.ondho recognize that the need twbreathe tobacco smoke-free air has priority over the desire to —To reduce addiction to tobacco products by minors. The city council further finds it iswithin its basic police power toimplement and enforce the The following words and phrases, whenever used inthis chapter, shall baconstrued aa defined in this section: 1. "Bar means anarea Mich kadevoted hmthe serving ofalcoholic beverages for consumption bvpatrons onthe premises and inwhich the serving offood ioonly incidental to the consumption of such beverages. Afthough m restaurant may contain a bar, the term bar shall not include the restaurant dining area. A bar, for the purpose of this definition, does not include any bar where smoke can filter into a restaurant through opassageway, ventilation system, orany other means. 2' "Business" means any sole proprietorship, jointventure. corporation or other business entity formed for profit-making purposes, including retail establishments Mere goods or services are sold 2ewell aeprofessional corporations and other entities where legal, n}ediva|, dantg|, angineering, architectural orother professional services are delivered. 3' "Cocktail lounge" means a bar, within a restaurant, which is not the sole means of public access tothe dining areao, is not the sole waiting area for dining oatnzna, prohibits minors unless passing through, in which the service of food is only incidental to the consumption ofbeverages, has oseparate ventilation system, and is enclosed. |nthis connection a written determination by the enforcement officer designated pursuant to Section 8. 14.1 OO(B) of this chapter that a cocktail lounge is enclosed shall be presumptive evidence of compliance with the enclosure requirement of this chapter in the absence offraud mrmistake. 4' "Emnkovee"means any person who io employed bvany employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his Or her services for a nonprofit entity. »' "Employer" means any person, partnership, oorponabon, including municipal corporation, or nonprofit entity, who employs the services of one or more individual persons. U' "Enclosed" means surrounded by a ceiling, floor, and solid walls which, except for doors, passageways and/or windows, extend from floor to ceiling on all sides. If an enclosed area is divided by internal partial vva||a or other "office landscaping," it is still, in its entirety, enclosed. Aretractable roof, whether open orclosed, shall be considered ceiling for the purpose ofthis definition. 7' "Minor" shall mean any individual who is less than eighteen (18) years old. 8' "Nonprofit entity" means any corporation, unincoassociation orother entity created for charitable, religious, philanthropic, educational, character -building, political, social or other similar purposes, the net proceeds from the operations of which are committed tothe promotion ofthe objectives orpurposes ofthe entity and not toprivate gain. A public agency is not o nonprofit entity within the meaning of this section. 9' "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal 10. "Place of employment" means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and rest rooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a place of employment unless i[iSused 88@child care Orhealth care facility. 11. "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health f@oi|ities, shopping nxa||a. |oundronxats, public transportation faci|itieo, reception areas, restaurants, retail food production and marketing establishments, raimU service eetab|kyhnlento, retail stores, hotels and mo1eka, theaters and mmhin0 rooms. Aprivate residence is not public place. 12' "Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, and any other eating establishment which gives oroffers for sale food to the pub|io. guests or employees, as vweUaakitnhenoinwhiohfuodispnapmredontheprennieeohuraervinga|eevW)ene. including catering faci|ities, except that the term restaurant shall not include e cocktail lounge or tavern if said cocktail lounge or tavern is a bar as defined in this section. 13' "Retail tobacco store" means a retail store utilized primarily for the sale oftobacco products and accessories and inwhich the sale ofother products immerely incidental. 14' "Self-service merchandising" means open display of tobacco products and point-of-sale tobacco promotional products bowhich the public has access without the intervention mf an employee. 15' "Separate ventilation system" means a system which is exhausted to the outside and negatively pressurized. 16' "Service line" means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money. 17. "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed orplant orother combustible substance whose smoke iointended tobeinhaled. 10' "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical emaroism, participate in athletic uonnpmtition, or witness sports events. 19' "Tobacco product" means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation orother manner ofingestion. 20' "Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product. 21' "Vendor -assisted" means only a store employee has access to the tobacco product and assists the customer bysupplying the product. The customer does not take possession ofthe product until itiepurchased. All vehicles, including jitneys and buses and other means of public transit under the authority Ofthe ohv. and all enclosed facilities 0vvn8d and controlled by the city, iOdUdiDA jails, and any board, council, commission and agency of the city shall be subject to the provisions of this chapter. A. Except @Sotherwise provided, smoking shall bDprohibited inall enclosed public places within Elevators; 2. Buses, taxicabs, and other means of public transit under the authority of the city and ticket, boarding, and waiting areas of public transit depots; 3. Rest rooms; 4. Service lines; 5. Retail stores; 6. All areas available to and customarily used by the general public in all business and nonprofit entities patronized by the public, including but not limited to, attorneys' offices and other offices, banks, laundromats, malls, hotels and motels; 7. Restaurants, provided cocktail lounge areas within restaurants that sell alcoholic beverages shall be exempted. Within one year of the operative date of this section, such areas shall meet the standards of cocktail lounge as defined herein; 8. Public areas of aquariums, galleries, libraries, museums when open to the public; 9• Any facility which is primarily used for exhibiting motion pictures, stage productions, lectures, musical recitals or other similar performances, except for smoking which is part of such production; 10. Sports arenas and convention halls; 11. Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee including joint committees, or agencies of the city or any political subdivision of the state during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the city; 12. Waiting rooms, hallways, wards and rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy, mental health, and drug and alcohol treatment facilities, doctors' and dentists' offices; 13. Hotel/motel rooms. A minimum of fifty percent (50%) of rooms must be permanently designated nonsmoking; 14. Lobbies, hallways, and other common areas in apartment buildings, condominiums, senior citizen residences, nursing homes, and other multiple -unit residential facilities; 15. Lobbies, hallways, and other common areas in multiple -unit commercial facilities; 16. Polling places. B. Smoking shall be prohibited in outdoor areas immediately adjacent to any entrance or exit of any building within which smoking is prohibited. For purposes of this section, entrance or exit shall mean an opening into a building from a contiguous street, sidewalk, walkway or parking area. A. No person shall smoke in an enclosed place of employment. B. Within ninety (90) days of the effective date of the ordinance codified in this chapter, each employer having an enclosed place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements: Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles and all other enclosed facilities. C. The smoking policy shall be communicated to all employees within three (3) weeks of its adoption, and mtleast annually thereafter. D' All employers shall comply with these nonsmoking provisions and shall be responsible for their implementation in their p|onae of employment. E. "No Smoking" signs shall be conspicuously posted at building entrances and in employee lounges, cafeterias and lunchrooms. F. All employers shall supply a written copy of the smoking policy to any existing or prospective employee. G. Places of employment exempt from the prohibition on smoking in other sections of this chapter shall also beexempt from this section. A. Notwithstanding any other provision of this chapter to the contn3ry, the following areas shall not be subject to the smoking restrictions of this article: l' Private residences, except when used as a child care or health care facility; 2' Retail tobacco stores; 3' Enclosed nestmuront, hotel and nx)te| conference ormeeting rooms and public and private mnnernb|y noonns, which are equipped with m ventilation system which conducts air tothe outside, while these places are being used for private functions; provided, that fifty percent (5OY6)ofthese areas are designated nonsmoking; 4' Anenclosed place ofemployment which employs only the owner and noother employee; provided, that: (a) The place of employment hsnot apublic place, and /b\ The place of employment does not share a ventilation system with any other enclosed place of employment or public place; 5. Bars and cocktail lounges aedefined herein. B. Not withstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment by posting signs as required by Section 8.14.080 A. "No-Srnokjng"signs orthehltennotiona|"No8mokimA"nvnnbo|(conaistinQofmpictoho| representation ofoburning cigarette enclosed inared circle with ared bar across it) shall be clearly, sufficiently and conspicuously posted in every building, as well as on entrances at eye level, orother place where smoking ioregulated bythis chapter, bythe owner, operator, manager orother person having control Vfsuch building orother place. B. Every restaurant and mall shall have posted otevery entrance aconspicuous sign clearly stating that smoking isprohibited. A. Any person, business, tobacco retailer orother establishment subject tothis chapter shall post TOBACCO PRODUCTS TC}PERSONS UNDER EIGHTEEN YEARS OFAGE |8PROHIBITED BYLAW. PHOTO |[)REQU|FlE[]."The letters ofsaid signs should beatleast one quarter inch (114") high. B. No Pmraon, bueineae, tobacco retaikar, or ovmler, manager oroperator ofany establishment subject to this chapter shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen (18) years or greater unless the seller has some reasonable basis for determining the buyer's age. C. It is unlawful for any person, business or tobacco retailer to se||, permit to be Sn|d, or offer for sale any tobacco product by means of self-service merchandising, or by any means other than vendopasaistadea|ma. O. No person, business or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product. Any tobacco vending machine inuse onthe effective date ofthe ordinance codified inthis chapter shall beremoved within thirty (30) days after the effective date of said ordinance. A. Notice of these regulations shall begiven toall applicants for a business license. B. Enforcement of this section shall be the responsibility of the city manager, who shall have the powers enumerated in this section as well as the powers to issue citations for violation of the section inaccordance with Section M53.6ofthe California Penal Code. The city manager may designate other persons to issue citations; provided, however, that for violations of Section 8.14.11 O(A) hereof, such citations shall not be issued until the person cited has been given one warning and/or an education session with a staff person designated by the Director of Health and Human Services. C. The fire department or the health department shall require, while an establishment is undergoing otherwise mandated inspections, certifioationfn}mthemvmlar,monager.opera1mr or other person having control of such establishment that all requirements of this chapter have been complied with. D. County health inspectors, on their regular restaurant inspections, shall check for compliance with sign posting requirements. Restaurants shall be notified in vTding of any violations on the standard health inspection report. Further, such violations shall bgreported inwriting bythe county health department, onaquarterly basis, bothe administrative authority inthe jurisdiction where such violations occur. E. Notwithstanding any other provision ofthis chapter, mprivate citizen may bring legal action 0o enforce this chapter. A. kkaunlawful for any person who owns, manages, operates mrotherwise controls the use mfany premises subject toregulation under Sections 8.14.D5O.D.14.O0Oand 8.14.O9OOfthis chapter to fail to comply with any of its provisions. B. It is unlawful for any person to smoke in any area where smoking is prohibited under Sections &14.O5O.8.14.O0Oand 8.14.O7O/B\Vfthis chapter. C. Any person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter shall be deemed guilty of an infraction, punishable by: 1 A fine, not exceeding one hundred dollars ($100.00) and/or five (5) days of community service, for the first violation. 2. A fine, not exceeding two hundred dollars ($200.00) and/or ten (10) days of community service, for a second violation of this chapter within one year. 3. A fine, not exceeding five hundred dollars ($500.00) and/or fifteen (15) days of community service, for a third violation of this chapter within one year. No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smokefree environment afforded by this chapter. The county department of health (or city manager) shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected business and individuals explaining the provisions of this chapter. The county department of health (or city manager) shall annually request other governmental and educational agencies having facilities within the city to establish local operating procedures in cooperation and compliance with this chapter. This includes urging all federal, state, county and school district agencies to update their existing smoking control regulations to be consistent with current health findings regarding environmental tobacco smoke. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. The effective date of the ordinance codified in this chapter shall be January 1, 1994. NOTICE OF PUBLIC HEARING The City Council of the City of San Rafael will hold a public hearing: PURPOSE: Public Hearing: To consider an ordinance repealing San Rafael Municipal Code (SRMC) Chapter 8.14 entitled "Indoor Air and Health Protection" and adding a new Chapter 9.04 entitled "Clean Indoor and Outdoor Air and Heath Protection" to include additional regulations prohibiting persons from smoking in certain outdoor areas open to the public, and in the interior and exterior of multi- unit housing. DATE/TIME/PLACE: Monday, October 1, 2012, at 7:00 p.m. City Hall Council Chamber, 1400 Fifth Avenue, San Rafael WHAT WILL HAPPEN: You may comment on the proposed Ordinance. The City Council will consider all public testimony and will then decide whether to approve the Ordinance. IF YOU CANNOT ATTEND: You may send a letter to Esther C. Beirne, City Clerk, City of San Rafael, P.O. Box 151560, San Rafael, CA 94915-1560. You may also hand deliver a letter to the City Clerk prior to the meeting. FOR MORE INFORMATION: You may contact Rebecca Woodbury, Management Analyst, at (415) 485-3076. Office hours are Monday through Friday, 8:30 a.m. to 5:00 p.m. SAN RAFAEL CITY COUNCIL /s/ ESTHER C. BEIRNE ESTHER C. BEIRNE, City Clerk (Please publish in the Marin Independent Journal on and Friday. September 21, 2012) Marin Independent Journal 150 Alameda del Prado PO Box 6150 Novato, California 94948-1535 (415) 382-7335 legals@marinij.com SAN RAFAEL,CITY OF PO BOX 151560/CITY CLERK, DEPT OF PUBLIC WORKS,1400 FIFTH AVE SAN RAFAEL CA 94915-1560 PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Marin FILE NO. 0004626461 I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years, and not a party to or interested in the above matter. I am the principal clerk of the printer of the MARIN INDEPENDENT JOURNAL, a newspaper of general circulation, printed and published daily in the County of Merin, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Marin, State of California, under date of FEBRUARY 7, 1955, CASE NUMBER 25566; that the notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: 9121/2012 I certify (or declare) under the penalty of perjury that the foregoing is true and correct. Dated this 24th day of September, 2012. Signature Legal No. 0004626461 The City Council of the City of San Rafael will hold a public hearing: PURPOSE: Public Hearing: To consider an ordi- nance repealing San Rafael Municipal Code (SRMC) Prot Cha ter 8.14 entitled "Indoor Air and Health ec, t,. n" and adding a new Chapter 9.04 entitled "Clean Indoor and Air and Heath Protection" to include additional regula- tions cer- tain outdoor persons from smoking in cer- utdo areasopen to the public, and in the interior and exterior of multi -unit housing. DATEMM"LAC& Monday, C'obo, 1. 2012. at 7:00 p.m. City Hall Councihdmb.r, 11400 Fifth Avenue, San Rafael WHAT VfiLL HAPPEN: You may comment on the proposed Ordinance. The City Council will consider all public testimony and will then de- cide whether to approve the ordinance. IF YOU CANNOT ATTEND, You may send a letter to Esther C. Beirne, City Clerk, City of San Rafael, P.O. Box 151560, San Rafael, CA 94415 - 1560. You May also hand deliver a letter to the City Clerk prior to the meeting. FOR MORE INFORMATION : You may contact Rebecca Woodbury. Management Analyst, at (415) 485-3076. Office hours are Monday through Friday, 8:30 am. to 5:00 p.m. SAN RAFAEL CITY COUNCIL /s/ ESTHER C. BEIRNE ESTHER C. BEIRNE, City Clerk NO. 1480 September 21, 2012 Correspondence as of September 20, 2012 -----Original Message ----- From: Jan Collier [mailto . Sent: Thursday, August c :� To: Rebecca Woodbury Subject: San Rafael's proposed no smoking laws Dear City Council Members and Ms. Woodbury, Thank you! When this law goes into effect I'll (literally) be able to breathe easier. I live in a condo in San Rafael next door to several smokers. This new law will mean a world of difference to me. I'm in my late 60's and have heart issues. The secondhand smoke I'm forced to inhale every day is horrible for my health (and my peace of mind). I fear for the children who live here, too. We have to protect them!! Please don't let this law be weakened in any way. No grandfathering, no exceptions - 100% no smoking in all multi- unit housing. Sincerely, Jan Collier an Ratael, GA 94903 -----Original Message ----- From: Norman Ciampi [mailto Sent: Friday, August 03, 2012 To: Rebecca Woodbury Subject: Reply to your 8123 City meeting for a smoke ordinance Hello Rebecca Woodbury: I own the apartment building located at_„� San Rafael. Every new lease for the last few years has a clause stating that the building and premises are smo a free. However, some tenants have thought that this is simply my personal view. I have one tenant who smokes and is disturbing the people in the neighboring apartment. The lady is being evicted. If there was a city ordinance against smoking there would be an overwhelming perception that smoking is anti- social and a health intrusion upon those around them. I strongly support a City of San Rafael ordinance against smoking in public places. Norman Ciam i ova o, 47 Phone: Email: . -----Original Message ----- From: Ken Frankel [mailto Sent: Friday, August 03, 2 To: Rebecca Woodbury Subject: I object to new smoking ordinance I know this won't do any good, but I object to more government control over my private life. I don't smoke and never have. However, I have read enough literature to know that second hand smoke isn't a hazard, it just isn't politically correct to say that. At outdoor events, lots of people smoke marijuana, and nobody objects, but if anyone dares to smoke a cigarette, they could get thrown in jail. I don't want the government telling me what my tenants can do with their own lives in my buildings. If someone smokes, and it doesn't bother anyone, then 1 don't want the police breaking down the doors to arrest my tenants. I think it's perfectly OK for people to smoke on the street, in parks, near playgrounds, and any place else where the only reason it might bother someone is they want to control other people's lives. Don't you people have enough laws already? Why don't you enforce the laws you already have about burglaries and vandalism, which happen to me in San Rafael without any enforcement, and when you get those laws enforced, then you can discuss trying to control people's private lives. Kenneth Frankel, Ph.D. 1537-C Fourth St. San Rafael, CA 94901 -----Original Message ----- From: Ann Gubser [mailto Sent: Tuesday, August 07, To: Rebecca Woodbury Subject: Smoking Ordinance Hello Rebecca: I was delighted to receive information the proposed ordinance. To be exploring this option is such an enlightened public health move! I live in a complex - planned unit development - of 27 residences - some connected in 2's, some in 3's, all part of Peacock Court HOA. I live next door to a chain smoker. In the winter, the nightime smoke comes through the attic and vent spaces. In warmer weather, it can be hard to use the adjacent patio because we are downhill from open space, and there can be limited air circulation. Also, leaving a sliding door open can be a problem, as the smoke comes in. I make sure my smoke alarms are functioning, but worry that a person falling asleep with a lit cigarette can start a fire. I have had asthma, so I am especially sensitive to the issue, however, second had smoke is not good for anyone. There are other homeowners for whom this is also a problem. Thank you! Ann Gubser an Rafael, CA 94901 2 -----Original Message ----- From: Rick and Carole Sheviakov [mailto-_ Sent: Tuesday, August 07, 2012 4:00 PM To: Rebecca Woodbury Subject: Smoking Ordinance As the long-term owners of a 5 -unit apartment building in San Rafael, my wife and I are in total support of the proposed ordinance. It is long over due. Rick and Carole Sheviakov Owners an Karaei, Laiirornia -----Original Message ----- From: Morven Seib [mailto - Sent: Friday, August 10, 2 To: Rebecca Woodbury Cc: Patty & Gerry Hiatt; Eraina VonStauffen; Jared Babula Subject: Smoking ordinance Dear Ms. Woodbury; thank you for asking the citizens for their thoughts and comments on the smoking ordinance which is being proposed for our city. I am, at this moment, sitting in a rented condo, where I have been since last December. The reason I am here and not in my own condo on Knollwood Drive, is because on the night of November 2, 2011, a neighbor fell asleep with a lit cigarette in her hand and destroyed five units, including mine. Her mother also was burned alive in the conflagration. The story of this disaster was on the front page of the Independent Journal on November 3, 2011, if you would like to see what a cigarette can do. Needless to say, I am firmly in favor of the no -smoking ordinance, and just wish it could be passed tomorrow. Thank you. Ms. Morven Seib an Rafael, 01 -----Original Message ----- From: Katherine O'Neal [mailto .... Sent: Sunday, August 12, 2012 To: Rebecca Woodbury Subject: comments on draft smoking ordinance It seems unfair to prohibit people from smoking in condos they already own -- and which they bought without any such restriction. -----Original Messaa----- From: Jared [mailto Sent: Tuesday, Augus To: Rebecca Woodbury Subject: proposed smoking ordinance Rebecca, I strongly support any effort to restrict smoking. As a landlord with units in Sonoma County I have prohibited smoking in my units as part of the rental agreement for years. As a resident of a townhome in San Rafael I know what it is like to live connected to a unit with a smoker. Even without duct work, smoke would still get into my unit. While the HOA could, without any ordinance change, prohibit smoking, a blanket ordinance would expedite the process and provide protection to those who live in other complexes and apartments and may not have the resources to move the HOA or landlords into action. Thanks Jared Babula an Ratael, 901 3 -----Original Message ----- From: Darcy Lichter [mailto Sent: Thursday, August 23, 1F To: Rebecca Woodbury Subject: Smoke Free San Rafael Hello Ms. Woodbury: According to the City's website, you are collecting opinions regarding this matter. So here's mine: I am a resident of Marinwood, but have worked on Fourth Street since 1985, and since 1996 in the Courthouse Square Bldg. I remember when there was a Macy's and no City Plaza and Court Street went all the way through to Fourth. I manage a busy law firm and except for a few inclement months a year, my favorite part of my day is sitting in our beautiful plaza, eating lunch with work friends, or alone, enjoying my lunch and book. I am out there almost every day. It's my non-stress time in a sometimes stressful day. The smoking has gotten so bad over the years that I constantly have to move from bench to bench to get away from the smoke. Sometimes there are so many smokers that I have to go sit up in the grass in front of the B of A, although I want to stay in the Plaza. The smoke makes me cough, gets in my throat, makes my hair smell. If I wanted all these things to happen to me, then I would be a smoker. I have politely asked smokers to move away from me, to smoke somewhere else, pointing out that I was there first or that their smoke is making me sick. Some smokers considerately move, but many get very verbal with me, demanding their rights, free society, etc., etc. The plaza is lined with restaurants and filled with tables and chairs. The idea is for people to enjoy their food provided by these restaurants. If one cannot smoke in a restaurant, it's ridiculous that one can smoke just outside the door of a restaurant. The plaza is enjoyed by many elders, young children, dogs, all of whom are negatively affected by the secondhand smoke. It is so so so invasive to be so adversely affected by others' personal choice. If they want to smoke, good for them. But they should do it confined in their own four walls and not out in public space. Their right to personal choice and personal freedom ends when it interferes with my own health, safety and well-being. I think that the argument of smokers that we non-smokers are infringing on their rights is ridiculous; what about my right to breath untainted, uncontaminated air? I feel very strongly about this: the smokers are ruining the aesthetic of downtown San Rafael that the City intended when it created the Plaza years ago. I've read the proposed Draft Smoking Ordinance, and Section "8.14.050 Areas - Prohibition of Smoking in Public Places, Places of Employment, and Certain Other" may be the solution to all of my concerns. I implore the City to adopt the proposed ordinance. Please share my email with Council members and the City Atty. Thanks so much for your time. Darcy J. Lichter, Legal Assistant/Office Manager Montv White LLP Jan KaTael, UA y4�)U1 Tel: ext. 20 Direct: Fax: Email: M -----Original Message ----- From: Rick Wells [mailto����.. Sent: Thursday, August To: Rebecca Woodbury������ Cc: Joshua Townsend; asey azzon ; is ar alish; Laura Bertolli Subject: RE: Smoking ordinance - item for governmental affairs committee? Hi Rebecca, Thank you for the presentation to the San Rafael Chamber GAC earlier this week. While the Chamber Board has not taken a formal position, the GAC discussed the possible ordinance and wanted to share some of the feedback you requested as you consider moving forward drafting the final ordinance. - Consider the impacts of the ordinance on businesses and their ability to operate profitably - Before proposing the ordinance, engage stakeholders that will be directly impacted by this ordinance, particularly bars and restaurants - Smoking is legal, people will continue to smoke, consider designated locations where people can smoke, not just where they can't smoke - Consider the impacts on construction sites, especially the larger scale sites where dozens or hundreds of employees might be working at the same time Hope you find this information helpful. Of course, feel free to reach out to me if you have any questions. Thank you again, Rick -----Original Message ----- From: Scott Newman [mailto Sent: Friday, August 24, 201 To: Rebecca Woodbury Subject: Public Hearing Hi Rebecca, My name is Scott Newman and I was the guy that showed up to last night's public hearing about 20 minutes late! First, thank you for providing such an informative forum, as well as posting the .ppt presentation. I would like to offer my assistance in any way to support this program. As a 244 -unit community with 300+ active adult homeowners (and 85 employees and 20 contract staff), this issue is of great interest Smith Ranch Homes. Please let me know if there is anything I can do. Ili' rTERM Scott Newman, CMCA, AMS Administration Manager Smith Ranch Homes Homeowners' Association an a ae , - Direct - Fax Please consider the environment before printing this e-mail. 61 -----Original Message ----- From: Richard Pechner [mailto Sent: Monday, September 03, To: Rebecca Woodbury Subject: Smoking Ordinance Hi Rebecca, Where would I find out how this ordinance will be enforced? What are the penalties? I am curious as we live in a common wall cooperative and have been suffering from 2nd hand smoke since we purchased a year and a half ago. Our Co-op Board has been ineffective in resolving this situation. Thank you, Richard Pechner an Karaei, -----Original Message ----- From: Bruce Coale [mailto Sent: Monday, September"" To: Rebecca Woodbury Cc: 'Richard Pechner'; 'Nancy Pechner' Subject: Smoking Ordinance Rebecca, Great work on the new non-smoking ordinance for San Rafael. One question I have is if the +1 year for existing multi unit buildings to have the law go into effect is still up for discussion before the board votes the draft into law. I believe that the +1 year waiting period for people in units where second hand smoke is creating health risks is too long of a time to wait for relief. Is the issue of the length of the grace period for smokers creating health risks still open for discussion? It has been clearly established that second hand smoke is a health risk so I believe that it is negligent now that this fact is clearly established and understood that the condition is allowed to continue any longer than is absolutely necessary. Cessation of smoking is not an easy thing to do, especially on a mandated schedule, but living with the effects of a second hand smoke filled apartment is a far more difficult (and dangerous) thing to do. There are many people hanging on the exact wording of the new law and how quickly it will go into effect. Many people are waiting for help with their extremely difficult daily living situations. Thanks for your attention to this matter, Bruce Coale San Rafael resident 0 -----Original Message ----- From: Cindy Steiner [mailto, Sent: Monday, September To: Rebecca Woodbury Subject: Support for Smoke Free San Rafael Dear Rebecca, I attended the meeting a few weeks ago about the ordinance that will be voted on in October. I just want to tell you that I support this ordinance whole heartedly! I'm so sick and tired of having my neighbor's cigarette smoke wafting through the walls and vents from her townhouse into mine! And on the other side, there are three renters, two of whom smoke and their smoke comes in my front door when I have it open on hot days. I have to close up everything and be miserably hot because of inconsiderate smokers! I'm especially angry about being subjected to second hand smoke, because my mother died at the young age of 57 from emphysema because she smoked! You have my support!!! Sincerely, Cindy Steiner Cindy Steiner Home: (415) Mobile: 415 Home: an Rafael, CA 94901 -----Original Message ----- From: Richard Pechner [mailto Sent: Tuesday, September 04, To: Rebecca Woodbury Subject: Re: Smoking Ordinance Dear Rebecca, Thanks so much for getting up to speed on this. So if I understand the ordinance correctly, it will be the option of the property owner to decide when the units in their complex will comply, but no later than 1 year from date of effect. As proposed then, this ordinance will not prevent the property owners to cause their compliance to coincide with the effective date of the ordinance. Is that your understanding of this ordinance as proposed at this time? Again, thank you for taking the time to explain. I want to make sure that our governing body, San Rafael Manor, Inc, is informed that they do not have to wait an additional year to comply once this ordinance becomes law. Richard -----Original Message ----- From: Terra Firma - San Rafael [mailto Sent: Thursday, September 06, 2012 9: To: Rebecca Woodbury Subject: Meetings about homeless and non -smocking ordinance Hi there, Can you let me know when the next meetings will be? Unfortunately, I just missed the August's dates. I'm running a gallery on4th Street and I'm going through incredible challenges in regard to both subjects. I'm thinking about reloc"ing. I love San Rafael, I also live here but the homeless and the smoking in front of our business has taken a toll on my enthusiasm. Thanks, Danielle Molinski P] -----Original Message ----- From: Red Devil Records [mailto����� Sent: Tuesday, September 11, 2 To: Rebecca Woodbury Subject: Smoking Greetings. I am a BID member (formerly on the Board of Directors) and support the ordinance for no smoking on downtown sidewalks and pedestrian area. Thanks, Barry Lazarus Red Devil Records an Hatael CA -94901 -----Original Message ----- From: Jack Hunt [mailto� Sent: Tuesday, September To: Rebecca Woodbury Subject: Smoking Ban Hi Rebecca I wish to let you know that I represent our downtown business. Jack L Hunt Automotive and that we support the smoking ban on sidewalks and pedestrian areas in Downtown San Rafael Sincerely yours Jack L Hunt III Email Websi e: ac< un aulo.comt Office Cell Hm. Sent from my i one -----Original Message ----- From: Jeffrey Allen - Minto & Wilkie Insurance Agency [mailto Sent: Tuesday, September 11, 2012 3:16 PM To: Rebecca Woodbury Subject: Smoking Ordinance. I understand the concept of second hand smoke in a confined space but outside it is a bit ridiculous. The only thing it would accomplish is less cigarette butts on the street. Thanks, Jeffrey S. Allen, Ext. 30 President Minto & Wilkie Insurance Agency San Rafael, CA 94901 P ......... ........ Pox"",San Rafael, CA 94915-0990 Tel:Ext. 30 Fax: CA i 0 -----Original Message ----- From: Jeff Brusati [mailto�!��- Sent: Tuesday, September To: Rebecca Woodbury Subject: Smoking Don't need to even read, but 1 would be in favor. As an x smoker I reluctantly put up with smoke, but I am tired of picking up butts. I am sure smokers don't litter their homes with the butts. Question I would have is -Have you talked to other Cities who have done this? What has been the response? We could learn by this. Pro? Con? Jeff Brusati www. an sports.com -----Original Message ----- From: Pleasures Shop [mailto Sent: Tuesday, September 11, To: Rebecca Woodbury Subject: Smoking ban Hello, In response to the BID request for input on the smoking ban I'd like to say all of us at Pleasures of the Heart agree with the proposed ban. Thank you. Sincerely, Jennifer Islas -----Original Message ----- From: Jeff Brusati [mailto Sent: Wednesday, Septem er er To: Rebecca Woodbury Subject: Smoking As a follow up from my comments, can you provide more detail on enforcement? Are we talking letters? How would one handle enforcement on the streets? What additional costs would be anticipated? Jeff Brusati www. an soorts.com -----Original Message ----- From: Jeff Brusati [mailto'�"������. Sent: Wednesday, Septem er To: Rebecca Woodbury Subject: RE: Smoking Thanks for replies, this addresses my concerns. Self enforcement will be best way to go. Will take time, but at least it is a start. I am in favor. Jeff Brusati wwwannss rts.com 0 ilk FWATA 19019 11 M M The San Rafael City Council adopted an ordinance regulating secondhand smoke by prohibiting smoking in duplex and multi- unit residences and certain outdoor areas. The ordinance goes into effect on November XX, 2012 to limit public exposure to secondhand smoke in public and common areas and November XX, 2013 for Multi -Unit Residences with two (2) or more units. This pamphlet provides an overview of the ordinance and compliance duties. By phone or mail with the Marin County Tobacco Disease Control Program, 10 North San Pedro Road, Suite 1015, San Rafael, CA 94903, Phone: 415.473.3020 Online at www.smokefreemarfii.coin cellulose acetate and do not biodegrade. For tips, resources and suggestions on how to keep our city clean from Litter, visit: www.sanrafaetc[ean.orq This is an informational brochure only. Please see San Rafael Municipal Code Number XXXX for the ordinance in full. > Z rd 0 > Z > rn 0 P; Smoke-free -A t Z San Rafael: Ln 01 What you need to know about San Rafael's new smoking ordinance. CITY OF SAN RAFAEL www.citvofsonrafael.orqlsmokefree M z rn i > tvAl M 0 M cellulose acetate and do not biodegrade. For tips, resources and suggestions on how to keep our city clean from Litter, visit: www.sanrafaetc[ean.orq This is an informational brochure only. Please see San Rafael Municipal Code Number XXXX for the ordinance in full. MAJOR PROVISIONS TIPS TO AID COMPLIANCE TIPS TO AID COMPLIANCO The ordinance prohibits smoking in the following places: ■ Outdoor dining areas ■ Sidewalks and plazas in Downtown • Within 20 feet of entryways to buildings or other places where smoking is prohibited ■ Public events, with the allowance of designated smoking areas • Open space and recreation areas, such as parks, playgrounds, sports fields and courts, picnic areas, and dog parks ■ Service areas (bus stops, ATM and ticket lines, San Rafael Transit Center) • Within 20 feet of working construction crews ■ Duplexes and multi -family residential units (apartments and condominiums) • Indoor and outdoor common areas of residential units, with the allowance of designated smoking areas ■ 80% of hotel rooms Other requirements of the 'ordinance include: ■ Prohibition of littering smoking waste (i.e. cigarette butts) citywide • Declaration of secondhand smoke in violation of this ordinance as a public nuisance • Posting of signage where smoking is prohibited NON SMOKING BUFFER ZONES DUPLEX AND MULTI -UNIT ■ Post no smoking signs at building RESIDENTIAL PROPERTIES entrances to inform visitors that • Post no smoking signs at building smoking is not allowed within 20 feet entrances stating that smoking is not of doors, windows or vents or whereallowed within 20 feet of doors, food or drinks are served. windows or vents. • Inform your employees, customers, • Notify residents that all indoor and clients and/or office building tenants outdoor common areas are smoke-free. of the updated smoke-free ordinance. w 100% of units in properties of 2 units or ■ Do not allow smoking of cigarettes, more must be designated smoke-free pipes, cigars, marijuana, hookah pipes, (apartments and condominiums). etc. anytime inside your workplace or Private decks, balconies, porches of in outdoor restricted areas: , units must be smoke-free at all times. • Any smoking within buffer areas can only ,occur while actively passing on NO SMOKING DECALS the way to another destination- smoke cannot drift into `open windows, doors, No smoking window decals (stickers, not outdoor cafes, bars, bus shelters or signs) are available to businesses free of lines. charge, while supplies last. Please contact the City of San Rafael at 485-3070. DOWNTOWN NO SMOKING NO SMOKING • Post no smoking signs at building entrances in Downtown stating that smoking is hot allowed on sidewalks. a S SWA,n m peadrib teal an alk Smoking pfandMd wAh 20 feet sni—Alks aad ped"tGwx a�rsa to of ati daarx aeW wradowa An smoking on sidewalks or other own San Rafaa6 • Y g pedestrian areas, such as plazas, can only occur while actively passing on �` "'� ``• ''� the way to another destination- smoke cannot drift into open windows, doors, MARIN CESSATION PROGRAMS outdoor cafes, bars, bus shelters or lines. ■ Bay Area Community Resources in San Rafael: 415-755-2399. For assistance with compliance or no ■ The California Smokers' Helpline provides smoking decals, call 473-3020 or visit: free phone cessation services to California smokers at: 1 -800 -NO -BUTTS, www.smokefreemarin.com www.nohutts.orv! Contacts & Resources •' ASSISTANCE DEALING WITH COMPLAINTS AND • Contact Marin County Tobacco Disease Control Program 10 North San Pedro Road, Suite 1015 San Rafael, CA 94903 415.473.3020 http://www.smokefreemarin.com American Lung Association httr)://www.lunq.orq/ Bay Area Smoke-free Housing (Resources for landlords, tenants, and condo owners) htti)://www.casmgkefreehousinci.ora/ City of San Rafael http://www.citv6fs SMOKE-FREE SAN RAFAEL Implementation Handbook for Landlords, Property Managers and Condominium Associations October 2012 !-x i -i l R Fr' (6) 12 Contents Contents.................................. ....................... ....... ........ ___ ................. 2 What You Need to Know about San Rafael's New Smoking Ordinance ..3 Designated Smoking Area Criteria... ......................................... ............... 4 ImplementationTips ...................................................... ....................... 5 Sample Resident Notification Letter ..........................................................6 Sample Lease Addendum .................................. ..............................7 Sample Condominium Policy Amendment .......:.........a.,..........................8 Enforcement Tips .................... .................. ..................... .:­ ................... 9 Sample Enforcement Letters ............... ..................................... ............. 10 SignageTemplates ............ .................... ...... ..................... ............... 11 Contacts & Resources ................................... .................................. 12 This document was produced by the City of San Rafael in October 2012. It is intended to provide general information to landlords, property managers and condominium associations regarding San Rafael Municipal Code XXXX. This document is not intended nor should it be used in lieu of legal advice. Signage Templates Visit www.citvofsanrafael.ora/smokefree for printable versions of these signs. Window decals are available free of charge, while supplies last. Please contact the City of San Rafael at 485-3070. THIS HOME IS SMOKE-FREE ii Smoking prohibited with 20 feet of all doors and windows For more information call 415r473.3020 Vislt,.V%VA,.smokefreemann_com 4 t of San Rafael Otainance No. XXX \41.,X".O/ /000 SMOKE-FREE "4\ PROPERTY ii For free help quitting, call 1-800-NOBUTTS For more information call 415A73.3020 at visit www smokefreernann com CAy of San Rafael Otd'rance No X "XX SMOKE-FREE PROPERTY II (except within Designated Smoking Areas) Fut rnoiL information call 415 473 3020 Visit wvvv smokefircemotin.wTi to of Sao Rafael Ordinance ha k,Y XX /000 ES PROHIBIDO FUMAR EN ESTA PROPIECIAD it (excepto an as areas designadas para funiar) - para obelenet aluda 41tatuita para dejaT de fwrnar. Dome al, I .800,NOBIJTTS 0400.662 M7) Para infomation, liame 4! f, -78006 2 11 Sample Enforcement Letters Friendly Warning Dear Resident, On [insert date] I noticed a very strong odor of cigarettes. I asked if you had been smoking, you said that you were trying to stop. I reminded you that you are not allowed to smoke in your unit. Per your lease/house rules and San Rafael Municipal Code XXXX, smoking is prohibited in any area of the property. I have attached a copy of the house rules for you to review. Please refrain from smoking in your unit or on the property. Failure to comply with your lease could result in eviction proceedings. If you have questions or concerns, please contact me at [insert phone number] or stop by the office. Thank you for your cooperation in this matter, Violation Dear Resident, Pleased be advised that you are In violation of (Property Name's) community policies or local laws. Per your lease/house rules #,.., smoking is prohibited in any area of the property. 1 have attached a copy of your lease with the applicable rules highlighted. We are aware that you are continuing to smoke (describe where). You, your family members, roommates and/or visitors must refrain from smoking in your unit or on the property. You are requested to correct this situation by Your immediate attention to this matter is greatly appreciated. Please contact the management office if you have questions. Failure to comply with your lease could result in eviction proceedings. If you have questions or concerns, please contact me at [insert phone number] or stop by the office. Thank you for your cooperation in this matter. What You Need to Know about San Rafael's New Smoking Ordinance As of INSERT DATE, smoking is prohibited in all duplex and multi- family residential units that share a common wall. Smoking is also prohibited in all indoor and outdoor common areas of these residential properties. Property owners may create a designated smoking area provided that it meets certain criteria (see page 4). This ordinance applies to all new and existing properties. Existing properties have until INSERT DATE to comply. This ordinance does not allow grandfathering rights to smokers in existing units. Landlords and property managers will be required to enforce this ordinance through new lease language or lease amendments. Why? Did you know... ■ Secondhand smoke is a known carcinogen with no established risk-free level of exposure. • Unwanted secondhand smoke travels from unit to unit within multi -residence buildings, exposing tenants, not just the smoker, to the dangers of secondhand smoke. Tobacco smoke cannot be adequately contained or vented; prohibiting smoking is the only safe way to prevent exposure. ■ Breathing secondhand smoke places residents at greater risk for lung cancer, heart disease, asthma attack, breathing difficulties, sinus and bronchial illnesses. Even pets can be made ill by secondhand smoke. • Tobacco smoke and product use significantly increases landlord cleaning and repair costs. smoke-free regulations in multi -unit residential buildings could save property owners up to $18 million a year statewide on the cost of cleaning apartments vacated by tenants who smoke. ■ A no smoking policy prohibits the act of smoking and does not prevent smokers from living on the premises. ■ In 2010, there were an estimated 7,600 smoking-related fires in residential buildings in the United States resulting in an estimated 350 civilian deaths, 950 civilian injuries and $286 million in direct property damage. 10 3 ��^��~��K��*u��� ��00��&r^K�K� Criteria ~�� Designated -'~, _-_ _ - _ ^� - __ _ __ Designated smoking areas can be established bvsomeone with legal control over a property. K8Vbi-fOnoi|y residences may designate on outdoor area where smoking is permitted if the area rnaeto all of the following criteria: ' A. The area is located at least 20 feefrom any unit or enclosed area where smoking � is prohibited. A designated smoking area may,�tequire modification or elimination as laws change, as binding: algreements are created, and as nonsmoking areas on neighboring premises are established. B. The area does not include, and is at least 100 fee from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for eXa[np|m, playgrounds, swimming pools, and school campuses. C. The`�`reG includes no more than tan percent U096\ of the total unenclosed area of the multi -family residence ^ for which p[|edesignated. ' � O. The area has a clearly marked perimeter. ^ ,. ,. E. The area is identified bvconspicuous signs. F. The area is completely within an unenclosed area. G. The area does not overlap with any enclosed or unenclosed area in vvh|oh smoking is otherwise Enforcement Tips Steps huCommunicate and Enforce the No -smoking Policy: 1. Put the mm(m in writing - Incorporate the no -smoking policy into the written lease through a No -Smoking Addendum or House Rules. Make sure all new and current residents are aware: " Where smoking inallowed and where itionot " That the no -smoking policy applies totheir guests too ° This policy is required by the City ofSan Rafael 2. Post adequate signage identifying dhe'prupe�y/buUd�gooaan�oke- �oo. Obtain signage to int out yourself at www,citvofsanrafael.ora/smokefree (see examples on page 12). 3 Enforcement smoke-free policies are self -enforcing. Residents can be your greatest allies. If aresident complains about being bothered by smoke or knows of another resident who has violated the policy, no - smoking policy like any other lease violation. Lack ofenforcement with one resident may hamper ` onfoncenxynt with hduno residents. Prompt, consistent action will send aclear message toeveryone inyour property that smoking ianot allowed. Common landlords can take toenforce the policy: ~� Start with a verbal meeting with the resident who is violating the policy. A resident complaint may prompt a "knock and talk". The resident does not have to answer the dmor, nor dothey have to lot you in, but if the door opene, it is an opportunity to have u friendly talk about the no -smoking policy. Document the visit and whether ornot you smelled smoke inside the unit. " Follow-up the visit with a letter acknowledging the conversation andthooutoomo-n*e Sample Friendly Warning Letter. • |fthe problem repeats, send aFirst Written Violation letter Vothe resident - see Sample Violation Warning Letter. • Depending onthe circumstances, another repeat violation may result inafinal written violation letter. • If the violation persists, contact Marin County Tobacco Disease Control Program at415-473-3020. 4 9 Sample Condominium PU~ Amendment Implementation Tips SMOKING |SNOT ALLOWED |N ALL COMMON AREAS AND INDIVIDUAL UNITS Under the Rules and Regulations ofthe 1. No owner, family member, tenant, resident, guest, business invitee, or visitor aheU smoke oigarettem, cigars, orany other tobacco product, marijuana or illegal substance in outside common amau, enclosed common omao, and exclusive use common eneo (balconies and pa�oa included) within the Pn4md. � 2. "Smoking" shall include the inha|ing, axhaUng, burning,carrying of any lighted cigarette, cigar o/other tobacco product, electronic cigarette nr similar lighted device, marijuana, urillegal substance. 3, "Business invitee" shall inc|ude, but Is not limited to, any contractor, agent, household worker, orother person hired bythe owner, tenant nrresident to provide aservice orproduct 10the owner, tenant, nrresident. 4. Any unit owner who sells his/her unit shall specifically disclose to all potential buyers and Realtors that smoking 'isprohibited within all common areas in the project. Any owner who noma or otherwise allows someone other than the owner to reside within oroccupy the unit shall disclose to all persons who reside within his/her unit that smoking is prohibited within all common areas prior totheir residency oroccupancy. 5. Each owner is responsible for the actions of all other persons residing within or visiting his/her unit and shall be subject to disciplinary action or court action for on injunmhom, or any remediesavailable for the violation of this section, This section may be enforcedinacourt oflaw byany resident orthe association. K any resident or the association is required to him legal counsel to enforce this se«|ion, the resident or the association shall be entitled to recover his/her p,its attorney's fees and cue\a inourmd, whether or not litigation has been commenced. The association may collect the attorneys fees and costs it incurs through the use of e apauio| assessment levied against the owner ofthe unit and unassessment lien, ifnecessary. 8.The Board oyDirectors shall have the authority and power toenact rules and regulations which it deems necessary to enforce this restriction, including a schedule of fines which may be imposed after notice and u h*aring, as described inthe Rules and Regulations. Note: Drifting smoke from within aunit that enters another unit isalso prohibited and will be enforced under the nuisance provision of the CC&Rs. Violation of any provision ofthe CC&Ra.Architectural Guidelines orRules & Regulations may result in fines. Adapted from Smoke-free Apartment House Registry, htw://wwm.amoki�freouL),irtmonts.om/codnn.htm| Have clearly defined policy with clear implementation dates • Decide if and exactly where you will locate a Designated Smoking Area outside ofthe residential building. • Write the no smoking policy into the lease and lease oddondurne. • Specify, through written communication, exactly when the new policy will be in place, giving adequate OOti08 between policy notice and implementation. Make sure that every resident is aware. ' • Train employees about implementation and enforcement of the policy. Communicate with tenants throughout implementation process |yS important to begin communicating with residents both verbally and in writing to give Ulenn adequate DntiCVof the upcoming no smoking policy. This. will give people time to GdbUSt and can |rnprov000nnp|iance. _ • Send o positive letter to each resident aboutihe new policy. (see Sample Resident Notification Letter) �u .Ensure that all building and maintenance workers are aware Of the letters and how to respond to questions, o Request Gsigned confirmation that residents have received and read the letters. • Send a copy of the new |eoaa addendum to all residents containing the new nosmoking policy. (see Sample [aooe Addendum or Condo Policy Amendment) • Provide a fu{iovv up letter to those who have not signed the initial letter orthe new lease agreement when itisrequested. ° Schedule a group meeting with your tenants to review the policy and answer questions. • Post signage on property communicating the po|ioy, including the location of designated smoking area if you decide to provide one. Sample Resident Notification Letter Date Dear Resident, [Property name] is adopting a smoke-free policy in order to provide a healthier environment for all residents and as required by San Rafael Municipal Code XXXX The harmful effects of secondhand smoke, increased maintenance costs, and fire danger caused by indoor smoking are simply too great to ignore. • As of [date], [building name & addr6ss] will be smoke-free. This means that there will be no carrying or use of a lit tobacco product in any units (including balconies and patios) as well as indoor or outdoor common areas of property.'This policy includes tenants as well as guests, maintenance personnel, and staff. ■ This policy was passed to protect the health of our residents, staff, and guests. Secondhand smoke is a, Class A carcinogen, which means it is a cancer causing agent with no risk-free level of exposure. Secondhand smoke can travel through doorways, windows, wall joints, plumbing spaces, and even light fixtures, so secondhand smoke from one unit ,can adversely affect the health of residents in other units: In' addition, fires caused by smoking-related materials are the: number one cause of home fire deaths. ■ If you or your family members are interested in more information on smoke-free living, , please visit the following web -site: www,smokefreemarin.com. The web -site will also link you to a number of resources that can help if you are thinking about quitting smoking. Please feel free to contact (name of employee, property manager, etc.) or myself if you have any questions. We will be happy to assist you in any way possible to work toward a smooth transition. Sincerely, Property Manager's Name Title Management Company Sample Lease Addendum SMOKE-FREE LEASE ADDENDUM ADDENDUM TO RENTAL AGREEMENT dated 1 20 between as agent for owner ("Landlord"), and the undersigned Resident(s): APARTMENT COMMUNITY: RESIDENT(s) NAME(s): APARTMENT ADDRESS: LEASE EXPIRATION DATE: This Addendum is hereby made part of the Lease Agreement A. Resident, any members of the Resident's household or a guest or other person under the Resident's control, acknowledges that the Apartment has been designated as a smoke- free living environment. Smoking is not permitted anywhere in the Apartment rented by Resident, or the Premises which include but are not limited to all patios, decks, balconies, picnic areas, within 20 feet of the building, and all indoor and outdoor common areas. B. Resident, any members of the Resident's household or a guest or other person under the Resident's control, acknowledges that the Landlord's adoption of a smoke-free living environment, and the efforts to designate the Premises as smoke-free, do not make the Landlord or any of its managing agents the guarantor of Resident's health or of the smoke- free condition of the Resident's Apartment or Premises. Landlord shall use its best efforts to enforce the smoke-free terms of its lease and to make the Premises smoke-free. C. Resident, any members of the Resident's household or a guest or other person under the Residents control, acknowledges that the Landlord's adoption of a smoke-free living environment does not in any way change the standard of care that the Landlord or managing agents would have to a resident's household to render buildings and premises designated as smoke-free any safer, more habitable, or improved in terms of air quality standards than any other Apartment, Landlord disclaims any implied or express warranties that the building, Premises, or Residents Apartment will have any higher or improved air quality standards than any other Apartment. Landlord does not warrant or promise that the ability to police, monitor or enforce this Lease Addendum is dependent in significant part on voluntary compliance by Resident, members of the Resident's household, and guests. Residents with respiratory ailments, allergies, or any other physical or mental condition relating to smoke are put on notice that Landlord does not assume any higher duty of care to enforce this Lease Addendum than any of the other of Landlord's obligations under the Lease. D. A breach of this Lease Addendum shall be a material breach of the Lease and grounds for immediate termination of the Lease by the Landlord. Resident shall be responsible for all damages due to smoking-related activities and costs associated with termination of Lease due to material breach. Authorized Agent Resident(s) (If more than one, each must sign) 6 7 Additional Correspondence as of October 1, 2012 -----Original Message ----- From: essa a ----- From: s w [mailto Sent: Tuesday, Sep em er AM To: Rebecca Woodbury Subject: smoking ordinance san rafael multi unit buildings Hello Rebbecca, As per my voice mail, I am in favor of San Rafael requiring all multi -unit housing be smoke free. II have been a Marin renter about 35 years. I have had many homes ruined by smoking neighbors. The smoke wafts in through electric outlets and sink drains even when doors and windows are closed. Apts are intentionally built to allow this air flow. I have gotten bronchitis numerous times from neighbors smoke. Please also add pot smoke, and i wish incense, bbq smoke, lighter fluid smoke, cooking odors (have all landlord require tenants use exhaust fans when cooking). Please don't give generic location of where smokers can smoke ie parking lots, etc as many parking lots are in front of apt windows. and even saying "must smoke off property" can be a health hazard for people trying to take a walk on a sidewalk. Thank you Shannon Wells_'. -----Original Message ----- From: stanton klose [mailto������ Sent: Tuesday, September To: Rebecca Woodbury Subject: Smoking Ordinance Dear Rebecca, I'm a member of the Board of Directors at San Rafael Manor, a 160 unit cooperative housing complex in Terra Linda. In response to a complaint from a homeowner, we recently revised our Rules and Regulations to require smokers to mitigate secondhand smoke in neighboring units. (We had also put a proposed no smoking amendment to our Proprietary Lease to a vote at our last annual meeting, but didn't get enough votes yea or nay to satisfy a quorum requirement.) Obviously, a City ordinance would make it easier for us to protect neighbors from secondhand smoke. I believe the proposed ordinance would not grandfather in current residents who smoke, and this is critical. While we don't have a lot of smokers at SRM, those who smoke have been at it for a long time, and show no signs of quitting (or moving). Enforcement is also critical. Had our proposed Proprietary Lease revision been adopted, it would ultimately have allowed the Board to evict a resident who refused to quit smoking. Based on the number of chronic barking dogs in our neighborhood, 1 don't know that merely declaring smoking a public nuisance will be very effective. As a former smoker, I know that we're dealing with a very powerful addiction. My thanks to the Council and its staff for addressing this important issue. Stanton Klose -----Original Message ----- From: Suni Nelson [mailto Sent: Wednesday, Septem er To: Rebecca Woodbury Subject: Comment about no smoking in multiple residences/San Rafael Rebecca, Thank you for your work in this area -we need immediate changes. As a rentor in a duplex just off Mission near downtown, my neighbor & 1 finally had to move out after the landlord built an illegal apartment downstairs, moved in people who smoked heavily & whose friends smoked heavily & affected our health upstairs. Asking them to smoke out on the street, asking the landlord to talk with them did not help change the situation for 2 months until we called Code Enforcement down on 5th st. They saw the apartment was illegal, the landlord must return it to duplex status & these people downstairs are refusing to leave much to the landlord's chagrin. The neighbors have also been affected by the smoking, noise, and are on -edge with the situation that has developed. If a non-smoking ordinance had been enacted, we would all still be enjoying our beautiful & peaceful duplex. Wondering why it has taken San Rafael so long to enact a non-smoking policy, especially downtown where the streets are filled with smokers & cigarette butts all over the streets. Appreciate your efforts, Suni Nelson -----Original Message ----- From: form_engine@fs18.formsite.com [mailto:form_engine@fs18.formsite.com] Sent: Friday, September 28, 2012 8:55 AM To: City Manager Subject: San Rafael Contact Email - 6832390 Good people, Whereas I live in Kentfield; for several years recently I had lived in downtown San Rafael, and have friends who would be affected by your Smoking Ordinance dither. I am age 65; most of which time I was a very heavy -smoker. Over a year ago I had quit smoking, and for a year. My - exasperatingly -sharp - mind ceased to function clearly, I was moody, disoriented. I'd gained weight, which would not go away, long after I'd ceased binge eating. My blood -pressure skyrocketed. Halfway through that year I developed Macular Degeneration (A.M.D.). I began getting monthly eye -injections - by a retinist/retina specialist - of at first Lucentis, and lately of Avastin. I recommenced smoking. My weight and blood - pressure Plummeted. My mind cleared -up; friends and neighbors all express that I look better, am happier since recommencing smoking. I feel more -vital. The "wet" - more serious - form of macular degeneration I have is caused by unwanted blood vessel growth beneath the macula/center of the retina, producing a lump in the retina which registers as a "blind -spot" in the vision. Smoking retards blood vessel production: Google -able. Since smoking again, now some months, my blind - spot has been exponentially wisping-away. Where it was a dead -gray patch in the field of my rt. -eye, it's now a fully - detailed mist, with colors registering. Now, a $3-400,000/annum retinist is not going to do honor to my empirical hypothesis that my smoking is participating in the suspension of blood vessel growth - which his injections are battling; but he has conceded that my audacious progress in vision is fairly unprecedented. That a gentleman succumbs to an asthmatic attack "because of smokers" doth not - unless we are privy to Knowledge of the Transcendent - gift us of insight that the Absolute might not have intended the old man's demise, and at that time, and manner. Please retain open minds; and let's not succumb to the knee-jerk "liberal" half -science profiling which is taking on a life of its own, in Marin. James Kendall Apt. _iuo Kentfield, CA 94904 -----Original Message ----- From: form_engine@fs18.formsite.com [mailto:form_engine@fs18.formsite.com] Sent: Friday, September 28, 2012 8:59 AM To: City Manager Subject: San Rafael Contact Email - 6832399 1 am thrilled with the additions to the smoking ordinance especially as they relate to Duplexes and multi -family residential units - my question is, does this ordinance cover the unincorporated area of Marinwood? I really hope so. Thanks, Eileen Eileen Clisham an Rafael, 94903 -----Original Message ----- From: Nancy Pechner [mailto ■ Sent: Saturday, September 2 , To: Rebecca Woodbury Subject: smoke migration To whom it may concern„ I live in a condo in San Rafael Manor in Terra Linda where secondhand smoke has been migrating through the walls, ducks and attic from our smoking neighbor's adjacent condo since we moved in 1 1/2 year ago. It makes it difficult to breath, causes us headaches, it smells of smoke constantly, and our son who has asthma has now been prescribed a steroid inhaler that he never needed before. We have never been able to use our outside patio/yard because the smoke comes over the fence and pollutes that space as well, which is an invasion of our "quiet enjoyment." The home owners association tried to pass a non-smoking change in the CCNRs, but due to apathy there were not enough votes to pass it even though the majority of people who voted were for the change. I do not know how much longer I can subject my family to live in this unhealthy environment, and yet I am stuck because if I were to sell I would have to disclose this to a buyer which devalues my property. If I had been told about this during escrow, I never would have bought the place. I cannot make the meeting Monday, but I wanted you to know how much our family would appreciate it if this law banning smoking in condos passed in the City of San Rafael. Thank you very much, Nancy Pechner -----Original Message ----- From: Ellen Jacobson [mailto�l�������� Sent: Sunday, September 30, To: Rebecca Woodbury Subject: URGENT: Smoke Free Ordinance Information Dear Rebecca: It has come to my attention that the City of San Rafael will be meeting on Monday, October 1st to consider updating the City's municipal code to address concerns about outdoor air and drifting smoke in multi -family housing and is seeking input from the public. I wholeheartedly support any expanded protections for non-smokers and have written the Council several times over the past year about such matters. I also spoke at a San Rafael City Council meeting back in September of 2011. As a resident of San Rafael I am writing to express my continued concern over San Rafael 's acceptance of tobacco smoke inside multi -unit housing. Multi -unit buildings were not designed to contain tobacco smoke within a given unit, making it common for tobacco smoke to spread under doors, through vents and pipes, and from open windows. Currently, many tenants, such as myself, are suffering under these ongoing and dangerous health conditions. At the Highlands of Marin, where I currently reside, the property owners refuse to create even one smoke free building until there is a law/ordinance that directs them to do so. While exposure to tobacco smoke has been reduced in various public places such as inside restaurants and bars, it is unacceptable that tobacco exposure should be able to threaten San Rafael residents while inside their own homes. In response, I urge you to require that all multi -family buildings become smoke-free. Smoking in an apartment is not a protected right under any state or federal laws and there is no legal challenge to such an ordinance. In 2007, the City of Belmont passed such an ordinance making all multi -unit apartment buildings smoke-free and since 2008 Novato , Larkspur, Fairfax and Tiburon have passed similar multi -unit housing ordinances. Changes such as these are also receiving nationwide industry support, as discussed in this article from the National Apartment Association (http:,`fwww.tcso.ora/sfelofUnits Dec2007,odf). Until a law protecting multi -unit residents is passed, all tenants in San Rafael are at risk of being exposed to tobacco smoke at any given time inside their own home. Such a situation increases the threat of stroke, asthma, cancer and other health problems in our community. Please protect our city from the dangers of secondhand smoke and help make San Rafael a better place to live. Sincerely, Ellen Jacobson an Hatael , CA 94903 -----Original Message ----- From: Michael Harr [mailto Sent: Monday, October 01, To: Rebecca Woodbury Cc: Ellen Jacobson Subject: meeting Oct 1 on smoking Rebecca Woodburv. Please don't let Smokefree Outdoor Air dominate our meeting time tonite... Secondhand Smoke in Apartments is a thousand times worse. Pts don't let trivialize having only miniscule time left. mike harr [6-fl-IfivAre- The City Council of the City of San Rafael will hold a public hearing: PURPOSE: Public Hearing: To consider an ordinance repealing San Rafael Municipal Code (SRMC) Chapter 8.14 entitled "Indoor Air and Health Protection" and adding a new Chapter 9.04 entitled "Clean Indoor and Outdoor Air and Heath Protection" to include additional regulations prohibiting persons from smoking in certain outdoor areas open to the public, and in the interior and exterior of multi- unit housing. DATE/TIME/PLACE: Monday, October 1, 2012, at 7:00 p.m. City Hall Council Chamber, 1400 Fifth Avenue, San Rafael WHAT WILL HAPPEN: You may comment on the proposed Ordinance. The City Council will consider all public testimony and will then decide whether to approve the Ordinance. IF YOU CANNOT ATTEND: You may send a letter to Esther C. Beirne, City Clerk, City of San Rafael, P.O. Box 151560, San Rafael, CA 94915-1560. You may also hand deliver a letter to the City Clerk prior to the meeting. FOR MORE INFORMATION: You may contact Rebecca Woodbury, Management Analyst, at (415) 485-3076. Office hours are Monday through Friday, 8:30 a.m. to 5:00 p.m. SAN RAFAEL CITY COUNCIL /s/ ESTHER C. BEIRNE ESTHER C. BEIRNE, City Clerk (Please publish in the Marin Independent Journal on and Fridav, September 21, 2012) Secondhand Smoke Fact Sheet September 2012 In response to community concerns, the City of San Rafael is considering several amendments to the current municipal code to strengthen policies and protect residents against the public health effects of secondhand smoke exposure. This fact sheet outlines the proposed changes as of September 4, 2012. For more information and periodic updates to the draft ordinance, visit www.citvofsanrafael.orq/smokefree. The following tables summarize the proposed changes to the City of San Rafael's municipal code with regards to secondhand smoke. Smokefree Outdoor Air Component Recommended Amendments Outdoor Dining Areas Prohibition of smoking in all outdoor dining areas. Entryways Prohibition of smoking 20 feet from entryways. Public Events Prohibition of smoking at all public events, but designated smoking areas permitted. Recreation Areas Prohibition of smoking in recreation areas, such as parks, playgrounds, sports fields and courts, picnic areas, and dog parks. Prohibit smoking in open space. Outdoor service Prohibition of smoking in all service areas (bus stops, ATM areas and ticket lines, etc). Sidewalks Prohibition of smoking on all sidewalks in Downtown. Worksites Prohibition of smoking within 20 feet of working construction crews. Smokefree Multi -Family Housing Component Recommended Amendments Nonsmoking Units Require 100% of multi -family units (apartments and condominiums) to be declared nonsmoking, in all properties of 2 units or more. Nonsmoking Prohibition of smoking in all indoor and outdoor common Common Areas areas, but allow for designated smoking areas. Nuisance Declare secondhand smoke a public nuisance. After this ordinance goes into effect, violations of this law will be subject to standard city penalties. Initial complaints will be handled by the County of Marin's Division of Alcohol, Drug and Tobacco Programs (10 North San Pedro Road, Suite 1013, San Rafael, CA 94903; 415- 499-3020). www.cityofsanrafael.org/smokefree CITY OF SAN RAFAEL I WW I i I 110]011� 0 Mk INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. SRRA/SRCC AGENDA ITEM NO. 6.a DATE OF MEETING: 10/1/2012 FROM: Rebecca Woodbury DEPARTMENT: City Manager's Office DATE: 9/20/2012 TITLE OF DOCUMENT: CONSIDERATION OF AN ORDINANCE REPEALING SAN RAFAEL MUNICIPAL CODE (SRMC) CHAPTER 8.14 ENTITLED "INDOOR AIR AND HEALTH PROTECTION" AND ADDING A NEW CHAPTER 9.04 ENTITLED "CLEAN INDOOR AND OUTDOOR AIR AND HEALTH PROTECTION." Departmeftt He -ad (signature) (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL AGENCY APPROVED AS TO FORM: AGENDA ITEM: z City Manager (signature) City Attorney (signature) NOT APPROVED Additional Correspondence as of October 1, 2012 -----Original Message----- From: s w [mailto Sent: Tuesday, Sep em er AM To: Rebecca Woodbury Subject: smoking ordinance san rafael multi unit buildings Hello Rebbecca, As per my voice mail, I am in favor of San Rafael requiring all multi -unit housing be smoke free. II have been a Marin renter about 35 years. I have had many homes ruined by smoking neighbors. The smoke wafts in through electric outlets and sink drains even when doors and windows are closed. Apts are intentionally built to allow this air flow. I have gotten bronchitis numerous times from neighbors smoke. Please also add pot smoke, and i wish incense, bbq smoke, lighter fluid smoke, cooking odors (have all landlord require tenants use exhaust fans when cooking). Please don't give generic location of where smokers can smoke ie parking lots, etc as many parking lots are in front of apt windows. and even saying "must smoke off property" can be a health hazard for people trying to take a walk on a sidewalk. Thank you Shannon Wells_■ -----Original Message ----- From: stanton klose [mailto����� Sent: Tuesday, September To: Rebecca Woodbury Subject: Smoking Ordinance Dear Rebecca, I'm a member of the Board of Directors at San Rafael Manor, a 160 unit cooperative housing complex in Terra Linda. In response to a complaint from a homeowner, we recently revised our Rules and Regulations to require smokers to mitigate secondhand smoke in neighboring units. (We had also put a proposed no smoking amendment to our Proprietary Lease to a vote at our last annual meeting, but didn't get enough votes yea or nay to satisfy a quorum requirement.) Obviously, a City ordinance would make it easier for us to protect neighbors from secondhand smoke. I believe the proposed ordinance would not grandfather in current residents who smoke, and this is critical. While we don't have a lot of smokers at SRM, those who smoke have been at it for a long time, and show no signs of quitting (or moving). Enforcement is also critical. Had our proposed Proprietary Lease revision been adopted, it would ultimately have allowed the Board to evict a resident who refused to quit smoking. Based on the number of chronic barking dogs in our neighborhood, I don't know that merely declaring smoking a public nuisance will be very effective. As a former smoker, I know that we're dealing with a very powerful addiction. My thanks to the Council and its staff for addressing this important issue Stanton Klose -----Original Message ----- From: Suni Nelson [mailtor���� Sent: Wednesday, Septem er To: Rebecca Woodbury Subject: Comment about no smoking in multiple residences/San Rafael Rebecca, Thank you for your work in this area -we need immediate changes. As a rentor in a duplex just off Mission near downtown, my neighbor & I finally had to move out after the landlord built an illegal apartment downstairs, moved in people who smoked heavily & whose friends smoked heavily & affected our health upstairs. Asking them to smoke out on the street, asking the landlord to talk with them did not help change the situation for 2 months until we called Code Enforcement down on 5th st. They saw the apartment was illegal, the landlord must return it to duplex status & these people downstairs are refusing to leave much to the landlord's chagrin. The neighbors have also been affected by the smoking, noise, and are on -edge with the situation that has developed. If a non-smoking ordinance had been enacted, we would all still be enjoying our beautiful & peaceful duplex. Wondering why it has taken San Rafael so long to enact a non-smoking policy, especially downtown where the streets are filled with smokers & cigarette butts all over the streets. Appreciate your efforts, Suni Nelson -----Original Message ----- From: form_engine@fs18.formsite.com[mailto:form_engine@fs18.formsite.com] Sent: Friday, September 28, 2012 8:55 AM To: City Manager Subject: San Rafael Contact Email - 6832390 Good people, Whereas I live in Kentfield; for several years recently I had lived in downtown San Rafael, and have friends who would be affected by your Smoking Ordinance dither. I am age 65; most of which time I was a very heavy -smoker. Over a year ago I had quit smoking, and for a year. My - exasperatingly -sharp - mind ceased to function clearly, I was moody, disoriented. I'd gained weight, which would not go away, long after I'd ceased binge eating. My blood -pressure skyrocketed. Halfway through that year I developed Macular Degeneration (A.M.D.). I began getting monthly eye -injections - by a retinist/retina specialist - of at first Lucentis, and lately of Avastin. I recommenced smoking. My weight and blood - pressure Plummeted. My mind cleared -up; friends and neighbors all express that I look better, am happier since recommencing smoking. I feel more -vital. The "wet" - more serious - form of macular degeneration I have is caused by unwanted blood vessel growth beneath the macula/center of the retina, producing a lump in the retina which registers as a "blind -spot" in the vision. Smoking retards blood vessel production: Google -able. Since smoking again, now some months, my blind - spot has been exponentially wisping-away. Where it was a dead -gray patch in the field of my rt. -eye, it's now a fully - detailed mist, with colors registering. Now, a $3-400,000/annum retinist is not going to do honor to my empirical hypothesis that my smoking is participating in the suspension of blood vessel growth - which his injections are battling; but he has conceded that my audacious progress in vision is fairly unprecedented. That a gentleman succumbs to an asthmatic attack "because of smokers" doth not - unless we are privy to Knowledge of the Transcendent - gift us of insight that the Absolute might not have intended the old man's demise, and at that time, and manner. Please retain open minds; and let's not succumb to the knee-jerk "liberal" half -science profiling which is taking on a life of its own, in Marin. James Kendall Apt. I Uu Kentfield, CA 94904 require that all multi -family buildings become smoke-free. Smoking in an apartment is not a protected right under any state or federal laws and there is no legal challenge to such an ordinance. In 2007, the City of Belmont passed such an ordinance making all multi -unit apartment buildings smoke-free and since 2008 Novato , Larkspur, Fairfax and Tiburon have passed similar multi -unit housing ordinances. Changes such as these are also receiving nationwide industry support, as discussed in this article from the National Apartment Association (htto:Jtwww.tcsq.orq;sfeip;UnitsDec2007.pdf). Until a law protecting multi -unit residents is passed, all tenants in San Rafael are at risk of being exposed to tobacco smoke at any given time inside their own home. Such a situation increases the threat of stroke, asthma, cancer and other health problems in our community. Please protect our city from the dangers of secondhand smoke and help make San Rafael a better place to live. Sincerely, Ellen Jacobson an a ae 3 -----Original Message ----- From: Michael Harr [mailto�����_ Sent: Monday, October 01, To: Rebecca Woodbury Cc: Ellen Jacobson Subject: meeting Oct 1 on smoking Rebecca Woodburv. Please don't let Smokefree Outdoor Air dominate our meeting time tonite... Secondhand Smoke in Apartments is a thousand times worse. Pts don't let trivialize having only miniscule time left. mike harr -----Original Message ----- From: form_engine@fs18.formsite.com [mailto:form_engine@fs18.formsite.com] Sent: Friday, September 28, 2012 8:59 AM To: City Manager Subject: San Rafael Contact Email - 6832399 1 am thrilled with the additions to the smoking ordinance especially as they relate to Duplexes and multi -family residential units - my question is, does this ordinance cover the unincorporated area of Marinwood? I really hope so. Thanks, Eileen Eileen Clisham an Ratael, CA 94903 -----Original Message ----- From: Nancy Pechner [mailto Sent: Saturday, September 2 , _ > To: Rebecca Woodbury Subject: smoke migration To whom it may concern„ I live in a condo in San Rafael Manor in Terra Linda where secondhand smoke has been migrating through the walls, ducks and attic from our smoking neighbor's adjacent condo since we moved in 1 1/2 year ago. It makes it difficult to breath, causes us headaches, it smells of smoke constantly, and our son who has asthma has now been prescribed a steroid inhaler that he never needed before. We have never been able to use our outside patio/yard because the smoke comes over the fence and pollutes that space as well, which is an invasion of our "quiet enjoyment." The home owners association tried to pass a non-smoking change in the CCNRs, but due to apathy there were not enough votes to pass it even though the majority of people who voted were for the change. I do not know how much longer I can subject my family to live in this unhealthy environment, and yet I am stuck because if I were to sell I would have to disclose this to a buyer which devalues my property. If I had been told about this during escrow, I never would have bought the place. I cannot make the meeting Monday, but I wanted you to know how much our family would appreciate it if this law banning smoking in condos passed in the City of San Rafael. Thank you very much, Nancy Pechner -----Original Message ----- From: Ellen Jacobson [mailto I . Sent: Sunday, September 30, To: Rebecca Woodbury Subject: URGENT: Smoke Free Ordinance Information Dear Rebecca: It has come to my attention that the City of San Rafael will be meeting on Monday, October 1st to consider updating the City's municipal code to address concerns about outdoor air and drifting smoke in multi -family housing and is seeking input from the public. I wholeheartedly support any expanded protections for non-smokers and have written the Council several times over the past year about such matters. I also spoke at a San Rafael City Council meeting back in September of 2011. As a resident of San Rafael I am writing to express my continued concern over San Rafael 's acceptance of tobacco smoke inside multi -unit housing. Multi -unit buildings were not designed to contain tobacco smoke within a given unit, making it common for tobacco smoke to spread under doors, through vents and pipes, and from open windows. Currently, many tenants, such as myself, are suffering under these ongoing and dangerous health conditions. At the Highlands of Marin, where I currently reside, the property owners refuse to create even one smoke free building until there is a law/ordinance that directs them to do so. While exposure to tobacco smoke has been reduced in various public places such as inside restaurants and bars, it is unacceptable that tobacco exposure should be able to threaten San Rafael residents while inside their own homes. In response, I urge you to