HomeMy WebLinkAboutCM Smoking Ordinance AmendmentsCITY CIF Agenda Item No: 5.a
CA, Meeting Date: April 4, 2016
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: CITY MANAGER
Prepared by: Rebecca Woodbury City Manager Approval:
Senior Management Analyst
TOPIC: Regulation of electronic smoking devices and smoking in Downtown
SUBJECT: AN ORDINANCE AMENDING SAN RAFAEL MUNICIPAL CODE CHAPTER 9.04 TO
REGULATE THE SMOKING OF ELECTRONIC SMOKING DEVICES AND TO PROHIBIT
SMOKING IN CERTAIN LOCATIONS
RECOMMENDATION: Conduct a public hearing and pass the ordinance to print amending San Rafael
Municipal Code Chapter 9.04, entitled "Clean Indoor and Outdoor Air and Health Protection," to regulate the
smoking of electronic smoking devices and prohibit smoking in certain locations.
BACKGROUND: On March 7, 2016 staff provided an informational report to the City Council regarding
possible changes to the City's smoking ordinance with regards to electronic cigarettes and smoking in the
Downtown area. Staff presented a variety of options, as well as the following recommendations:
1. Prohibit use of e -cigarettes in public places, but allow them in private residences; and
2. Eliminate the exception that allows smoking while actively passing throughout the entire Downtown
area; and
3. Add pedestrian -friendly signage to the Downtown.
The City Council indicated general support for all three recommendations but asked for more information on
items 1 and 2 above. For the third recommendation, addressing the issue of pedestrian -friendly signage in the
Downtown area is underway. This includes lowering the height of current signage at Fourth and A Streets so
that the signs are more visible to pedestrians.
The purpose of this staff report is to respond to the City Council's request for more information about
secondhand impacts from electronic cigarettes as well as other cities that prohibit smoking in their downtowns,
This staff report also brings forward an ordinance for the City Council to consider that amends the definition of
"smoking" to include electronic cigarettes and removes the exception that allows smoking while actively
passing from one destination to another.
ANALYSIS: Additional information about electronic cigarettes as well as smoking in downtowns is provided
below.
FOR CITY CLERK ONLY
File No.: 13-1
Council Meeting: 04/04/2016
Disposition: Ordinance Passed to Print - 1938
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
E -Cigarettes. The research conducted on electronic cigarettes is new and studies about secondhand health
impacts are limited. In January of 2015 the California Department of Public Health issued a report entitled
"State Health Officer's Report on E -Cigarettes" stating the need to treat electronic cigarettes in a manner
consistent with traditional tobacco products.
According to the 2015 State report, electronic cigarettes emit toxic chemicals in the form of an aerosol.
Mainstream and secondhand electronic cigarette aerosol has been found to contain at least ten chemicals that
are known to cause cancer, birth defects and other reproductive harm. The report also cited concerns about
the potential negative impact on children, as exposure to nicotine during adolescence can harm brain
development and predispose youth to future tobacco use.
Additional recent studies' indicate that the exhaled vapor from electronic cigarettes is not as dangerous as
secondhand smoke from cigarettes, but still presents some clear dangers, particularly to children. According to
the American Lung Association (ALA), two initial studies have found formaldehyde, benzene and tobacco -
specific nitrosamines (all carcinogens) coming from secondhand emissions. The ALA supports prohibiting the
use of electronic cigarettes in public places and addressing their use in smoking laws along with other tobacco
products.
In addition to protecting against secondhand impacts, regulating electronic cigarettes also simplifies
enforcement of smoking laws. Although a 2014 FEMA report2 stated that fires or explosions caused by
electronic cigarettes are rare, there have been reports about batteries igniting and causing burns.
The proposed amendments would add a definition for an "Electronic Smoking Device" and modify the definition
of smoking so that it includes electronic smoking devices, thus regulating both electronic cigarettes and
tobacco cigarettes in the same manner. The amendments also include an exception to allow the use of
electronic cigarettes within private residences.
Smoking in Downtowns. Although the ALA does not track cities that prohibit smoking in their downtowns, they
do track cities that prohibit smoking on sidewalks. According to the American Lung Association, 31 cities in
California prohibit smoking on sidewalks (defined as public sidewalks, such as sidewalks around downtown
shopping and business areas). San Rafael is the only city in Marin on the list, but other nearby jurisdictions on
the list includes Santa Rosa, EI Cerrito, Palo Alto, Berkeley, and Alameda. Most cities in Marin prohibit
smoking within 20 feet of any doorway or entryway and do not include exceptions for actively passing.
The proposed amendments would remove the exception that allows smoking while actively passing from one
destination to another in the Downtown area as well as in a "nonsmoking buffer zone," which is a 20 -foot
smokefree zone around any unenclosed area where smoking is prohibited, such as a park.
COMMUNITY OUTREACH: This public hearing was noticed to the public through the Marin Independent
Journal, Snapshot (the City Manager's newsletter), as well as the City Clerk's agenda notification.
FISCAL IMPACT: No major direct fiscal impact. Costs for signage are estimated at around $5,000.
RECOMMENDED ACTION: Conduct a public hearing and pass to print the proposed ordinance amending San
Rafael Municipal Code Chapter 9.04, entitled "Clean Indoor and Outdoor Air and Health Protection," to regulate
the smoking of electronic smoking devices and to prohibit smoking in certain locations.
EXHIBITS:
1. Proposed Ordinance
2. Public Hearing Notice
3. Public Correspondence
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
1 "Secondhand Exposure to Vapors from Electronic Cigarettes" by Czogala J, et al. Nicotine & Tobacco Research, Volume 16,
Number 6 (June 2014) 665-662
"Use of electronic cigarettes impairs indoor air quality and increases FeNO levels of e -cigarette consumers" by Schober W, et al. Int'l
Journal of Hygiene and Environmental Health, Volume 217, Issue 6 (July 2014) 628-637
2 "Electronic Cigarette Fires and Explosions" by Federal Emergency Management Association, U.S. Fire Administration. October
2014. httDs://www.usfa.fema.2ov/downloads/ndf/publications/electronic ciearettes.ndf (accessed March 25, 2016)
ORDINANCE NO. 1938
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AMENDING SAN RAFAEL MUNICIPAL CODE CHAPTER 9.04 ENTITLED "CLEAN
INDOOR AND OUTDOOR AIR AND HEALTH PROTECTION" TO REGULATE THE
SMOKING OF ELECTRONIC SMOKING DEVICES AND TO ELIMINATE AN
EXCEPTION ALLOWING SMOKING WHILE ACTIVELY PASSING
WHEREAS, on October 1, 2012 the San Rafael City Council adopted a new smoking ordinance
enhancing clean air protections in San Rafael; and
WHEREAS, the current ordinance prohibits smoking on sidewalks, pedestrian areas, and public
places such as plazas in our Downtown, except while actively passing on the way to another
destination; and
WHEREAS, the City periodically receives complaints about smoking in the Downtown area; and
WHEREAS, the California Department of Health recommended in a January 2015 report
entitled "State Health Officer's Report on E -Cigarettes" that Electronic Smoking Devices, including
electronic cigarettes, be regulated in the same manner as traditional tobacco products; and
WHEREAS, on March 7, 2016 the City Council 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 regulation of electronic cigarettes and to eliminate the exception to allow
smoking while actively passing;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES HEREBY
ORDAIN AS FOLLOWS:
DIVISION 1:
Chapter 9.04 the San Rafael Municipal Code, entitled "Clean Indoor and Outdoor Air and Health
Protection" is hereby amended as follows:
1. Section 9.04.030, entitled "Definitions", is hereby amended to add a new definition of
"Electronic Smoking Device", as follows:
"Electronic Smoking Device" means an electronic device which can be used to deliver an
inhaled dose of nicotine, or other substances, including any component, part, or
accessory of such a device, whether or not sold separately.
2. Section 9.04.030, entitled "Definitions", is hereby amended to amend the definition of "Smoking"
to read as follows:
"Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited
cigar, cigarette, cigarillo, pipe, hookah, or Electronic Smoking Device intended for
human inhalation.
3. Section 9.04.050, entitled "Prohibition of Smoking in Public Places, Places of Employment, and
Certain Other Areas", is hereby amended by amending Subsection 13.9 thereof to read in its
entirety as follows:
B. 9. Sidewalks and other pedestrian areas and public places in Downtown San Rafael
accessible to the general public
a. For the purposes of this section, Downtown San Rafael means the area
defined by Hetherton 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 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.
4. Section 9.04.060, entitled "Nonsmoking Buffer Zones", is hereby amended to read in its entirety
as follows:
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.
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.
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.
5. Section 9.04.070, entitled "Smoking Restrictions in New and Existing Units in Duplexes
and Multi -Family Residences" is hereby adding new Subsection D as follows:
D. Notwithstanding any other provision of this chapter, the use of Electronic Smoking
Devices within any unit of a duplex or multi -family residence is not prohibited by this
chapter.
DIVISION 2:
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 3:
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,
2
sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses, or phrases be declared invalid.
DIVISION 4:
This Ordinance shall be published once, in full or in summary form, before its final passage, in a
newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full
force and effect thirty (30) days after its final passage. If published in summary form, the summary
shall also be published within fifteen (15) days after the adoption, together with the names of those
Councilmembers voting for or against same, in a newspaper of gene al circulation published and
circulated in the City of San Rafael, County of Marin, State o alifornia.
GARY O. P IL IP , Mayor
ATTEST:
ESTHER C. BEIRNE, City Clerk
The foregoing Ordinance No.1938 was read and introduced at a regular meeting of the City Council of
the City of San Rafael on Monday, the 4`h day of April, 2016, and was ordered passed to print by the
following vote, to wit:
AYES: Councilmembers: Bushey, Colin, Gamblin and Mayor Phillips
NOES: Councilmembers: McCullough
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 18th day of April, 2016.
ESTHER C. BEIRNE, City Clerk
CITY OF SAN RAFAEL
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 amending San
Rafael Municipal Code (SRMC) Chapter 9.04 entitled
"Clean Indoor and Outdoor Air and Heath Protection" to
include the regulation of electronic smoking devices and
to eliminate the exception to allow smoking while actively
passing.
DATE/TIME/PLACE: Monday, April 4, 2016 at 7:00 p.m.
City Hall Council Chambers
1400 Fifth Avenue
San Rafael, CA 94901
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, Senior
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. March 25. 2016)
EXHIBIT 3 — PUBLIC CORRESPONDENCE (as of March 25, 2016)
Sent: Friday, March 04, 2016 8:25 PM
* First Name Kim
* Last Name Baenisch
Address
City San Rafael
* Email Address I.
* Please enter your questions/comments below
After reading the current proposed changes to the city's smoking ordinance to address e -cigarettes, I was amazed to learn
that the city's 2012 ordinance actually prohibits smoking in downtown "except when passing through". This is clearly not
enforced at all, per my daily experiences.
As a San Rafael resident who regularly walks to work down 4th Street, I am constantly swerving along the sidewalk and
sometimes walking in the street to avoid the many smokers who are just hanging out - definitely not going anywhere - and
filling the pedestrian zone with second hand smoke.
I've often told friends that if I was asked about the percentage of Marin residents who smoke, by my experience on
downtown San Rafael's streets, I'd think 90% of us were smokers!
How can we get actual enforcement of the no smoking ordinance on our streets, especially 4th?
Sent: Friday, March 11, 2016 12:02 PM
* First Name Myra
* Last Name Drotman
Address
City San Anselmo
Phone Number 4154575445
* Email Address
* Please enter your questions/comments below
I urge you to limit or stop people from smoking on the sidewalks of downtown San Rafael. I avoid going to the downtown
because of the people standing there blowing smoke into my face. It is impossible to shop or walk down the street without
inhaling large amounts of tobacco smoke. I sat at a bench to rest on the green by the bank on 4th St and a person sat next to
and started smoking AND she was lugging an oxygen tank inhaler with her. Not only did I not want to inhale her tobacco
fumes. I also didi nto want to ge blown up by her smoking with an oxygen tank between us. I had to leave. Thank you if you
can stop smoking along 4th St. as well as the rest of the downtown commercial area and side streets.
Esther Beirne
From: Lauren Crandell on behalf of City Manager
Sent: Friday, March 11, 2016 12:08 PM
To: Rebecca Woodbury
Cc: Esther Beirne
Subject: FW: Copy of General Contact - Question/comment for City Council - 9297503
Hi Rebecca,
Please see the below comments re: the smoking ordinance.
Thanks,
Bawcen e&andeU
Admin. Asst. to the City Manager
City of San Rafael
(415) 485-3056
lauren.crandell@citvofsanrafael.orR
From: form_engine@fsl8.formsite.com[mailto:form_engine@fsl8.formsite.com]
Sent: Friday, March 11, 2016 12:02 PM
To: City Manager
Subject: Copy of General Contact - Question/comment for City Council - 9297503
General Purpose Contact Form
Rderence #: 929750;
Status: Complete
Last Update: 2016-03-11 14:02:11
Start Time. 2016-03-11 13:58:10
Finish Tinm: 2010-03-11 1=1:02:1 1
User: 71.198.242.143 (Chrome - Windows)
Rcicrrcr: hop://���tiw.cil�ofs,utraCuefore/nurlines
City of San Rafael
General Purpose
Contact Form
Thunk you for visiting the City of San Rafael web site. This Corm is intended For comnwIli cating with City Stalf un a variety of general topics. As an
alternative, you may %vant to use our Cgntael, US listinL* to identify a SpecifiC ollice by function.
Note that the City oC San Rat'ael considers email to statT as informal communication. Please send a signed leltcr il'yuu prel'cr to make your
continent/question a matter of public record. [Mail lin•mai letters to PC) liox 151560• San Rafael, CA, 94915.
1
To help us route your message to the correct office. please identify your arra of interest (select only one)...
1\1 Question/comment lilt City Council
❑ Question/comment tier City Manager
❑ Question/comment for Fire Department
FIQuestion/conunuu for the Library
FIQuestion/comment for Police Department
FIBuilding. Planning or Zoning Issue
❑ liw,iness Licensing Issue
❑ Bw,ineu or Economic DCVelopnacnt ISSUe
❑ P.u_k.S and Recreation ISSUC
❑ (Load or Tral"lic Management Issue
F]Web Site Technical Question
n Other Topic
First Name
h1 ra
.; Last Name
Drolman
Address 1
43 IrNinL' Drke
ddress 2
cit)
San Anselmo
State
CA
Zip Lode
94900
Phone Number
4154575445
" Email Address
Rea I(ornivrat<imacbelI.net
:,.' Please enter your questions/comments below
1 urIt'c you to limit or Stop people from smoking* on the sidewalks of doakntown San Rafacl. I avoid going to the downtown hccausu of the people
standinu there blowine smoke into my (lice. It is impossible to shop or walk down the street without inhaling* larLle anjo nrtS oftobacco smoke_ I sat at
a bench to rest on the green by the hank on 4th St and a person sat next to and started smoking* AND she was lush*im* an oxygen tank inhaler with
her. Not only did I not want to inhale her tobacco fumes. I also didi nto want tai ee blown up by her smoking with an oxygen tank bemeen us. I had
to leave. Thank you il' you can stop smoking alone 4th St. as well as the rest of the downtown commercial arca :and Side streets.
UNIVERSITY OF CALIFORNIA, SAN FRANCISCO
5
t izf _ 9�
_ r p
BLRKI LLY • DAVIS IRVINL • LOS ANGLLLS MERCED RIVGRSIDR SAN DILGO SAN IRANCISCO =3 y�`? SANTA UARUARA sm-rACRUZ
'1866'
Stacey J. Anderson, Ph.D.
Social and Behavioral Sciences
3333 California St., Ste. 455
Box 0612
San Francisco, CA 94143-0612
Stacey.Anderson@ucsf.edu
Thursday, March 24, 2016
RE: Statement from Dr. Stacey Anderson of UCSF:
Dear San Rafael City Council,
E -cigarettes represent the worst step backward for public health since "low -tar" cigarettes. "Low -
tar" was a tobacco industry ploy to dupe consumers and policy -makers alike into thinking cigarettes
could be safe to use. Legions of would-be quitters deferred or altogether abandoned their quitting
efforts because of it, and legislation designed to protect the public health was slowed. This resulted
in decades more of both smokers and exposed non-smokers suffering from tobacco -related
diseases.
Now we are being sold on the next generation of "safer" cigarettes in the form of e -cigarettes.
These cigarettes too are a cynical ploy—they are not safe. E -cigarettes emit many dozens of
dangerous carcinogens into the breathing space of both smokers and non-smokers—many are
carcinogens listed on the California Prop 65 list. E -cigarettes are not safe for those who smoke
them nor are they safe for those who are forced to breathe the secondhand smoke from e -cigarettes.
The terminology introduced by the companies who make e-cigarettes—"vaping"—is scientifically
false. E -cigarettes do not emit "harmless water vapor". Vapor is what you get from boiling
purified water in your tea kettle. E -cigarettes do not emit vapor; they emit an aerosol of fine and
ultrafine particles that are inhaled deep into the lungs where they do massive damage. These
particles include (but are not limited to) acetaldehyde, benzene, cadmium, formaldehyde, isoprene,
lead, nickel, nicotine, tobacco -specific nitrosamines, and tolulene. Both smokers of e -cigarettes
and non-smokers are breathing these carcinogenic compounds from the aerosol from e -cigarettes.
There is no such thing as "vaping"; there is only the aerosolization of cancer-causing poisons from
e -cigarettes that injure non-smokers as well as those actively using these products. Companies that
manufacture or distribute e -cigarettes would have us believe that there is no harm to bystanders
exposed to the aerosols (what they wrongly refer to as "vapor) emitted by e -cigarette smoking.
This is a flat untruth with no valid scientific evidence to back it up; e -cigarette aerosols contain
hazardous compounds long known to injure human health.
Further, the majority of the independent scientific research (that is, research conducted without
funding, participation, or involvement by the e -cigarette industry) concludes that e -cigarettes are
associated with less quitting of smoking. The companies manufacturing or distributing e -cigarettes
Page I of 1
would have us believe that using these products will help smokers quit. They say so, however,
without valid evidence to back up this claim, but rather out of the profit interests of the companies.
Quite the contrary, a recent meta-analysis of all relevant literature to date* concluded that users of
e -cigarettes were 28% less likely to quit smoking traditional cigarettes than those not using e -
cigarettes.
*Kalkhoran S, Glantz SA. E -cigarettes and smoking cessation in real-world and clinical settings: a
systematic review and meta-analysis. Lancet Repiratory Medicine 4(2), 2016 Feb. 116-28.
htti)://www.thelancet.com/iournals/lanres/article/PHS2213-2600%2815%2900521-4/abstract
One of the major social problems with e -cigarettes is their propensity to re -normalize smoking in
public places that have long been clean -air spaces by California law. The negative public health
impacts of secondhand smoke both indoors and outdoors are recognized, and public health policy
has improved dramatically over the decades in an effort to protect the public from this unnecessary
exposure to hazardous substances in their breathing spaces. E -cigarette use in otherwise clean -air
spaces, however, roll back the progress made in public health protections by both a) exposing
people to dangerous and carcinogenic compounds, and by b) mimicking smoking behavior in
public that acts as a trigger for smokers and as a model for youth who may be influenced to
experiment with e -cigarettes.
The inclusion of e -cigarettes in smokefree laws and voluntary smokefree policies will help protect
the public from exposure to dangerous airborne compounds caused by smoking and e -cigarette
smoking, lessen youth exposure to the modeling of smoking behavior, and could help those who
use these products curtail their use.
Thank you,
Stacey J. Anderson, PhD
Page 2 of 2
ROUTING SLIP / APPROVAL FORM
INSTRUCTIONS: Use this cover sheet with each submittal of a staff report before approval
by the City Council. Save staff report (including this cover sheet) along
with all related attachments in the Team Drive (T:) --> CITY COUNCIL
AGENDA ITEMS 4 AGENDA ITEM APPROVAL PROCESS 4 [DEPT -
AGENDA TOPIC]
Agenda Item #
Date of Meeting: 4/4/2016
From: Rebecca Woodbury
Department: City Manager's Office
Date: 3/22/2016
Topic: Smoking Regulations
Subject: AN ORDINANCE AMENDING SAN RAFAEL MUNICIPAL CODE CHAPTER 9.04
TO REGULATE THE SMOKING OF ELECTRONIC SMOKING DEVICES AND TO PROHIBIT
SMOKING IN CERTAIN LOCATIONS
Type: ❑ Resolution ® Ordinance
❑ Professional Services Agreement ❑ Other:
APPROVALS
® Finance Director
Remarks: approved - MM 3/22
® City Attorney
Remarks: LG- Approved 3/28/16 with changes.
® Author, review and accept City Attorney / Finance changes
Remarks:
® City Manager
Remarks:
