HomeMy WebLinkAboutCC Smoking Ordinance Amendment1
ORDINANCE NO. 2042
AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING
CHAPTER 9, SECTION 9.04.120 OF THE SAN RAFAEL MUNICIPAL
CODE TO ALLOW FOR A CIVIL RIGHT OF ACTION FOR VIOLATIONS
OF THE CITY’S SMOKING ORDINANCE
WHEREAS, Section 118910 of the California Health and Safety Code and Section
26200 of the Business and Professions Code expressly authorize local governments to
regulate smoking in any manner not inconsistent with state law; and
WHEREAS, there is no Constitutional right to smoke; and
WHEREAS, the purpose of the City’s smoking restrictions is to serve the public
health, safety, and welfare due to the known dangers to health and wildfire risk posed by
smoking and secondhand smoke; and
WHEREAS, In 2012, the City Council adopted Ordinance No. 1908, which
significantly changed the City’s smoking regulation in San Rafael Municipal Code
(“SRMC”) Chapter 9.04; and
WHEREAS, enforcement challenges of provisions of section 9.04.120 persist, and
community members continue to report violations that negatively impact their health and
quality of life; and
WHEREAS, the amendments to the San Rafael Municipal Code made by adoption
of this Ordinance are necessary to further enforce current smoking laws so as to more
fully protect City residents, businesses and visitors against risk and unwanted secondhand
smoke in public places, parks, and multiunit dwellings.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
DOES ORDAIN AS FOLLOWS:
Division 1. Amendment of Municipal Code.
Sections 9.04.120 of Chapter 9.04 (Clean Indoor And Outdoor Air And Health Protection)
of the San Rafael Municipal Code are hereby amended to read as follows. Additions are
shown in underline, and deletions are shown in strikethrough.
9.04.120 Enforcement and penalties.
A. 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.
2
B. Any Person acting for the interests of itself, its members, or the general public
(hereinafter “Private Enforcer”) may bring a private action in any court of competent
jurisdiction, including small claims court, to enforce this section against any Person who
has violated this section. The Private Enforcer must produce documentation substantiating
the violation of the City’s Smoking Ordinance, which could include resident complaints,
inspection reports, and/or enforcement actions by local public health or code enforcement
officers. A court shall grant all appropriate relief, including: (1) awarding damages; and (2)
issuing an injunction or a conditional judgment. Except as otherwise provided,
enforcement of this section is at the sole discretion of the City. Nothing in this section shall
create a right of action in any Person against the City or its agents to compel public
enforcement of this section against private parties.
Division 2. Severability.
If any section, subsection, sentence, clause, phrase or word of this Ordinance is for any
reason held to be invalid by a court of competent jurisdiction, such decision shall not affect
the validity of the remaining portions of this Ordinance. The City Council hereby declares
it would have passed and adopted this Ordinance and each and all provisions hereof
irrespective of the fact that any one or more of said provisions be declared invalid.
Division 3. CEQA Determination.
This Ordinance makes only administrative changes to the operations of a City commission
and is therefore exempt from the requirements of the California Environmental Quality Act
(CEQA) under 14 Cal. Code Regs. §15061(b)(3), the common sense exemption, because
it can be seen with certainty that there is no possibility that the Ordinance may have a
significant effect on the environment.
Division 4. Publication; Effective Date.
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 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.
THE FOREGOING ORDINANCE was first read and introduced at a regular meeting of the
San Rafael City Council on the 3rd day of September 2024, and was passed and adopted
at a regular meeting of the San Rafael City Council on the 16th of September by the
following vote, to wit:
3
AYES: COUNCILMEMBERS: Hill, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Bushey
KATE COLIN, Mayor
ATTEST:
LINDSAY LARA, City Clerk
SUMMARY OF ORDINANCE NO. 2042
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AMENDING CHAPTER 9, SECTION 9.04.120 OF THE SAN RAFAEL MUNICIPAL
CODE TO ALLOW FOR A CIVIL RIGHT OF ACTION FOR VIOLATIONS OF THE
CITY’S SMOKING ORDINANCE
This Summary concerns a proposed ordinance of the City of San Rafael, designated as
Ordinance No. 2042, which will amend Chapter 9, Section 9.04.120 of the San Rafael
Municipal Code. Ordinance No. 2042 is scheduled for adoption by the San Rafael City
Council at its regular meeting of September 3, 2024. The City Clerk has been directed
to publish this Summary pursuant to City Charter and California Government Code
section 36933(c)(1).
SUMMARY OF AMENDMENT TO MUNICIPAL CODE
Section 118910 of the California Health and Safety Code and Section 26200 of the
Business and Professions Code expressly authorize local governments to regulate
smoking in any manner not inconsistent with state law. Pursuant to this authority, the City
adopted Ordinance No. 2042, which amends regulations governing the enforcement of
the City’s smoking ordinance in San Rafael.
The amended regulations include the introduction of a civil right of action, allowing private
individuals (referred to as "Private Enforcers") to bring legal action against those who
violate the smoking restrictions outlined in Chapter 9.04 that are designed to protect the
public from health effects of ongoing exposure to secondhand smoke in multi-unit housing
complexes and other shared spaces. This new provision enables residents, businesses,
or members of the general public to seek relief through the courts, including the awarding
of damages and injunctions. The Private Enforcer must provide evidence of the violation,
such as resident complaints or inspection reports. This amendment is intended to address
ongoing enforcement challenges and to enhance the protection of public health, safety,
and welfare against the risks associated with smoking and secondhand smoke in public
places, parks, and multi-unit dwellings.
The Ordinance was Introduced on September 3, 2024, and scheduled for a Second
Reading on September 16, 2024. If passed, the Ordinance becomes effective 30 days
after the Second Reading, on October 16, 2024.
Copies of Ordinance No. 2042 are available for public review on the City’s website:
https://www.cityofsanrafael.org. You may also contact the City Clerk at (415) 485-3066
for more information.
________________________________
LINDSAY LARA
San Rafael City Clerk
Dated: 09/06/24