HomeMy WebLinkAbout27-City Attorney
MAYOR & COMMON COUNCIL
MEETING BACKUP
MEETING DATE:
March 4, 2002
GROUP MEETING:
Mayor & Common Council /
Community Development Commission
DEPUTY: Linda Sutherland
*** No backup materials are included for the following items. ***
ITEM #
STATUS
24
Continued to June 3. 2002
27
Laid Over
28
Laid Over (A-C)
30
Laid Over
"
...
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Ordinance of the City of San
Bernardino Repealing Chapter 8.72 of the
San Bernardino Municipal Code Relating
to Smoking.
From: JAMES F. PENMAN
City Attorney
Date: January 29, 2002
Synopsis of Previous Council Action:
None.
Recommended motion:
That said Ordinance be laid over for final adoption.
~?~
o Signature
Contact person: James F. Penman
Phone:
5255
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount: None at this time.
Source:
Finance:
C~~~~~e1u.l1~ =rt2 1. ;)..Itfj~
/J +-, f
Agenda Item No._~
3Tillo ::L-
..
STAFF REPORT
Council Meeting Date: February 4. 2002
TO:
FROM:
DATE:
SUBJECT:
Mayor and Common Council
City Attorney's Office
January 29, 2002
Repeal of Chapter 8.72 of the San Bernardino Municipal Code relating to
smoking (Agenda Item #29); Resolution of the Mayor and Common Council
of the City of San Bernardino Promoting a Healthy Environment and a
Healthy Citizenry and Calling Upon the San Bernardino Police Department
to Continue its Enforcement of State-Mandated Laws Which Regulate
Smoking (Agenda Item #30).
The State of California has passed numerous laws which regulate smoking and, in the
process, has preempted local governments from adopting laws (ordinances) which are less stringent.
Chapter 8.72 of the San Bernardino Municipal Code reflects state law, but smoking issues not
covered by our ordinance are still subject to state-mandated laws. A proposal came before the
Legislative Review Committee at its January 24, 2002 meeting to amend Chapter 8.72 to reflect new
smoking laws which have taken effect over the last several years. The City Attorney's office
submitted an alternate proposal that Chapter 8.72 should be repealed in its entirety. The Legislative
Review Committee recommended that both of these proposals be referred to the full Council for
discussion and possible action.
Since the current wording of Chapter 8.72 and the proposed changes submitted to the
Legislative Review Committee would reflect state law, they are unnecessary. The District
Attorney's office has advised this office that we do not have the authority to prosecute and seek fines
for any smoking Citations and that such courtroom efforts will be handled exclusively by the District
Attorney's office.
If smoking "complaints or issues" occur, they are referred to the Police Department for
handling in accordance with state law; the Police Department does not rely upon Chapter 8.72.
Having ordinances "on the books" which are duplicative of state law and unnecessary, and not relied
upon in resolving complaints or issues on their topic, results in a weakening of voluntary compliance
with other ordinances by the public and undercuts the enforcement ability of this City when it seeks
to require compliance with its other laws. For these reasons, Chapter 8.72 should be repealed.
Agenda Item #30 is submitted to restate and reinforce the City's position that it promotes a
healthy environment and a healthy citizenry. It calls upon the San Bernardino Police Department
to continue its enforcement of state-mandated laws which regulate smoking in order to help in
maintaining that healthy environment and healthy citizenry. It also references past actions taken by
the City in acknowledging the dangers of smoking in order to eliminate any confusion someone may
have between repealing an unnecessary and unenforceable smoking ordinance and in supporting
state-mandated laws which regulate smoking.
.
. "
ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING
CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
3 SMOKING.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
5 BERNARDINO DO ORDAIN AS FOLLOWS:
6 SECTION 1. Chapter 8.72 ofthe San Bernardino Municipal Code is hereby repealed
7 in its entirety.
8 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor
9 and Common Council of the City of San Bernardino at a
meeting thereof, held
10 on the _ day of
, 2002, by the following vote, to wit:
11 COUNCIL MEMBERS: AYES
NAYS
ABSTAIN ABSENT
12 ESTRADA
13 LIEN
14 MCGINNIS
15 SCHNETZ
16 SUAREZ
17 ANDERSON
18 MC CAMMACK
19
City Clerk
20
The foregoing Ordinance is hereby approved this _ day of
,2002.
21
22
23
JUDITH V ALLES, Mayor
City of San Bernardino
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
JAMES F. PENMAN
CITY ATTORNEY
TO:
Mayor and Common Council
RE:
City Smoking Ordinance
.~ ::0
m
(")
m
~ <:
".,
c;,
W ;
- (")
::::;
-0 --
.0.. ~
f..) m
-oJ ::c
:.:l<
The State law
FROM:
James F. Penman, City Attorney
DATE:
January 31, 2002
State law presently prohibits smoking in any enclosed workplace in the State.
further provides that:
"The smoking prohibition set forth in this section shall constitute a uniform
statewide standard for regulating the smoking of tobacco products in enclosed places
of employment and shall supersede and render unnecessary the local enactment or
enforcement of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition set forth in this
section is applicable to all (100 percent of) places of employment within this state
and, therefore, provides the maximum degree of coverage, the practical effect of this
section is to eliminate the need of local governments to enact enclosed workplace
smoking restrictions within their respective jurisdictions." Labor Code S6404.5(g)
Although the above State legislation renders our smoking ordinance unenforceable, we have
not repealed Chapter 8.72 of our Municipal Code. Furthermore, I have been advised that the Mayor
and Council do not wish to strengthen this ordinance.
Representatives of TURN advised the Legislative Review Committee on January 24 that
because the City's ordinance is inconsistent with State law, it is confusing to businesses and others
as to which restrictions are actually in place. This may give rise to a legal (but false) defense by
some such establishments that they are confused as to which law to apply.
Throughout our County, restaurants and bars openly violate the State's no smoking ban. It
is time for the cities of San Bernardino County to get serious about wheth.
follow State law in our communities or merely amend unenforceable City 0
language that, according to a TURN representative (at the January
Committee), will not add any new smoking restrictions not already provide<
TURN's proposed language does add a few, new restrictions.)
-Jl ;} /)
3/V Idd-
N:s
30
308''liitl~lre'~EET' SAN BERNARDINO. CA:lg2418.0001 . (909) 3~
oa- 6l{-Dd-.
To: Mayor and Common Council
Re: City Smoking Ordinance
Page 2
If the Mayor and Common Council choose not to repeal Chapter 8.72 "SMOKING," this
office will bring forward, at the Council meeting on February 19, an ordinance that will prohibit
smoking in all "unenclosed workplaces" in the City, including "smoking patios" of restaurants and
bars. It will also prohibit smoking within thirty (30) feet of any private or public business, office,
or other non-residential structure in the City. The proposed ordinance will specifically authorize the
Office of the City Attorney to seek temporary and permanent injunctive orders against any business
violating Labor Code ~6404.5. Other provisions covering smoking in locations not prohibited by
State law will also be included. If we are going to have a smoking ordinance, it should be
enforceable by this office. If the Council chooses to keep the ordinance, we need to amend it to
permit such enforcement.
It is my belief that we can stop all smoking within all restaurants and bars in the City within
six months of the above-language taking effect. This will occur either because the owners of
restaurants and bars will actively prevent all smoking in their establishments or because those which
do not stop smoking will be closed by court injunction or put out of business indirectly by the cost
of litigation. (It will be important to get the County and all other cities to enact ordinances with the
same language so that our City's restaurants and bars are not subject to an "uneven playing field. ")
In conclusion, it makes no sense to keep on the books a law that we cannot enforce nor to
amend such a law and pretend that it will have an impact on smoking in our City. We must choose
either to continue the pretense offollowing the State law in its entirety or step up to the plate, enact
the language suggested herein and aggressively enforce such a new ordinance.
Actions speak louder than words, and, by our actions, we can effectively impact smoking
throughout places of employment in the City of San Bernardino. The alternative is to continue to
play games and pay lip service by maintaining and an1ending an outdated, unenforceable and useless
ordinance in our City's Municipal Code.
Respectfully submitted,
MES F. PENMAN,
ity Attorney
Enclosures (2)
cc: Fred Wilson, City Administrator
Rachel Clark, City Clerk
JFP/js [SMOKING.MEM]
2
I
I
--~
LABOR CODE
n standard or other standard utilizing appropriate
'Iectronic. and biotechnical systems, adopted by the
the federal Environmental Protection Agency. If
..tandards of the Occupational Safety and Health
standards adopted by the federal Environmental
.rk area \....here no one, as part of his or her work
,I' this paragraph, "work responsibilities" does not
! out in the breakroom when it is unoccupied.
accommodate nonsmokers.
,j')yees, either full-time or part-time. may permit
...;cnt to permit smoking. No one, as part of his or
:.In area where smoking is permitted. An employer
'r~ion to obtain consent or who has required an
ibJect to the penalty provisions of Section 6427.
il'ectly to the outside by an exhaust fan. Air from
t." of the building.
I standard or other standard utilizing appropriate
lectl'onic, and biotechnical systems, adopted by the
'he federal Environmental Protection Agency. If
'<.mdards of the Occupational Safetv and Health
..;tandards adopted by the federal Environmental
,.crsede or render inapplicable any condition or
lC type~ of business establishments b,y any other
nthenvlse applicable paragraph of this subdivision
not be construed to require employers to provide
'cakrooms for smokers 01' nonsmokers.
'n, smoking may be permitted in gaming clubs, as
.a1'5 and taverns, as derined in paragraph (8) of
Occupational Safety and Health Standards Board
c!mironmental tobacco smoke to a le\'el that will
Tects to exposed emplo)'ees or (ii) by the federal
ndard for reduction of permissible exposure to
It \.Vill prevent anything other than insignificantly
:laragraph (1) is adopted on or before January 1,
I;; clubs and in bars and taverns, subject to full
regulation ""ithin two years follov.ing the date of
achieve compliance with, or conformity to, the
lOoking in the gaming club, bar, or tavern until
)nal Safety and Health Standards Board and the
\t regulations specified in subparagraph (B) of
'he Occupational Safety Standards Board shall be
ironmental Protection Agency.
aragraph (1) is not adopted on or befOl'e January
(8) of subdivision (d) shall be inoperative on and
I. Upon adoption of such a regulation on or after
in gaming clubs and in bars and taverns, subject
in the regulation within two years following the
:' to achieve compliance with, or confonnity to, the
.moking in the gaming club, bar, or tavern until
JOal Safety and Health Standards Board and the
}rline; deletions by asterisks * * *
~AB~~_CODE_f
T~ 6404.5l
federal Emironm~ntal Protection Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal Environmental Protection Agency.
(4) From'January 1, 1997, to December 31; 1997, inclusive, smoking may be permitted in gaming clubs,
as defined in paragraph (7) of subdhision (d), and in bars and taverns, as defined in paragraph (8) of
:mbdivision (dl, subject to both of the follo\\;ng conditions:
(A) If practicable. the gaming club or bar or tavern shall establish a designated nonsmoking area.
(B) If feasible. no employee shall be required, in the performance of ordinary work responsibilities, to
enter any area in which smoking is 'permitted.
(g) The smoking prohibition set forth in this section shall constitute a uniform state....ide standard for
regulating the smoking of tobacco products in enclosed places of emplo)'lllent and shall supersede and
render unnecessary the local enactment or enforcement of local ordinances regulating the smoking of
tobacco products in enclosed places of emplojment. Insofar as the smoking prohibition set forth in this
section is applicable to all 000 percent ot) places of employment \\oithin this state and, therefore, provides
the maximum degree of coverage, the practical effect of this section is to eliminate the need of local
government..~ to enact enclosed workplace smoking restrictions \vithin their respective jurisdictions,
(h) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place of
employment for any reason.
(i) The enactment of local regulation of smoking of tobacco products in enclosed places of ernplo)ment
by local grl\'ernments shall be suspended only for as long as, and to the extent that, the 000 percent)
smoking prohibition pro\ided for in this section remains in effect, In the event this section is repealed or
modified by subsequent legislative or judicial action so that the (100 percent) smoking prohibition is no
longer applicabl02 tu allendo.:;ed places of el1lplU)ll~~nt in Califumia, local gov€mments shall have the (uU
right and authOlity to enforce previously enacted, and to enact and enforce new, restrictions on the
smoking of tobacco products in enclosed places of emplo.yment \\ithin their jurisdictions, including a
complete prohibition of smoking. Notwithstanding any other prO\.;sion of this section, any area not
defined a.5 a "place of emplo,\ment" or in which the smoking is not regulated pursuant to subdivision (d)
or (e), shall be subject to local regulation of smoking of tobacco products.
U> An:;, \iolation of the prohibition set forth in subdi\ision (b) is an infraction'" '" \ punishable by a
tine not to exceed one hundred dollars ($100) for a first \iolation, two hundred dollars ($200) for a second
\iolation \\ithin one year, and live hundred dollars ($500) for a third and fOI' each subsequent \iolation
\\ithin nne year. This 5ubdi\ision shall be enforced by local law enforcement agencies including, but not
limited to, local health departments, as determined by the local go\'erning bod)'.
(k) ~ otwithstanding Section 6.309, the dhision shall not be required to respond to any complaint
regarding the smoking of tobacco products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision W of a third \;olation of subdivision (b) \\ithin the
previous )'ear.
(l) If any provision of this act or the application thereof to any person or circumstances is held invalid,
that invalidity shall not affect other prO\isions or applications of the act that can be given effect \\ithout
the invalid pro\ision of application, and to this end the provisions of this act are severable.
(Added by Stats.1994, c. 310 (AB.13), ~ 1. Amended by Stats.1995, c. 91 (S.B.975), ~ 110; Stats.I996, c.
989 (A.B.3037), g I; Stats.1998, c. 606 (S.B.ISSO), ~ 5.)
Historical and Statutory Notes
1994 Legislation
The Senate Daily JOIUTla! for the 1993---94 Regular
Session, pages 5528 to 5529, contained the follo\\ing letter
dated June 20, 1994, from Gene Wong~ counsel for the
Senate Judiciary Committee, regal'ding AB.l3 (Stats.
1994, c. 310):
"Last Thursday, you requested a quick memo on the
meaning of the June 16th amendment.s to AB 13. Particu.
larly, you were interested in the relationship of the new
exemption (No. 14) for 'employers with a total of five or
fewer employees' and the exemption (No.8) for bars and
taverns. During the discussion of the amendments, you
asked whether the new exemption applied to bars and
taverns and would permit smoking in that employment
situation. The response from Senator Bergeson W~ that
it did. That response was incorrect and requires clarifica.
tion.,
Additions or changes Indicated by
"Under exemption No.8, bars and taverns (defmed to
illclude 'stand-alone' bars and hotel bars, but not including
restaurant bars) are exempt from the smoking restrictions
of AB 13 until January I, 1997. If CaVOSHA or federal
EP A adopts standards to reduce employee exposure to
em;ronmental tobacco smoke before Jan. 1, 1997, the
business may permit smoking for t\.Vo additional years
while it complies with the standard. If the stAndards are
not adopted, the exemption would expire on Jan. I, 1997
and smoking would be prohibited in those establishments
until the adoption of those standards. Upon that ado~
tion, the business ~;ll have two years to comply and may
permit smoking during that compliance period.
"New exemption No. 14 pennits smoking in employ-
ment situations involving five or fewer employees. The
exemption is conditioned upon the area being closed to
minors and the consent of all employees who enter that
underline; deletions by asterisks ... * *
87
CITY OF SAN BERNARDINO REST AURANTS'FHA T MAY BE IMP ACTED
BY CITY ATTORNEY'S PROPOSED NEW ORDINANCE
;. I" q ;'.'.t' ~"
All Fast Food Restaurants with Outside Seating
Alfredo's Pizza & Pasta
Arrowhead Credit Union Park
Baja Fresh (Hospitality Lane)
Black Angus Restaurant Stuart Anderson's
Brandin Iron
Castaway Restaurant & Banquets
Celebrities Sports Grill
Chili's Grill & Bar
Claim Jumper
Church's Fried Chicken
Costco Wholesale - Hot Dog Stand
Crabby Bob's
D.J.'s Coffee Shop
Fanatics
Greenbrier
Guadalaharry's Mexican Restaurant & Cantina
Gus Jr. Burgers
In-N-Out Burgers
Jose's Mexican Food
Lamplighters
Marie Callendar's Restaurant & Bakeries
McDonald's Restaurants
Mediterranean
Mexico Restaurant
Mimi's Cafe
Molly's Cafe
Outback Steakhouse
Panda Express
Pan's Restaurant
Popeye's Chicken & Bisquits
Red Fox
Red Lobster Restaurant
Rosa Maria's
Spencer's Restaurant (Radisson Hotel)
Starbucks
TGI Friday's
TOGO's (Hospitality)
The Mad Greek
Uptowner
and Probably Many More
. .
"'"
Marie Callender's
800 East Highland Ave.
San Bernardino. Calif. 92404
<./ "1 jo,3
February 3, 2002
Wendy McCarnrnack
San Bernardino City Council
~~~
Dear Ms. McCarnrnack
It has come to my attention through the Sun Newspaper that the San Bernardino
City Council will have the opportunity to pass a stricter anti-smoking ordinance, which
appears to be in accordance with the city's current anti-smoking ordinance or abolish the
city's anti-smoking ordinance and just follow the state wide anti-smoking ordinance. What
concerns me about San Bernardino having a stricter anti-smoking ordinance is that it will
put my business (Marie Callender's), and every business in San Bernardino, on a different
playing field than businesses in neighboring cities.
Let me tell you of an incident that happened several years ago when the San
Bernardino City Council passed the only anti-smoking ordinance in the area: It was just
after the city council had passed the anti-smoking ordinance and I was working a Friday
evening at Marie Callender's. It was a very slow night. Friday evenings are usually one of
our busiest nights. A few hours into the evening I received a phone call from Cliff
FreWing, who was the assistant manager and part owner of the Marie Callender's in
Redlands. He wanted to know if I was having a busy night. I told him that I wasn't. He
said that he was having a busy night, but what was really strange was that he had a wait
for his smoking section (Before the statewide ban on smoking, most restaurants had
"Smoking" or "No Smoking" sections). I told him that that did not surprise me. I told
him that he had my customers. What had happened is that custom6rs who wanted to
smoke and eat at Marie Callenders only had to drive to Redlands. I often wondered how
many other restaurants lost customers to neighboring cities during the time that San
Bernardino had the only anti-smoking ordinance in the area. Once the statewide ban was
in effect, all restaurants were put on the same playing field.
If! may, I would like to use the following analogy to help emphasis my concerns.
Currently the state minimum wage is $6.75 an hour. What would happen if the San
Bernardino City Council voted to raise the minimum wage to $10.00 an hour in San
Bernardino? My menu prices would be considerably higher then the Marie Callender's in
Redlands or Ontario or Riverside. Eventually I would lose most of my customers to
neighboring cities because it would be less expensive to eat there. This is what happens
when businesses are not put on the same playing field.
Thedty council has the opportunity to show that they are business friendly by
following only the statewide anti-smoking ordinance. Don't make it harder to run a
business in San Bernardino. San Bernardino has lost enough businesses to neighboring
~=tt~C1J.;tJ'-f/O?-
*.;L7.
3/'-1-/0;;)-
-
. .
. '.
,
cities. The city council has a responsibility to keep businesses in San Bernardino.
\ Sincerely /3.f2;..{)
im B ek
anaging Member
Marie Callender Pie Shop #52