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Home My WebLink About29-City Attorney CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN 1 Subject: Ordinance of the City of San City Attorney ~ Bemazdino Repealing Chapter 8.72 of the San Bernardino Municipal Code Relating Dept: CITY ATTORNEY to Smoking. Date: January 29, 2002 Synopsis of Previous Council Action: None. Recommended motion: That said Ordinance be laid over for final adoption. Signature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Wazd: All FUNDING REQUIREMENTS: Amount: None at this time. Source: Finance: Council Notes: ~9 Agenda ?/~~~~ STAFF REPORT Council Meeting Date: February 4.2002 TO: Mayor and Common Council FROM: City Attorney's Office DATE: January 29, 2002 SUBJECT: 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 aze 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 The City Attorney's office submitted an alternate proposal that Chapter 8.72 should be repealed in its entirety.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 coumoom efforts will be handled exclusively by the District Attorney's office. If smoking "complaints or issues" occur, they aze 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. . -.' ~OL~ n~'7 1 ORDINANCE 1'QO. • 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 JUDITH VALLES, Mayor 23 City of San Bernardino 24 Approved as to form and legal content: 25 JAMES F. PENMAN 26 City Attorney • 27 Gm~ 28 HTC/js [SMOKING.ORDJ 1 1V~arie Callencler's 800 East Highland Ave. t ~ H~o,j San Bernardino, Calif. 92404 February 3, 2002 ~!~-~.lu„ L ~"' Wendy McCammack San Bernardino City Council Dear Ms. McCammack 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 appeazs 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 Bernadino, on a different playing field than businesses in neighboring cities. Let me tell you of an incident that happened several yeazs ago when the San Bernazdino City Council passed the only anti-smoking ordinance in the azea: 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 aze usually one of our busiest nights. A few hours into the evening I received a phone call from Cliff Frehling, 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 customers who wanted to smoke and eat at Mane 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 azea. Once the statewide ban was in effect, all restaurants were put on the same playing field. If I 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 aze not put on the same playing field. The city council has the opportunity to show that they aze business friendly by following only the statewide anti-smoking ordinance. Don't make it hazder to run a business in San Bernadino. San Bernadino has lost enough businesses to neighboring L~ cities. The city council has a responsibility to keep bus'messes in San Bernardino. Sincerely~c~'v"`Gv im B ek anaging Member Marie Callender Pie Shop #52 ~zn~n=C A * *- FO/6R OEFfCE_ IjSE ONLY - NOT'A PlIBE1C D CLI9MENT "° Y4.: ~'~~ -0 ^.~'. a' ~`~-._ K~"b v::' .~' .f':'3' i~i I fie.. CITY OF SAN BERNARDINO -CITY CLERK'S OFFICE ~' ' RECORDS & INFORMATION MANAGEMENT PROGRAkv1 ' ..' .'. AGENDA ITEM TRACKWG FORM Meeting Date/Date Adopted: ~-~~ ~ ~- Item No. -~ Resolution/Ordinance No. ~~/,~ ~ Ordinance Urgency: Yes / d _ Effective Daie: y-/~-U'L- Tennination/Sunset Date: ~i%(f Vote: Ayes: / L <-/ S 6 7 Nays: 3 ~ Abstains ~ Absent: '~- Date Sent to Mayor: 3'//~-G 2.-- Date Returned from Mayor. ' ~ /9-U7 Date of Mayor's Signature: 3~/9-O Date of Clerk's Signature: 13~2~~6 Oate Summary Sent to Attorney: . ~ - ~S-O L-- Date Summary Returned from Attorney: 3 19- O L Date Published: 3 - Z L -D L Meeting Type: n~ ~-a~ Date Seal Impressed:- S~~r~D Z_ ~- Continued Fromlfo & Item No. Date Sent for Signature: To Whom: Expiration Date: `~/ ~~-Efate Returned: ~/~,~~' Copies Distributed To: ~ i Exhibits Complete & Attached to Resolution/Ordinance: Reminder Letter Sent: Reminder Letter Sent: Reminder letter Sent: Request for Council A~c'tion &/YStaff Report Attac d: Yes No Notes:~f~~N C~ ~ 3~`l/O 7~ ~ , Ready to File: Date: oocuMExr iounw+: ro~u.~sr~nw~.rm~r~.ccr~w.,,,.~nuoa+~x ,w.nsss