HomeMy WebLinkAbout13-City Attorney
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SAN
BERNARDINO
INTEROFFICE MEMORANDUM
CITY CLERK'S OFFICE
DATE: June 2, 1994
TO: Mayor & Common Council
FROM: Rachel Clark, city Clerk
SUBJECT: Protest Letters - Smoking Ordinance
COPIES: City Administrator Shauna Clark: city Attorney James
Penman
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As of this date, the city Clerk's Office has received 't'3' additional
letters of protest relative to the proposed non-smoking ordinance
to be heard on June 6, 1994, Item #13. The following is a
breakdown of the letters:
San Bernardino Resident
Out of city Resident:
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2
:13 :J. If
TOTAL:
The following letters can be located within the City Clerk's
Office.
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Rachel Clark
city Clerk
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SAN
BERNARDINO
INTEROFFICE MEMORANDUM
CITY CLERK'S OFFICE
DATE: June 2, 1994
TO: Mayor , Common Council
FROM: Rachel Clark, city Clerk
SUBJECT: Protest Letters - Smoking Ordinance
COPIES: city Administrator Shauna Clark: city Attorney James
Penman
------------------------------------------------------------------
As of this date, the City Clerk's Office has received 23 additional
letters of protest relative to the proposed non-smoking ordinance
to be heard on June 6, 1994, Item il13. The following is a
breakdown of the letters:
San Bernardino Resident
out of city Resident:
18
...2.
23
TOTAL:
The following letters can be located within the city Clerk's
Office.
~~~
Rachel Clark
City Clerk
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Q V. HOLDING, D.C. 0
1761 North "0" Street
San Bernardino, CA 92'405
909-882-4984
CHRONIC & NERVOUS DISORDERS
COMMENTS ON THE ORDINANCE RELATING TO SMOKING:
Mr. Mayor and Members of the Council:
This seems like de ja vous. 20 years ago, this issue
was put before the City Council. It seemed, at that
time, there was enough statistics and indisputable
clinical evidence for the Council to pass this ordinance.
It is well known that nicotine is a drug, a poisonous
alkaloid found in all parts of the tobacco plant, especially,
in the leaves, that are dried and made into cigarettes.
It is one of the most toxic and addictive of all poisons.
It kills more people than all other drugs combined.
But, because of this addiction, smokers feel threatened
and combative if he thinks that he cannot smoke anywhere
he wants. To take his cigarette away is worse than
trying to take a bone away from a dog.
You cannot drive or register your car without a smog
check and smog devices to protect the health of everyone
that has to breathe. So why not check the smog and
pollution from cigarettes.
I have practiced in San Bernardino for 44 years, and
I have seen small children subjected to cigarette smoke
in their homes and in the family car by their parents.
They have been given all types of allergy tests and
medications. But when the runny nose and persistent
cough continues, the parent's answer is "It must be
that virus going around." When the Pediatrician asks,
if he asks, about cigarette smoke, they reply,"Oh no,
my kids are too young to smoke."
No!! They are not!! They are second-hand smoking on
a constant basis. When the pediatrician asks the parents
not to smoke in the house or the car for one month and
then call him back and tell him how the children are
doing, the parents usually call back within two to three
weeks to say the children are fine - no colds or allergies,
and they had not smoked in their presence since he talked
to them.
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No one has died from not smokingl!
The opponents of this ordinance are complaining that
it will put them out of business to close their restaurants
to smoking. The truth of the matter is, in Los Angeles
and 500 other major cities in the United States, the
restaurants that have banned smoking completely, has
increased business tremendously.
Before the airlines banned smoking, some were afraid'
that they would lose passengers. It is hard to get
a seat on a plane since there is no smoking.
The Health Department is in charge of protecting the
lives of people in restaurants. If they find a cockroach,
they will usually close the restaurant. No one has
died from a cockroach. If there is a cloud of smoke
in a restaurant, it seems to be alright. People have
died from second-hand cigarette smoke.
It seems a matter of convenience versus the health of
the public. Or better yet, life versus death.
I urge the City Council to pass this ordinance.
?f(: Gr&~
E:V. HOLDING, D.C. ~
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,~William Harrison till"
~ 4675 Woodbend tn,
~ So Bemrdno, CA. 92407.3809
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To: JJ.m Penman, CJ.ty Attorney, ,--;Y.1Fc\'/lh"'''''''",1
Also to Mayor and City Counc:i.'l". " 59
q"4 H!'.~ 25 I'l\ 2,
My name is William Harrison Jr.,"1675 Woodbend Lane,
92407.
This is to the subject of a no smoking ordnance in all San
Bernardino City resturants.
1st. I have had open heart and stomach surgery.
~nd. I have preached no smoking for the last 15 years. Yes,
I was a smoker and I believe that smoking and breathing second
hand smoke may be harmful to many people.--How~v~r: I want
to know what law, State or Federal that allows your proposed
ordnance ".?
Y~u do h~ve jur~diction over Pu~!}c Property, but resturants
are Prlv~te Property and furthermore unljke gro~ery stores are
not an absolute necessity. My home and yours is Private Property
do you next propose-a no smoking ban there? How far do you
feel that there is a l~~l right to control me and my guests?
The home owner and the resturant owner has the right, and only
he or she, has that right to refuse service or entry to their
property. THEY OWN the place. They can post a legal notice
that they have that right. They can invite people to either
come in or stay out.
- - -
I feel you could legally force a resturant to post a notice
- - - -
at their front door stating one of three options, (1) No
Smoking Inside, or, (2) Smoking allowed, or (3) We have
a No smoking section. The customer has a choice.
Until the Government stops subsidising tobacco farmers and
makes all tobacco use illegal, I feel that you should be
advised to put your efforts to the more needed problems that
you can do something about.
Perhaps before you ~o to the cost and embarresment of an
ordnance that will not fly you will see why other cities like
Beverly Hills and Los Angeles withdrew their ordnance on the
subject. I feel that legality (perhaps the IV Amendment to
the Constitution) and their financial loss had a great deal
to do with their action.
J! ~
I will not be able to be at the council meeting cov~ring this~
proposed ordnance but I do request that my letter be mad~ub~c
if you still feel that you are going thru with this. Yes~ I ?
am still against smoking. . Vi Q
SinCerelY:~~/;'/'/'-'-;.;;>-}- ,~ g
Wm. ,J!f': Harrison.J ( ( / 0 ~
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Elaine Cross .
260 E, 47th Street
San Bernardino, California
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92404 RECEIVED-CI1Y CLERr<
'94 MAY 23 P 1 :49
May 19, 1994
City Clerk's Office
Attn: Councilman Curlin
300 North 0 Street
San Bernardino, Ca, 92418-0002
Councilman Curlin,
I was present at the council meeting held on Monday the 16th of May and I spoke out
about the smoking ordinance on the agenda,
I feel you are not in a position to make the statements you did about the Tobacco
Industry contributing to the opposition you received. The letters were dismissed like
they were not written and signed by the people of this city, I assure you tobacco
money had nothing to do with the effort people made to get the city council to listen to
their side, No one received any tobacco money, I know it must be difficult for you to
understand what a difference one person can make, I know that as a politician you
have probably told many people to vote, that one vote can make a difference, I feel
sorry for you , that as a citizen you saw what one person can do and you chose to
make Jean Kennedy look worse than you looked. I'm sorry Mr, Curlin all you did was
make a lot of people angry,
I believe if you were a smart councilperson you would run, not walk to all the
restaurants and businesses owners in your ward and apologize to them for telling the
people of the city that their businesses were not important, and your statements
concerning business owners putting their business before public health, Only people
who have put their life and every dime they make going back into these businesses
would be concerned, Where have you been Mr. Councilman, while our city has been
in a recession and businesses have been closing on every block in the city?
I'm a smoker and have been for many years. There is some credence to your
ordinance, our air quality is a much worse offender than second hand smoke will ever
be. I realize that smokers are a lot easier target than the real offenders, I believe you
are a few years too early to try and enforce such drastic action.
~~
Elaine Cross
cc: Mayor Minor
City of San Bernardino
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CITY OF
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Date:
From:
RAN DUM
CITY
CLERK'S
OFFICE
19-Mar-1994 02:12pm
Melan1e Vale
VALE ME
N I>4Kl1:_\t I S I o~TY CLERK
Tel. NO:
PST
BUSINESS
REGISTRATIO
TO: Rachel Clark
TO: Susanna Cordova
( CLARK_RA )
( CORDOVA_SU )
Subject: Smoking Protests
I have received the following additional protests relative to the
smoking ordinance that will appear on the June 6, 1994 agenda.
letters of protest:
resident of City of
no city stated
residents of City of
residents of City of
residents of city of
aJ~~k bldlo,,, ~ /
total "21
I think these should go in the backup for the minutes of 6/6/94
since they came in after the 5/16 meeting and will give Suzanna
for her backup.
Brea 1 ,/
4/
Highland 2 II
Yucaipa 1/
San Bernardinio 13
Iffl 1#1 J.Hr II
I also received a letter thanking Mayor Minor and Council Members
Negrete, Oberhelman, Hernandez and Miller which I will route a
copy of to the Council office and give to Suzanna the original
for her 6/6/94 minute backup.
Let me know if you have any questions.
.~
POST OFFICE BOX 1318, SAN BERNARDINO,
CALIFORNIA 12402
300 NORTH '0' STREET, SAN BERNARDINO,
CALIFORNIA 92418-0001
(101) 384.5302' (IOI) 384-1038
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1
ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER
8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1.
Chapter 8.72 of the San Bernardino Municipal
Code is hereby amended to read as follows:
"8.72.010 Legislative findings.
The Mayor and Cornmon Council find and declare that:
A.
Numerous studies have found that tobacco smoke is
a major contributor to indoor air pollution. The
Environmental Protection Agency ( EPA) has
conducted additional studies to warrant the
classification of environmental tobacco smoke
( ETS) or secondhand smoke as a Group A carcinogen
and is the only agent ever classified by the EPA
as a known human lung carcinogen.
B.
Reliable studies have shown that breathing
secondhand smoke is a significant health hazard,
especially for certain population groups,
including elderly people, children, individuals
with cardiovascular disease, and individuals with
impaired
respiratory
function,
including
asthmatics and those with obstructive airway
disease;
c.
Health hazards induced by breathing secondhand
smoke include lung cancer, respiratory infection,
decreased
exercise
tolerance,
decreased
respiratory function, bronchioconstriction, and
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bronchiospasm;
D.
Nonsmokers with allergies, respiratory disease
and all others who suffer ill effects of
breathing secondhand smoke may experience a loss
E.
of job productivity;
The Surgeon General of the United States has
advised nonsmokers to avoid exposure to tobacco
smoke wherever possible, and found that simple
separation of nonsmokers and smokers lowers but
does not eliminate the risk of nonsmokers from
secondhand smoke;
F.
The smoking of tobacco, or any other weed or
plant, is a proven danger to health;
The Surgeon General of the United States has
declared that nicotine is as addictive as cocaine
G.
or heroin; no other addictive product or drug, or
cancer causing product or drug is sold through
vending machines:
The U.S. Secretary of Health, the U.S. Surgeon
General and the leading vOluntary heal th
organizations all recommend the elimination of
cigarette vending machines for health reasons;
Accordingly, the health, safety and general
welfare of the residents of, persons employed in,
and persons who frequent this City will be
benefitted by the regulation of smoking in
enclosed places.
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8.72.020 Definitions.
The following words and phrases, whenever used in
this chapter, shall be construed as defined in this
section:
A. "Bar" means an area which is devoted to the
serving of alcoholic beverages and in which the
service of food is only incidental to the
consumption of such beverages. A bar includes
only those places which prohibit entry at any
time by any individual under the age of 21.
B. "Business" means any sole proprietorship,
partnership, joint venture, corporation or other
business entity formed for profit making purposes
as well as professional corporations and other
enti ties which provide legal, medical, dental
engineering, architectural, or other professional
services and which "business" employees two (2)
or more persons. Management employees shall be
included in the calculation of the two or more
persons.
C. "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 a non-
profit entity.
D. "Employer" means any business and any non-profit
entity with two or more employees. Management
employees shall be included in the calculation of
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E.
the two or more persons.
"Enclosed Area" means all space between a floor
and ceiling which is enclosed on all sides by
solid walls and/or windows (exclusive of door or
F.
passage ways) which extend from the floor to the
ceiling, including all space therein.
"Enclosed athletic recreation area" means
gymnasiums, health spas, swimming pOOls, roller
and ice rinks.
G.
"Freestanding Bar" means a bar which is located
in its own building or if in a building with
another business or restaurant, has its own
independent air ventilation system and a floor to
ceiling physical barrier.
H.
"Non-profi t enti ty" means any corporation,
unincorporated association, or other entity
created for charitable, educational, political,
social, or similar purposes, the net proceeds
from the operation of which are committed to the
promotion of the objects or purposes of the
organization and not to private financial gain.
A public agency is not a "non-profit entity"
within the meaning of this section.
"Place of employment": means 1) any enclosed
area, 2) under the control of a public or private
employer, 3) which employees occupy with normal
frequency during the course of employment,
including but not limited to, work areas,
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employees lounges, and restrooms, conference and
classrooms, cafeterias, and hallways, except that
a private residence is not a place of employment,
unless it is used as a child care or health care
facility.
J.
"Public place" means any enclosed area to which
the public is
I imi ted to:
permitted, inCluding but not
banks, private educational
health facilities, public
facilities,
transportation
facilities,
malls,
reception
areas, restaurants, retail food production and
marketing establishments, retail service
establishments, retail stores, theaters, and
office waiting rooms. A private residence is not
a public place.
K.
"Restaurant" means any coffee shop, cafeteria,
tavern, sandwich stand, soda fountain, private or
public school cafeteria, and any other eating
establishment, organization, Club, boarding
house, or guest house, which gives or offers food
for sale to the public, guests, patrons, or
employees, except that the term "restaurant"
shall not include a cocktail lounge or tavern if
said cocktail lounge or tavern is a "bar" as
defined herein.
"Retail tobacco store" means a retail store
utilized primarily for the sale of tobacco
products and accessories.
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M. "Service line" means an indoor queue in which one
or more persons routinely wait for or receive
service of any kind, whether or not such service
includes the exchange of money.
N. "Smoking" means the igniting, inhaling, or
carrying of any burning cigar, or cigarette of
any kind, or the igniting, inhaling, exhaling or
carrying of a pipe or other device for smoking,
containing any burning substance.
O. "Wai ting room space" means the Common area of any
office, restaurant, theater or any other facility
where persons routinely wait.
P. "Tobacco vending machines" means any machine or
device designated for or used for the vending of
cigarettes, cigars, tobacco, or tobacco products
upon the insertion of coins, bills, trade checks
or Slugs.
8.72.030 Prohibition against smoking in city owned
facilities.
Smoking is prohibited in all enclosed facilities
owned by or under the direct or indirect control of
the City of San Bernardino.
8.72.040 Prohibition against smoking in public
places.
A. Smoking shall be prohibited except as otherwise
specifically set forth herein in all enclosed
public places, inCluding, but not limited to, the
fOllowing:
1. Elevators and restrooms.
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7.
8.
9.
10.
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2.
Buses, taxicabs and other means of public transit
operated under the authority or Franchise of the
City of San Bernardino, and ticket boarding, and
waiting areas of public transit depots.
3.
Service lines.
4.
5.
Retail stores.
Retail food marketing establishments, including
grocery stores and supermarkets. Those areas of
such establishments set aside for the purpose of
serving food and drink shall be subject to the
same provisions as set forth herein for the
regulation of smoking in restaurants.
6.
All areas available to and customarily used by the
public in all businesses and non-profit entities
patronized by the public, including, but not
limited to, such areas in business offices, banks,
hotels and motels.
Public areas of aquariums, libraries, and museums
when open to the public.
Any building not open to the sky which is used
primarily for exhibiting any motion picture,
stage, drama, lecture, musical recital or other
similar performance, except when smoking is a part
of any such production.
Enclosed athletic recreation area.
Waiting rooms of doctors' offices and dentists'
offices, hallways, wards, and patient rooms of
health facilities, including, but not limited to,
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hospitals,
clinics,
and
physical
therapy
facilities.
11. Polling places.
B. Notwithstanding any other provision of this
section, any owner, operator, manager or other
person who controls any establishment described
in this section may declare the entire
establishment or any portion thereof to be a non-
smoking area.
8.72.050 Smoking in restaurants.
Smoking is prohibited and is unlawful within all
enclosed restaurants.
8.72.060 Child care facilities.
Smoking is prohibited and unlawful in any
facility or private home providing child care, either
licensed or unlicensed, and either on a 24-hour basis
or day care, for children not part of the family of
the provider, but only when children are present.
8.72.070 Regulation of smoking in places of
employment.
Except as otherwise provided in this chapter,
smoking shall be prohibited in all enclosed places of
employment.
8.72.080 Vending machines.
No cigarette or other tobacco product may be
SOld, offered for sale, or distributed by or from a
vending machine or other appliance, or any other
device designed or used for vending PUrposes except in
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freestanding bars.
8.72.090 Where smoking is not regulated.
Notwi thstanding any other provisions of this
chapter to the contrary, the fOllowing specific and
limited areas shall not be subject to the smoking
restrictions of this chapter.
1. Bars and freestanding bars.
2. Up to 35% of hotel and motel rooms in a hotel or motel
rented to guests may be designated as smoking rooms;
providing however, that smoking shall be prohibited in
the lobby, conference rooms, and other common areas of
hotels and motels.
3. Retail tobacco stores.
8.72.100 Posting of smoking and no smoking areas.
A. 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 on a sign of a minimum of six inches
(6") in width and eight inches (8") in height),
ci ting this subsection shall be Clearly, and
conspicuously posted in every bUilding or other
place where smoking is controlled by this chapter
by the owner, operator, manager or other person
having control of such building or other place.
B. Every theater owner, manager or operator shall
conspicuously post signs in the waiting area
stating smoking is prohibited.
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8.72.110 Violations.
A. It is unlawful for any person to smoke in a place
where smoking is prohibited by this chapter.
B. It is unlawful for any person who owns, manages,
operates or otherwise controls the use of any
premises subject to the prohibition of this
chapter to fail to comply with any of its
provisions.
C. Any person or business which violates subsection
"A" or "B" of this section or permits such
violations, or any other provision of this
chapter, except as otherwise provided herein
shall be guilty of an infraction, punishable as
set forth in San Bernardino Municipal Code,
Section 1.12.010(B).
8.72.120 Enforcement.
A violation of any of the provisions of this
chapter shall constitute a public nuisance and may be
abated by the City through means of restraining order,
preliminary or permanent injunction or in any other
manner provided by law for the abatement of such
nuisance and the City may take action to recover the
cost of such nuisance abatement.
Notwithstanding any other provision of this
chapter, a private citizen may bring a legal action to
enforce this chapter.
8.72.130 Non-Retaliation
It is hereby declared to be a violation of public
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pOlicy for a person or employer to discharge, refuse
to hire, or in any manner retaliate against any
employee or applicant for employment because such
employee or applicant exercises any rights afforded by
this chapter.
8.72.140 Other applicable laws.
This chapter shall not be interpreted or
construed to permit smoking where it is otherwise
restricted by other applicable law or regulation.
8.72.150 Severability.
If any provision, clause, sentence or paragraph
of this chapter or the application thereof to any
person or circumstances shall be held invalid, such
invalidi ty shall not affect the other provision of
this chapter which can be given effect without the
invalid provision or application, and to this end the
provisions of this chapter are declare to be
severable."
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AN ORDINANCE...AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO
MUNICIPAL CODE RELATING TO SMOKING
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
day of
meeting thereof, held on the
, 1994, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
DEVLIN
POPE-LUDLAM
MILLER
City Clerk
The foregoing Ordinance is hereby approved this
day
of
, 1994.
Tom Minor, Mayor
City of San Bernardino
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorn~ne1
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By:
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