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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 The City Attorney's office submitted an alternate proposal that Chapter 8.72 should be repealed in its entirety.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