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HomeMy WebLinkAbout2015-09-22 - AGENDA REPORTS - CHAPTER 9.50 TOBACCO CONTROL (2)Agenda Item: 14 CITY OF SANTA CLARITA AGENDA REPORT UNFINISHED BUSINESS CITY MANAGER APPROVAL: DATE: September 22, 2015 SUBJECT: AMENDMENTS TO CHAPTER 9.50 (TOBACCO CONTROL) OF THE SANTA CLARITA MUNICIPAL CODE DEPARTMENT: Community Development PRESENTER: Jessica Frank RECOMMENDED ACTION City Council introduce and pass to second reading an ordinance entitled, "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, PROTECTING PUBLIC HEALTH, SAFETY, AND WELL-BEING BY AMENDING CHAPTER 9.50 (TOBACCO CONTROL) OF THE SANTA CLARITA MUNICIPAL CODE." BACKGROUND On April 28, 2015, staff presented the City Council with a draft ordinance that would make amendments to Chapter 9.50 - Tobacco Control, of the Santa Clarita Municipal Code. The proposed amendments included regulating electronic cigarettes and electronic smoking devices (ESDs) the same as other forms of smoking. This includes prohibiting the use of ESDs in locations where smoking is currently prohibited, including, but not limited to, places of employment, restaurants and bars (except as explicitly allowed by state law), City facilities, City vehicles, public places, City parks, trails, and open spaces. In addition, changes were proposed to prohibit smoking in restaurants and bars, consistent with California Labor Code § 6404.5. After receiving public comment on the item, the City Council requested changes be made to allow sampling of ESDs in vaping stores (similar to sampling allowed for tobacco products in tobacco stores), and asked that the item be continued to a date uncertain. The City Council's requested changes are reflected in Exhibit A, attached to this report. Additionally, staff has compiled information as it relates to ESDs in this report, including public complaints, pending state legislation, health impacts, the use of ESDs by children and teenagers, medical marijuana, and fire hazards for the City Council's consideration. Public Complaints Staff has tallied the complaints received by the City regarding the use of ESDs. There were six written complaints and a minimum of 11 verbal complaints. The complaints were primarily &011� passed to Page 1 Second reading FPacket Pg. 102 regarding use of the devices on public transit and within enclosed public areas, including the mall and public libraries. The changes to the ordinance would prohibit the use of ESDs within all transit vehicles, at transit stations, and within all enclosed public areas, including shopping malls and any library. State Legislation The California Legislature is considering multiple bills that would regulate ESDs in some form. Specifically, two active bills have proposed regulations similar to the amendments proposed by City staff: California Assembly Bill X2 6 (ABX2 6) and California Senate Bill X2 5 (SBX2 5). As currently written, these bills propose to regulate ESDs the same as other tobacco products, and propose to prohibit the use of these devices in places of work, in or around public buildings and vehicles, in many health facilities, in public transportation vehicles, at certified farmer's markets, in schools, and within 25 feet of playgrounds. In addition, they would require child- proof packaging for all cartridges and solutions used in ESDs. Both bills were introduced as part of the Extraordinary Session on Public Health and Developmental Services in mid-July 2015. Because the measures were introduced as part of the Extraordinary Session called by Governor Brown, they are not subject to the same calendar as bills introduced during the Legislature's Regular Session. The 2015 Regular Session concluded on September 11, 2015. ABX2 6 and SBX2 5 will be considered as part of the Second Extraordinary Session this fall and could potentially carry into 2016. Two other bills introduced during the Regular Session that were previously discussed with the City Council have been listed as inactive. One has been ordered to the inactive file (SB24) and the other was abandoned by the author due to amendments made to the bill (SB140). Both bills had largely similar regulations as those proposed in the two active bills mentioned above. In addition, there are other two-year bills still active in the legislative process that may be brought back before the Legislature during the 2016 Regular Session that are related to tobacco and ESDs with regulations not proposed by staff. Proposed changes found in these bills include increasing the minimum smoking age from 18 to 21 and proposals to tax ESDs similar to other tobacco products. Health Impacts According to a 2015 study released by the California Department of Health, State Health Officer's Report on E -Cigarettes: A Community Health Threat, e -cigarettes do not emit water vapor, but instead a concoction of chemicals toxic to human cells in the form of an aerosol. Chemicals in the aerosol travel through the circulatory system to the brain and all organs. Mainstream and second-hand ESD aerosol has been found to contain at least ten chemicals on California's Proposition 65 list of chemicals that are known to cause cancer, birth defects, or other reproductive harm, including the following: • Acetaldehyde • Benzene • Cadmium • Formaldehyde • Isoprene • Nicotine 14' Page 2 Packet Pg. 103 • N-nitrosonornicotine • Toluene • Lead • Nickle The study also reveals that those with second-hand exposure to ESD aerosol absorb nicotine at levels comparable to passive smokers, and as a result would have the same nicotine health related impacts. Nicotine is a highly addictive neurotoxin, proven as addictive as heroin and cocaine. Health impacts from inhalation of nicotine include the following: • Lung inflammation • Asthma • Decreased immune system response, and susceptibility to flu and pneumonia • May lead to constriction of the arteries (increased blood pressure) that could result in a heart attack • May cause an increased insulin resistance, leading to increased risk of Type -2 diabetes • May contribute to hardening of the arteries, which could lead to a heart attack or stroke • Long term effects of exposure to those under the age of 25 include changes to the prefrontal cortex (the part of the brain that handles decision-making) • Exposure to pregnant women can raise the risk of life-threatening complications, reduced blood flow to the fetus, and brain development issues for the child Citing a desire to protect the health and safety of visitors and employees from exposure to smoke and vapor, the National Park Service issued a policy on September 14, 2015, prohibiting ESDs in all places where tobacco smoking is prohibited in national parks, including all facilities and vehicles that are government-owned or leased, and within all national park concession facilities. Contrary to claims that ESDs help smokers successfully quit traditional cigarettes, there is no scientific evidence proving these devices are viable as nicotine replacement therapy or a cessation aid. A 2014 study, A Longitudinal Study of Electronic Cigarette Users (Vickerman, Katrina A. and Carpenter, Kelly M. and Altman, Tamara and Nash, Chelsea M. and Zbikowski, Susan M., v.15, n.10, pp. 1787-1791), found that 89% of e -cigarette users are still using them one year later. A 2013 study conducted by Jean -Francois Etter from the Institute of Social and Preventative Medicine and Chris Bullen from the National Institute for Health Innovation, Use of Electronic Cigarettes Among State Tobacco Cessation Quitline Callers, found that e -cigarette users are one-third less likely to quit cigarettes, indicating that e -cigarettes potentially inhibit people from successfully kicking their nicotine addiction. ESDs and Children and Teenagers One of the significant concerns regarding ESDs is the exposure and increased use of these devices for those under the age of 18. The National Youth Tobacco Survey, an annual survey conducted by the Centers for Disease Control and Prevention and the Food and Drug Administration, found an alarming increase in the usage of ESDs by teenagers and youth in 2011, 2012, and 2013. Specifically, the use of these devices tripled for high school and junior high school students during this three-year period. ESDs have become the new way to introduce and market tobacco products to the youth of America, and are now the most popular tobacco product used by high school and middle school age groups. They are marketed to children, as Page 3 Packet Pg. 104 they are sold in flavors such as bubble gum, cotton candy, gummy bear, and marshmallow. The study also found that in 2013, more than a quarter of a million youth who had never smoked a traditional cigarette used e -cigarettes, a threefold increase since 2011. Youth who used e - cigarettes were nearly twice as likely to try traditional cigarettes as those who never used e - cigarettes. Further, a recent study published by the Journal of the American Medical Association found that teens that used ESDs were far more likely than their peers to start smoking traditional cigarettes and other combustible tobacco products. Further impacts to children have become a cause of great concern. The Center for Disease Control and Prevention announced more than half of the calls to Poison Control Centers related to liquid nicotine poisoning involved small children ingesting the liquid or absorbing it through their eyes or skin. Child -proof packaging and warning labels are not required, as the ESD industry is largely unregulated. In California, incidences of toxic exposure from liquid nicotine used in ESDs rose from 12 reported in 2011 to 243 reported in 2014, most of which were children under the age of six (Los Angeles Times, August 10, 2015). The increased reports of poisoning of children have triggered the Food and Drug Administration to move toward drawing up regulations for ESDs that include regulating the liquid nicotine they use as a tobacco product. It is anticipated the new regulations will be approved by the end of the year, requiring companies to submit applications with ingredients, potential health effects, and information on how the product is manufactured. With the mounting evidence that ESDs are quickly becoming the primary method of nicotine delivery to youth, and considering the direct marketing the industry has aimed at children and youth, staff is recommending to restrict ESD use in places frequented by children, including indoor shopping areas, movie theatres, public facilities like the City libraries, and public -owned lands like parks, trails, and open space. The Governing Board of the William S. Hart Union High School District took action in April of this year to prohibit ESDs on all District properties due to similar concerns. Marijuana /Drug Use As reported by Reuters and NBC news, an increasing number of medical marijuana users are now using ESDs as a method of self-administering marijuana (hash) oil or Tetrahydrocannabinol (THC) infused wax. Users have moved away from the traditional smoking of cannabis due to the perceived lower health risks associated with ESDs compared to traditional smoking. In addition, using ESDs to administer cannabis is preferred by users as the aerosol emitted is nearly odorless and thus more convenient to use in public places, is more potent, and is longer -lasting than smoking traditional marijuana. While medical marijuana dispensaries are prohibited in the City of Santa Clarita, there are dispensaries located in nearby cities. Of growing concern is the link between the use of hash oils and THC infused wax in ESDs by youth. A study released in September 2015, conducted by Meghan Morean, the Assistant Professor of Psychology at the Oberlin College in Ohio, found from 3,800 students surveyed at five Connecticut high schools, 30% had used both cannabis and ESDs, and 15% of those who had used cannabis did so with an ESD. This study reports that THC concentrations of vaporized hash oil and waxes can exceed that of dried cannabis by four to 30 times. Representatives from the Los Angeles Sheriff's Department will be available at the City Council meeting to provide additional comments related to their experience on this subject. Page 4 Packet Pg. 105 Fire Hazard While ESDs are not combustible like traditional cigarettes, the devices operate with a battery that powers a heating element within the electronic cigarette to vaporize a liquid solution. The Federal Emergency Management Agency published a study in October 2014, Electronic Cigarette Fires and Explosions, which found while e -cigarettes can cause fires and explosions, incidents are rare and mostly occur while the batteries for the devices are charging. With more than 2.5 million Americans using e -cigarettes, only 25 incidents of fire related to e -cigarettes were reported to the media between 2009 and 2014. The position of the Los Angeles County Fire Department regarding ESDs is that while they may not pose the same fire hazard as standard cigarettes, ESDs still provide a heat source and therefore may pose a fire hazard. ESDs would be regulated under Los Angeles Fire Code Section 310. This section allows the Fire Code Official to determine when hazardous environmental conditions necessitate controlled use of smoking materials. It allows the Fire Code Official to prohibit the ignition and/or use of ESDs in mountainous, brush -covered, forest -covered, or other designated areas, except in approved designated smoking areas. The use of ESDs may be prohibited in Santa Clarita's open space areas at the discretion of the Fire Code Official. Staff recommends that ESDs be regulated similar to other tobacco products and not be allowed to be used in open space areas. u�11U1u/:1:i`I At the request of the City Council, staff made changes to the draft ordinance to define and allow for sampling of ESDs in any electronic smoking device store. In consideration of the information provided and the changes made at the request of the Council, staff recommends the City Council adopt the attached ordinance. The ordinance defines the use of all forms of ESDs as smoking, therefore prohibiting the use of ESDs similar to other tobacco products, and makes changes to ensure the Municipal Code section that prohibits smoking in restaurants and bars is consistent with California Labor Code § 6404.5. Public Notification On September 1, 2015, staff sent a notification letter regarding this item to those who provided written or verbal comments on the proposed changes to the Tobacco Ordinance at the April 28 City Council meeting. In addition, notification letters were sent to the mailing addresses for all vaping businesses that were mentioned during the public comment session for the agenda item. ALTERNATIVE ACTIONS Other action as determined by the City Council. FISCAL IMPACT None ATTACHMENTS Ordinance with Exhibit A Page 5 Packet Pg. 106 14.a ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, PROTECTING PUBLIC HEALTH, SAFETY, AND WELL-BEING BY AMENDING CHAPTER 9.50 (TOBACCO CONTROL) OF THE SANTA CLARITA MUNICIPAL CODE WHEREAS, electronic smoking devices, or the inhaling and exhaling of vapor, presents a possible health risk to the public; and WHEREAS, the City desires to protect the public health, safety, and welfare of the public in City buildings and facilities, in the workplace, in public spaces, and in City parks that could be exposed to electronic smoking devices or vapor; and WHEREAS, the Santa Clarita Municipal Code currently bans smoking in all City buildings and facilities, in the workplace, in public spaces, and in City parks, but does not currently address electronic smoking devices or vapor; and WHEREAS, the City desires to add electronic smoking devices or vapor to the list of items that are prohibited; and WHEREAS, Chapter 9.50 of the Santa Clarita Municipal Code has not been updated since the enactment of California Labor Code § 6404.5, which prohibits any employer from allowing and any person from engaging in smoking in an enclosed place of employment; and WHEREAS, the City desires to amend Chapter 9.50 to conform to State Law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Amendment of Chapter 9.50. Chapter 9.50 of the Santa Clarita Municipal Code entitled "Tobacco Control" is hereby amended to read in its entirety as shown in Exhibit A, which is attached hereto and incorporated herein by this reference. SECTION 2. If any section, subsection, sentence, clause, phrase, part, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part, or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts, or portions be declared invalid or unconstitutional. SECTION 3. This Ordinance shall become effective thirty (30) days after its passage and adoption. Packet Pg. 107 PASSED, APPROVED, AND ADOPTED this 13th day of October, 2015. MAYOR ATTEST: CITY CLERK DATE: 14.a Packet Pg.108 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF SANTA CLARITA ) I, Kevin Tonoian, City Clerk of the City of Santa Clarita, do hereby certify that the foregoing Ordinance was regularly introduced and placed upon its first reading at a regular meeting of the City Council on the 22nd day of September, 2015. That thereafter, said Ordinance was duly passed and adopted at a regular meeting of the City Council on the 13th day of October, 2015, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: AND I FURTHER CERTIFY that the foregoing is the original of Ordinance No. and was published in The Signal newspaper in accordance with State Law (G.C. 40806). CITY CLERK 14.a Packet Pg. 109 14.a Sections: EXHIBIT A OF ORDINANCE NO. Chapter 9.50 TOBACCO CONTROL 9.50.010 Purpose. 9.50.020 Definitions. 9.50.030 Prohibition of Smoking in City Buildings and City Facilities. 9.50.040 Prohibition on Smoking in Workplaces. 9.50.050 Smoking in Public Places. 9.50.055 Smoking in City Parks. 9.50.060 Posting of Signs. 9.50.065 Tobacco Vending Machines Prohibited. 9.50.070 Violations—Penalties. 9.50.010 Purpose. ......................................... A. The City Council finds that numerous studies have shown that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a significant health hazard for several population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. B. Health hazards induced by breathing secondhand smoke also include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchioconstriction, and bronchospasm. Nonsmokers who suffer allergies, respiratory diseases and other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions. C. The U.S. Surgeon General has declared that nicotine is as addictive as cocaine or heroin; no other addictive product or drug, or cancer-causing product or drug is sold through vending machines. Further, the U.S. Secretary of Health and Human Services, the U.S. Surgeon General, and leading voluntary health organizations all recommend the elimination of cigarette vending machines for health reasons. Packet Pg. 110 14.a D. For all of these reasons, the City Council finds that the provisions of this chapter are essential to protect the public health, safety, and welfare. (Ord. 94-8, 6/14/94) 9.50.020 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: "Bar" means premises licensed, with any type of license, and maintained and operated for the selling or serving of alcoholic beverages to the public for consumption on the premises. Food products may be sold or served incidentally to the sale or service of alcoholic beverages. "Director" means the Director of Parks, Recreation, and Community Services, or other person authorized by the Director pursuant to law. "Electronic smokiniz device" means any product used to deliver vapor for inhalation. This includes every variation or type of such devices, including but not limited to, electronic cijZarettes, electronic cigars, electronic cigarillos, electronic pipes, electronic hookahs, or any other similar products. This does not include any medical devices such as asthma inhalers or similar equipment, or vaporizers designed to treat a medical condition by increasing vapor or humidity in a room rather than via direct inhalation. "Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls. Said walls may be penetrated by windows, doors, or passageways. "Home occupation" means any use within a dwelling which has been issued a valid home occupation permit by the City of Santa Clarita. "Incidental food sales/service" means the sale or service of food products in a bar if said sales/service constitutes less than twenty-five percent (25%) of the annual gross income of the bar, an amount higher than twenty-five percent (25%) of sales/service of food products constitutes a premises other than a bar. "Park" means every park, roadside rest, golf course, riding and hiking trail, open space easement to which the public has an unrestricted right of access and use for park or recreation purposes, and every other recreation facility owned, managed, or controlled by the City and under the jurisdiction of the Director. Packet Pg. 111 14.a "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, shopping malls, laundromats, public transportation facilities, reception areas, retail food production and marketing establishments, retail service establishments, retail stores, hotels and motels, theaters and waiting rooms. "Restaurant" means a place which is regularly, and in a bona fide manner, used and kept open for the serving of meals to guests for compensation, and which has suitable kitchen facilities connected therewith, containing conveniences for cooking an assortment of foods which may be required for ordinary meals. "Retail electronic smoking device store" means a retail establishment utilized primarily for the sale of electronic smoking device products and accessories, and in which the sale of other products is merely incidental. "Retail tobacco store" means a retail utilized primarily for the sale of tobacco products and accessories, and in which the sale of other products is merely incidental. "Separate ventilation system" means a system which is exhausted to the outside and negatively pressurized. "Smoke or smoking" means inhaling exhaling, bumin,,, lighted ^ ro**� > ^r rYlant i ^ f fm holding carrying, burning, emitting, inhaling, or exhaling the fumes or vapor of a lighted or activated pipe, cigar, cigarette, electronic smoking device, or anv other lighted smoking eauipment used for burning anv tobacco product. weed. lant, or any other combustible substance. "Tobacco vending machine" means any machine or device designed for or used for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coins, bills, trade checks, or slugs. "Workplace" shall mean any enclosed area which is normally occupied by two (2) or more employees of a commercial enterprise, nonprofit entity, or the City of Santa Clarita; or any office that shares a heating, ventilation, and air conditioning system with a workplace. (Ord. 94-8, 6/14/94; Ord. 06-9 § 1, 11/28/06) Packet Pg. 112 9.50.030 Prohibition of Smoking in City Buildings and City Facilities. Without any limitation on Section 9.50.040, it is unlawful for any person to smoke within any portion of the Santa Clarita City Hall structure which is reserved for City functions or business, or any other City facilities, out buildings or satellite offices, except where specifically designated. (Ord. 94-8, 6/14/94) 9.50.040 Prohibition on Smoking in Workplaces........................................................................................... A. Smoking is prohibited and is unlawful in all workplaces of commercial enterprises, nonprofit entities and all City -owned and managed buildings and vehicles, including but not limited to open office areas, shared offices, private offices, hallways, restrooms, escalators, elevators, stairways, lobbies, reception areas, waiting rooms, classrooms, meeting or conference rooms and auditoriums. B. On-site workplace cafeterias, lunchrooms, and lounges shall be deemed workplaces and smoking is prohibited, whether or not such facilities are open to members of the general public. C. Each commercial enterprise, nonprofit entity, and the City shall comply with these smoking prohibitions and be responsible for their implementation in the workplace, and "No Smoking" signs shall be posted in the manner prescribed in Section 9.50.060. D. Notwithstanding this section, a private residence including either an attached or detached garage shall not constitute a workplace, except when the residence serves as a child care or health care facility licensed pursuant to applicable State law. (Ord. 94-8, 6/14/94) 9.50.050 Smoking in Public Places. . ............... I..... __ ............................. ........................................ ................. . A. Except as otherwise provided, it is unlawful for any person to smoke in any public place within the City of Santa Clarita. B. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this section: 1. Private residences, except when used as a child care or health care facility licensed pursuant to applicable State law. 2. Dwellings used for home occupations. 3. Retail tobacco or electronic smokiniz device stores. 14.a Packet Pg. 113 14.a 4. A maximum of fifty percent (50%) of the guest rooms in hotels and motels. 5. Bars and restaurants where explicitly allowed by State law. 6. Conference, banquet, or meeting rooms of private clubs or fraternal organizations when used exclusively by members or guests of the clubs or organizations. Such clubs and organizations shall designate, and make available to their employees, nonsmoking areas. 7. An enclosed place of employment which employs only the owner and no other employee, provided that: a. The place of employment is not a public place; and b. The enclosed area containing the place of employment has a separate ventilation system and does not share a ventilation system with any other enclosed place of employment or public place. C. The owner of any area exempted from the provisions of this section by subsection B of this section may nevertheless designate such an area as a nonsmoking area. If such an area is so designated, it is unlawful for any person to smoke in such an area. (Ord. 94-8, 6/14/94) 9.50.055 Smoking in City Parks. ......................................................................................................................................... Except as otherwise provided, it is unlawful for any person to smoke in any park in the City of Santa Clarita. (Ord. 06-9 § 2, 11/28/06) 9.50.060 Posting of Signs. A. Every owner, operator, manager, or other having control of an enclosed area regulated by this chapter shall conspicuously post at all exterior entrances to the enclosed area a "No Smoking" sign or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it). B. Every owner, operator, manager, or other person having control of a restaurant excepted from regulation by this chapter shall conspicuously post, visible at all exterior entrances to the enclosed area, signs indicating that the restaurant allows smoking or does not allow smoking, or Packet Pg. 114 14.a does not allow smoking in certain portions of the restaurant. Said posting shall include a written description of the smoking policy in effect in said restaurant. (Ord. 94-8, 6/14/94) 9.50.065 Tobacco Vending Machines Prohibited. No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a vending machine or appliance, or any other device designated or used for vending purposes. (Ord. 94-8, 6/14/94) 9.50.070 Violations—Penalties. Any person who violates any provision of, or fails to comply with any requirement of, this chapter is guilty of an infraction and shall be punished in accordance with Section 1.01.200 of this code. The City Manager and City Code Enforcement Officers of the City are authorized and directed to enforce the provisions of this chapter. (Ord. 94-8, 6/14/94) Packet Pg. 115