TO:
Honorable Mayor and Members of the City Council
THROUGH:
John Jalili, Interim City Manager
FROM:
Tony Olmos, Public Works Director
Sona Coffee, Environmental Programs Manager
SUBJECT:Title
Direct Staff to Prepare Amendments to Smoking Regulations (Continued from the September 17, 2013 City Council Meeting) (Public Works Director Olmos).
DISCUSS AND PROVIDE DIRECTION
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Recommended Action
RECOMMENDATION:
Staff recommend that the City Council direct staff to prepare an ordinance to amend existing smoking regulations to include a citywide smoking ban, and include the use of electronic smoking devices in the definition of smoking.
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FISCAL IMPLICATIONS:
If the City Council decides to amend the existing smoking regulations, Staff time and funding will be needed to prepare the ordinance, create and distribute outreach materials, and educate businesses and the public about the ordinance. An estimated $8,000 for outreach and advertising materials will be added to the FY 2014-2015 budget to accommodate this program if an amendment is approved. The Surfrider Foundation has also offered to donate these ashtrays (about 20) to place in areas where smoking is not prohibited. Should City Council decide to purchase and install ashtrays or trashcans with a printed "No Smoking" message, additional funds may be required (the units cost is approximately $160 each). Grant opportunities might also be available to help offset any additional cost.
BACKGROUND:
City Council directed staff to explore the possibility of expanding the City's existing smoking regulations. Staff reviewed State law, the City's existing smoking regulations, and the City's regulatory responsibility to prevent litter from discharging into the Santa Monica Bay.
The American Lung Association definitions of "Citywide" and "Comprehensive" smoking ordinances were also reviewed in an effort to discuss measures that would prevent exposure to second-hand smoke, and prevent litter to the marine environment. A citywide, or inclusive, smoking ordinance bans smoking in all public places in the community. A comprehensive, or listing, ordinance specifically lists the places where smoking is prohibited. Both approaches are considered comprehensive in nature, and seen as successful by the American Lung Association.
State Laws Regulating Smoking
State law prohibits the smoking of tobacco products in all enclosed places of employment, including restaurants and bars. State law also prohibits smoking inside a public building, and in any outdoor area within 20 feet of a main exit/entrance or operable window of a public building. Finally, State law prohibits smoking within 25 feet of any playground or tot lot sandbox area. Neither State law nor the City's Municipal Code currently prohibits smoking in outdoor dining areas.
The American Lung Association's "State of Tobacco Control 2014 - California Local Grades" report issues grades for all 482 cities and 58 counties in California on policies for smokefree outdoor air, smokefree housing, and reducing sales of tobacco products. California received an "A" grade for policies on smokefree air, but the State's policies still leave approximately 1.5 million workers at risk of exposure to secondhand smoke in their place of employment.
Existing City of Manhattan Beach Smoking Regulations
The City's Municipal Code already prohibits smoking on beaches, parks, on The Strand, Greenbelt (Chapter 12.12 of the Municipal Code), and in certain places of public employment. The regulations regarding places of public employment, codified in Chapter 4.116, were adopted in 1987 and are partially preempted by State law. For example, the existing Municipal Code allows smoking within bars, which is no longer allowed under State law.
The City's existing smoking regulations are not comprehensive enough to earn high marks in the American Lung Association's annual report, leaving Manhattan Beach with an "F" grade. The City's existing regulations touch on some areas of the smokefree outdoor air category, but do not address smokefree housing, or the sale of tobacco products. Please refer to the Executive Summary of the State of Tobacco Control 2014 and the California Local Grades for Los Angeles County in Attachment 1.
Town Hall Meeting to Discuss Outdoor Smoking Regulations
To solicit feedback from the public on expanding the City's smoking ordinance, City staff coordinated a Town Hall meeting on April 15, 2013, and gathered input from the community, including residents, businesses, visitors, and experts.
At the Town Hall meeting, the following issues were discussed: health impacts of second-hand and third-hand smoke; environmental impacts of cigarette usage; other cities' experiences with smoke-free ordinances; and options for expanding the City's existing ordinance. Staff presented the following options for an outdoor smoking policy:
• Expand the existing ordinance to include outdoor dining, shopping, and other public gathering places;
• Expand the existing ordinance to include all of the above, plus sidewalks (this alternative would designate specific areas where smoking would be permitted);
• Develop a Citywide prohibition that would include all outdoor public places (excluding private property).
At this meeting, the public had a chance to ask questions and raise any concerns they had regarding an expanded smoking ordinance to the experts gathered. Support for a citywide smoking ordinance was voiced at the meeting, as was a concern that smoking ordinances are not necessary and no regulation is needed.
City Responsibility for Debris Discharged into the Marine Environment
A significant source of litter on local beaches includes cigarette butts. The State Water Resources Control Board (SWRCB) conservatively estimates, "
that each month in Los Angeles County, residents contribute to storm water pollution by dropping cigarette butts on the ground nearly 915,000 times."
Further, according to the SWRCB:
"Storm water pollution in Los Angeles County has significant impacts on the region's water quality, while also posing risks to the health and safety of residents, degrading natural resources, threatening the area's tourist driven economy and lowering property values in local neighborhoods."
An expansion of the City's smoking policies would lead to a reduction in cigarette litter that is deposited into the storm drain system by limiting the areas in the public right of away available for smoking.
Extension of Stormwater Compliance Requirements
To aid in the protection of the marine environment, the Los Angeles Regional Water Quality Control Board adopted a resolution incorporating a Total Maximum Daily Load (TMDL) for Debris for Nearshore and Offshore Santa Monica Bay. The City of Manhattan Beach is identified as a responsible jurisdiction for the debris discharged to the marine environment through storm drains, i.e., point sources associated with operation of the municipal separate storm sewer system (MS4).
The City recently submitted a Trash Monitoring and Reporting Plan (TMRP) to meet the first deadline in the implementation schedule of the TMDL requirements. By voluntarily adopting the plastic bag, polystyrene, and outdoor smoking ordinances the City's compliance schedule may be revised to include a three‐year extension of the final compliance date, in accordance with the TMDL provisions.
Exposure to Second-hand Smoke
The U.S. Surgeon General concluded that there is no risk-free level of exposure to second-hand smoke. Further, in the 2014 Health Consequences of Smoking report, the Surgeon General found that: "If smoking persists at the current rate among young adults in this country, 5.6 million of today's Americans younger than 18 years of age are projected to die prematurely from a smoking-related illness" (Attachment 2, The Health Consequences of Smoking).
Comprehensive smoking ordinances provide protection to the most number of people and reduce exposure to secondhand smoke. The movement by local governments to adopt comprehensive outdoor smoking ordinances is summarized by the American Lung Association:
"Secondhand smoke exposure is proven to be harmful at any level, including exposure experienced outdoors. As a result, many cities and counties in California have taken steps to protect their residents from the dangers of secondhand smoke exposure by passing ordinances that restrict smoking in outdoor areas where people congregate. While some cities and counties prohibit smoking in only one type of outdoor area, many cities have passed comprehensive ordinances that prohibit smoking in most outdoor areas." (Attachment 3: Comprehensive Outdoor Secondhand Smoke Ordinances)
"Comprehensive" Outdoor Smoking Ordinance
Nearly 70 cities in California have adopted outdoor smoking ordinances that are considered comprehensive in scope and include protections in many areas of the community. To be considered a "Comprehensive" outdoor smoking ordinance by the American Lung Association, an ordinance must incorporate at least five of the following seven measures:
1. Dining Areas - defined as outdoor seating at restaurants, bars, etc.
2. Entryways - defined as within a certain distance of doors, windows, and other openings into enclosed areas
3. Public Events - defined as farmer's markets, fairs, concerts, etc.
4. Recreation Areas - defined as parks, beaches, trails, sports fields, etc.
5. Service Areas - defined as bus stops, ATM lines, ticket lines, taxi stands, etc.
6. Sidewalks - defined as public sidewalks, such as sidewalks around downtown shopping and business areas
7. Worksites - defined as any outdoor working areas, such as construction areas.
DISCUSSION:
As part of the City's Strategic Plan process, City Council was asked to consider an expansion of the City's existing smoking regulations to include a "Tobacco-Free Policy for all Public Places" - in part, to support its commitment to the Blue Zones initiative. Following these efforts, the City Council Subcommittee directed staff to develop an option for a citywide smoking ban, which would go beyond what is required in order to be considered a "comprehensive" smoking ordinance.
Staff has found that an expanded smoking prohibition would reduce the litter and pollution impacts associated with cigarettes, as well as decrease exposure to second-hand and third-hand smoke. The discussion of this item includes options for expanding the ordinance, impacts of outdoor smoking regulations, outreach, and enforcement.
Expanding the City's Definition of Smoking
Recent policies from other local governments have included electronic cigarettes in the definition of smoking. Staff recommend that the City Council consider prohibiting the use of electronic smoking devices (commonly known as e-cigarettes) in all locations where smoking is prohibited.
Electronic Smoking Devices
Electronic smoking devices are best described as battery operated devices that are filled with liquid nicotine, rather than tobacco, and create a vapor inhaler. The U.S. Food and Drug Administration conducted laboratory analysis of e-cigarette samples and found they contained carcinogens and toxic chemicals to which users and bystanders could be partially exposed. Staff and the City Council Subcommittee recommend that any amendment to the City's smoking regulations prohibit the use of electronic smoking devices (e-cigarettes, nicotine vapor dispensers, etc.) everywhere that smoking is prohibited. Other local governments are also regulating the use of electronic cigarettes in locations where smoking is prohibited. The cities of Los Angeles, Long Beach, and Alhambra are among the local governments including e-cigarettes in their definition of smoking.
The State Legislature is currently considering whether to regulate the use and advertising of e-cigarettes. Proposed Senate Bill 648 would include e-cigarettes in the definition of "tobacco products" for the purposes of the State smoking prohibitions described above. A committee hearing on that bill has been postponed and it is not clear when SB 648 will be adopted. A separate bill, Senate Bill 568, would restrict advertising e-cigarettes on the internet to minors. That bill was passed by the Legislature, and approved by the Governor.
Citywide vs. Comprehensive Smoking Regulations
Strengthening the City's existing smoking regulations is feasible for implementation in the community. The City Council Subcommittee and staff recommend expanding existing regulations to create a citywide smoking ban ordinance. Alternatively, a comprehensive smoking ordinance can be considered incorporating designated smoking areas.
Citywide Smoking Ban Ordinance
Given the feedback received at the Town Hall meeting and the discussion of the City Council Subcommittee, Staff requests that City Council discuss whether a prohibition on smoking citywide (excluding private property) should be adopted.
The City of Coronado's recently enacted smoking ordinance is citywide, meaning smoking is not allowed on any public property, street, alley, rights of way, parkways, sidewalks, parking lots and pathways. The Coronado ordinance does not include any designated smoking areas in an effort to promote a smoke-free community. Smoking is allowed on private property, and the Coronado Golf Course, as long as these areas are at least 25 feet from a doorway or window of an enclosed building in which indoor smoking is prohibited by the State (e.g. places of employment, including restaurants and bars).
If desired, designated smoking areas could be incorporated into a citywide ordinance, such as in the City of Calabasas. However, these locations would need to be selected and vetted with the community and surrounding businesses before being designated as public smoking areas. In the case of Calabasas, they are a small community with shopping and retail areas adjacent to parking structures, and decided to designate these parking structures as smoking areas.
In either scenario, Staff recommends that cigarette disposal locations be incorporated throughout the community, particularly in high traffic dining and retail areas in order to capture cigarette litter. This placement should occur even if a citywide smoking ordinance is developed so that tourists and others unfamiliar with any new smoking regulations will have a proper place to dispose of cigarettes. Initial outreach with local businesses and restaurants indicates that several businesses would like the City to install ashtrays near their entrances to encourage customers to properly dispose of their cigarettes instead of littering.
Comprehensive Smoking Ordinance
City Council can also choose to prohibit smoking in specific areas. Seven areas are outlined below, at least five of which need to be implemented for consideration as a comprehensive smoking ordinance:
1. Outdoor dining and common shopping areas/plazas (e.g., Metlox)
2. Entryways: Within 20 feet of doorways and operable windows of offices, outdoor dining areas, and common shopping areas/plazas
3. All Public Events (e.g., farmers' markets)
4. All public property and/or parking lots/garages (unless specifically exempted to allow smoking or cigarette disposal)
5. Within 20 feet of all bus stops, taxi stands, movie lines, ATM lines, and mobile vendor lines
6. Sidewalks - defined as public sidewalks, such as sidewalks around downtown shopping and business areas
7. Worksites - defined as any outdoor working areas, such as construction areas.
Several other cities maintain a non-smoking distance of 20-feet from entryways and windows of shopping and dining areas (e.g. Alameda, Belmont, Calabasas, San Fernando), and staff recommends that Council should consider a similar requirement, if a citywide ordinance is not selected. If a prohibition on smoking in public places incorporates a 20-foot distance, this may create a "smoke-free zone" in some retail areas, such as Downtown Manhattan Beach or North Manhattan Beach. However, designated smoking areas and cigarette disposal locations can be provided to accommodate smokers and capture cigarette litter.
Impacts and Benefits of Regulating Outdoor Smoking
There are several impacts and benefits associated with outdoor smoking policies. (Refer to Attachment 4: Supporting Documentation Regarding Smoking Ordinances for the resource references for the points mentioned below.)
Potential Adverse Impacts of Outdoor Smoking Policies
Outdoor smoking ordinance may have the following impacts:
• Inconvenience to those people who smoke
• Business owners may fear loss of business from smokers
• Perception of ordinance to be authoritarian or overprotective
Potential Benefits of Outdoor Smoking Policies
The potential benefits to the community and local businesses of prohibiting smoking in the above mentioned areas include:
• Public health benefits from elimination of second hand smoke exposure (Department of Health and Human Services lists tobacco-related illness as the leading cause of preventable death in the United States)
• Healthy image perceptions of the City overall and of businesses in Manhattan Beach (According to the California Department of Public Health, creating smokefree areas helps protect the health of the 86.9% of Californians who are nonsmokers)
• Prevention of second-hand smoke from entering areas already legislated as non-smoking (Smoking cigarettes near building entryways can increase air pollution levels by more than two times as compared to background levels)
• Smoke free areas provide more pleasant and comfortable shopping and dining experiences (Levels of second-hand smoke exposure outdoors can reach levels attained indoors depending on direction and amount of wind and number and proximity of smokers)
• There is evidence that smokefree legislation does not hurt restaurant or bar businesses, and in some cases business may improve (Historically, some restaurant and bar-owners claim that smoking regulations adversely affect business; however, the City of Beverly Hills found that patronage and sales at local restaurants was not impacted by their outdoor smoking ordinance, and that sales actually improved)
• Reduced opportunities for children to learn smoking behaviors from adults
• Less cigarette butt litter (It is estimated that Americans discard more than 175 million pounds of cigarette butts every year)
• Incentive to stop smoking
Outreach and Implementation
To successfully implement an ordinance containing more extensive smoking regulations, the City will need to make the public aware of the locations where smoking is prohibited, and provide resources to assist the businesses in self-regulation of the ordinance. The educational platform may include signage, publications, website notices, and staff outreach. The Surfrider Foundation has offered to assist the City in its implementation of smoke-free policies by providing cigarette receptacles in highly trafficked areas, where smoking is not prohibited, to direct smoking to limited areas and prevent cigarette litter from entering local storm drains.
Staff has conducted initial outreach to the Chamber of Commerce, Downtown Business and Professional Association, and North Manhattan Beach Business Improvement District to solicit feedback on the proposed expansion of the smoking regulations, as well as identify suitable locations to place cigarette receptacles to prevent litter and direct smoking to limited areas in the City. During implementation of the ordinance, some locations may fall into areas that would initially be included in an outdoor smoking ordinance. If selected, these areas could be exempted in order to provide a location for smokers if a designated area is created, or provide an appropriate disposal site for smokers to put out their cigarettes. Several businesses have already created designated outdoor smoking areas for their customers.
An expanded smoking ordinance is widely supported throughout the community, and Attachment 5 includes several letters of support. Further, the Behavioral Health Services organization conducted surveys of residents and local businesses, and Attachment 6 shows that:
· 87.2% of respondents support smoke-free outdoor dining;
· 84.5% of respondents support smoke-free doorways and windows; and
· 82.1% of respondents support smoke-free service areas (bus stops and ATM lines).
Many restaurants in Manhattan Beach have been smoke-free voluntarily for several years, as is the Shade Hotel. In addition, twenty-two local restaurants have indicated their support for an expanded outdoor smoking policy (Attachment 7).
Enforcement
Staff contacted the City of Beverly Hills, which prohibits smoking in outdoor dining areas. Even though thousands of U.S. and international smokers visit Beverly Hills each year, many of whom are not accustomed to California's smoking bans, Beverly Hills staff has not had issues with enforcing their ordinance. In addition, Beverly Hills staff indicated that due to extensive outreach to businesses, the ordinance has been mostly self-regulating, and has not adversely impacted restaurant business.
According to the American Lung Association, comprehensive smoking ordinances are designed to be self-enforcing. The intent is not to have police officers spend time searching for people who are smoking in public places. Instead, the public will become aware of the smoking restrictions through education and signage, and subsequently obey the law. Nonetheless, the City may include provisions in any proposed ordinance making a violation of the smoking prohibition punishable as an infraction. Violations of existing Municipal Code provisions prohibiting smoking are already punishable as infractions.
Calabasas and Coronado also have enforcement and fine structures in place, and will utilize Code Enforcement personnel to issue citations, supported by Police Department personnel if warranted. Staff recommends a similar approach, with the Public Works Department staff issuing warning letters to any businesses in non-compliance to obtain compliance with the ordinance first.
CONCLUSION:
Staff recommend that the City Council direct staff to prepare an ordinance to amend existing smoking regulations to include a citywide smoking prohibition, and include the use of electronic smoking devices in the definition of smoking. Thereafter, Staff will prepare a draft ordinance amending the City's smoking regulations to bring back for Council's consideration.
Attachments:
1. State of Tobacco Control 2014 and the California Local Grades for Los Angeles County
2. The Health Consequences of Smoking, 2014 U.S. Surgeon General Report
3. Comprehensive Outdoor Secondhand Smoke Ordinances
4. Supporting Documentation Regarding Smoking Ordinances
5. Letters of Support
6. Behavioral Health Services Public Opinions Surveys on Smoke-Free Outdoor Area Policies
7. Manhattan Beach Restaurants Support Outdoor Smoking Ordinance