Consider Report on Proposal to Amend Smoking OrdinanceCOUNCIL AGENDA
DATE: 3/6/95
ITEM NO. c>2 /
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
DATE: March 2, 1995
TO: MAYOR AND TOWN COUNCIL
FROM: TOWN MANAGER
SUBJECT: CONSIDER REPORT ON PROPOSAL TO AMEND SMOKING ORDINANCE.
RECOMMENDATION:
For Council information. No action is required.
DISCUSSION:
Dr. David Weissman has requested that the Town amend the smoking ordinance as shown on Attachment
1. The main thrust of the amendment would ban smoking in all bars. The new state law regulating smoking
that went into effect on January 1, 1995 already bans smoking in some areas where the Town's ordinance
does not. The Police Department has to enforce these new regulations as well as the Town's regulations.
State law will extend the smoking ban to all bars on January 1, 1997, unless CAL OSHA or the EPA
establishes a regulation or standard for adequate ventilation. This is not likely given the present mood in
Washington D.C.
There is no evidence that the bar owners support this new regulation. Enacting the amendments would
constitute a new level of service that cannot be accommodated without additional personnel. Town staff
is already identifying reductions in service levels to reflect next year's budget cuts.
PREPARED BY:
LEE E. BOWMAN
Planning Director
LEB:DRR:sm 3/2/95 3:32 pm
a:\sharon\CNCLRPTS\SMOKING.36
ATTACHMENT: Dr. Weissman's proposed amended ordinance
DISTRIBUTION: Dr. David Weissman, 15431 Francis Oaks Way, Los Gatos, CA 95032
Calif. Business and Restaurant Alliance, Attn: Stacey Bailey, 2265 Westwood Blvd.,
#481, Los Angeles, CA 90064
Reviewed by:
Attorney Clerk Finance Treasurer
COUNCIL ACTION/ACTION DIRECTED TO:
FT
ORDINANCE 1880
AN ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING SECTION 18.60.010 OF THE TOWN CODE
REGARDING THE REGULATION OF SMOKING IN PUBLIC PLACES
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY ORDAIN:
SECTION I
Section 18.60.010 of the Town Code is amended to read as follows:
Sec. 18.60.010 Smoking in public places and places of employment.
(a) Findings and Purpose. Numerous studies have found that tobacco smoke is a
major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of
disease, including lung cancer, in nonsmokers. At special risk are minors, elderly people,
pregnant women, individuals with cardiovascular disease, and individuals with impaired
respiratory function, including asthmatics and those with obstructive airway disease.
Health hazards induced by breathing secondhand smoke and being in smoking
environments include lung cancer, heart disease, respiratory infection, decreased respiratory
function, birth defects, bronchoconstriction, and bronchospasm.
Accordingly, the Town Council finds and declares that the purposes of this section are (1)
to protect the public health and welfare by prohibiting smoking in public places and places of
employment; and (2) to guarantee the right of nonsmokers to breathe smoke -free air, and to
recognize that the need to breathe smoke -free air shall have priority over the desire to smoke.
13- Definitions. For the purposes of this section, the following definitions shall
apply:
(1) Bar: A place which serves alcoholic
beverages for consumption on -site to the general public in which the serving of food is
incidental to the consumption of such beverages.
(2) Eating Establishment: Any restaurant, coffee shop, cafeteria, soda fountain, cafe
or other establishment primarily engaged in serving food and/or beverages to the general
ATTACHMENT 1
AFT
public.
bever-ages
(b) is negatively pressured; and
(c) either;
cti .,t,ich Aped with sel£closing doors
which p0 nt thy. n 0 of s oke when closed '
4(3) Employee: Any person who is employed by an employer in consideration for
direct or indirect monetary wages or profit.
3(4) Employer: Any person or corporation including public agencies who employs the
services of an individual person for compensation for services to be rendered.
6(5) Enclosed Public Place: A public space enclosed on all sides by walls, partitions,
windows, or similar barriers (exclusive of ingress/egress) open to the general public, including but
not limited to retail buildings, restaurants, theatres, museums, art galleries and similar structures.
7(6j No Smoking Sign: A sign in letters not less than one inch in height printed on a
contrasting background which states that smoking is not allowed or a sign which displays 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.
8(7) Medical Care Facility: Any health facility as defined in Section 1200 or 1250 of
the Public Health and Safety Code, or any facility in which a physician provides health care to
2
FT
patients.
9(8) Public Building: Any building or portion thereof owned or leased by the Town or
any local government entity subject to Town zoning requirements.
4-9(9) Retail Tobacco Store: A retail store utilized primarily for the sale of tobacco
products and accessories and in which the sale of other products is only incidental.
1(10) Smoking: The act of inhaling/exhaling, burning or carrying any lighted tobacco
product or by-product including cigarettes, cigars, pipes that burn tobacco or other plant material.
(11) Sports Arena: means sports pavilions; gyninasiuns health spas, boxing arenas,
swimming pools, roller and ice rinks, bowling alleys, pool halls, and other similar places where
members ofthe public assemble indoors to engage in physical exercise, participate in athletic
competition;or witness sports events.
12(12) Workplace: Any enclosed area under the control of a public or private employer
which employees normally frequent during the course of employment, including but not limited to
work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias
and hallways.
(c) Prohibition of smoking in public places.
(1) Smoking shall be prohibited in all enclosed public places open to the general public
within the Town of Los Gatos including but not limited to the following places:
a. Elevators.
b. Public Buildings.
c. Medical Health Facilities.
d. Eating establishments:
(i) After January 1, 1992 in all but 25% of the seating;
(ii) After January 1, 1993 in all seating.
e. Retail stores (except retail tobacco stores).
f. Theaters, Auditoriums, Museums and Art Galleries, exceprhen~sinoking
is part bf any such performance.
3
PFT
g. Hotels and motels.
Sports arena:
Polling places.
j. All enclosed areas of private clubs.
k. Areas available to or open to and customarily used by the general public in
all business and non-profit entities; including but not limited to, offices;
(such as the offices of attorneys, doctors, accountants, other professionals,
`
and service providers), banks; and churches:
}. Bingo halls.
m: Lobbies, hallways, and other common areas in apartment buildings;
condominiums, senior citizen residences, nursing homes, and other
multiple -unit residential facilities
Bars.
o Any form of public transportation:
2. Smoking shall be prohibited in the following outdoor areas:
a. Seating being used in connection with public events including
entertainment, speaking performances, ceremonies and pageants, sporting events.
b. Seating provided by eating establishments
(d) Regulation of smoking in the private workplace.
(1) Within 90 36 days of the effective date of this ordinance, each employer shall
adopt, implement, and maintain a written smoking policy relating to smoking in the work
place which shall contain at a minimum the following:
a. Proh:bitio ,.a s .,kin of ro o nd mectin cl
. Smoking shall be prohibited in all
enclosed facilities within a place of employment without exception. This include§
•
common,. work areas, auditoriums, classrooms, conference and""meeting rooms
private offices; elevators, hallways, medical"fkilliies cafeterias,'emplayee lounges;
4
AFT
stairs, restrooms, locker rooms, dressing areas, and all other enclosed facilities:
b Dr nd ♦ f ., nteof not le
ini�uiia+�. v : l e
th r th' ds .file seatir apacity and floor a h c..fter:
Drovisions an ntenanee of a ntiguous n oking of not Tess
tha t thuds ofthcoe atin city, fl� nd_che plo e e to t the d: et: of the plor7 here the e a the ch 1. e
ene-baildin
e
d and ntatcd. il
,ii." ratee .
fib. Any employee in the private work place shall be given the right to
designate his or her immediate area as a non-smoking area and to post it with
appropriate signs or sign. The policy adopted by the employer shall include a
definition of the term immediate work area which gives preferential consideration
to nonsmokers.
e-c. In any dispute arising under the smoking policy, the rights of the
nonsmoker shall be given precedence.
(e) Exceptions. Nothing in this section shall be construed to restrict smoking in the
following areas, except as described below:
(1) Retail Tobacco Stores
(2) Private Residences (except when used for family day care, health care facility, or
community careefacility)
(3) ,
f employment which employsonly the owner and no other
employee, provided that the enclosed place of employment does not share..a
ventilation system with any other enclosed place of employment or public placez
5
(4) Any property owned or leased by other governmental agencies which is not subject
to the Town's zoning authority
5. Bars
6. Eating Establishment-atIrs
7-(5) Private hotel and motel rooms
(i) After January 1, 1992, a maximum of fifty (50) percent may be dedicated
as smoking rooms;
(ii) After January 1, 1993, a maximum of thirty-three and one-third (33 1/3)
percent may be dedicated as smoking rooms.
6 Any portion of a place of employment which is not enclosed.
7 Notwithstanding any other provision of this section, any owner, operator, manager
or other person who controls any property may prohibit smoking within the entire
property or a portion of the property:
(f) Posting signs. No Smoking signs shall be clearly and conspicuously posted in at
every entrance of every building or other place where smoking is regulated by this section, by the
owner, operator, manager or other person having control of such building or other place.
(g)
(1)
Smoking -- Penalties.
Owners, operators, property managers and officers of homeowners' associations
for residential properties will be deemed to not be in violation of the requirements of this
Section, and of their obligation to enforce the prohibitions in this section, if they have
posted signs, in accordance with the provisions of this section and have given.written
notice to'violator(s) of this section that the violator(s)' actions are in violation of the Town
Cod
442) Any person who violates this section by failing to post signs or failing to establish
policies and procedures, is guilty of an infraction and subject to a civil penalty of one
hundred dollars ($100) and the cost of enforcing this section which shall include all costs,
staff and attorney time. Such persons shall be deemed to have committed a separate
6
RAFT
offense for each and every day during any portion of which any violation of this section is
committed or permitted.
243) Any person who smokes where smoking is prohibited when signs are posted in the
required manner is guilty of an infraction- punishable by:
a: A fine not exceeding one hundred dollars ($100.00) for a first violation.
b. A fine not exceeding two hundred dollars ($200.00) for a second violation.
c. A fine not exceeding five hundred dollars ($500.00) for each additional
violation within one (1) year.
SECTION III
It shall be unlawful for any person to take any retaliatory action against any person who
has asserted a right to a smoke -free environment pursuant to this Ordinance.
SECTION IV
If any provision, clauses section, sentence or paragraph of this ordinance or the application
thereof tG any'persorf or circumstances shall be held invalid; such invalidity; shall not affect the
other provisions of this ordinance which can be given effect without, the invalidprovision or
application; and to this end the provisions of this ordinance are declared to be severable:
SECTION V
This cnaptei shinterpreted or construed to`permit smoking where if is`otherwis
restricted,i j o��e ap33Plica�il. fiealtF "safety°orfire codes,
SECTION:.V1
This Ordinance takes effect , 1995. Within 15 days after this Ordinance
7
r4'. 0 A pi T
is adopted the Town clerk shall cause it to be published once in a newspaper of general circulation
published and circulated in the Town.
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on , 1995 and adopted by the following vote as an ordinance of
the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on
, 1995.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
ATTEST:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK OF THE TOWN OF LOS GATOS
LOS. GATOS, CALIFORNIA
C:IWPFILESICNCLRPTSISMOKING.ORD
8
March 6, 1995
Los Gatos, California
HEARING CONTINUED
BELLA VISTA AVE 337 CONT.
Speakers continued:
Stephenie Olson, 420 Alberto Way,
Robert Robles, 420 Alberto Way #47,
Marsha DeLong, 420 Alberto Way #27,
Jane Bishop, 134 Lu Ray Drive, owner of unit #41 of Pueblo de Los Gatos
Willard Sorensen, 420 Alberto Way #19,
Concerns mentioned were: denial of the application; noted decision of the homeowners in 1992;
do not want the condominium driveway used for access to the proposed development due to
safety issues; the vehicular trip allocations from the Alberto Way basin area needs additional
review; the 18' wide driveway, bounded by cement block walls, to the proposed site was
designed for a single family residence not a multi -family development; concerns stated regarding
the length of time the project will be tied up in litigation before Council will take action on it;
water supply in event of fire emergency was noted in regards to the increase of multi -family
residents. No one else from the audience addressed this issue.
Motion by Mrs. Benjamin, seconded by Mr. Blanton, that Council continue this item for two
weeks to March 20, 1995, and invite the public and applicant to attend, at which time a decision
will be made. Carried unanimously.
SMOKING ORDINANCE/SUGGESTED AMENDMENT (21.46)
Mayor O'Laughlin stated that this was the time and place duly noted for Council to consider
report on proposal to amend the Smoking Ordinance.
Mr. Anderson, Town Attorney, noted that the State Law, AB 13, preempted most local control
over smoking. The State took most of the strong elements of local smoking laws and adopted
them as state law. No city can allow less smoking control than state law. This is an employment
protection issue, not a consumer protection issue. The Health and Safety Code of the State of
California is now the law which our code enforcement officer is upholding. Bars and taverns
were left open until January 1, 1997. Smoking outside was also left open.
The following people from the audience spoke against amending the Town's present Smoking
Ordinance:
Patricia Lynn Gordon, 210 Rushmore Lane #8, works at the Last Call, and is a non-smoker.
She submitted petitions to Council.
Robert Jacobs, 323 Geary St #611, San Francisco, 94102, Director of the Northern California
Tavern and Restaurant Association.
Kathryn Sprague, 14685 Oka Road, asked for the opportunity to have a few locations she can
go to that allow smoking.
Kristin Jordan, 236 N. Santa Cruz Ave. #236, noted that workers in bars would even be willing
to sign a document stating that they are aware of the dangers associated with working in a smoke
filled environment.
TC: D7: MM030695
5
March 6, 1995
Los Gatos, California
SMOKING ORDINANCE CONT.
Speakers continued:
James Di Benedetto, 102 S. Santa Cruz Ave.,/#1 Broadway, spoke of the impact on business for
the six stand alone bars in Los Gatos.
Steve Anzalone, 16381 E. La Chiquita, Los Gatos/ 141; N. Santa Cruz Ave., representing The
Black Watch, submitted 37 pages of signed petitions for the record.
Andrew Palmisano, 702 More Ave., speaking as a non smoker, noted that there were non-
smoking bars and restaurants he could frequent and that he would not go to the smoking
facilities but felt that they should be allowed their smoking status for those people who did
choose to smoke and had no other location to go now that nearly every facility has been made
smoke free.
The following person from the audience spoke in favor of the Ordinance amendment:
Dr. David Weissman, 15431 Francis Oaks Way, spoke of the petition presented to Council in
March of 1994 signed by over 100 physicians requesting a complete smoking ban in the Town
of Los Gatos. Asked that Council complete the process that it began four years ago.
No one else from the audience addressed this issue.
Council Comments:
Mr. Attaway was not in favor of making this issue a public hearing, noting he was not a smoker,
and stating he did not consider smokers second class citizens. He supported the original
ordinance and is proud of how well it is working. There is now a freedom of choice for all as
to where they go, and government has provided some safe choices for smokers and non-smokers
alike.
Mr. Blanton spoke for the citizens that had signed the petition asking for a revision in the
Smoking Ordinance. Noted that the arguments heard tonight were the same heard in 1991 and
the ordinance that was passed then has worked well for everyone. He stated that there was
enough interest on both sides of the issue to warrant a hearing on the subject.
Mayor O'Laughlin felt that this was a community issue generating a great deal of interest and
warranted a public hearing.
Mrs. Benjamin was not in favor stating that by the time our ordinance could take affect and be
enforced under the limited resources available, the state law will be in affect and take
precedence and affect all businesses equally. Work places, public places and restaurants are a
concern because everyone frequents them, and everyone including children are affected. If the
state law does not pass in two years than the Town can reconsider the issue. Would prefer to
expend resources on prevention of young people taking up smoking then on those people who
are established smokers. These comments were seconded by Mrs. Lubeck.
Motion by Mr. Blanton, seconded by Mayor O'Laughlin, to set a public hearing on amendments
to the Smoking Ordinance. Mrs. Benjamin, Mrs. Lubeck and Mr. Attaway voted no. Motion
failed with 2 ayes and 3 noes.
PARKING/DOWNTOWN GARAGE/WILLIAM BACCHI/$200,000 CONTRIBUTION (22.42)
Mr. Linder, Assistant Town Manager, explained that Mr. Bacchi had made a presentation of
$200,000. Mr. Linder presented to Council various ways they could accept this contribution
toward additional downtown parking without the Town using any of its general fund.
TO: D7: MM030695
6