Staff ReportDATE:
TO:
FROM:
SUBJECT:
MEETING DATE: 05105115
ITEM NO: 11
COUNCIL AGENDA REPORT
APRIL 23, 2015
MAYOR AND TOWN COUNCIL /0�
LES WHITE, INTERIM TOWN MANA
INTRODUCE AN ORDINANCE AMENDING TOWN CODE SECTION
18.60.010 AND SECTION 18.60.015 THAT WOULD REGULATE ELECTRONIC
SMOKING PRODUCTS AND ALL NICOTINE DELIVERY DEVICES IN THE
SAME WAY AS TRADITIONAL TOBACCO PRODUCTS WITHIN THE TOWN
OF LOS GATOS
RECOMMENDATION:
Introduce an ordinance amending Town Code Section 18.60.010 and Section 18.60.015 that would
regulate electronic smoking products and all nicotine delivery devices in the same way as
traditional tobacco products within the Town of Los Gatos.
BACKGROUND:
Electronic smoking devices — commonly known as "electronic cigarettes," "e- cigarettes," "e-
cigars," "e- cigarillos," "e- pies, "e- hookahs," or "electronic nicotine delivery systems" — are
electronic and/or battery- operated devices designed to deliver nicotine, flavor, and/or other
substances in an aerosol or vapor form inhaled by the user. Electronic smoking devices are often
designed to resemble and be used in the same manner, as conventional cigarettes.
Despite a State law banning the sales of e- cigarettes to minors, the new "vaping" industry is
targeting youth in the same manner that the tobacco industry has targeted children. As evidenced by
findings from the 2011 and 2012 National Youth Tobacco Survey, use of electronic smoking
devices by youth has increased significantly in recent years.
Nicotine is a powerful pharmacologic agent that acts in the brain and throughout the body, is highly
addictive, and can cause acute toxicity. During adolescence, a critical window for brain
development, nicotine exposure heightens the risk of lasting adverse consequences for brain
development.
PREPARED BY: Chief Matt Frisby '
Staff Liaison, Los Gatos Youth Commissi
Reviewed by:
Assistant Town Manager _Mown Attorney
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: ELECTRONIC CIGARETTE REGULATION
MARCH 8, 2015
BACKGROUND (cont'd):
Neither federal nor state law requires that electronic smoking devices carry health warnings
comparable to conventional cigarettes or FDA - approved nicotine replacement products. Although
electronic smoking devices have been marketed as safer alternatives to traditional tobacco products,
studies have found a number of dangerous chemicals in electronic smoking device emissions and
cartridge contents. Additionally, at least ten chemicals listed as carcinogens and reproductive toxins
have been identified in mainstream or secondhand e- cigarette aerosol.
DISCUSSION:
This substantial evidence against e- cigarettes has directly caused 108 municipalities and three states
to include e- cigarettes as products that are prohibited from use in smoke free environments (as of
January 2, 2014). This agenda item provides the opportunity for the Town of Los Gatos to adopt the
stance taken by the Los Gatos Saratoga High School District and many dozens of cities and high
school districts throughout the nation who have regulated e- cigarettes.
The purposes of the current Town Code regarding smoking in public places and places of
employment are: (1) to protect the public health and welfare by prohibiting smoking in public
places and places of employment, (2) to guarantee the right of nonsmokers to breathe smoke -free
air, and (3) to recognize that the need to breathe smoke -free air shall have priority over the desire to
smoke.
However, these purposes are not entirely being met by the current Town Code. E- cigarette aerosol,
containing numerous carcinogens, harms the public health and welfare. Additionally, nonsmokers
cannot breathe non -toxic air, as emissions from e- cigarettes contain numerous toxins.
The City of Saratoga, at their January 21, 2015 City Council meeting, directed staff to prepare an
ordinance amending the definition of tobacco products to include e- cigarettes and flavored tobacco
which would extend the restrictions on tobacco products to include these items in their proposed
ordinance amendment.
The Youth Commission recommends amending the current Town Code by adding e- cigarettes and
all variations of like products to the current regulations to better meet the purposes of the current
regulation.
CONCLUSION:
The Los Gatos Youth Commission recommends adopting an amendment to Town of Los Gatos
Town Code Sec. 18.60.010 and Sec. 18.60.015 that would regulate electronic smoking products and
all nicotine delivery devices in the same way as traditional tobacco products within the Town of
Los Gatos. The Youth Commission is also working on a timeline and cost analysis to educate the
community if the proposed amendment is adopted. It is estimated that the cost would be no more
than $1,000 and would be a one -time allocation.
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: ELECTRONIC CIGARETTE REGULATION
April 23, 2015
ALTERNATIVES:
The Council has two alternatives in addition to the recommendation:
1. Wait until the State of California or the Federal Government adopts legislation regarding the
smoking of e- cigarettes in public places and places of employment and then modify Town
Code accordingly.
2. Direct staff to bring back additional nonsmoking provisions to address smoking distances
from building entrances and/or other circumstances. Recently, Town residents have
expressed concerns about smoking outside of businesses which negatively affects
neighboring businesses. This issue was not part of the scope of the Youth Commission's
effort.
COORDINATION:
The project to amend the ordinance is a collaborated effort between, Los Gatos/Monte Sereno
Police Department, the Youth Commission, Los Gatos High School Leadership Team, the Town
Attorney' Office, Town Manager's Office, and Santa Clara County Public Health Department. If
the ordinance amendments are approved by Council, the Youth Commission will continue to work
with these teams to educate the community. Additional coordination with the business community
will occur with the Economic Vitality Manager.
FISCAL IMPACT:
Under the direction of staff, the Youth Commission would create signs and post copies of the
ordinance at major public locations to inform the public of the amendment to the Town Code after
adoption of the amended ordinance. It is estimated that the cost would be no more than $1,000 and
would be a one -rime allocation paid from Manager contingency account.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Town Code Section l 8.60.010 and Section 18.60.015, with proposed changes.
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ARTICLE Vl. - SMOKING REGULATIONS
FOOTNOTE(S):
(3) - --
Editor's note— Ord. No. 1880, § 1, adopted Nov. 18, 1991, repealed former Art. VI, §§ 18.60.010 and 18.60.015,
relative to smoking regulations, which derived from Code 1968, §§ 17 -6 and 17 -6.5. Section II of Ord. No. 1880
enacted new smoking regulations which have been included herein as Art. Vl, § 18.60.010
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.
Additionally studies have found a number of dangerous chemicals in electronic smoking, deb i_, „ia. >n, ❑�
and cartridge contents. At least ten chemicals listed as carcinogens and reproductive toxins have been
identified in mainstream or secondhand e- cigarette aerosol
Health hazards induced by breathing secondhand smoke/e- cigarette vapoi and being in smoking environments
include lung cancer, heart disease, respiratory infection, decreased respiratory function, birth defects,
bronchoconstriction, and bronchi - spasm.
Accordingly, the Town Council fords 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 and non -toxic air, and to recognize that the need to breathe smoke -free air
shall have priority over the desire to smoke.
(b) Definitions. For the purposes of this section, the following definitions shall apply:
(1) Bar: A place not accessory to an eating establishment 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 public.
(3) Eating establishment bar: A place located in the same building as and accessory to an eating
establishment 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:
a. Which is ventilated by a separate system with direct external exhaust; and
b. Is negatively pressured; and
C. Either;
(i) Is physically separated from the eating area by a barrier of solid construction in which any
opening is equipped with self - closing doors which prevent the passage of smoke when closed;
or
(ii) In the opinion of the Director of Building Services, has incorporated sufficient alternative
precautions to prevent smoke from entering other areas.
(4) Employee. Any person who is employed by an employer in consideration for direct or indirect monetary
wages or profit.
(5) Employer: Any person or corporation including public agencies who employs the services of an
individual person for compensation for services to be rendered.
ATTACHMENTI
(6) 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, theaters, museums, art galleries and similar structures.
(7) No smoking sign: A sign in letters not less than one (1) 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) 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 patients.
(9) Public building: Any building or portion thereof owned or leased by the Town or any local government
entity subject to Town zoning requirements.
(IO)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.
(II)Electronic smoking device: An electronic and/or battery operated device, the use of which may resemble
smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances.
"Electronic smoking device" includes any such electronic smoking devices, whether manufactured,
distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an
electronic pipe, an electronic hookah, or any other product name or descriptor. 'Electronic smoking
device" does not include any product specifically approved by the United States Food and Drug
Administration for use in the mitigation, treatment or prevention of diseases.
(11) Smoking: Includes L) The act of inhalinglexhaling, burning or carrying any lighted tobacco product or
by- product including cigarettes, cigars, pipes that bum tobacco or other plant material. (2) Overating using
an electronic smoking device or any other nicotine delivery product
(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 ofsmoking 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 twenty -five (25) percent 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.
g. Hotels and motels.
(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.
b. Seating provided by eating establishments.
(d) Regulation of smoking in the private workplace.
(1) Within ninety (90) days of the effective date of the ordinance from which this section derives, 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. Prohibition of smoking in conference and meeting rooms, classrooms, auditoriums, restrooms,
hallways, and elevators.
b. Provisions and maintenance of a contiguous no- smoking area of not less than two- thirds of the
seating capacity and floor space in each cafeteria or lunchroom. Smoking areas shall be physically
separated and separately ventilated.
C. Provisions and maintenance of a contiguous no- smoking area of not less than two- thirds of the
seating capacity and floor space in each employee lounge or, at the discretion of the employer,
where there is more than one such lounge in any one building, not less than one -half the number of
such lounges and not less than one -half the square footage of such lounges. Smoking areas shall be
physically separated and ventilated.
d. Any employee in the private work place shall be given the right to designate his or her immediate
area as a nonsmoking 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. 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);
(3) Closed banquet, conference or meeting rooms of hotels, motels and lodges except that a no smoking area
must be provided for nonsmokers;
(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 bars;
(7) 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 (331 /3) percent maybe dedicated as
smoking rooms.
(i) Posting signs. No smoking signs shall be clearly and conspicuously posted in 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) Smoking — Penalties.
(1) Any person who violates this section by failing to post signs or failing to establish policies and
procedures, is guilty of a violation of the Town Code and subject to a civil penalty of one hundred dollars
($100.00) 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 offense for each and every day during any portion
of which any violation of this section is committed or permitted.
(2) Any person who smokes where smoking is prohibited when signs are posted in the required manner is
guilty of an infraction.
(Ord. No. 1880, § 11(17 -6), 11- 18 -91; Ord. No. 2026, § XIX, 2- 18 -97)
Sec. 18.60.015. - Regulation of cigarette, e- cigarette, and tobacco/nicotine delivery product vending
machines.
(a) Findings. The Surgeon General of the United States and the American Heart Association has released
information that shows approximately sixty (60) percent of all smokers become addicted before their 14th
birthday and that more than three thousand (3,000) teenagers become regular smokers every day.
The Town Council finds that the availability of cigarettes, e- cigarettes or other nicotine delivery products
and/ or tobacco products marketed through vending machines promotes the use of tobacco products among
minors, contrary to existing State Laws which prohibit the sale or distribution of tobacco products to persons under
the age of eighteen (18). The Town Council finds further that regulating vending machines will promote the
health considerations which justify this Council's comprehensive regulation of smoking by the general public in
publicplaces.
(b) Prohibition. It shall be unlawful for any person, corporation or other entity to place, install or maintain or
control any vending machine or any other machine or device designed for the dispensing, distribution or sale of
Cigarettes, e- cigarettes, or other nicotine delivery products and/or tobacco products in any public place within
the Town of Los Gatos.
For the purposes of this section, "public place" is defined as any area to which any members of the public are
invited, or in which any members of the public are permitted, including, but not limited to, public transportation
facilities, reception areas, restaurants, restaurant/bar combinations, bars, retail stores, retail service establishments,
retail food production and marketing establishments, waiting rooms, service clubs, public or private cafeterias, or
any workplace or work areas.
(c) Penalties. Any person who violates this section is subject to a civil penalty of one hundred dollars ($100.00)
and the cost of enforcing this section which shall include all costs, staff and attorney time. Such person shall be
deemed to have committed a separate offense for each and every day during any portion of which any violation
of this section is committed or pemritted.
(Ord. No. 1877, § 1(17-7),11-4-91)
Editor's note—
At the direction of the Town, provisions enacted by Ord. No. 1877, § 1(17 -7), adopted Nov. 4, 1991, have
been included in the Code and designated at the discretion of the editor as § 18.60.015