City of Culver City, California
City Council Agenda Item Report
RECOMMENDATION:
Staff recommends the City Council:
(1) Introduce an Ordinance (Attachment 1) amending Chapter 9.11 of the Culver
City Municipal Code relating to smoking regulations to 1) add new regulations
prohibiting smoking in outdoor dining areas; 2) relocate existing regulations
prohibiting smoking in City parks from Subchapter 9.10.500, et seq. to Chapter 9.11;
and 3) update existing regulations contained in Chapter 9.11 to be consistent with
state law;
OR
(2) Provide further direction to staff regarding this issue.
BACKGROUND:
At the December 10, 2007 City Council meeting, discussion ensued between the
City Council and staff regarding other cities’ smoking findings and ordinances;
Meeting Date: 06/09/08 Item Number: A-4
AGENDA ITEM: Introduction of an Ordinance Amending Chapter 9.11 of the
Culver City Municipal Code Relating to Smoking Regulations to 1) Add New
Regulations Prohibiting Smoking in Outdoor Dining Areas; 2) Relocate Existing
Regulations Prohibiting Smoking in City Parks from Subchapter 9.10.500, et seq.
to Chapter 9.11; and 3) Update Existing Regulations Contained in Chapter 9.11 to
be Consistent with State Law.
Contact Person/Dept.:
Shelly Wolfberg/City Manager’s Office; or
Heather Baker/City Attorney
Phone Number:
(310) 253-6008 or
(310) 253-5660
Fiscal Impact: Yes [X] No [] General Fund: Yes [X] No []
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification: County of Los Angeles Department of Health Services; Culver City
Chamber of Commerce; Downtown Business Association; Restaurant owners;
Individuals who spoke at prior Council Meetings; Master E-Mail Notification List
(07/24/08); Coalition for a Tobacco Free LA County (comprised of over 70 organizations
– this notification was emailed courtesy of the County of Los Angeles Department of
Health Services) (07/14/08 and 07/23/08).
Department Approval:
Jerry B. Fulwood (07/24/08)
City Attorney Approval:
Carol Schwab (by H. Baker) (07/24/08)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (07/24/08)
City Manager Approval:
Jerry B. Fulwood (07/24/08) City of Culver City, California
City Council Agenda Item Report
enforcement issues; other pressing health issues; whether restaurant owners,
apartment building owners, and condo associations have the right to prohibit
outdoor smoking; government’s role in legislating behavior; and the economic
impact of a smoking ban within 20-feet of a City facility. Resulting from the
discussion, the City Council voted 3-2 to direct staff to draft an ordinance to ban
smoking in outdoor dining areas.
In addition to the direction of the City Council with regard to the ban on smoking in
outdoor dining areas, staff has also taken this opportunity to update the City’s
existing general smoking regulations to be consistent with state law and relocate the
existing regulations prohibiting smoking in the City’s parks to the same part of the
Culver City Municipal Code (CCMC) as other smoking regulations.
DISCUSSION:
Ban on Smoking in Outdoor Dining Areas:
Existing Law
Currently, CCMC provisions do not include any prohibitions or restrictions relating to
smoking in outdoor dining areas. There are also no such prohibitions or regulations
under state law in this regard.
City’s Authority to Regulate
Although currently there are no prohibitions contained in state law against smoking
in outdoor dining areas, the City is not preempted from establishing regulations,
including a total ban on smoking in outdoor dining areas. There is no fundamental
right to smoke, nor are laws that prohibit smoking considered discriminatory against
smokers as a particular group. Therefore, in adopting such laws, the City need only
have a rational basis that is related to a legitimate governmental purpose.
In this case, as stated in the proposed Ordinance, providing for the “public’s health,
safety, and welfare by discouraging the inherently dangerous activity of tobacco use
around non-consenting individuals” and declaring that these regulations are
“necessary to protect the public from the hazards of smoking and secondhand
smoke, particularly in City outdoor dining areas, which are intended as a safe
environment for the use and enjoyment of Culver City residents and the general
public,” is a sufficient, rational basis for establishing a prohibition against smoking in
outdoor dining areas.
City of Culver City, California
City Council Agenda Item Report
This basis for establishing a ban on smoking in outdoor dining areas was
emphasized by members of the public during Council’s consideration of its options
at its December 10
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meeting. Two members of the public, representing Smoke
Free Air For Everyone (SAFE) and the American Lung Association of California
were present and spoke about the health effects of secondhand smoke.
Other Cities’ Regulations
In preparing the proposed Ordinance, staff looked at various other cities’ regulations
regarding smoking bans in outdoor dining areas. On the Westside, the Cities of
Beverly Hills and Santa Monica have in place ordinances which prohibit smoking in
various public areas (such as outdoor dining areas).
Enforcement
Should a smoking ban in outdoor dining areas be approved by the City Council, staff
recommends the restaurants be required to post a sign prohibiting smoking in
outdoor dining areas, referencing the CCMC Section setting forth the regulation, and
a telephone number to report a violation. Los Angeles-area cities that have made
business owners liable in this area all require such signage. The City of Calabasas
requires such signs be conspicuously posted at each entrance and include letters of
at least one inch in height or the universal no-smoking symbol. Burbank requires
that signs be conspicuously displayed including multiple signs as appropriate for
larger areas to ensure that signs be readily visible to all diners. The City of Beverly
Hills and Santa Monica have a similar requirement to the City of Burbank.
In considering whether to adopt a ban on smoking in outdoor dining areas, City staff
has discussed the issue of enforcement of such a law. The enforcement and
penalty provisions of the proposed Ordinance are written to provide several options
for enforcement and encourage and promote self-regulation and compliance (i.e.
clear, conspicuously posted “no smoking” signs; providing the public with a right of
private civil action). It is staff’s understanding that similar no-smoking laws, such as
the one in the City of Beverly Hills, have been self-regulating for the most part. In
the event the City would need to take enforcement action, it would be handled as
resources permit, taking into consideration the existing work plans of the Police
Department and City Attorney’s Office. Should the City Council determine it wishes
to make enforcement of this proposed Ordinance a higher priority, additional
resources would need to be dedicated to this effort.
Staff recommends the enforcement of a smoking ban in outdoor dining areas be
enforced by the Police Department. It is anticipated that the Police Department
would provide ongoing education efforts by speaking with outdoor dining patrons
who are in violation of the smoking ordinance but unaware of its existence. Many of City of Culver City, California
City Council Agenda Item Report
these individuals could be tourists or come from outside Culver City’s boundaries.
While most individuals will likely comply with the law once officers explain the CCMC
requirements, those who are resistant would be requested to comply or be subject
to citation (see Penalties below).
Depending on the nature and level of the enforcement efforts of a smoking ban in
outdoor dining areas, it could require additional resources from the Police
Department and City Attorney’s Office. Funding has not been budgeted for FY
08/09 for additional enforcement services for a smoking ban in outdoor dining areas.
Penalties
According to research, some California cities impose initial fines on businesses of
$100 for violating outdoor smoking regulations with fines increasing to $200 and
$500 respectively for subsequent violations, as does the state indoor smoking law.
The proposed Ordinance provides the City Council shall, by resolution, establish the
penalties for a violation of the outdoor smoking regulations, but in no event shall
such penalties exceed the maximum penalties permitted under state law. If the
proposed Ordinance is introduced this evening, such a resolution will be presented
to the City Council for consideration at the time the Ordinance is brought back for
adoption.
Definition of an Outdoor Dining Area
During the course of two community meetings that were held on July 9 and July 15,
2008 to discuss the potential smoking ban in outdoor dining areas, concerns were
expressed by members of the business community with regard to the type of
outdoor areas that would be covered by the proposed smoking ban.
Per the City Council’s prior direction, the proposed Ordinance defines an “outdoor
dining area” broadly as follows:
“…any non-enclosed area located on private or public
property made available to or customarily used by the
general public that is designed, established or regularly
used for consuming food and/or beverages or where
food and/or beverages are served whether or not for
compensation. This includes but is not limited to
restaurants, hotels, bar standing and seating areas,
patios, and coffee shops.”
The above definition of an outdoor dining area is based on language in the City of
Beverly Hills Municipal Code. The Council could consider other options for defining City of Culver City, California
City Council Agenda Item Report
an outdoor dining area as it deems appropriate. Some examples include, but are
not limited to, the following:
1. “…any non-enclosed area open to the public in a non-
residential zone or adjacent right-of-way, or in a
residential zone or adjacent right-of-way and utilized for
non-residential purposes, where food or beverages are
served, whether or not for compensation, or where food
or beverages are routinely consumed by customers. This
includes but is not limited to restaurant and bar standing
and seating areas and patios.” (City of Burbank)
2. “…a non-residential location where food or beverages
are served by a business or routinely consumed by
customers. This includes but is not limited to restaurant
or bar seating areas and patios.” (City of Santa Monica)
3. “…any non-enclosed area located on private or public
property made available to or customarily used by the
general public that is designed, established or regularly
used for consuming food and/or beverages, where such
area is regularly serviced or maintained by employees of
the business while customers are consuming food and/or
beverages, including but not limited to wait-staff and bus
persons. This includes but is not limited to restaurants,
hotels, bar standing and seating areas, patios, and
coffee shops.”
With regard to Option No. 3 above, the rational basis for distinguishing those
establishments where the outdoor dining area is regularly serviced or maintained by
employees is consistent with the purpose of the state law prohibition against
smoking in an enclosed workplace (Labor Code Section 6404.5) — to protect the
employees. However, such a restriction could be difficult to enforce and confusing
for the public. Staff was unable to find any other cities with a similar restriction.
Other Options
The Council may consider other options related to prohibiting smoking in outdoor
dining areas.
City of Culver City, California
City Council Agenda Item Report
• Perimeter surrounding outdoor dining area.
“Smoking is further prohibited in all non-enclosed areas
within five (5) feet of any outdoor dining area.” (City of
Burbank); OR
“Smoking is further prohibited in all non-enclosed areas
within five (5) feet of any outdoor dining area, except
while actively passing on the way to another destination.”
(City of Beverly Hills)
• Smoking prohibition during certain hours.
The City could restrict smoking in outdoor dining areas during certain hours
(i.e. no smoking until 9 p.m.). However, such a restriction could be difficult to
enforce and confusing to the public. Staff has been unable to find any other
cities with such a restriction.
• Designated smoking areas.
The City could allow businesses to have a designated smoking area in an
outdoor dining area. This law is in effect in the City of Burbank. The City of
Burbank requires all designated smoking areas meet certain criteria and have
signs to clearly designate the specific smoking areas.
• Exception for bar patios.
“…bars are exempted from the outside smoking
requirements of this section, provided the smoke does
not enter adjacent areas in which smoking is prohibited
by law or by the owner, lessee, or licensee of the
adjacent property.” (City of Oakland)
“…except unenclosed areas of a bar that does not serve
food. Smoking in an unenclosed area of a bar is only
permitted provided the smoke does not enter adjacent
areas in which smoking is prohibited by any law or by the
owner, lessee or licensee of the adjacent property; and
providing that any door or opening to the business
remains closed.” (City of Blue Lake)
“…except unenclosed areas of a bar that does not serve
food. If smoking is permitted in the unenclosed area of a
bar that does not serve food, the entire smoking section City of Culver City, California
City Council Agenda Item Report
must be limited to one clearly designated area
prominently marked with signs, and must be located at
least five (5) feet from any doorway or opening into an
enclosed area. Smoking in an unenclosed area of a bar
is only permitted provided the smoke does not enter
adjacent areas in which smoking is prohibited by any law
or by the owner, lessee or licensee of the adjacent
property.” (excerpt from Technical Assistance Legal
Center Model Comprehensive Secondhand Smoke
Ordinance)
Publicity, Outreach and Education
If the City Council approves a ban on smoking in outdoor dining areas, staff
proposes the following methods of publicity and community outreach and education:
1. Mail a letter to all permittees of outdoor dining permits, businesses with
private outdoor dining areas, the Chamber of Commerce and the Downtown
Business Association, providing a copy of the adopted ordinance, and
instructions for posting a sign in the outdoor dining area.
2. Distribute a press release to area newspapers, Culver City Living, Sanitation
Bill inserts and the City’s website to inform the public of the new ordinance.
3. Provide a cable crawler to be run during official City meetings.
4. Create a downloadable smoking ban sign on the City’s website for business
owners.
Reorganization and Update to Existing Smoking Regulations:
Smoke-free Parks Regulations
The existing regulations prohibiting smoking in all City parks are located in Chapter
9.10 of the CCMC. All other smoking regulations are located in Chapter 9.11 of the
CCMC. The proposed Ordinance will relocate the smoke-free parks regulations to
Chapter 9.11 for organizational purposes and ease of reference for the public.
Update Existing Smoking Regulations to be Consistent with State Law
Many of the existing smoking regulations as set forth in Chapter 9.11 are duplicative
of or in conflict with state law. State law preempts local governments in the area of
smoking regulations, except to the extent that such regulations are not in conflict
with or are stricter than state law. The proposed Ordinance updates the existing
regulations to be consistent with state law.
City of Culver City, California
City Council Agenda Item Report
FISCAL ANALYSIS:
There is no fiscal impact to the introduction of the proposed ordinance this evening.
If the ordinance were to be eventually adopted by the Council, the additional
regulations prohibiting smoking in sidewalk dining areas may require increased
enforcement activity by City staff, ,the Police Department and the City Attorney’s
Office. Additional staff time will be attributed to work by the City Manager’s office to
prepare and disseminate public information about the smoking ban. These costs
cannot be easily quantified. If compliance becomes an issue, staff will return to the
City Council with options on additional enforcement and public outreach to
encourage compliance with the smoking ban ordinance, along with associated
costs.
ATTACHMENTS:
1. Proposed Ordinance
2. Chapter 9.11
MOTIONS:
That the City Council:
1. Introduce an Ordinance amending Chapter 9.11 of the Culver City Municipal
Code relating to smoking regulations to 1) add new regulations prohibiting smoking
in outdoor dining areas; 2) relocate existing regulations prohibiting smoking in City
parks from Subchapter 9.10.500, et seq. to Chapter 9.11; and 3) update existing
regulations contained in Chapter 9.11 to be consistent with state law;
OR
2. Provide further direction to staff.
07/28/2008
Introduction of an Ordinance Amending Chapter 9.11 of the
Culver City Municipal Code Relating to Smoking Regulations
to 1) Add New Regulations Prohibiting Smoking in Outdoor
Dining Areas; 2) Relocate Existing Regulations Prohibiting
Smoking in City Parks from Subchapter 9.10.500, et seq. to
Chapter 9.11; and 3) Update Existing Regulations Contained
in Chapter 9.11 to be Consistent with State Law.
MEETING DATE:
AGENDA ITEM:
ATTACHMENTS
Pages
1. Proposed Ordinance
1 — 8
2. Chapter 9.11
9-15A- -rrAe4-14-i arr
ORDINANCE NO, 2008-
AN ORDINANCE OF THE CITY OF CULVER CITY,
CALIFORNIA, AMENDING CHAPTER 9.11 OF THE CULVER
CITY MUNICIPAL CODE RELATING TO SMOKING
REGULATIONS TO 1) ADD NEW REGULATIONS
PROHIBITING SMOKING IN OUTDOOR DINING AREAS; 2)
RELOCATE EXISTING REGULATIONS PROHIBITING
SMOKING IN CITY PARKS FROM SUBCHAPTER 9.10.500, et
seq. TO CHAPTER 9.11; AND 3) UPDATE EXISTING
REGULATIONS CONTAINED IN CHAPTER 9.11 TO BE
CONSISTENT WITH STATE LAW.
WHEREAS, the California Air Resources Board has identified environmental
tobacco smoke, or secondhand smoke, as a Toxic Air Contaminant, which may cause and
contribute to death or serious illness, including increased risks of cancer, and is especially
hazardous to children and people with asthma and other respiratory problems; and
WHEREAS, according to the United Stated Environmental Protection
Agency, any level of exposure to secondhand smoke is harmful; and
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WHEREAS, it is the intent of the City Council of the City of Culver City to
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provide for the public's health, safety, and welfare by discouraging the inherently
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dangerous activity of tobacco use around non-consenting individuals; and
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WHEREAS, the City Council hereby declares that the intent and purpose of
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prohibiting smoking at the locations identified in this Ordinance is to protect the public
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health, safety, and welfare by reducing the number of locations in the City where exposure
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to secondhand smoke can occur; and
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WHEREAS, for organizational purposes and ease of reference for the public,
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the City's smoke-free parks regulations set forth in Chapter 9.10 shall be relocated to
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Chapter 9.11; and
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WHEREAS, the City's existing general smoking regulations set forth in
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Chapter 9.11 are unnecessary as they are either duplicative of or in conflict with state law.
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30NOW THEREFORE, the City Council of the City of Culver City, California,
DOES HEREBY ORDAIN as follows:
SECTION 1. Chapter 9.11 of the Culver City Municipal Code is hereby
repealed and replaced with the following:
CHAPTER 9.11: SMOKING REGULATIONS
§9.11100 Purpose
§ 9.11.105 Definitions
§ 9.11.110 Smoking Prohibited in Outdoor Dining Areas
§ 9.11.115 Smoking Prohibited in City Parks and Recreational Areas
§ 9.11.120 Other Prohibitions and Requirements
§ 9.11.125 Exemptions
§ 9.11.130 Penalties and Enforcement
§ 9.11.135 Conflict of Provisions
§ 9.11.100 PURPOSE.
It is the intent of the City Council of the City of Culver City to control
exposure to secondhand smoke by prohibiting smoking at certain locations, in
addition to those places where smoking is prohibited by state law. The California Air
Resources Board has identified environmental tobacco smoke, or secondhand
smoke, as a Toxic Air Contaminant, which may cause and contribute to death or
serious illness, including increased risks of cancer, and is especially hazardous to
children and people with asthma and other respiratory problems. The intent and
purpose of prohibiting smoking at the locations identified in this Chapter is to protect
the public health, safety, and welfare by reducing the number of locations in the City
where exposure to secondhand smoke can occur. The provisions of this Chapter
are intended to be a supplement to existing state law smoking prohibitions and
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§ 9.11.105 DEFINITIONS.
For the purposes of this Chapter, the following definitions shall
apply unless the context clearly indicates or requires a different meaning.
Enclosed Area shall mean an area that is closed in by a roof and
walls with appropriate openings for ingress and egress.
Non-enclosed Area shall mean a predominantly outdoor area that
does not meet the definition of "enclosed," including, but not limited to,
Outdoor Dining Areas.
Outdoor Dining Area shall mean any Non-enclosed area located on
private or public property made available to or customarily used by the
general public that is designed, established or regularly used for consuming
food and/or beverages or where food and/or beverages are served whether
or not for compensation. This includes but is not limited to restaurants,
hotels, bar standing and seating areas, patios, and coffee shops.
Park or Recreational Area shall mean any outdoor area, owned or
operated by the City of Culver City or Culver City Redevelopment Agency,
open to the general public for primarily recreational purposes, regardless of
any fee or age requirement, including, but not limited to, picnic areas,
playgrounds, sports or athletic fields, walking paths, gardens, hiking trails,
bike paths, skateboard parks and dog parks. A Park or Recreational Area
shall not include the City Hall Courtyard, Town Plaza, any paved public
sidewalk immediately abutting the boundary of the Park or Recreational Area
or any parking area within the boundaries of the Park or Recreational Area.
Smoking or to Smoke shall mean the possession of a lighted
Tobacco Product, lighted Tobacco Paraphernalia, or any other lighted weed
or plant, including a lighted pipe, cigar, hookah pipe, or cigarette of any kind;
and the lighting of a Tobacco Product, Tobacco Paraphernalia, or any other
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30weed or plant, including a pipe, cigar, hookah pipe, or cigarette of any kind.
Tobacco Paraphernalia shall mean cigarette papers or wrappers,
pipes, holders of smoking materials of all types, cigarette rolling machines,
and any other item designed for the smoking, preparation, storing, or
consumption of Tobacco Products.
Tobacco Product shall mean:
A. any substance containing tobacco leaf, including but not
limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing
tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and
B. any product or formulation of matter containing
biologically active amounts of nicotine that is manufactured, sold, offered for
sale, or otherwise distributed with the expectation that the product or matter
will be introduced into the human body, but does not include any product
specifically approved by the United States Food and Drug Administration for
use in treating nicotine or tobacco dependence.
§ 9.11.110 SMOKING PROHIBITED IN OUTDOOR DINING
AREAS.
A. Prohibition. Smoking is prohibited in all Outdoor Dining Areas
located on private or public property, including the public right-of-way.
B. Posting of Signs. Every Outdoor Dining Area subject to the
prohibition set forth in subsection (A) above must have one or more
conspicuously displayed signs stating that smoking is prohibited in the
Outdoor Dining Area. Such signs must have text and/or graphics to clearly
indicate that smoking is prohibited in the Outdoor Dining Area and include an
appropriate Culver City Municipal Code citation. Any text must be clearly
contrasted with the background and must be a minimum of one inch in
height. The text must state "No Smoking," "Smoke Free Area," or another
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-4-substantially similar to 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. Such signs shall be posted in a quantity and manner
reasonably likely to inform individuals occupying the Outdoor Dining Area that
smoking is prohibited within the Outdoor Dining Area and must be made of
permanent, weather resistant materials.
C. Time of Posting. Every business or property subject to subsection
(A) above shall post the signs required by this Section within thirty (30) days
of the effective date of this Chapter. Every business or property which
becomes subject to the provisions of this Chapter after its effective date shall
post the required signs immediately upon commencing operations.
§ 9.1t115 SMOKING PROHIBITED IN CITY PARKS AND
RECREATIONAL AREAS.
A. Prohibition. Smoking within any Park or Recreational Area is
Prohibited.
B. Tobacco Waste. The disposal of any Tobacco Product or
Tobacco Paraphernalia within any Park or Recreational Area is prohibited,
except in a City-designated waste receptacle, or unless being done as part of
a scene in a film, television or live performance production.
C. Posting of Signs. The City shall cause the installation of "No
Smoking" signs, with letters of no less than one inch in height and including the
international "No Smoking" symbol consisting of a pictorial representation of a
burning cigarette enclosed in a red circle crossed by a red bar. Such signs shall be
clearly and conspicuously posted and maintained at all main entrances to a Park or
Recreational Area and additional signs shall be posted in a quantity and manner
reasonably likely to inform individuals occupying the Park or Recreational Area that
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5§ 9.11.120 OTHER PROHIBITIONS AND REQUIREMENTS.
A. Nothing in this Chapter shall be construed to prohibit Smoking
in any area in which Smoking is already prohibited by state or federal law
unless the applicable state or federal law permits additional local regulation.
B. Nothing in this Chapter shall be construed to grant any person
an affirmative right to Smoke or permit Smoking in any area in which
Smoking is otherwise prohibited by this Chapter or state or federal law, or
prohibited by a person with property rights in the no-Smoking area.
C. No person shall Smoke or knowingly permit Smoking in
an area under the person's legal or de facto control in which Smoking is
prohibited by this Chapter or state or federal law except a person
who is already compelled to act under state or federal law unless the
applicable state or federal law permits additional local regulation.
D. No person shall willfully mutilate or destroy any sign required by
this Chapter.
E. Signs required by this Chapter are exempt from the sign
requirements in Chapter 17.330 of this Code.
F. The absence of signs required by this Chapter shall not be a
defense to a violation of any provision of this Chapter.
G. No person shall intimidate, threaten any reprisal, or effect any
reprisal, for the purpose of retaliating against another person who seeks to
attain compliance with this Chapter.
§ 9.11.125 EXEMPTION.
The provisions of this Chapter shall not apply to any person acting in a
scene of a live performance production or a film or television production, as
long as a Film Permit has been obtained, if required pursuant to the
provisions of Chapter 11.14 of this Code.§ 9.11.130 PENALTIES AND ENFORCEMENT.
A. The remedies provided by this Chapter are cumulative and
in addition to any other remedies available at law or in equity.
B. A violation of this Chapter is subject to a civil action brought
by the City Attorney, punishable by a civil fine not less than one hundred
dollars ($100) and not exceeding one thousand dollars ($1,000) per
violation.
C. A violation of any provision of this Chapter may, in the
discretion of the City Attorney, be prosecuted as an infraction or
misdemeanor. The City Council shall, by resolution, establish the penalties
for a violation of this Chapter, but in no event shall such penalties exceed
the maximum penalties permitted under State law.
D. Causing, permitting, aiding, abetting, or concealing a violation of
any provision of this Chapter shall also constitute a violation of this
Chapter.
E. Any violation of this Chapter is hereby declared to be a
public nuisance. In addition, any violation of this Chapter involving
Smoking is hereby declared to be a private nuisance.
G. Any person acting for the interests of itself, its members, or the
general public may bring a civil action to enforce this Chapter.
§ 9.11.135 CONFLICT OF PROVISIONS.
In the event of any conflict between this Chapter and any other
provision of this Code, this Chapter shall control.
SECTION 2. Sections 9.10.500 through and including 9.10.525 of the Culver
City Municipal Code are hereby repealed.
SECTION 3. Pursuant to Section 619 of the City Charter, this Ordinance
shall take effect thirty (30) days after the date of its adoption. Pursuant to Sections 616
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30and 621 of the City Charter, prior to the expiration of fifteen (15) days after the adoption,
the City Clerk shall cause this Ordinance, or a summary thereof, to be published in the
Culver City News and shall post this Ordinance or a summary thereof in at least three
places within the City.
SECTION 4. The City Council hereby declares that, if any provision, section,
subsection, paragraph, sentence, phrase or word of this ordinance is rendered or declared
invalid or unconstitutional by any final action in a court of competent jurisdiction or by
reason of any preemptive legislation, then the City Council would have independently
adopted the remaining provisions, sections, subsections, paragraphs, sentences, phrases
or words of this ordinance and as such they shall remain in full force and effect.
APPROVED AND ADOPTED this day of , 2008.
D. SCOTT MALSIN, Mayor
City of Culver City, California
ATTEST: APPROVED AS TO FORM:
MARTIN R. COLE, City Clerk CAROL A. SCHWAB, City Attorney
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?P 30Section
9.11.005
9.11.010
9 .11 .015
9.11.020
9.11.025
9.11.030
9.11.035
9.11.040
9.11.045
9.11.050
9.11.055
9.11_060
9.11.065
9.11.070
9.11.075
9.11.080
9.11.085
Defmitions
City-owned facilities
Prohibition of smoking in public
places
Regulation of smoking in places
of employment
Optional smoking areas
Posting requirements
Air circulation in smoking
restaurants
Certification for smoking
restaurants
Designation as nonsmoking
restaurant
Fees for smoking restaurants
Register of complaint; notice of
provisions
Violations; penalties
Non-retaliation
Exemptions and modifications
Public education
Governmental agency
cooperation
Other applicable laws
CHAPTER 9.11: SMOKING REGULATIONS
any employer in consideration for direct or indireci
monetary wages or profit
EMPLOYER. Any person, partnership,
corporation, including a municipal corporation or
public entity, who has more than three (3) employees.
ENCLOSED. Closed in by a roof and four (4)
walls with appropriate openings for ingress and egress.
NON-PROFIT ENTITY. Any corporation,
unincorporated association or other entity created for
charitable, philanthropic, educational or other similar
purposes, the net proceeds from the operation of
which are committed to the promotion of the objects or
purposes of the organization and not to private
financial gain.
PLACE OF EMPLOYMENT. Any enclosed area
under control of an employer which employees
normally frequent during the course of employment,
including but not limited to work areas, employee
lounges, conference rooms and employee cafeterias. A
private residence is not a place of employment.
PUBLIC PLACE. Any area to which the public
is generally invited or in which the public is generally
permitted.
RESTAURANT. Any publicly or privately
owned coffee shop, cafeteria, short order cafe,
luncheonette, sandwich shop, soda fountain, or other
eating establishment which gives or offers for sale
food to the public, guests, patrons or employees as
well as kitchens in which food is prepared on the
premises for serving elsewhere, including catering
facilities, except the term RESTAURANT shall not
include any area within the facility containing the
restaurant if such area is non-contiguous to the eating
area and otherwise meets the definition of BAR as sei
forth in Subsection A. above.
§
9.11.005 DEFINITIONS.
The following words and phrases, whenever used
in this Chapter, shall be construed as hereafter set out,
unless it is apparent from the context they have a
different meaning:
BAR. An area which is devoted primarily to the
serving of alcoholic beverages and in which the
serving of food is only incidental to the consumption
of such beverages. "Incidental" shall mean the serving
of hors d'oeuvres and snacks, but not including meals.
EMPLOYEE. Any person who is employed by116
Culver City - General Regulations
RESTAURANT, NONSMOKING. Any
restaurant with a seating capacity of twenty-five (25)
or more persons throughout which the owner,
operator or manager who controls the restaurant has
elected to prohibit smoking, or a restaurant with a
seating capacity of fewer than twenty-five (25)
persons.
RESTAURANT, SMOKING. Any restaurant
with a seating capacity of twenty-five (25) or more
persons in which the owner, operator or manager who
controls the restaurant has elected to permit smoking.
SERVICE LINES. Any indoor line in which one
(1) or more persons are waiting for or receiving
service of any kind, whether or not such service
involves the exchange of money or other
consideration.
SMOKING. The inhaling, exhaling, burning or
carrying of any lighted pipe, cigar, cigarette, weed,
plant or other combustible substance in any manner or
in any form.
( . 65 Code, § 27-1) (Ord. No. 87-022 § 2; Ord. No.
91-004 § 1)
§ 9.11.010 CITY-OWNED FACILITIES.
To the extent allowed by law, all enclosed
facilities owned by the City of Culver City shall be
subject to the provisions of this Chapter.
('65 Code, § 27-2) (Ord. No. 87-022 § 2)
§ 9.11.015 PROHIBITION OF SMOKING IN
PUBLIC PLACES.
Smoking shall be prohibited in all enclosed public
places within the City of Culver City during any time
they are open for use by members of the public,
including, but not limited to, the following places:
A. Passenger elevators;
B. Buses, taxicabs and other means of public
transit under the authority of the City of Culver City,
and ticket, boarding, and waiting areas of public
transit depots; provided, however, this prohibition
does not prevent:
1. The establishment of two (2) separate
waiting areas for smokers and nonsmokers; or
2. The establishment of a maximum of fifty
percent (50%) of a single given waiting area as a
smoking area.
C. Restrooms;
D. Service lines;
E. Retail stores, except areas not open to the
public and all areas within a retail store the primary
purpose of which is to sell tobacco products;
F. All areas available to and customarily used
by the general public in all businesses and non-profit
entities patronized by the public, including but not
limited to all offices, banks, hotels and motels;
G. Waiting rooms, hallways, wards, and
semi-private rooms of health facilities, including, but
not limited to, hospitals, clinics, physical therapy
facilities, doctors' offices and dentists offices, except
that health facilities shall also be subject to the
provisions of § 9.11.020 regulating smoking in places
of employment;
H. A building or hall used for entertainment,
including theater, auditorium and sports arena, except
any lobby and any area which is not open to the
public;
I. In any enclosed theater, auditorium and/or
hall which is used for motion pictures, stage dramas
and musical performances, ballets or other exhibition,
except when smoking is part of such production;
J. Retail food marketing establishments,
including grocery stores and supermarkets, except
those areas of such establishments set aside for the
serving of food and drink, restrooms and offices and
areas thereof not open to the public, which may
otherwise be regulated by other sections of this
Chapter;
IDSmoking Regulations
117
K. Public schools and other public facilities
under the control of another public agency, which are
available to and customarily used by the general
public, to the extent that the same are subject to the
jurisdiction of the City of Culver City;
L. Any restaurant; provided that any owner,
operator or manager of a restaurant regulated by this
Chapter shall, by signs, designate no more than
thirty-four percent (34%) of the total eating area
seating capacity as a smoking area.
M. Any non-smoking restaurant.
('65 Code, § 27-3) (Ord. No. 87-022 § 2; Ord. No.
90-032 § 1; Ord. No. 91-004 §§ 2, 3)
§ 9.11.020 REGULATION OF SMOKING IN
PLACES OF EMPLOYMENT.
A. It shall be the responsibility of employers to
provide smoke free areas for nonsmokers within
existing facilities to the maximum extent possible, but
employers are not required to incur any expense to
make structural or other physical modifications in
providing these areas.
B. Within ninety (90) days of the effective date
of this Chapter, each employer and each place of
employment located within the City of Culver City
shall adopt, implement and make known and maintain
a written smoking policy which shall contain at a
minimum the following requirements:
1. Prohibition of smoking within any
employee's immediate work area if requested by the
employee and designated by signs provided by the
employer; provided that, the employer may
reasonably define the "immediate work area."
2. Prohibition of smoking in conference
and meeting rooms, classrooms, auditoriums,
restrooms, medical facilities, hallways and elevators.
3. An annual poll of all employees shall be
conducted to determine the percentage of smokers and
nonsmokers. The employer shall then establish
smoking and nonsmoking areas within lunchrooms,
cafeterias and employee lounges in proportion to these
percentages. In lieu of conducting such a poll, an
employer may establish nonsmoking areas of not less
than fifty percent (50%) of the seating capacity and
floor space in lunch rooms, cafeterias and employee
lounges.
4. In any dispute arising under the smoking
policy, the health concerns of the nonsmoker shall be
given precedence.
C. The smoking policy shall be communicated
to all employees within three (3) weeks of its adoption
and at least annually thereafter.
D. All employers shall supply a written copy of
the smoking policy upon request to any existing or
prospective employee.
E. Notwithstanding any other provision of this
Section, every employer shall have the right to
prohibit smoking in all areas of the place of
employment.
('65 Code, § 27-4) (Ord. No. 87-022 § 2)
§ 9.11.025 OPTIONAL SMOKING AREAS.
A. Notwithstanding any other provisions of this
Chapter to the contrary, the following areas shall not
be subject to the smoking restrictions of this Chapter:
1. Private residences, except when used as
a child care or health care facility;
2. Bars;
3. Hotel rooms and motel rooms rented to
guests;
4. Retail stores the primary purpose of
which is to sell tobacco products;
5. Restaurant, hotel and motel conference
and meeting rooms and public and private assembly
rooms while these places are being used for private
functions open only to invitees or members of the
organization and their guests;118
Culver City - General Regulations
6. A private enclosed office workplace
occupied exclusively by smokers, even thou gh such an
office workplace may be visited by non-smokers.
Nothing contained herein shall permit smoking where
it is otherwise prohibited by other applicable laws;
B. Notwithstanding any other provision of this
Section, any owner, operator, manager, or other
person who controls any establishment described in
this Section may prohibit smoking in all areas of the
establishment.
( 65 Code, § 27-5) (Ord. No. 87-022 § 2; Ord. No.
90-032 § 2)
§ 9.11.030 POSTING REQUIREMENTS.
A. Every owner, operator, manager or person
having control of a building or place where smoking
is regulated by this Chapter shall clearly and
conspicuously post or cause to be posted in every such
building or place "Smoking" or "No Smoking" signs,
whichever are appropriate, with letters of not less than
three (3) inches in height or 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).
B. Every theater owner, manager or operator
subject to this Chapter shall clearly and conspicuously
post or cause to be posted signs in the lobby stating
smoking is prohibited within the theater or auditorium,
and in the case of motion picture theaters, such
information shall be shown on the screen for at least
five (5) seconds prior to the showing of each feature
motion picture.
C. Every restaurant subject to this Chapter shall
have, at its entrance or in its reception area, signs
designating smoking and nonsmoking areas which
clearly direct patrons to the correct area of the
restaurant. In any restaurant where smoking is entirely
prohibited, there shall be a sign to that effect at its
entrance or reception area.
('65 Code, § 27-6) (Ord. No. 87-022 § 2)
§ 9.11.035 AIR CIRCULATION IN SMOKING
RESTAURANTS.
A. The City Council shall. by resolution,
establish standards applicable to smoking restaurants
which are required, pursuant to § 9.11.015 L., to
designate no more than thirty-four percent (34%) of
the total eating area capacity as a smokin g area. These
standards shall provide for segregation of the smoking
and nonsmoking air streams or for removal of smoke
and its products from the atmosphere prior to
recirculation into a nonsmoking area.
B. Prior to issuance of a building permit for
construction of a new or significant remodelling or
repair of an existing restaurant with a seating capacity
of twenty-five (25) or more persons, the Building
Official shall determine whether the restaurant is a
smoking restaurant or a nonsmoking restaurant. As
used herein, the remodelling or repair is "significant"
if the value of work, as determined by the City, is at
least One Hundred Thousand Dollars ($100,000.00).
C. The Building Official shall not issue a
building peiruit for a smoking restaurant unless the
restaurant shall contain either dual fresh air
circulation, or ventilation systems with negative
pressure in smoking areas, or floor-to-ceiling physical
barriers segregating "smoking" and "nonsmoking"
areas, or an alternate system reviewed and approved
by the Building Official; provided that the means
which are chosen to separate smoke-free air from air
which contains tobacco smoke must meet or exceed
the standards.
( '65 Code, § 27-6.1) (Ord. No. 91-004 § 4)
§ 9.11.040 CERTIFICATION FOR SMOKING
RESTAURANTS.
A. No Certificate of Occupancy for a newly
constructed smoking restaurant shall be issued until the
Building Official has tested and approved the
installation of the air circulation system.Smoking Regulations
119
B. Whenever a building permit is issued for an
existing restaurant to be significantly remodeled as
defined in this Chapter, the Building Official shall
revoke the Certificate of Occupancy for such
restaurant and concurrently issue a temporary
Certificate of Occupancy for the period of
construction, and issue a new Certificate of
Occupancy for the remodeled smoking restaurant only
after the Building Official has approved and tested the
installation of the air circulation system.
C. No application for business tax certificate
for a smoking restaurant shall be considered complete
unless the Building Official approves, after review
and testing of the ventilation systems required by the
standards, the issuance of such business tax
certificate.
D. The owner, operator or manager of a
smoking restaurant shall be required to submit to the
Building Official annually a certified report of a
licensed contractor stating that the ventilation systems
are in proper operating order.
E. The application for renewal of a business tax
certificate shall not be complete until a copy of the
certified report, in compliance with Subsection D.,
has been submitted to the Tax Collector.
('65 Code, § 27-6.2) (Ord. No. 91-004 § 5)
§ 9.11.045 DESIGNATION AS NONSMOKING
RESTAURANT.
A. If the owner, operator or manager of a
restaurant with a seating capacity of twenty-five (25)
or more persons and the land owner elect to prohibit
smoking throughout the restaurant, and execute
land-use restriction(s) so to prohibit smoking
throughout the restaurant in a form approved by the
City Attorney and recorded with the County
Recorder, the Building Official shall issue a building
permit for the proposed new construction or
significant remodeling without certifying that the air
circulation, filtration, ventilation or other systems
meet the special standards adopted by resolution of the
City Council to implement these §§ 9.11.035 through
9.11.050.
B. The Building Official shall not issue a
Certificate of Occupancy for a nonsmoking restaurant
until the land use restriction required by Subsection A.
has been recorded, and no application for a business
tax certificate for a nonsmoking restaurant shall be
considered complete until the Building Official has
issued the Certificate of Occupancy.
C. If the owner, operator or manager of the
restaurant and the property owner elect to permit
smoking in a restaurant previously designated as
nonsmoking pursuant to Subsection A., the restaurant
shall be made to conform to the provisions of
§ 9.11.040 prior to the change of use.
D. No Certificate of Occupancy for a smoking
restaurant shall be issued unless and until the Building
Official has certified that the restaurant has installed
and tested a system which meets or exceeds the
standards.
E. The Building Official shall cause to be
recorded a release of the land use restrictions in a
form approved by the City Attorney as soon as
practicable after the Certificate of Occupancy for the
smoking restaurant has been issued.
('65 Code, § 27-6.3) (Ord. No. 91-004 § 6)
§ 9.11.050 FEES FOR SMOKING
RESTAURANTS.
The City Council shall, by resolution, establish
fees to be paid to the Building Depai Intent to cover the
cost of inspections and testing of air segregation
systems.
('65 Code, § 27-6.4) (Ord. No. 91-004 § 7)
§ 9.11.055 REGIS1ER OF COMPLAINT;
NOTICE OF PROVISIONS.
A. Any person who desires to register a
complaint under this Chapter may do so with the
Parks, Recreation and Community Services
Department.
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Culver City - General Regulations
B. Any owner, manager, operator or employee
of any establishment regulated by this Chapter may
inform persons violating this Chapter of the
appropriate provisions thereof.
( '65 Code, § 27-17) (Ord. No. 87-022 § 2; Ord. No.
2002-005 § 1 (part))
§ 9.11.060 VIOLATIONS; PENALTIES.
A. It shall be unlawful for any person who
owns, manages, operates or otherwise controls the use
of any premises subject to regulation under this
Chapter to fail to comply with any of its provisions.
The owner, manager or operator of a restaurant shall
not be deemed in violation of § 9.11.030 if the host or
hostess of the restaurant fails to ask the seating
preference of patrons, but shall be deemed in violation
thereof if the restaurant has no stated policy requiring
patrons be asked their preference.
B. It shall be unlawful for any person to smoke
in any area where smoking is prohibited by the
provisions of this Chapter.
C. Any person who violates any provision of
this Chapter shall be guilty of an infraction,
punishable by:
1. A fine not exceeding One Hundred
Dollars ($100.00) for the first violation;
2. A fine not exceeding Two Hundred
Dollars ($200.00) for a second violation of this
Chapter within one year;
3. A fine not exceeding Five Hundred
Dollars ($500.00) for each additional violation of this
Chapter within one year.
('65 Code, § 27-8) (Ord. No. 87-022 § 2; Ord. No.
90-032 § 3)
§ 9.11.065 NON-RETALIATION.
No person or employer shall discharge, refuse to
hire, or in any manner retaliate against any employee
2005 S-7
or applicant for employment because such employee
or applicant exercises any rights afforded by this
Chapter.
('65 Code, § 27-9) (Ord. No. 87-022 § 2)
§ 9.11.070 EXEMPTIONS AND
MODIFICATIONS.
A. Any owner, operator or manager of a
business or other establishment subject to this Chapter
may apply to the City of Culver City for an exemption
or modification to any provision of this Chapter due to
financial impracticability, based on the cost of
complying with the requirements of this Chapter.
B. Such exemption shall be granted only upon
a fmding, from the evidence presented by the
applicant for exemption at a public hearing before the
Parks and Recreation Commission, that it is financially
impracticable for the applicant to comply with the
requirements of this Chapter, based upon the actual
costs to be incurred in order to make physical
modifications to a facility.
C. The applicant for an exemption shall be
required to pay a reasonable fee to cover the costs of
the hearing. Said fee shall be established by the City
Council by resolution. Notice of the time and place of
said hearing shall be mailed to the applicant and
published in a newspaper of general circulation within
the City of Culver City not less than ten (10) days
prior to said hearing.
D. The Parks and Recreation Commission shall
be empowered to grant such an exemption.
E. Any decision regarding exemptions by the
Parks and Recreation Commission shall be appealable
to the City Council by any interested person, within
fifteen (15) days of the date of the decision. The
appellant shall be required to pay a reasonable fee to
cover the costs of the appeal. The fee shall be
established by the City Council by resolution.
('65 Code, § 27-10) (Ord. No. 87-022 § 2; Ord. No.
2002-005 § 3 (part))
L,Smoking Regulations
121
§ 9.11.075 PUBLIC EDUCATION.
The Parks, Recreation and Community Services
Department shall leave the responsibility of
conducting a public education campaign regarding the
health consequences of smoking to other governmental
and health agencies equipped to conduct such
campaigns.
('65 Code, § 27-11) (Ord. No. 87-022 § 2; Ord. No.
2002-005 § 1 (part))
§ 9.11.080 GOVERNMENTAL AGENCY
COOPERATION.
The City Manager shall annually request other
governmental and educational agencies having
facilities within the City of Culver City to establish
local operating procedures in cooperation and
compliance with this Chapter.
('65 Code, § 27-12) (Ord. No. 87-022 § 2; Ord. No.
2006-009 § 22 (part))
§ 9.11.085 OTHER APPLICABLE LAWS.
This Chapter shall not be interpreted or construed
to permit smoking where it is otherwise restricted by
other applicable laws.
( '65 Code, § 27-13) (Ord. No. 87-022 § 2)
2007 S-9