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HomeMy WebLinkAboutOrdinance 632- Tobacco Vaping Secondhand Smoke (041420)ORDINANCE NO. 632 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA, ADDING CHAPTER 5.54 (TOBACCO, ELECTRONIC CIGARETTES AND VAPING) TO TITLE 5 (BUSINESS TAX CERTIFICATES AND REGULATIONS), AND AMENDING CHAPTER 9.24 (SECONDHAND SMOKING REGULATIONS) OF TITLE 9 (PUBLIC PEACE, MORALS AND WELFARE), OF THE MORRO BAY MUNICIPAL CODE, TO REGULATE THE SALE OF TOBACCO AND VAPING PRODUCTS AND UPDATE AND EXPAND THE CITY'S SECONDHAND SMOKING REGULATIONS THE CITY COUNCIL City of Morro Bay, California WHEREAS, the City of Morro Bay ("City") is empowered to enact legislation to protect the health, safety, and welfare of the public; and WHEREAS, there are currently serious public health concerns about the immediate and Tong -term harm caused by vaping/e-cigarette use (`vaping'); and WHEREAS, approximately 1,300 cases of vaping-related lung illnesses have been reported in hospitals health clinics, and emergency rooms nationwide, with at least 26 confirmed vaping-related deaths; and WHEREAS, the U S. Surgeon General and the California Department of Public Health (CDPH) have issued health advisories to educate the public about the imminent health risk posed by vaping any product; and WHEREAS, teen use of vaping products has grown rapidly in recent years, with a February 2019 National Institutes of Health report finding that over 17.6% of 8th graders, 32 3% of 10th graders, and 37.3% of 12th graders reported trying vaping last year nationwide; and WHEREAS, according to a 2017-2018 California Healthy Kids Survey (CHKS) of Morro Bay High School 9th and 11th graders conducted in 2018, 18% of 9th graders and 22% of 11th graders had used vaping products at least once in the past month, and over 60% of students surveyed thought it was fairly easy or very easy for high school students to obtain vaping products and WHEREAS vaping products, particularly the flavored variety, are popular among younger users, and the packaging and advertising of vaping products by vaping companies are often attractive to younger users; and WHEREAS, there are over 15,000 vaping flavors available on the market including youth -orientated flavors such as bubble gum, cotton candy, and fruit punch, among others; and 01181.0001/640877.1 CFN Ordinance No. 632 Page 1 of 19 WHEREAS, in addition to vaping products, several other tobacco products are flavored in ways that make them attractive to minors, thus increasing the risk that minors will use, and potentially become addicted to, these products; and WHEREAS, the Federal Family Smoking Prevention and Tobacco Control Act prohibits the sale of cigarettes with a characterizing flavor — other than tobacco and menthol — but does not apply to cigars, e-cigarettes, or other non -cigarette tobacco products; and WHEREAS, through the sale of tobacco . products, pharmacies, and business establishments containing pharmacies, convey tacit approval of the purchase and use of tobacco products. This approval sends a mixed message to consumers who generally patronize pharmacies for health care services; and WHEREAS, tobacco products are often sold individually to make them less expensive, and more enticing to youth Establishing policies to ensure minimum packaging or a minimum unit in which cigars can be sold in, will increase the purchase price and help protect youth from the health dangers of smoking little cigars and cigarillos; and WHEREAS, secondhand smoke has been shown to be extremely hazardous to the health and safety of those who are exposed to it; and WHEREAS, the City's existing secondhand smoke regulations focus on limiting or eliminating secondhand smoke in public areas; and WHEREAS, these regulations have not completely eliminated the risks posed by secondhand smoke to the community; and WHEREAS, the City desires to amend its regulations to make them more comprehensive and effective at protecting the community from the harmful effects of secondhand smoking. THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA DOES HEREBY FIND AND ORDAIN AS FOLLOWS: SECTION 1. CHAPTER 5.54 (TOBACCO, ELECTRONIC CIGARETTES AND VAPING) IS HEREBY ADDED TO TITLE 5 OF THE MORRO BAY MUNICIPAL CODE, TO READ AS FOLLOWS: "Chapter 5.54 - TOBACCO, ELECTRONIC CIGARETTES AND VAPING 5.54.010 - Definitions. The following words and phrases, as used in this chapter, shall have the following meanings: 'Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco or menthol, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas 01181.0001/640877.1 CFN Ordinance No. 632 Page 2 of 19 relating to mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice "Cigar" means (1) any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or (2) any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products. "Cigar" includes but is not limited to, tobacco products known or labeled as "cigar," cigarillo," "tiparillo," "little cigar," "blunt wrap," or `cigar wrap." "Electronic cigarette, (i.e., e-cigarettes) for purposes of solely this Chapter 5.54, means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances (excluding cannabis that contains no Vitamin E acetate), including any component, part or accessory of such a device, whether or not sold separately. Includes any such device 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 cigarette paraphernalia" means an item that is marketed as or can be used as a component part of an electronic cigarette. "Flavored tobacco product" means any tobacco product that imparts a characterizing flavor. A public statement or claim made or disseminated by themanufacture of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product. "Hearing officer" means the person or persons designated by the city manager to serve in this capacity. Compensation of a hearing officer shall not depend on any particular outcome of any hearings the hearing officer is involved with concerning this Chapter 5.54. "Licensing agent" means a person or persons designated by the city manager to serve in this capacity. "Menthol" means any form or taste of menthol commonly used to add flavor or aroma to tobacco products, and any substance derived from menthol. Person" means any natural person partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Pharmacy" means a retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals. "Pharmacy' includes any retail establishment that contains a pharmacy, even if the pharmacy is not the sole or primary business of the retail establishment. `Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent or greater interest 01181.0001/640877.1 CFN Ordinance No. 632 Page 3 of 19 in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have, or can or does share, ultimate control over the day -today operations of a business. "Smokeless tobacco product' means any tobacco product that is not smoked or burned, including but not limited to chewing tobacco and snuff; this definition does not include electronic cigarettes, electronic cigarette paraphernalia, nor vaping products. "Tobacco product paraphernalia' includes cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines and any other item designed for the smoking or ingestion of tobacco or products prepared from tobacco. "Tobacco product" means any product containing, made from, or derived from tobacco or nicotine that is intended for human consumption whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco electronic cigarettes or any other preparation of tobacco including Indian cigarettes called "bides." "Tobacco product" includes electronic cigarette paraphernalia and tobacco product paraphernalia. "Tobacco product' does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes and is marketed and sold solely for such an approved purpose. "Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, or any tobacco product; "tobacco retailing" shall mean the doing of any of these things. "Vaping" is a term that commonly refers to the use of an electronic cigarette. "Vitamin E acetate," also known as a-Tocopheryl acetate, means a synthetic form of vitamin E and/or an oil derived from vitamin E, and known to be used as an additive for vaping products. 5.54.020 — Prohibition on sale of certain tobacco products. It is unlawful to sell, offer to sell, or exchange or offer to exchange for consideration any of the following products in the City of Morro Bay (commencing December 1, 2020): A. Electronic cigarettes. B. Electronic cigarette paraphernalia. C. Cigars meeting any of the following criteria: 1. Any single cigar, whether or not packaged for individual sale, unless the retail price exceeds $5.00; or 2. Any number of cigars fewer than the number contained in the manufacturer's original consumer packaging designed for retail sale to a consumer, or 01181.0001/640877.1 CFN Ordinance No. 632 Page 4 of 19 3. Any package of cigars containing fewer than five cigars. D. Flavored tobacco products (excepting smokeless tobacco products). 5.54.030 — Requirement for tobacco retailer license. A. Beginning on June 1, 2021, it shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur. B. Licenses are valid for one year and each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license prior to its expiration. C. The conference of a tobacco retailer license does notconfer any new rights under any other law and does not exempt any business that otherwise would be subject to the smoking related provisions within the Morro Bay Municipal Code and Labor Code Section 6404.5. 5.54.040 — Retailer limitations. A. No license will be issued to authorize tobacco retailing at other than a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles are prohibited. B. No license will be issued to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g. an "on -sale' license issued by the California Department of Alcoholic Beverage Control); tobacco retailing in bars and restaurants serving alcoholic beverages is prohibited. C. No license will be issued to authorize tobacco retailing in a pharmacy and no pharmacy shall engage in tobacco retailing at any time. 5.54.050 — License application procedure. A. Application for a tobacco retailer's license shall be submitted to the licensing agent in the name of each proprietor/person proposing to conduct retail tobacco sales and shall be signed by such person or an authorized agent thereof. All applications shall be submitted on a form supplied by the licensing agent and shall contain the following information: 1. The name, address, and telephone number of the applicant. 2. The business name, address, and .telephone number of each location for which a tobacco .retailer's license is sought. 3. Such other information as the licensing agent deems necessary for enforcement of this chapter. 01181.0001/640877.1 CFN Ordinance No. 632 Page 5 of 19 4. Whether or not any proprietor has previously been issued a license pursuant to this chapter that is, or was at any time suspended or revoked and, if so the dates of the suspension period or the date of revocation. B A licensed tobacco retailer shall inform the city in writing of any change in the information submitted on an application for a tobacco retailer's license within ten business days of a change. 5.54.060 — Issuance of license. Upon the receipt of an application for a tobacco retailer's license, the licensing agent shall issue a license unless substantial evidence in the record demonstrates one of the following bases for denial: A. The application is incomplete or inaccurate; or B. The application seeks authorization for tobacco retailing at a location prohibited by section 5.54.040; or C. The application seeks authorization for tobacco retailing by a person or at a location for which a suspension is in effect pursuant to Section 5 54.120 of this chapter. 5.54.070 — Display of license. Each licensee shall prominently display the license in a public place at each location where tobacco retailing occurs. 5.54.080 — Fees for license. The fee for a tobacco retailer's license shall be established by resolution of the city council. The fee shall be calculated so as to recover the total cost, but no more than the total cost, of license administration and enforcement, including, but not limited to, issuing the license administering the license program, retailer education retailer inspection and compliance checks, documentation of violation, and prosecution of violators. The fee for tobacco retailer's license shall be paid to the licensing agent. 5.54.090 — Licenses nontransferable. A tobacco retailer's license is not transferable to a new location or to another person. For example, if a proprietor to whom a license has been issued changes business location, that proprietor must apply for a new license prior to acting as a tobacco retailer at the new location or, if the business is sold, the new owner must apply for a license for that location before acting as a tobacco retailer. 5.54.100 — Noncompliance with tobacco -related laws - License violation. It shall be a violation of a tobacco retailer s license for a licensee or his or her agents or employees to violate any local state or federal tobacco -related law. 01181.0001/640877.1 CFN Ordinance No. 632 Page 6 of 19 5.54.110 —100% ID check requirement Tobacco retailers shall verify the age of every person purchasing a tobacco product by means of a government issued (or equivalent) photographic identification containing the bearer's date of birth regardless of what age the purchaser appears to be. 5.54.120 --License compliance monitoring. Compliance with this chapter shall be monitored by City law enforcement agents. At least four compliance checks of each tobacco retailer shall be conducted during each twelve- month period. The cost of compliance monitoring shall be incorporated into the license fee. 5.54.130 — Suspension or revocation of license. A. In addition to any other penalty authorized by law, a tobacco retailer's license may be suspended or revoked if the city finds, after notice to the licensee consistent with Section 1.03.120 of this Code, and reasonable opportunity to be heard, that the licensee or his or her agents or employees has violated the conditions of the license imposed pursuant to this chapter, or that the information contained in the application, including supplemental information, if any, is false in any material respect, as follows. 1 Upon a finding by the city of a first license violation within any five-year period, the license shall be suspended for thirty days. 2. Upon a finding by the city of a second license violation within any five-year period, the license shall be suspended for ninety days. 3. Upon a finding by the city of a third license violation within any five-year period, the license shall be suspended for one year. 4. Upon a finding by the city of a fourth license violation within any five-year period, the license shall be revoked. B. During a period of license suspension, the tobacco retailer shall remove all tobacco products from public view at the retail location. C. The suspension or revocation of a tobacco retailer's license shall become effective on the date specified in the notice of suspension or revocation issued by the city, which shall not be sooner than the 11th business day following the date of the city's decision to suspend or revoke the license. 5.54.140 --Appeal of suspension or revocation. A decision of the city to suspend or revoke a license is appealable to a hearing officer and must be filed with the city clerk no later than ten business days following the date of the city s decision to suspend or revoke the license. Appeal procedures shall follow those contained in Sections 1.03.080-090 of this Code except when in conflict with this Chapter 5.54 An appeal shall stay all proceedings in furtherance of the appealed action. Following appeal, the decision of the hearing officer may be appealed to the city manager or his or her designee by filing a 01181.0001/640877.1 CFN Ordinance No. 632 Page 7 of 19 notice of appeal with the city clerk no later than ten business days following the date of the decision of the hearing officer. A decision of the city manager or his or her designee shall be the final decision of the city. 5.54.150 — Administrative fine — Penalties - Enforcement. A. Any violation of the provisions of this chapter by any person is a misdemeanor and is punishable as provided in Chapter 1.16 of this code. Any violation of the provisions of this chapter by any person is also subject to administrative fines as provided in Chapter 1.03 of this code. B. Each day that a person acts as a tobacco retailer without a valid tobacco retailer's license shall constitute a separate violation of this chapter. C. Violations of this chapter are hereby declared to be public nuisances. D. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. E The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity " SECTION 2. CHAPTER 9.24 (SECONDHAND SMOKING REGULATIONS) OF TITLE 9 (PUBLIC PEACE, MORALS AND WELFARE) OF THE MORRO BAY MUNICIPAL CODE IS HEREBY AMENDED TO READ AS FOLLOWS (NEW TEXT IN BOLD ITALICS AND DELETED TEXT IN si:dk'TH-RO k I1): "9.24.010 — Purpose. This chapter is enacted with the specific intent to: A. Prohibit smoking in certain public places not preempted by California Labor Code Section 6404.5, which provides further smoking regulations; B. Protect the public health, safety and general welfare by prohibiting smoking in certain public places under circumstances where other persons will be exposed to secondhand smoke; C Ensure a cleaner and more hygienic environment for the city, its residents, and its natural resources, including its creeks and streams and beaches; D. Strike a reasonable balance between the . needs of persons who smoke and the needs of nonsmokers, including residents and visitors, particularly children, to breathe smoke -free air, recognizing the threat to public health and the environment which smoking causes; 01181.0001/640877.1 CFN Ordinance No. 632 Page 8 of 19 E Designate the enforcing agency for this chapter and for Labor Code Section 6404.5. 9.24.020 — Definitions. The following words and phrases, as used in this chapter or in any other applicable law regulating smoking, shall have the following meanings: "Business" means any sole proprietorship, partnership, joint venture, corporation, association or other entity formed for profit -making purposes or that has an employee. "Cannabis" means all parts of the plant cannabis sativa linnaeus, cannabis indica, or cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified obtained from cannabis "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination "City beach" means the sandy area on either side of the mean high tide line from Atascadero Road all the way up to, but not including the parking lot at the Rock. City beach shall also include the area of the Sand Spit that is owned by the city. "City T-piers" means the municipal piers located North of Beach Street and at Tidelands Park. "Code compliance officer" means the city code compliance officer or duly authorized designee of the city code compliance officer. "Common area" means every enclosed area and every unenclosed area of a multi- unit residence that residents of more than one unit are entitled to enter or use, including, without limitation, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas. • is designcd, established or regularly used for consuming food or drink "Electronic cigarette" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances (including but not limited to cannabis) including any component, part or accessory of such a device, whether or not sold separately. Includes any such device, 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. 01181.0001/640877.1 CFN Ordinance No. 632 Page 9 of 19 "Employee" means any person who is employed or retained as an independent contractor by any employer as defined in this section; or any person who volunteers his or her services for an employer, association, nonprofit or volunteer entity. "Employer" means any person, partnership, corporation, association, nonprofit or other e ntity that employs or retains the service of one or more persons, or supervises volunteers. "Enclosed" means any covered or partially covered space having more than fifty percent of its perimeter area walled in or otherwise closed to the outside such as, for example, a covered porch with more than two walls; or any space open to the sky (hereinafter "uncovered") having more than seventy-five percent of its perimeter area walled in or otherwise closed to the o utside such as, for example, a courtyard. "Landlord" means any person or agent of a person who owns, manages, or is o therwise legally responsible for a unit in a multi -unit residence, except that "landlord" does not include a tenant who sublets a unit. "Multi -unit residence" means a new or existing property containing two or more units, including, but not limited to, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term health care facilities. Multi -unit residences do not include the following: 1. A hotel or motel; 2. A mobile home park; 3. A single-family home; and 4. A single-family home with a detached or attached accessory dwelling unit or second unit. "Nonprofit entity' means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, educational, political, social or similar purposes the net proceeds of which are committed to the promotion of the objectives of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this section "Place of employment' means any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation including, for example, indoor and outdoor work areas, vehicles used in employment or for business purposes taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses and private residences that are used as childcare or healthcare facilities subject to licensing requirements. "Playground' means any park or recreational area designed in part to be used by children, that has play or sports equipment installed or has been designated or landscaped for 01181.0001/640877.1 CFN Ordinance No. 632 Page 10 of 19 play or sports activities, or any similar facility located on public or private school grounds, or on city property. "Premises" means a lot or contiguous Tots and any improvements. thereon such as is u sually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same person or are under common control. "Present" means within a reasonable distance. "Public place" means any public or private place open to the general public regardless of any fee or age requirement, including, for example, streets sidewalks, parking lots, parking garages, plazas, bars, restaurants clubs, stores, stadiums, parks, playgrounds, city beaches,. T- Piers taxis and buses. For the purposes of the provisions of this chapter, a `public place" does n ot mean a private residence except for residences used as an adult or child care, health care, board and care, or community foster care facility as such terms are defined by the state Health and Safety Code. "Reasonable distance" means the greatest distance practicable that ensures that o ccupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. This distance shall be a minimum of twenty feet. "Recreational area" means any public or private area open to the public for recreational purposes whether or not any fee for admission is charged, including without limitation, parks, trails, gardens, sporting facilities, stadiums, beaches, T-piers and playgrounds "Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria, eating establishment, vending cart, boardinghouse or guest house or similar establishment which gives or offers for sale food to the public. "Secondhand smoke" means smoke that is generated either from the burning end of a lighted tobacco weed, cannabis or plant product, or from an electronic cigarette; or, smoke that is exhaled by a smoker, after inhaling or ingesting a lit tobacco, weed, cannabis or plant product, or after use of an electronic cigarette "Service area" means any area designed to be or regularly used by one or more persons to receive or wait to receive a service, enter a public place or make a transaction whether or not such service includes the exchange of money, including for example, ATMs bank teller windows, telephones, ticket lines, bus stops, taxi stands and takeout counters. "Smoke or smoking" means the carrying or holding of a lighted pipe, cigar, cigarette, or any other lighted smoking product or equipment used to burn any tobacco products, weed, plant, cannabis or any other combustible substance. Smoking includes emitting or exhaling the fumes of any pipe, cigar, cigarette, or any other lighted smoking equipment, including an electronic cigarette, used for burning any tobacco product, weed plant, cannabis, or any other combustible substance. 01181.0001/640877.1 CFN Ordinance No. 632 Page 11 of 19 "Sports arena" means an outdoor or nonenclosed sports pavilion, stadium, swimming pool, roller rink, or other similar place where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events, including the concession stand areas thereof. "Unenclosed area" means any area which is not enclosed. "Unit" means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive -use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. 9.24.030 — Secondhand smoke generally. A. For all purposes within the jurisdiction of the city, the nonconsensual exposure to secondhand smoke and the uninvited presence of secondhand smoke on property in violation of this chapter shall constitute a nuisance, as is further described by Title 8 of the Morro Bay Municipal Code. B. For all purposes within the jurisdiction of the city, no person shall cause secondhand smoke to interfere with the reasonable use and enjoyment of another person's private residence. 9.24.040 — Public and other places where smoking shall be prohibited. Except as otherwise provided by this chapter or by state or federal law, smoking shall be prohibited everywhere in the city, including but not limited to: A. All public places; B. Residences used as child care, health care, board and care, or community foster care facility as such terms are defined by state Health and Safety Code; C. Places of employment, except outdoor construction sites; D Enclosed and unenclosed places of hotels, businesses, restaurants, bars and other public accommodations; and E Any means of public transit including associated waiting areas, and service areas, enclosed or not .; F. Units in multi -unit residences; and G. Common areas of multi -unit residences. The prohibitions stated in subsections (F) and (G) of this Section shall become effective on August 1, 2020. 9.24.050 — Reasonable distance. 01181.0001/640877.1 CFN Ordinance No. 632 Page 12 of 19 Smoking in unenclosed areas shall be prohibited within a reasonable distance of (at least twenty feet) from any entrance, opening, crack or vent into an enclosed area where smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any enclosed area in which smoking is prohibited. 9.24.060 — Places where smoking may be permitted. Except where prohibited by local, state or federal law, smoking may be permitted in the following locations within the city notwithstanding Section 9.24.040: A. Private residences other than multi -unit residences, Properties. This chapter does not preclude private regulation of smoking on private residential and multifamily properties. B. Designated smoking areas unencloscd areas ("smokers' outposts") provided that all of the following conditions are met. 1. The area is located a reasonable distance away from any doorway or opening into an enclosed area and any access way to a public place; 2. The area has a clearly marked perimeter; 3. The area is posted with one or more conspicuously displayed sign(s) identifying the area as a designated outdoor smoking area pursuant to Section 9 24.060090 of this code; 4. Smoke is not permitted to enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property; 5. Appropriate ash can(s) are placed in the smoking area and are maintained regularly by the owner, operator or manager of the smoking area; and 6. No consistent complaints of secondhand smoke are filed with the city. C. Smoking areas at public events which have been approved as part of the special event permit or temporary use permit issued by the city. D. Inside a private automobile when no minor child is present, except for as prohibited by state law. 9.24.070 — Modifications of designated smoking areas smokers' outposts. The city reserves the right to prohibit or require modifications to a designated smoking area smoker's outpost at a certain location if it undermines the purposes of this chapter, or violates the regwrements of Section 9.24.060(B) of this code. 9.24.080 — Allowing, aiding or abetting smoking. 01181.0001/640877.1 CFN Ordinance No. 632 Page 13 of 19 A. No person, employer, business, landlord or nonprofit entity shall knowingly permit smoking in an area under his, her or its legal or de facto control in which smoking is prohibited by this chapter or other law. B. No person, employer, business, landlord or nonprofit entity shall allow the placement or maintenance of a receptacle for smoking waste in an area under his, her or its legal or de facto control in which smoking is prohibited by this chapter or other law provided however, that a receptacle may be placed at the entry to a nonsmoking area, along with a "No Smoking' sign, in order to encourage any smokers in violation of this chapter to immediately extinguish and properly dispose of smoking materials. C. No person shall intimidate, threaten, effect a reprisal or retaliate against another person who seeks to attain compliance with one or more of this chapter's provisions. 9.24.085 — Required lease terms for all new and existing units in multi -unit residences. A Every lease or other agreement (collectively, "lease") for the occupancy of a unit in a multi -unit residence, entered into, renewed, or continued month -to - month, effective on or after August 1, 2020, shall include the following: 1. A clause stating that smoking is prohibited in the unit, including exclusive -use areas such as balconies, porches, or patios. 2. A clause providing that it is a material breach of the lease for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, including sublessees, to (i) smoke in any common area of the property other than a designated smoking area, (ii) smoke in the unit, or (Hi) violate any law regulating smoking anywhere on the property. 3. A clear description of all areas on the property and in the immediate vicinity of the property where smoking is allowed or prohibited. 4. A clause expressly conveying third -party beneficiary status to all occupants of the multi -unit residence as to the smoking provisions of the lease. Such a clause shall provide that any tenant of the multi -unit residence may sue another tenant/owner to enforce the smoking provisions of the lease but that no tenant shall have the right to evict another tenant for a breach of the smoking provisions of the lease. B Whether or not a landlord complies with subsection (A), above, the clauses required by that subsection shall be implied and incorporated by law into every lease to which subsection (A) applies that is entered into, renewed, or continued month -to -month on or after August 1, 2020. C. This chapter shall not create additional liability for a landlord to any person for a tenant's breach of any smoking provision in a lease for the occupancy of a 01181.0001/640877.1 CFN Ordinance No. 632 Page 14 of 19 unit. in a multi -unit residence if the landlord has fully complied with this section. D. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. 9.24.086 — Notice requirements for landlords and unit owners. • A. On or before August 1, 2020, every landlord shall provide to the occupants of each unit of a multi -unit residence a written notice of the requirements prohibiting smoking in units and common areas as stated in Section 9.24.040 of this code. B Beginning on August 1, 2020, every seller of a unit in a multi -unit residence shall provide prospective buyers with a written notice clearly stating that: 1. Smoking is prohibited in units, including any associated exclusive -use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio; and 2. Smoking is prohibited in all common areas, except for specifically designated smoking areas. 9.24.090 — Signs. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter. A. "No Smoking' or "Smoke Free" signs, with letters of not less than one inch 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) or any alternative signage approved by the public services community development director must be conspicuously posted at each entrance to any place in which smoking is prohibited by this chapter by the person, employer, business or nonprofit entity who or which has legal or de facto control of such place at each entrance to a public public services director reasonably determines that smoking in violation of this chapter has occurred, or is likely to occur. B. Within designated smoking areas, one or more conspicuously displayed sign(s) shall be posted identifying the area as a designated smoking area smokers' outpost pursuant to Section 9.24.060 of this code as follows: signs with arrows directing the public to the smoking area may be allowed; signs shall be no smaller than three inches high and eight inches long with a pictorial representation of a burning cigarette; signs shall contain "Designated Smoking Area" and shall be posted prominently between five feet and seven feet above the floor or ground; and all signs are subject to approval by the public services community development director. 01181.0001/640877.1 CFN Ordinance No. 632 Page 15 of 19 C. Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designated as being nonsmoking shall have signs announcing such restriction conspicuously placed inside the room. • D. No person shall alter, deface, obscure, remove or destroy a sign or placard that this chapter authorizes. 9.24.100 - Disposal of smoking waste. No person shall dispose of any cigarette, cigar or tobacco, or any part of a cigarette or cigar, in any place where smoking is prohibited under this chapter, except in a designated waste disposal container. 9.24.110 - Fires on city beaches. No person shall build, light or maintain any fire on any city beach except in designated containers or areas approved by the city. 9.24.120 - Enforcement and penalties. A. Any violation of the provisions of this chapter is punishable as a misdemeanor or an infraction, at the discretion of the city prosecutor, pursuant to Chapter 1.16 of the Morro Bay City Code; and, any violation of the provisions of this chapter is subject to administrative citation, at the discretion of the city, pursuant to Chapter 1.03 of the Morro Bay City Code. B. Punishment under this section shall not preclude punishment pursuant to Health and Safety Code Section 13002 Penal Code Section 374.4, or any other law proscribing the act of littering. Nothing in this section shall preclude any person from seeking any other remedies, penalties or procedures provided by law. C. Any violation of this chapter shall be deemed a public nuisance which may be abated in accordance with the procedures set forth in Chapter 8.14 of the Morro Bay City Code All costs to abate such public nuisance, including attorneys fees and court costs, shall be paid by the person causing the nuisance, including the property owner where the nuisance is occurring. D. The remedies described in this section are not mutually exclusive. Pursuit of any one remedy shall not preclude city from availing itself of any or all available administrative, civil, or criminal remedies, at law or equity. E Any violation of the provisions of this chapter shall constitute a separate offense for each and every day during which such violation is committed or continued. 9.24.130 - Public education Purposes of chapter. The code compliance officer, in conjunction and coordination with the county health officer of the county of San Luis Obispo and, where feasible appropriate health or safety oriented 01181.0001/640877.1 CFN Ordinance No. 632 Page 16 of 19 community -based organizations and coalitions, shall engage in a continuing program to explain and clarify the purposes of the provisions of the chapter to citizens affected by it, and to guide business owners, operators and managers in their compliance with it. 9.24.140 - Governmental cooperation. The city manager shall request all governmental and educational agencies which maintain an office within the city to establish local operating procedures to cooperate and comply with this chapter. 9.24.150 - Other laws. The provisions of this chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws Further, it is not the intent of the provisions of this chapter to regulate smoking where such regulation has been preempted by the state." S ECTION 3. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have adopted this o rdinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, o r portions thereof may be declared invalid or unconstitutional. S ECTION 4. CEQA. The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(3) and 15061(b)(3) of the CEQA Guidelines. S ECTION 5. EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30) days after its passage. 01181.0001/640877.1 CFN Ordinance No. 632 Page 17 of 19 SECTION 6. CERTIFICATION. The City Clerk shall certify to the adoption of this ordinance, and shall cause the same to be posted and codified in the manner required by law. INTRODUCED at a regular meeting of the City Council held on the 14th day of April 2020, by motion of Mayor Headding and seconded by Council Member Addis. PASSED AND ADOPTED on the 28th day of April 2020, by the following vote: AYES. Headding, Addis, Davis, Heller, McPherson NOES. None ABSENT: None ATTEST: cr,scrY--) NA SWANSON, City y Clerk APPROVED AS TO FORM: h rj t“h ,/t CHRIS F. NEUMEYER, City ttorney 01181.0001/640877.1 CFN JOHN 4DDINMaybr • Ordinance No. 632 Page 18 of 19 STATE OF CALIFORNIA ) COUNTY OF SAN LUIS OBISPO ) CITY OF MORRO BAY I, Dana Swanson, CITY CLERK OF THE CITY OF MORRO BAY, DO HEREBY CERTIFY that the foregoing Ordinance Number 632 was duly adopted by the City Council of the City of Morro Bay at a regular meeting of said Council on the 28th day of April, 2020, and that it was so adopted by the following vote: AYES. Headding, Addis, Davis, Heller, McPherson NOES' None ABSENT: None IN WITNESS WHEREOF I have hereunto set my hand and affixed the official seal of the City of Morro Bay, California, this29 fiLday of i c = 01181.0001/640877.1 CFN 4 DANA SWANSON, City Clerk Ordinance No. 632 Page 19 of 19