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6312ORDINANCE NO. 6312 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING PORTIONS OF CHAPTER 6.30 (SMOKING IN PUBLIC PLACES) OF TITLE 6 (PUBLIC HEALTH AND SAFETY) OF THE ANAHEIM MUNICIPAL CODE RELATING TO SMOKING AND THE USE OF ELECTRONIC CIGARETTES IN CITY -OWNED BUILDINGS. WHEREAS, the California Indoor Clean Air Act of 1976, as amended (commencing with -Section 118920 of the California Health and Safety Code), authorizes local governing bodies to regulate smoking or ban completely the smoking of tobacco in any manner not inconsistent with state law. In addition, the California Labor Code (specifically, Section 6404.5) provides that any area not defined as a "place of employment" is subject to local regulation of smoking; and WHEREAS, in addition to the express authority granted to local governing bodies to regulate smoking within their territorial jurisdictions, local governments also possess on their own sufficient constitutional power to do so. Pursuant to Article XI, Section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws"; and WHEREAS, finding that "the smoking of tobacco, or any other weed, plant or substance is a positive danger to health and a material annoyance, inconvenience, discomfort and a possible health hazard to those who are present in confined spaces", the City Council of the City of Anaheim (herein referred to as the "City Council") enacted Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code in 1986 "to prohibit the smoking of tobacco, or any other weed, plant or substance in public places [including City -owned and operated buildings, the Anaheim Convention Center, Anaheim Stadium (now known as Angel Stadium of Anaheim), and the Anaheim Arena (now known as the Honda Center)] and places of employment" (herein referred to as the "City's No -smoking Ordinance"); and WHEREAS, the City Council wishes to update certain requirements within the City's No - smoking Ordinance to accommodate operational changes within certain City -owned buildings and to reflect changes in State law that have occurred since the City's enactment of the City's No - smoking Ordinance more than twenty-five (25) years ago. For example, Section 7597 of the California Government Code was enacted in 2003 prohibiting public employees or members of the public from smoking any tobacco product inside a public building, or in an outdoor area within 20 feet of a main exit, entrance, or operable window of a public building, and permitting cities and other public agencies to adopt and enforce additional, more restrictive smoking and tobacco control ordinances, regulations or policies; and WHEREAS, while the United States Food and Drug Administration ("FDA") is responsible for tobacco regulation, electronic cigarettes are not yet regulated by the FDA, although the FDA has the authority to assert jurisdiction over such products through regulation. Most electronic cigarettes contain nicotine, a highly addictive substance. Although the long-term effects of electronic cigarettes require further study, the FDA has found that some electronic cigarettes contain toxins and carcinogens and has expressed concerns about their safety; and WHEREAS, as reported in a presidential advisory from the American Heart Association (as published on January 8, 2014 in the Journal of the American Heart Association and available at http://iaha.ahajournals.of-fzicoiitent,'3/1ie000740.fL.ill) "the use of e-cigarettes among youth has grown dramatically in recent years. According to the Centers for Disease Control and Prevention, e-cigarette use among high school students more than doubled from 4.7% in 2011 to 10% in 2012 .... Among youth who use e-cigarettes, 75% smoke conventional cigarettes as well. Until more research is available regarding the potential health harms of e-cigarette use, as well as the risk of e-cigarettes serving as a gateway for youth to become addicted to tobacco, these products should be carefully regulated by the FDA"; and WHEREAS, electronic cigarettes are constructed to physically resemble actual cigarettes, down to the use of an LED light designed to resemble a lit cigarette. The use of electronic cigarettes is visually similar to the smoking of cigarettes and has been observed in locations where smoking is prohibited, creating concern and confusion, and complicating the enforcement of the City's No-smoking Ordinance; and WHEREAS, the use of electronic cigarettes at the Anaheim Convention Center, Angel Stadium of Anaheim, the Honda Center and other City-owned buildings, where smoking is prohibited, may lead people to mistakenly believe no smoke-free law exists and may increase the social acceptability and appeal of smoking, particularly for youth, potentially undermining the enormous progress that has been made over the years in discouraging smoking, and could send a message to adults and youth that these potentially harmful products are, in fact, safe; and WHEREAS, the emergence of electronic cigarettes may also present a threat to the public health and a material annoyance, inconvenience and discomfort to those who are present at the Anaheim Convention Center, Angel Stadium of Anaheim, the Honda Center and other City- owned buildings; and WHEREAS, the City Council desires to protect (i) those using City-owned facilities against untested nicotine products like electronic cigarettes, which could pose a secondhand health risk to bystanders or non-users inhaling the vapors, gases, or particles released into the air as a result of combustion, electrical ignition or vaporization, (ii) the cohesiveness and enforceability of the City's No-Smoking Ordinance, and (iii) the public health by preventing the use of electronic cigarettes from increasing the prevalence of environmental tobacco smoke from traditional tobacco products; and WHEREAS, the City Council finds and determines that this ordinance is not subject to the California Environmental Quality Act of 1970, as amended (Public Resources Code Section 21000 et seq.; herein referred to as "CEQA"), pursuant to Sections 15060(c)(2) and 15060(c)(3) of the State of California Guidelines for Implementation of the California Environmental Quality Act (California Code of Regulations, Title 14, Chapter 3; herein referred to as the "CEQA 2 Guidelines"), because it will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a "project", as defined in Section 15378 of the CEQA Guidelines; and WHEREAS, on the basis of the findings and determinations set forth herein above, the City Council desires to prohibit the use of electronic cigarettes in locations where smoking is prohibited at the Anaheim Convention Center, Angel Stadium of Anaheim, the Honda Center, and other City -owned buildings; and WHEREAS, the City Council determines that this ordinance is a matter of City-wide importance and necessary for the preservation and protection of the public health, safety or welfare of the community and is a valid exercise of the local police power and in accord with the public purposes and provisions of applicable State and local laws and requirements. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: SECTION 1. Section 6.30.010 (Purpose) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.010 PURPOSE AND FINDINGS. The City Council finds that the smoking of tobacco, or any other weed, plant or substance is a positive danger to health and a material annoyance, inconvenience, discomfort and a possible health hazard to those who are present in confined spaces, and in order to serve public health, safety and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco, or any other weed, plant or substance in public places and places of employment as stated and required in this chapter. The City Council further finds that prohibiting the use of electronic cigarettes in locations where smoking is prohibited at the Anaheim Convention Center, Anaheim Stadium, the Honda Center, and other City -owned buildings will protect the health of the citizens of the City of Anaheim, facilitate enforcement of the smoking prohibition of this chapter, and protect youth from observing behaviors that could encourage them to smoke tobacco products. SRC'TION 2_ Section 6.30.020 (Definitions) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.020 DEFINITIONS. 3 The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: A. 'Bar" means an area which is devoted to serving alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages. B. "Electronic cigarette", also known as an e -cigarette, means an electronic and/or battery -powered device, the use of which may resemble smoking, which can be used to deliver an inhalable dose of nicotine or other substances into the form of a vapor that is inhaled by the user. "Electronic cigarette" includes any such device, whether manufactured, distributed, marketed or sold as an electronic cigarette, e -cigarette, an electronic vaping device, a personal vaporizer, an electronic nicotine delivery system ('ENDS"), an electronic cigar, an electronic cigarillo, an electronic pipe or any other product name or descriptor. 'Electronic cigarette" shall include any refill, cartridge and any other component of an electronic cigarette. An "electronic cigarette" does not include a cigarette or tobacco products. C. 'Employee" means any person who is employed by any employer for direct or indirect monetary wages, profit, or any other form of consideration. D. 'Employer" means any person, partnership, corporation, including municipal corporation, or other entity which employs the services of four or more persons. E. `Enclosed facility" means any building or room within a building closed in by a roof and four walls with appropriate openings for ingress and egress but does not include areas commonly described as public lobbies. F. "Motion picture theater" means any theater engaged in the business of exhibiting motion pictures. G. "Service line" means an indoor line or area in which persons await service of any kind, regardless of whether or not such service involves the exchange of money or other consideration. Such service shall include, but is not limited to, sales, giving of information, directions, or advice and transfers of money or goods. H. "Smoke" or "Smoking" means and includes any of the following: (1) the direct burning or indirect heating of any cigar, cigarette, pipe, electronic cigarette, or any similar kind of smoking equipment or article, using any form of tobacco, plant product, or other combustible substance in any form, or (2) the holding or carrying of a lighted or operated cigar, cigarette, pipe, electronic cigarette, or any other lighted smoking equipment or device, or (3) emitting or exhaling the smoke directly from a cigar, cigarette, pipe, electronic cigarette, or any other lighted smoking equipment or device. "Smoke" also means the gaseous or vaporous EI products or particles created by the use of a lighted or operated pipe, cigar, cigarette, electronic cigarette, or other kind of smoking equipment or article. I. "Workplace" means any enclosed area of a structure or portion thereof occupied by a business entity and frequented by employees during the normal course of their employment and where clerical, professional, or business services of the business entity are performed or where other work is done at that location. Workplace includes, but is not limited to, spaces in office buildings, medical office waiting rooms, libraries, museums, hospitals and nursing homes, employee lounges, conference rooms and employee cafeterias. A private residence is not a workplace. SECTION 3. Section 6.30.050 (Smoking Prohibited within City -owned and Operated Buildings) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in frill as follows: .010 It is unlawful for any person to smoke or use .electronic cigarettes within any enclosed building, or within any portion of any enclosed building, or in any outdoor area within twenty-five (25) feet of a main exit, entrance, operable window, or ventilation intake of any enclosed building, which building, or portion thereof, is owned by the City of Anaheim. .020 For purposes of this section, the following terms shall have the respective meanings hereinafter set forth: .0201 The term "building" shall not include the Anaheim Convention Center or Anaheim Stadium, or any portions thereof. .0202 The terms "City" and "City of Anaheim" shall include the City of Anaheim, the City of Anaheim, as Successor Agency to the Anaheim Redevelopment Agency, the Anaheim Housing Authority, the Anaheim Public Financing Authority, the Anaheim Housing and Public Improvements Authority, and the Anaheim Public Improvement Corporation. .0203 The term "owned" shall include any property interest of the City of Anaheim (as herein defined) whereby the City has obtained the right of exclusive possession or occupancy whether by fee title, or as lessee, sublessee, tenant, licensee or otherwise. SECTION 4. Subsection .010 of Section 6.30.055 (Smoking Prohibited within the Anaheim Convention Center) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: .010 It is unlawful for any person to smoke or use electronic cigarettes in any place or area within the Anaheim Convention Center, or in any outdoor area within twenty five (25) feet of a main exit, entrance, operable window, or ventilation intake of the Anaheim Convention Center. SECTION 5. Section 6.30.065 (Smoking Prohibited within Anaheim Stadium) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.065 SMOKING PROHIBITED WITHIN ANAHEIM STADIUM. .010 Except as hereinafter provided, it is unlawful for any person to smoke or use electronic cigarettes in any place or area within Anaheim Stadium, including, but not limited to, any event seating, aisle areas, all areas located inside the gates/turnstiles, and within twenty five (25) feet of the entrance to all gates/turnstiles used for patron ingress and egress, ticket windows, will -call windows, ticket office and the entryway to the team store. .020 Notwithstanding subsection .010 above, nothing contained in this section shall be deemed to prohibit smoking or the use of electronic cigarettes upon or within rampways within Anaheim Stadium that are clearly designated with written signage as a smoking area or an area for the use of electronic cigarettes. For purposes of this section, "rampways" means the pedestrian accessways which connect and provide patron access from one level of Anaheim Stadium to another. .030 The term "Anaheim Stadium", as used in this chapter, shall mean the stadium generally located at 2000 Gene Autry Way, Anaheim, California, currently known and referred to as Angel Stadium of Anaheim, regardless of whether such stadium continues to be known by such commercial name or by any other commercial or non-commercial name. SECTION 6. Section 6.30.066 (Smoking Prohibited within the Anaheim Arena) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.066 SMOKING PROHIBITED WITHIN THE ANAHEIM ARENA. .010 It is unlawful for any person to smoke or use electronic cigarettes in any place or area within the Anaheim Arena or in any outdoor area within 0 twenty five (25) feet of a main exit, entrance, operable window, or ventilation intake of the Anaheim Arena. .020 The term "Anaheim Arena" as used herein shall mean the indoor areas of the arena and facilities generally located at 2695 East Katella Avenue, Anaheim, California, currently known and referred to as the Honda Center, regardless of whether such facilities continue to be known by such name or by any other commercial or non-commercial name. SECTION 7. Section 6.30.150 (Exemptions) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby deleted in its entirety. SECTION 8. Section 6.30.160 (Violations and Penalties) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.160 VIOLATIONS AND PENALTIES. Notwithstanding any other provision in this Code, any person who violates any of the provisions or fails to comply with any of the mandatory requirements of this Chapter may be prosecuted for an infraction. Written citations for infractions may be issued by police officers or designated non -safety employees, who shall be designated by separate resolution pursuant to the provisions of California Penal Code Section 836.5. Any person convicted of an infraction shall be punishable either by (1) a fine not exceeding one hundred dollars ($100.00) for a first violation; (2) a fine not exceeding two hundred dollars ($200.00) for a second violation of the same provision within one year; (3) a fine not exceeding five hundred dollars ($500.00) for each additional violation of the same provision within one (1) year. SECTION 9. Section 6.30.170 (Chapter as Supplement to State Law) of Chapter 6.30 (Smoking in Public Places) of Title 6 (Public Health and Safety) of the Anaheim Municipal Code is hereby amended to read in full as follows: 6.30.170 CHAPTER AS SUPPLEMENT TO STATE LAW. With respect to environmental smoke and smoking activities regulated by this chapter, the purpose and intent of this chapter is to regulate such uses and activities only to the extent such regulation is permitted by state law. Nothing contained in this chapter shall be deemed to permit any activity or conduct which 7 is otherwise prohibited by state law. In the event any provision of this chapter is deemed to prohibit any activity or conduct which is prohibited, or which is regulated to the exclusion of any local regulation, by any state law, the provision of this chapter shall be deemed inoperative so long as such provision of state law is in effect. SECTION 10. SEVERABILITY. The City Council of the City of Anaheim hereby declares that should any section, subsection, paragraph, sentence, clause or word of this ordinance hereby adopted be declared for any reason invalid by the final judgment of any court of competent jurisdiction, it is the intent of the City Council that it would have adopted all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. SECTION 11. SAVINGS CLAUSE. Neither the adoption of this ordinance nor the repeal of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. SECTION 12. CERTIFICATION The City Clerk shall certify to the passage of this ordinance and shall cause the same to be printed once within fifteen (15) days after its adoption in the Anaheim Bulletin, a newspaper of general circulation, published and circulated in the City of Anaheim, and thirty (30) days from and after its final passage, it shall take effect and be in full force. 8 THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the 18th day of November , 2014, and thereafter passed and adopted at a regular meeting of said City Council held on the 25th day of November , 2014, by the following roll call vote: AYES: Mayor Tait, Council Members Eastman, Murray, Brandman and Kring NOES: None ABSENT: None AB STAIN : None CITY OF AN IM By: MAYOR OF THE CITY OF ANAHEIM ATTEST: CITY CLERK OF THE CITY OF ANAHEIM 102910-v7/TJR 9 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LINDA ANDAL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 6312 introduced at a regular meeting of the City Council of the City of Anaheim, held on the 18th day of November, 2014, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 25th day of November, 2014, by the following vote of the members thereof: AYES: Mayor Tait and Council Members Eastman, Murray, Brandman and Kring NOES: None ABSENT: None ABSTAIN: None IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of November 2014. = rM (SEAL) CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LINDA ANDAL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 6312 and was published in the Anaheim Bulletin on the 4th day of December, 2014. &jC5v7'A0 CITY CLERK OF THE CITY OV ANAHEIM (SEAL) AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above -entitled matter. I am the principal clerk of the Anaheim Bulletin, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on December 28, 1951, Case No. A-21021 in and for the City of Anaheim, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: December 4, 2014 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: December 4, 2014 Signature Anaheim Bulletin 625 N. Grand Ave. Santa Ana, CA 92701 (714)796-2209 0 PROOF OFPU CATI' N Roof of Publication of Paste Clipping of Notice SECURELY In This Space SUMMARY PUBLICATION CITY OF ANAHEIM ORDINANCE No. 6312 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING POR- TIONS OF CHAPTER 6.30 (NSMOKING IN PUBLIC PLACES) OF NIC PAL( CODE EATING TO SMOK Na AND THE U EM F ELECTRONIC CIGARETTES IN CITY -OWNED BUILDINGS. This ordinance amendes t ortions of Chapter 6.30 (Smokint gpin Public Places) of Title 6 c garletteseintlocaationsfwhe efsmok nah s pr hibitedaat the Anahe miConvention Center, An ,3A gel Stadium of Anaheim, the Honda Center, and other Crtyowned buildings. This ordi- nance also amends Chapter The (Smoking in Public Places) to address Operational chanes within Angel Stadium of Anaheim to reflect changes in State law relating to the smoking of tobacco products. The ordinance also prohibRs the smoking of tobacco prod- ucts or the use of electronic cigarettes in any outdoor area within 25 feet.of a main exit, en- trance, .parable windo_0,v or ventilatipn intake of any City -owned building. With respect to Angel Stadium of Anaheim, the 25 -foot distance requirement will also apply to the entrance to all gates/turnstiles, ticket windows, wili•call windows, and the ticket office and entryway to the team store. The ordinance also amends Chapter 6.30 (Smoking in Public Places) to increase fines for violation of t ordinance to reflect State law; that is, (1) from $50 to an amount not exceed- ing $100 for a first violation, (2) from $150 to an amount not exceeding $200 for a second violation within one year, and (3) a fine not exceeding $500 for each additional violation within one year: 1, Linda N. Andal, City Clerk of the City of Anaheim, do hereby certify that the foregoing is a summary of Ordinance No. 6312 which ordinance was introduced at a regular meeting of the City Qounc(I of the City of Anaheim on the 18th day of November, 2014 and was duly passe and adopted at a regular meeting of said Council on the 25th day of November, 2014 by the following roll call vote of the members thereof: AYES: Mayor Tait, Council Members Eastman, Murray, Brandman and Kring NOES: None ABSENT: None ABSTAIN: Nona The above summary is a brief description of the subject matter contained in the text of Or- dinance No. 6312, which has been prepared pursuant to Section 512 of the Charter of the City of Anaheim. This summary does not include or describe eve ryry provision of the ordi- nance and should not be reliedeon as a substitute for the full text of the ordinance. To obtain a copy of the full text of the ord charge for the copinance, Please contact the office of the City Clerk, (714) 765 5166, between 8:00 AM and 5:00 PM, Monday through Friday. Thee is no y. Publish: Anaheim Bulletin December 4, 2014 9995929'