cc 2022 AR 06/28 amendments to vmc chapter 8.12 regarding smoking in unenclosed dining areas

ACTION:
____________________________
Clerk/Secretary
Department: City Manager Item No: D1
Prepared by: Kathy Valdez, City Clerk Meeting Date: June 28, 2022 Approved by: Patrick Johnson, City Manager Agenda Location: Discussion SUBJECT: AMENDMENTS TO VMC CHAPTER 8.12 REGARDING SMOKING IN UNENCLOSED

DINING AREAS
RECOMMENDATION: Introduce and adopt City Council Ordinance 2022- , amending Chapter 8.12 of the Vista Municipal Code Regarding Smoking in Unenclosed Dining Areas.

CORRELATION TO CITY COUNCIL GOALS: (1) A Cleaner Vista, and (2) Climate and Environmental Responsibility.

PRIOR ACTION: On May 10, 2022, discussed an outdoor smoking ban at dining establishments and directed staff to bring back an Ordinance amending Chapter 8.12 of the Municipal Code for further discussion (Vote: 4-0, Ritter absent).

On June 24, 2014, adopted City Council Ordinance No. 2014-15, amending Chapter 8.12 of the Vista Municipal Code relating to Smoking in Public Places (Vote: 4-1, Rigby opposed).

A complete list of prior actions is included in Exhibit 3.

STATEMENT ON THE SUBJECT: At the May 10, 2022, City Council meeting, staff received direction to bring back for further discussion an ordinance amending Chapter 8.12, Smoking in Public Places, to include outdoor dining areas. The proposed amendments prohibit smoking within an unenclosed dining area of an eating establishment plus a reasonable distance (20 feet) from any said unenclosed dining area. An eating establishment is defined as “…. a coffee shop, cafeteria, short-order café, luncheonette, sandwich shop, soda fountain, ice cream parlor, restaurant or similar establishment serving food to the public. This definition does not include bar establishments principally devoted to serving alcoholic beverages and in which serving food is incidental to the consumption of alcoholic beverages.” As written, this definition excludes bars and most breweries. This definition mirrors the City of Encinitas’ regulations; however, the other North County cities of San Marcos, Oceanside, Carlsbad, and Escondido, define a dining area as a place where individuals may eat and/or drink.

The proposed ordinance requires a sign stating “No Smoking” at each entrance to the Unenclosed Dining Area. Each incident of smoking violation of Chapter 8.12 is punishable pursuant to Vista Municipal Code sections 1.16 or 1.13, general penalty and administrative citations, respectively. Enforcement will be primarily complaint driven.

AGENDA
REPORT

CITY COUNCIL

COMMUNITY DEVELOPMENT COMMISSION

SUCCESSOR AGENCY

BUENA SANITATION DISTRICT

JOINT POWERS FINANCING AUTHORITY
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Approved above recommendation, introduced and adopted City Council Ordinance No. 2022-12.

Vote: 5-0

MEETING DATE: June 28, 2022 PAGE 2
SUBJECT: AMENDMENTS TO VMC CHAPTER 8.12 REGARDING SMOKING IN UNENCLOSED

DINING AREAS
A total of 14 jurisdictions in San Diego County, including seven cities in North County, have smoke-free outdoor dining policies. According to an assessment conducted by Vista Community Clinic's (VCC) tobacco program, there are 90 restaurants with patios in the City and 71 percent have a smoke-free policy.

Vista Community Clinic has indicated that they may be able to provide signs to businesses and to assist with outreach if amendments are adopted to prohibit smoking in unenclosed dining areas.

FISCAL IMPACT: There is no direct fiscal impact associated with this item.

EXHIBITS:

1. City Council Ordinance 2022- , amending Chapter 8.12 of the Vista Municipal Code Regarding Smoking in Unenclosed Dining Areas

2. Red-line version of VMC Chapter 8.12

3. Prior City Council Actions
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ORDINANCE NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 1
ORDINANCE 2022-

AN ORDINANCE OF THE CHARTERED CITY OF VISTA, CALIFORNIA, AMENDING CHAPTER 8.12 OF THE VISTA MUNICIPAL CODE REGARDING

SMOKING IN UNENCLOSED DINING AREAS
A. Repeated studies have established that smoking and second hand smoking is harmful and carcinogenic.

B. To protect the public health and safety, the City has determined to prohibit smoking in multiple locations.

NOW THEREFORE, pursuant to its authority under Article 11, Section 7 of the California Constitution, the City Council of the Chartered City of Vista does ordain as follows:

SECTION 1. Chapter 8.12 is amended to the Vista Municipal Code to read as follows:
"Chapter 8.12
Smoking in Public Places

8.12.010 Purpose

8.12.020 Definitions

8.12.030 Prohibitions

8.12.040 Exceptions -Areas Where Smoking is Permitted

8.12.050 Posting of Signs

8.12.060 Retaliation Against Persons Requesting Compliance Prohibited

8.12.070 Penalties and Enforcement
Section 8.12.010 Purpose
Because smoking of tobacco, or any other weed or plant, is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and a health hazard to those who are present in confined places, 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 or plant, in public places, places of employment, and controlled locations in accordance with this Chapter.

Section 8.12.020 Definitions
For the purpose of this chapter, the following words and phrases shall apply:

A. "Smoke" or "Smoking": the carrying of a lighted pipe, lighted cigar, or lighted cigarette of any kind or the lighting of a pipe, cigar, or cigarette of any kind, whether the combustible material is tobacco or another substance. 001080401
EXHIBIT 1
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ORDINANCE NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 2
B. "Place of Employment": any area which is a place of employment for purposes of Section 6405.5 of the Labor Code.

C. "Public Place":

1. Any enclosed area, other than a place of employment and those locations subject to the section 8.12.040, to which the public is invited or in which the public is permitted, including, but not limited to, restaurants, retail stores, retail service establishments, restrooms, theatres, waiting rooms, reception areas, educational facilities, health facilities and public transportation facilities.

2. Any unenclosed dining area of an Eating Establishment plus a Reasonable Distance from said Unenclosed Dining Area.

3. Any area within the boundary of the City Hall Complex, Wave Water Park, the Public Library or an immediately adjacent parking lot owned by the City and serving those facilities, except within a designated smoking area. For the purpose of this section, the term "boundary" shall mean the interior edge of the public sidewalk, but not including the sidewalk adjacent to the public or private street surrounding the City Hall Complex, Wave Water Park, or Public Library or an immediately adjacent parking lot owned by the City and serving those facilities. For those areas of the City Hall Complex, Wave Water Park, Public Library, or an immediately adjacent parking lot owned by the City where no public or private street abuts, the boundary shall be designated by a boundary fence.

D. "Designated Smoking Area": an outdoor area, designated by the City Manager, within the City Hall Complex, the Public Library or an associated and immediately adjacent parking lot owned by the City serving those facilities which is: (1) identified by conspicuous signage, and (2), which is at least twenty (20) feet away from any doorway or window that opens to the outdoors.

E. "Controlled Location": any of the following enclosed locations:
(1) warehouse facilities covered by Labor Code section 6404.5(d)(6); (2) tobacco shops and lounges; (3) any portion of a lobby for a hotel, motel or similar establishment that is subject to exclusion from a place of employment under Labor Code section
6404.5(d)(2); (4) any meeting or banquet rooms within a hotel, motel, or a similar establishment that is subject to exclusion from a place of employment under Labor Code section 6404.5(d)(2); and (5) any small business that is potentially excluded from the definition of place of employment by Labor Code section 6404.5(d)(14).

F. "Eating Establishment": means a coffee shop, cafeteria, short- order cafe, luncheonette, sandwich shop, soda fountain, ice cream parlor, restaurant or similar establishment serving food to the public. This definition does not include bar establishments principally devoted to serving alcoholic beverages and in which serving food is incidental to the consumption of alcoholic beverages.

G. "Unenclosed Dining Area": any area, not fully enclosed by a roof and/or walls, including streets and sidewalks, available to or customarily used by the general public or employees to consume food.

H. "Reasonable Distance": a distance of no less than twenty (20) feet in any direction from the boundaries of an area in which smoking is prohibited.
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ORDINANCE NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 3
Section 8.12.030 Prohibitions
A. No person shall smoke in a public place, a controlled location, or place of employment, except in designated smoking areas as defined in Section

8.12.040.

B. No ashtrays or smoking disposal receptacles shall be placed in areas where smoking is prohibited.

Section 8.12.040 Exceptions -Areas Where Smoking is Permitted The following areas are exempt from the mandatory no-smoking provisions of this chapter, and permit smoking.

A. Private residences, except private residences licensed as family day care homes, during hours of operation as a family day care home.

B. Guestroom accommodations in a hotel, motel, or similar transient lodging establishment, if approved by the management of that facility, but not to exceed forty percent of all available guestroom accommodations.

C. Employee breakrooms designated by an employer for smoking, provided that all requirements of Labor Code section 6404.5(d)(13) are satisfied.

D. Cabs of motortrucks or truck tractors, as defined in the Vehicle Code, if no nonsmoking employees are present.

E. Patient smoking areas in long-term health care facilities, approved by the management of the facility, as defined in Section 1418 of the Health and Safety Code.

F. Theatrical production sites, if smoking is an integral part of the story in the theatrical production, if approved by the management of the facility.

G. Medical research or treatment sites, if smoking is an integral to any research and treatment being conducted, if approved by the management of the facility.

Section 8.12.050 Posting of Signs
A. Where smoking is prohibited throughout an entire building and in all theatres, a sign stating "No smoking" shall be posted at each entrance to the building or theatre.

B. Where smoking is prohibited in an Unenclosed Dining Area of an Eating Establishment, a sign stating "No smoking" shall be posted at each entrance to the Unenclosed Dining Area.

C. Where smoking is permitted in designated areas of a building:
(1) a sign stating "Smoking is prohibited, except is designated areas" shall be posted at each entrance to the building; (2) the area where smoking is permitted shall be posted each entry to that area with a sign stating "Designated smoking area except for guestrooms covered by the following clause;," and (3) for hotels or motels which allowed smoking in select guest rooms as permitted by this Chapter, a sign shall be posted in each such guestroom which shall substantially read "Designated smoking room" with an additional notice advising the guest that smoking may only occur within that room. 00108040 1
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ORDINANCE NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 4
D. Employers shall provide written information to employees concerning smoking at the place of employment, including the location of designated smoking areas, if any
E. The manner of such posting, including the wording, size, color design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as clarity, sufficiency, and conspicuousness are apparent in communicating the intent of this chapter.

Section 8.12.060 Retaliation against Persons Requesting Compliance Prohibited
No person shall intimidate or threaten any reprisal or effect any reprisal for the purpose of retaliating against another person because such other person seeks to attain compliance with the provisions of this chapter.

Section 8.12.070 Penalties and Enforcement
A. Each incident of smoking in violation of this chapter is punishable pursuant to Chapter 1.16 of this code, or in alternative by the administrative code enforcement remedies of Chapter 1.13 of this code.

B. Except as otherwise provided, enforcement of this chapter is at the sole discretion of authorized governmental officers to enforce this chapter pursuant to Chapters 1.13 and 1.16 of this code. Nothing in this chapter shall create a right of action in any person against the city or its agents for damages or to compel public enforcement of this chapter against private parties.

C. Nothing in this Chapter shall limit the ability of any authorized governmental officer to issue citations or to enforce any provision of state law prohibiting smoking.

D. Labor Code section 6404.5, and not this Chapter, applies to the smoking of tobacco products in a place of employment and violations of that statute will be cited pursuant to that authority, not pursuant to this Chapter.

E. The owner, operator, or manager of any public place, controlled location, or place of employment shall inform any person who violates this chapter by smoking in a public place or place of employment not designated as a smoking area, of the provisions of this chapter and may refuse services or sales to such persons or effect disciplinary actions.

F. The City Manager or his designee shall be responsible for compliance with this chapter when facilities which are owned, operated, or leased by the City of Vista are involved.

SECTION 2. If any word, sentence, paragraph, or other portion of this ordinance is deemed to be invalid or unenforceable for any reason by a court of competent jurisdiction, the City Council declares its intent that all remaining words, sentences, paragraphs or portions of the ordinance not held to be invalid or unenforceable shall remain in full force and effect, and shall be so construed, as if the original ordinance did not contain the invalid or unenforceable language. 00108040 1
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ORDINANCE NO. 2022-

CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 5
SECTION 3. This ordinance shall be fully effective and in force on the thirty-first (31 st) day following the date of its adoption.

INTRODUCED AND ADOPTED at a meeting of the City Council held on June 28, 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

JUDY RITTER, MAYOR
APPROVED AS TO FORM: ATTEST:

WALTER CHUNG, ACTING CITY ATTORNEY KATHY VALDEZ, CITY CLERK By: By:

APPROVED
Walter C.Chung
20220609162611
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"Chapter 8.12
Smoking in Public Places

8.12.010 Purpose

8.12.020 Definitions

8.12.030 Prohibitions

8.12.040 Exceptions -Areas Where Smoking is Permitted

8.12.050 Posting of Signs

8.12.060 Retaliation Against Persons Requesting Compliance Prohibited

Section 8.12.020 Definitions
For the purpose of this chapter, the following words and phrases shall apply:

A. "Smoke" or"Smoking": the carrying of a lighted pipe, lighted cigar, or lighted cigarette of any kind or the lighting of a pipe, cigar, or cigarette of any kind, whether the combustible material is tobacco or another substance.

B. "Place of Employment": any area which is a place of employment for purposes of Section 6405.5 of the Labor Code.

C. "Public Place":

2. Any unenclosed dining area of an Eating Establishment plus a Reasonable Distance from said Unenclosed Dining Area.

23. Any area within the boundary of the City Hall Complex, Wave Water Park, the Public Library or an immediately adjacent parking lot owned by the City and serving those facilities, except within a designated smoking area. For the purpose of this section, the term "boundary" shall mean the interior edge of the public sidewalk, but not including the sidewalk adjacent to the public or private street surrounding the City Hall Complex, Wave Water Park, or Public Library or an immediately adjacent parking lot owned by the City and serving those facilities. For those areas of the City Hall Complex, Wave Water Park, Public Library, or an immediately adjacent parking lot owned by the City where no public or private street abuts, the boundary shall be designated by a boundary EXHIBIT 2
06/28/2022 D 1 8 of 12

fence.

F. "Eating Establishment": means a coffee shop, cafeteria, short- order caf6, luncheonette, sandwich shop, soda fountain, ice cream parlor, restaurant or similar establishment serving food to the public. This definition does not include bar establishments principally devoted to serving alcoholic beverages and in which serving food is incidental to the consumption of alcoholic beverages.

G. "Unenclosed Dining Area": any area, not fully enclosed by a roof and/or walls, including streets and sidewalks, available to or customarily used by the general public or employees to consume food.

H. "Reasonable Distance": a distance of no less than twenty (20) feet in any direction from the boundaries of an area in which smoking is prohibited.

Section 8.12.030 Prohibitions
A. No person shall smoke in a public place, a controlled location, or place of employment, except in designated smoking areas as defined in Section

8.12.040.

B. No ashtrays or smoking disposal receptacles shall be placed in areas where smoking is prohibited.

Section 8.12.040 Exceptions -Areas Where Smoking is Permitted The following areas are exempt from the mandatory no-smoking provisions of this chapter, and permit smoking.

A. Private residences, except private residences licensed as family day care homes, during hours of operation as a family day care home.

C. Employee breakrooms designated by an employer for smoking, provided that all requirements of Labor Code section 6404.5(d)(13) are satisfied.

D. Cabs of motortrucks or truck tractors, as defined in the Vehicle Code, if no nonsmoking employees are present. 06/28/2022 D 1 9 of 12

E. Patient smoking areas in long-term health care facilities, approved by the management of the facility, as defined in Section 1418 of the Health and Safety Code.

F. Theatrical production sites, if smoking is an integral part of the story in the theatrical production, if approved by the management of the facility.

G. Medical research or treatment sites, if smoking is an integral to any research and treatment being conducted, if approved by the management of the facility.

Section 8.12.050 Posting of Signs
A. A. Where smoking is prohibited throughout an entire building and in all theatres, a sign stating "No smoking" shall be posted at each entrance to the building or theatre.

B. Where smoking is prohibited in an Unenclosed Dining Area of an Eating Establishment, a sign stating "No smoking" shall be posted at each entrance to the Unenclosed Dining Area.
9C. Where smoking is permitted in designated areas of a building:
(1) a sign stating "Smoking is prohibited, except is designated areas" shall be posted at each entrance to the building; (2) the area where smoking is permitted shall be posted each entry to that area with a sign stating "Designated smoking area except for guestrooms covered by the following clause;," and (3)for hotels or motels which allowed smoking in select guest rooms as permitted by this Chapter, a sign shall be posted in each such guestroom which shall substantially read "Designated smoking room" with an additional notice advising the guest that smoking may only occur within that room.

SD. Employers shall provide written information to employees concerning smoking at the place of employment, including the location of designated smoking areas, if any
DE. The manner of such posting, including the wording, size, color design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as clarity, sufficiency, and conspicuousness are apparent in communicating the intent of this chapter.

B. Except as otherwise provided, enforcement of this chapter is at the 06/28/2022 D 1 10 of 12

sole discretion of authorized governmental officers to enforce this chapter pursuant to Chapters 1.13 and 1.16 of this code. Nothing in this chapter shall create a right of action in any person against the city or its agents for damages or to compel public enforcement of this chapter against private parties.

C. Nothing in this Chapter shall limit the ability of any authorized governmental officer to issue citations or to enforce any provision of state law prohibiting smoking.

F. The City Manager or his designee shall be responsible for compliance with this chapter when facilities which are owned, operated, or leased by the City of Vista are involved.
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Prior City Council Actions
On May 10, 2022 discussed an outdoor smoking ban at dining establishments and directed staff to bring back an Ordinance amending Chapter 8.12 of the Municipal Code for further discussion (Vote: 4-0, Ritter absent).

On June 24, 2014, adopted City Council Ordinance No. 2014-15, amending Chapter 8.12 of the Vista Municipal Code related to Smoking in Public Places (Vote: 4-1, Rigby opposed).

On October 22, 2013, adopted City Council Ordinance No. 2013-19, amending Chapter 8.12 of the Vista Municipal Code Regarding Smoking in Public Places (Vote: 4- 1, Rigby opposed).

On August 13, 2013, adopted City Council Ordinance No. 2013- 17, amending Chapter 8.12 of the Vista Municipal Code regarding smoking in Public Places (Vote: 4- 1, Campbell opposed).

On June 25, 2013, directed staff to revise Vista Municipal Code Chapter 8.12 to bring the chapter into compliance with current California health and safety laws (Vote: 3- 2, Campbell and Cowles opposed).

On June 11, 2013, provided direction to staff to review Councilmember Campbell' s amendments to his proposed ordinance and bring the item back to the next meeting with the same options listed in the staff report (Vote: 5- 0).

On May 14, 2013, directed staff to prepare an agenda report to discuss the proposal from Councilman Campbell to ban smoking in outdoor dining and patio areas (Vote: Consensus).

On May 26, 1992, adopted City Council Ordinance No. 92-6, amending Chapter 8. 12 of the Vista Municipal Code Regulating Smoking in Certain Public Places (Vote: 4- 0, Smith abstained).

On January 8, 1990, adopted City Council Ordinance No. 89- 49, repealing Article VI of the Vista City Code and Adding a New Article VI Regulation Smoking in Certain Public Places (Vote: 3- 2, Asmus and Wade opposed).

EXHIBIT 3
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From:Lynda Barbour
To:Doris Calvo; Judy Ritter
Cc:Patrick Johnson; Kathy Valdez
Subject:City of Vista; Letter related to Smoke-free outdoor dining ordinance Date:Friday, June 24, 2022 5:01:20 PM
Attachments:ACS-CAN-20th_RGB.png
Vista 22.06.28 SFOD ACS CAN letter.pdf
Please find the attached letter in support of the smoke -free outdoor dining ordinance being considered
Lynda Barbour, MPH
Senior Government Relations Director, So.California & Grant Program 619.682.7416 | m: 619.742.4861 | f: 619.296.0928
American Cancer Society Cancer Action Network, Inc.
fightcancer.org | 1.800.227.2345
alt
This message (including any attachments) is intended exclusively for the individual to whom it is addressed and may contain proprietary, protected, or confidential information. If you are not the named addressee, you are not authorized to read, print, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately.

ADD TO PACKET
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Lynda Barbour, MPH, Sr. Director, Government Relations, American Cancer Society Cancer Action Network www.FightCancer.org PO Box 910549; San Diego, CA 92191
W: 619-624-1517 C: 619-742-4861 [email protected]

June 17, 2022
The Honorable Judy Ritter
Mayor, City of Vista
200 Civic Center Dr.

Vista, CA 92084

Dear Mayor Ritter and Members of the Vista City Council,

The American Cancer Society Cancer Action Network (ACS CAN) is committed to protecting the health and well-being of the residents of Vista and throughout California through evidence-based policy and legislative solutions designed to eliminate cancer as a major health problem. We are pleased that this council is considering policies that provide protection from exposure to secondhand smoke. We write to encourage the Vista City Council to increase the protections for diners and servers from exposure to secondhand smoke in outdoor dining areas and patios. The majority of Californians support expanding smoke-free areas, and they should not have to endure being exposed to the smoke from others.

The following components are critical to a successful and effective ordinance:
 An evidence-based definition of smoking include all forms of smoking, including electronic cigarettes, hookah, and cannabis use , as there is no safe level of exposure to any smoke.
 Since COVID, cities have allowed dining outdoors in front of restaurants, on sidewalks and even in parklets on city streets. Those spaces may not be covered or may not have walls but do have some designation of enclosure. We recommend your definition of “Outdoor Dining Area” includes publicly or privately owned outdoor area, including streets and sidewalks, that is designed, established, or regularly used for consuming food or drink.
 Your ordinance should Include smoke-free buffer zones. We recommend a zone of 25 feet from any smoke-free area to ensure that drifting smoke does not affect diners and hospitality staff.
 Most people comply with smoke -free policies once they are aware of them. This council’s work to ensure that the policy is easy to understand, and boundaries and areas covered under the policy are clearly identified, will improve community compliance.

Our tobacco coalition partners, such as Vista Community Clinic, have a great deal of experience and are ready to help with implementation.

The American Cancer Society Cancer Action Network encourages the passage of this ordinance for the protection of all residents and visitors of Vista. A smoke-free outdoor dining ordinance can help to assure that residents are protected from unintentional exposure to secondhand smoke. We thank council for your consideration and look forward to the passage of this policy to improve the quality of life for all who live, work, and visit Vista.

Sincerely,

Lynda Barbour, MPH
Sr Director, Government Relations
American Cancer Society Cancer Action Network

Vista City CouncilJune 28, 2022

Vista City Council
June 28, 2022