PURPOSE:

This report presents various options for City Council consideration for regulating smoking in the City of Burbank.  Staff seeks direction from the Council regarding the content of a draft smoking regulation ordinance and on the proposed process and schedule for public outreach and stakeholder input.

BACKGROUND:

Council Direction

On December 5, 2006, the City Council directed staff to return with options for an ordinance to regulate smoking and to provide stakeholder outreach and opportunities for public input.  Staff believes that the Council�s direction was as follows:

• There would be no advisory vote by the electorate on this issue; the City Council would consider a smoking ordinance directly.

• Staff would prepare a report for public distribution outlining the Council�s options, choices, and decision points regarding the location and manner of smoking restrictions.  This would include a discussion of approaches used by other Southern California cities.

• After distribution of the report to stakeholder groups and public notification, the City Council would hold a public hearing to receive input from community stakeholders.

• Following the public testimony, the Council would provide direction to staff regarding the content of the smoking ordinance.  Staff would then prepare an ordinance based upon Council direction and take the proposed ordinance through the public hearing process, including any additional outreach and stakeholder input as directed by Council.

On January 16, 2007, staff indicated to the Council that the direction provided on December 5 could result in a long process over a period of several months as options are formulated and public outreach is conducted.  Some Council members expressed concern about a prolonged process, and the Council directed staff to return as quickly as possible with information about approaches used by other cities to be used as a basis for outlining the options available to Burbank.  This report responds to that direction.  Rather than preparing an options report for public review, staff is now recommending that the Council provide direction to staff now on the content of the draft ordinance, based upon the information provided in this report.  Staff would then prepare a draft ordinance for public review.  The ordinance would be considered by the Council for modification and adoption following a noticed public hearing.  This approach would still provide the public with an opportunity to provide input directly to the Council on this issue, and on the content of the draft ordinance itself.

State Smoking Law

Assembly Bill 13, the state law regulating smoking in places of employment (codified in California Labor Code Section 6404.5), took effect on January 1, 1995, although portions of the law regulating smoking in bars and gaming establishments did not become effective until January 1, 1998.   The purpose of the state law is to regulate smoking in places of employment in order to reduce employee exposure to secondhand smoke.  The state law generally provides that smoking is prohibited in enclosed spaces at places of employment, but provides for a number of exceptions.  These exceptions include the following:

• Places of employment with five or fewer employees where:

• The smoking area is not accessible to minors

• All employees who enter the smoking area consent to permit smoking, and no one is required to work in the smoking area

• Air from the smoking area is exhausted directly to the outside

• Employee break rooms designated for smoking when the air is exhausted directly to the outside by a fan and the rooms are in a non-work area where employees are not required to be present as part of their work other than custodial and maintenance work

• 65 percent of the guest rooms in a hotel or motel

• 25 percent of the lobby area of a hotel or motel (or 50 percent of the lobby area if the lobby is 2,000 square feet or less)

• Meeting and banquet rooms in hotels, motels, and convention centers except while food or beverage functions are occurring (including setup and cleanup service), and corridors or waiting areas adjacent to such rooms when food or beverage functions are occurring so long as no employees are stationed in those areas

• Retail or wholesale tobacco shops and private smokers lounges

• Truck cabs when no non-smoking employees are present

• Warehouse facilities larger than 100,000 square feet and with 20 or fewer full-time employees (but not including office areas)

• Theatrical production sites when smoking is an integral part of the story

• Medical research or treatment sites, if smoking is integral to the research or treatment being conducted

• Patient smoking areas in long-term health care facilities

• Private residences, except when used as a licensed family day care home during the hours that children are present

In addition to the workplace smoking law, other sections of California law also regulate smoking.  For example, Health and Safety Code Section 104495 prohibits smoking within 25 feet of a children�s playground or tot lot.  Government Code Section 7597 prohibits smoking inside of, or within 20 feet of any entrance or operable window of, a building occupied by a state, county, or city government agency.

Smoking Regulations in Other Cities

While Calabasas and Santa Monica have two of the most recently adopted smoking ordinances in California and have recently received media attention, numerous other cities have smoking regulation ordinances.  Below are summaries of the approaches used by various cities.  Staff notes that in some cases, certain portions of these city ordinances were adopted prior to the state smoking law and were subsequently superseded by the state law.  For example, some cities explicitly allow smoking in areas where smoking is now prohibited by state law.  The state smoking law allows cities to regulate smoking in environments that are not covered by the state law, but cities are superseded in cases where local smoking regulations are less restrictive than the state law.  The state workplace smoking law and many of the individual city laws state that individual employers and property owners are not barred from restricting smoking on their own properties or within their own businesses to an extent greater than that specified in the law if they so choose.

Anaheim

Smoking is prohibited in the following locations:

• Elevators in public buildings or private buildings open to the public including office buildings, hotels, and multifamily residential buildings

• All areas of hospitals and health care facilities, except in designated areas and by patients in their own rooms (not by visitors or staff in patient rooms)

• Enclosed buildings owned or operated by the City of Anaheim

• Movie theaters, except in the lobby area

• Enclosed auditoriums, stage theaters, and athletic event facilities, if designated for no smoking by the facility owner or operator

• Anaheim Stadium (Angel Stadium of Anaheim), except for outdoor concourse and ramp areas, private suites, and private offices

• Any area of the Anaheim Arena (Honda Center)

• Any area of the Anaheim Convention Center

• Publicly accessible restrooms smaller than 200 square feet

• Indoor service lines where people wait for any type of good or service

• Retail food production establishments and supermarkets, except for areas not accessible by the public and areas where food is consumed

Calabasas

Smoking is prohibited in the following locations:

• Any public place or private place open to the general public including but not limited to streets, sidewalks, plazas, parks, buildings, taxis, and buses

• Any place of employment, including private residences used for child care or health care facilities during the time that employees, children, or patients are present

• Common areas of multifamily residential projects, including halls, lobbies, laundry rooms, outdoor areas, and swimming pools

• Enclosed and unenclosed areas of restaurants, bars, hotels, and other businesses

Smoking is expressly permitted in the following locations, except if within 20 feet of any entrance, opening, or vent into an enclosed area where smoking is prohibited:

• Private residential property

• Up to 20 percent of the guest rooms in a hotel or motel, so long as the rooms are segregated from non-smoking rooms

• Designated unenclosed areas in common areas of shopping malls provided that the area does not exceed the lesser of 40 square feet or one square feet for every 20,000 square feet of rentable space at the shopping mall, meets various criteria, and is approved by the City

• Any outdoor area in which no non-smoker is within 20 feet and it is not reasonable to expect a non-smoker to come within 20 feet

Glendale

Smoking is prohibited in the following locations except within designated smoking areas:

• Brand Boulevard Chess Park located at 227 North Brand Boulevard

• Enclosed buildings owned or operated by the City of Glendale

• Outdoor seating areas in public parks or within 25 feet of outdoor seating areas during outdoor events and 30 minutes before and after an outdoor event

• Outdoor service lines in public parks or within 25 feet of outdoor service lines where people wait for any type of good or service

Malibu

Smoking is prohibited in the following locations except within designated smoking areas:

• Any public beach except parking lot and roadway areas

• The Malibu Pier

Palo Alto

Smoking is prohibited in the following locations:

• Any enclosed building accessible by the general public including but not limited to stores, offices, restaurants, places of assembly, and public and private institutions

• Within 20 feet of any entrance or exit to an enclosed building accessible by the general public except between the hours of 10 p.m. and 6 a.m., when the building is closed to the public, or the entrance is for employees only, except when the smoker is passing through on their way to another location

• At least 50 percent of the seating area in unenclosed areas of a restaurant

• Any enclosed or unenclosed service location including service lines, transit stations, and shelters, except when the smoker is passing through on their way to another location

• Areas in public parks within 20 feet of bleachers, backstops, or play areas, except when the smoker is passing through on their way to another location

• All City-owned vehicles

• Private residences used for child care during the hours that children are present

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Bars (including bar areas of restaurants) as provided under the state smoking law

• Bingo games licensed pursuant to the Palo Alto Municipal Code, which do not permit access by minors under 18 years of age

• Any property owned or leased by other governmental agencies

• Fully enclosed rooms in hotels, motels, or convention centers being used for private functions and not accessible to the general public, except for functions involving food or beverage service or exhibits

• Up to 65 percent of guest rooms in a hotel or motel

• Private residences when not used for child care

• Tobacco stores that sell primarily tobacco products and accessories

Pasadena

Smoking is prohibited in the following locations:

• Any City park, playground, or recreation facility

• Enclosed public places accessible by the general public including elevators, hospitals and health care facilities, indoor service lines, meeting rooms, conference rooms, and assembly rooms, restrooms, theaters and auditoriums, restaurants, and hotel lobbies and common areas.

• All enclosed places of employment

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Private residences when not used as a child care facility

• Buildings owned or leased by county, state, or federal government entities

• Tobacco stores that sell primarily tobacco products and accessories

Sacramento

Smoking is prohibited in the following locations:

• Public places accessible by the general public including stores, banks, hotels and motels (except in designated guest rooms), terminals, buses and taxis, theaters, enclosed recreational facilities and recreation halls, restaurants, City and County buildings, places of exhibitions, hospitals, schools, day care facilities, and workplaces

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Private residences when not used for child care

• Bars (including bar areas of restaurants)

• Tobacco stores that sell primarily tobacco products and accessories

• Private clubs used for private functions not accessible to the general public

• Conference and meeting rooms, including those in hotels, motels, and restaurants being used for private functions and not accessible to the general public

San Diego

Smoking is prohibited in the following locations:

• Any enclosed area accessible by the general public including but not limited to stores, offices, restaurants, places of assembly, and public and private institutions

• Any enclosed place of employment except in designated smoking areas

• Children�s play areas in public parks or within 50 feet of a children�s play area

• Public parks and public beaches, except in designated smoking areas

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Private residences

• Assembly rooms in hotels and motels being used for private functions and not accessible to the general public

• Private hospital rooms, psychiatric facilities, substance abuse rehabilitation facilities, long term nursing facilities, and jails

• Bars (not including bar areas of restaurants)

• Tobacco stores that sell primarily tobacco products and accessories

• On stage during plays or musical performances when the artist is smoking as part of the act

San Fernando

Smoking is prohibited in any park, playground, or recreation center.

Santa Barbara

Smoking is prohibited in the following locations:

• Any enclosed building or unenclosed area accessible by the general public including but not limited to stores, offices, restaurants, places of assembly, public and private institutions, and places of employment

• Enclosed common areas of multifamily residential developments

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Private residences, except when used as a child care, health care, board and care, or community foster care facility

• Any place of employment that employs only the owner and no other employees and is not accessible by the general public, provided that the place of employment does not share a ventilation system with any other place of employment or place accessible by the general public

• Up to 25 percent of the outdoor seating area of restaurants without bars so long as the designated smoking section is contiguous and is located the furthest distance from the entrance to the enclosed portion of the restaurant

• Up to 25 percent of the outdoor seating area of restaurants with bars prior to 10:00 p.m. so long as the designated smoking section is contiguous and is located the furthest distance from the entrance to the enclosed portion of the restaurant; after 10:00 p.m. the entire outdoor seating area may be designated for smoking

• Outdoor seating areas at bars

• Designated hotel and motel guest rooms

• Non-enclosed areas of outdoor shopping malls

• Tobacco stores that sell primarily tobacco products and accessories

Santa Monica

Smoking is prohibited in the following locations:

• Any elevator

• Any public park or beach

• The Santa Monica Pier, except in designated smoking areas

• Any outdoor service line where people wait for public or private services

• Inside any building occupied by a state, county, or city government agency

• Any outdoor restaurant or bar dining area

• Within 20 feet of any entrance or open window of any building open to the public

• The Third Street Promenade

• Any Farmers Market

Santa Rosa

Smoking is prohibited in the following locations:

• Any enclosed area accessible by the general public including but not limited to stores, offices, restaurants, places of assembly, public and private institutions, and places of employment

• Unenclosed parks and recreational areas owned or operated by the City of Santa Rosa

• Unenclosed dining areas, except that owners of privately owned outdoor dining areas may apply to the City for a special permit to allow smoking for one day during a special event

• Designated outdoor pedestrian areas including Old Courthouse Square, Comstock Mall, the downtown transit mall, the Westside transfer station, and Jeju Way

• Within 20 feet of the entrance to an enclosed area, or within 20 feet of an unenclosed area, where smoking is prohibited except when passing through the area from one destination to another

Smoking is expressly permitted in the following locations, notwithstanding the above prohibitions:

• Private residential property, including common areas of multifamily projects, except when used as a child care or health care facility

• Up to 50 percent of the guest rooms in a hotel or motel, so long as the rooms are segregated from non-smoking rooms

• Any outdoor area in which no non-smoker is present and it is not reasonable to expect a non-smoker to arrive

Vacaville

Smoking is prohibited in any City park or recreation facility, except in designated areas.

ANALYSIS:

Summary of Cities

California cities have a variety of smoking restrictions, as documented above.  Calabasas appears to be the most restrictive city, prohibiting smoking in essentially all indoor and outdoor areas accessible by the public, including public streets and sidewalks, with few exceptions.  Palo Alto and Santa Barbara also prohibit smoking in a number of outdoor areas, although the restrictions are not as all-encompassing as Calabasas.  Santa Monica, the most recently adopted ordinance, also includes a number of outdoor restrictions, including prohibiting smoking at the Third Street Promenade and in all outdoor dining areas at restaurants and bars.  Staff notes that some of the more restrictive ordinances are also the most recently adopted.  While staff is unaware of any legal challenges, it may be too soon to know whether all of the restrictions contained in these ordinances will be upheld by the courts.

Options for Burbank

Based upon City Council direction on December 5, the restrictions already in place under state law, and the approaches used by the various cities discussed above, staff has compiled a list of locations where smoking could be prohibited or otherwise restricted within the City of Burbank.  A table summarizing these locations and how they are addressed in each city listed above is attached as Exhibit A.  When preparing the draft ordinance, staff will work with the City Attorney�s office to ensure that none of the restrictions requested by the Council would conflict with, or be superseded by, existing state laws.  It will also be important to ensure that effective enforcement procedures are incorporated into the ordinance.  Smoking could be prohibited or otherwise restricted in the following locations, in addition to the restrictions already in place under state law:

Enclosed/Indoor Areas

• All enclosed public places accessible by the general public

• All enclosed places of employment, including those areas exempted under state law as follows:

• Places of employment with five or fewer employees

• Employee break rooms

• Warehouse facilities larger than 100,000 square feet and with 20 or fewer employees

• All elevators accessible by the general public

• Guest rooms in a hotel or motel, or some percentage thereof (state law provides that smoking may be permitted in up to 65 percent of guest rooms)

• Lobby or common areas in a hotel or motel, or some percentage thereof (state law provides that smoking may be permitted in up to 25 percent of lobby areas)

• Meeting and banquet rooms in hotels, motels, and convention centers (state law provides that smoking may be permitted in these rooms except when food or beverages are being served)

• Tobacco stores that sell primarily tobacco products and accessories, and private smokers lounges

• Theaters/performing arts venues, whether or not the smoking is integral to the performance

• Medical research or treatment sites

• Long-term health care facilities

• Common areas of multiple family residential buildings including elevators, stairways, hallways, lobbies, fitness and recreation rooms, laundry rooms, and parking garages

• Buses and taxis

Unenclosed/Outdoor Areas

• All unenclosed areas accessible by the general public including streets and sidewalks

• Outdoor areas of office buildings and other places of employment, or some designated area therein

• Outdoor areas of shopping centers, or some designated area therein

• Common areas of multiple family residential developments including open space and recreation areas, pedestrian paths, and swimming pools

• Outdoor seating or gathering areas of restaurants, bars, hotels, and other such businesses, or some percentage of the area thereof

• Outdoor service lines where people wait for goods or services

• City parks in whole, or specified areas within City parks such as play areas, sports fields, bleachers, outdoor seating areas, or gathering areas

• DeBell Golf Course

• Starlight Bowl Amphitheater

• Chandler Bikeway

• Farmers Market

• Downtown Burbank station

• Other outdoor transit stations or stops

• Downtown Burbank sidewalks, paseos, and/or parking garages and lots

• Magnolia Park sidewalks, paseos, and/or parking lots

• Rancho area sidewalks, paseos, and/or parking lots

Additional Provisions

Some cities have general provisions and exceptions in addition to specified requirements.  These are additional options for City Council consideration:

• Prohibit smoking within a specified distance (some cities use 20 feet) of any unenclosed area where smoking is prohibited or any opening to an enclosed area where smoking is prohibited, even if smoking would otherwise be permitted there

• Allow smoking in any unenclosed area where no non-smoker is present or within a specified distance and it is reasonable to assume that a non-smoker will not arrive

• Allow smoking in any unenclosed area by people that are passing through the area on their way from one destination to another

• Allow smoking in unenclosed areas where smoking would otherwise be prohibited through City approval and regulation of �designated smoking areas� subject to meeting certain criteria.

Staff seeks direction from the City Council on which of the above locations and provisions should be included in a draft smoking ordinance.  Based upon input from the Council, staff will work with the City Attorney�s office to prepare a draft ordinance for public review.  The draft ordinance would be utilized to solicit stakeholder input, as discussed below.

Stakeholder Involvement

The draft smoking regulation ordinance would be made available on the City�s web site and in City offices and libraries.  In addition, staff would provide copies of the draft ordinance to the following groups and solicit input from the groups on the draft ordinance:

• Chamber of Commerce

• Downtown Property-Based Business Improvement District (PBID) Board

• Magnolia Park PBID Board

• Magnolia Park Merchants

• Burbank Boulevard Merchants

If desired by the Council, staff would also provide the draft ordinance to the Planning Board and Park and Recreation Board and place the matter on their respective agendas to provide an opportunity for the Boards to provide input to the Council.

Hearing Schedule

Pending direction from the Council, staff believes that a draft ordinance could be prepared and distributed in about one month, or by early March.  Staff believes that stakeholder groups should be allowed at least two to three weeks to review and consider the draft ordinance.  Staff therefore recommends that a City Council public hearing on this issue be scheduled for late March.  The Council suggested on December 5 that the agenda for a regularly scheduled Council meeting be cleared of all other items such that an entire Tuesday evening could be devoted to this issue only, with an additional meeting scheduled for Thursday or the following Tuesday in the event that all speakers could not be heard on the first night.

Rather than occupying the agenda of two regular Council meetings, staff recommends using Thursday night for a continued meeting if needed.  Staff recommends that the City Council hearing be tentatively scheduled for Tuesday, March 27.  A continued City Council meeting would be scheduled for Thursday, March 29 to be held if needed.  There are no board, commission, or committee meetings scheduled for March 29, so there would be no conflicts with other Thursday meetings.  If the Council wished for the Park, Recreation, and Community Services Board and/or the Planning Board to provide input on the draft the ordinance, the matter could be placed on their agendas of March 8 and March 12, respectively.

At the conclusion of the hearing on March 27 or 29, the City Council could make any desired modifications to the draft ordinance and introduce the ordinance if it were prepared to do so.  Otherwise, the hearing could be closed and the Council�s deliberation continued to the agenda of the following Council meeting on April 3 to give the Council members an opportunity to further consider the public testimony.  Since the public hearing portion would have been completed, it would not be necessary to have another dedicated meeting and would be possible to place other items on the agenda in addition to Council deliberations on this issue.  The ordinance would then be adopted at second reading on either April 3 or April 17 (there is no Council meeting April 10 due to the general municipal election), and would become effective in mid or late May, 31 days after newspaper publication.

Stakeholder Notification

To ensure that all community stakeholders, including the general public, are aware of the Council�s consideration of this issue and their ability to provide input, staff recommends that a Citywide mailing be conducted to provide notice of the public hearing in addition to notice being provided through the typical methods including the Leader newspaper, cable television channel 6, and the City�s web site.  Citywide mailings have previously been done for issues that affect the entire community including the Charter review and the General Plan Land Use and Mobility Elements update.  Such a mailing would go to every mailbox in the City, including residences, businesses, and post office boxes and would eliminate the need to do additional mailing to specific businesses or groups.  Based upon the costs of previous mailings, staff estimates that a Citywide mailing would cost approximately $15,000.

If a Citywide mailing is not deemed necessary by the Council, staff recommends that notice be mailed at minimum to the following stakeholders (in addition to those listed above that would receive copies of the draft ordinance):

• All restaurants, bars, hotels, and other establishments in Burbank potentially affected by the ordinance (if the Council desires to consider prohibiting smoking at these businesses)

• All multiple family property owners (if the Council desires to consider prohibiting smoking in common areas of multiple family projects)

• All non-profit organizations that may have an interest in this issue

In addition, staff recommends that notices be posted at all City parks including the DeBell Golf Course to ensure that park users are aware of the issues being considered.

CONCLUSION:

Staff seeks direction from the City Council as to the indoor and outdoor locations where the Council desires to prohibit or otherwise regulate smoking.  Staff further seeks direction regarding whether the proposed outreach effort and hearing schedule outlined in this report are adequate and appropriate, and whether the Council desires to conduct a Citywide mailing in lieu of a targeted mailing to the specific stakeholders noted above.

RECOMMENDATION:

Staff recommends that the City Council direct staff to prepare a draft ordinance for public review to regulate smoking in the City of Burbank.  Staff seeks direction from the Council on the content of the ordinance and the other issues discussed in this report.

LIST OF EXHIBITS:

Exhibit A          Summary table of smoking regulations in other cities

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