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Council Agenda - City of BurbankTuesday, March 27, 2007Agenda Item - 1 |
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Council Agenda - City of BurbankTuesday, March 27, 2007Agenda Item - 1 |
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PURPOSE:
This report responds to City Council direction to prepare an ordinance to control secondhand smoke. If the Council wishes to proceed with such an ordinance, staff recommends that the City Council approve the proposed ordinance that would control secondhand smoke by prohibiting smoking in certain indoor and outdoor locations throughout the City.
BACKGROUND:
On January 30, 2007, the City Council directed staff to prepare a draft ordinance that would control secondhand smoke in the City of Burbank. This report discusses secondhand smoke, its health effects, the proposed ordinance, and the input received from various stakeholder groups and the public.
Secondhand Smoke Secondhand smoke, also known as Environmental Tobacco Smoke, or ETS, is a complex mixture of thousands of gases and fine particles that is emitted from the burning and use of tobacco products such as cigarettes, cigars, and pipes. Secondhand smoke includes �side stream smoke,� which is emitted directly from the burning tobacco, and �mainstream smoke,� which is exhaled by the smoker. Secondhand smoke also includes smoke that escapes while the smoker is inhaling, and vapors that diffuse from the tobacco product. Exposure by non-smokers to secondhand smoke is sometimes referred to as �passive smoking� or �involuntary smoking� because non-smokers generally do not want to inhale secondhand smoke.
The composition of secondhand smoke varies depending upon the heat of combustion, the tobacco content, additive content, and type of filter material, if any. Secondhand smoke can change its characteristics and concentration based upon the time since it was formed and the distance it has traveled. Secondhand smoke contains over 4,000 gases and fine particles. Many of these substances have been individually identified as toxic air pollutants and/or have known adverse health effects, including acetaldehyde, acrolein, arsenic, benzene, cadmium, formaldehyde, hexavalent chromium (chromium VI), styrene, and toluene. (Cal EPA, 2005) More than 50 of these substances have been identified as carcinogens. (US DHHS, 2006)
The following sections of this report discuss the findings and conclusions of studies and research conducted by the State of California, the federal government, and private sector researchers, including conclusions related to the health effects of secondhand smoke exposure. This report contains a brief overview of these topics and summarizes the conclusions of various studies. A discussion of the full body of scientific methodology and evidence behind these conclusions is beyond the scope of this report. However, all of the studies and other documents cited in this report are attached as exhibits hereto, and contain further details about the science behind the conclusions.
State of California Studies and Evaluation In 1983, the State of California established a program to identify the health effects of Toxic Air Contaminants (TACs) and to protect the public health by reducing exposure to identified contaminants. The identification process involves evaluation by the California Air Resources Board (ARB) to determine the public�s exposure to the substance in question, and evaluation by the Office of Environmental Health Hazard Assessment (OEHHA) of the health effects of the substance based upon the exposure levels. Following public review and evaluation by the state�s independent Scientific Review Panel, the findings of ARB and OEHHA are presented to the ARB governing board for a final determination. If the ARB votes to identify the substance as a TAC, the ARB prepares a risk reduction strategy to reduce exposure to the substance and determine what control measures are necessary and appropriate.
In January 2006, following nearly five years of study that commenced in June 2001, the ARB identified Environmental Tobacco Smoke as a TAC. TACs are defined in Health and Safety Code Section 39655 as �an air pollutant which may cause or contribute to an increase in mortality or in serious illness, or which may pose a present or potential hazard to human health.� The ARB is now charged with preparing a risk reduction strategy for secondhand smoke. The studies conducted by the ARB and OEHHA concluded that there was not sufficient available scientific evidence to support the identification of a threshold exposure level below which no adverse health effects would be expected (see California Code of Regulations, Title 17, Section 93000). Following its identification as a TAC, Environmental Tobacco Smoke was added in June 2006 to the list of Chemicals Known to the State of California to Cause Reproductive Toxicity pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). (Cal OEHHA, 2006)
Federal Government Studies and Evaluation In 1993, the United States Environmental Protection Agency (EPA) released Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, a report that evaluated the health effects of breathing secondhand smoke. The report concluded that secondhand smoke causes lung cancer in adult non-smokers and affects the respiratory health of children. Based upon the findings of the report, the EPA classified secondhand smoke as a Group A carcinogen. A Group A carcinogen designation means that there is sufficient evidence that the substance in question causes cancer in humans. The Group A designation had been used by the EPA for only 15 other substances, including asbestos, radon, and benzene. Of the 16 Group A carcinogens, only secondhand smoke was shown to cause cancer at typical environmental levels. In deciding to classify secondhand smoke as a known human carcinogen, the EPA found, among other conclusions, that there is considerable evidence that large numbers of people who do not smoke are exposed to, absorb, and metabolize significant amounts of secondhand smoke, and that there is supporting evidence that secondhand smoke causes cancer and damages DNA, which is recognized as being instrumental in the development of cancer. (US EPA, 1994)
In 2000, the National Toxicology Program of the National Institutes of Health added Environmental Tobacco Smoke to the list of �known human carcinogens� in its Ninth Report on Carcinogens. Identification as a known human carcinogen means that there is sufficient evidence of carcinogenicity from studies in humans to indicate a causal relationship between exposure to the substance and human cancer. In the case of ETS, the determination was based on �sufficient evidence of carcinogenicity from studies in humans that indicate a causal relationship between passive exposure to tobacco smoke and lung cancer.� (US DHHS, 2005)
In 2006, the United States Surgeon General released The Health Consequences of Involuntary Exposure to Tobacco Smoke. The report is an update and follow-up to the Surgeon General�s 1986 report The Health Consequences of Involuntary Smoking. (US DHHS, 2006) The 2006 report made a number of conclusions regarding the health effects of secondhand smoke based upon recent studies and evidence and makes use of advances in research and evidence that were not available when the 1986 report was prepared. The conclusions of the report are discussed in the Health Effects section below.
Secondhand Smoke in Outdoor Environments The amount of secondhand smoke emitted into an outdoor environment depends upon the behavior of smokers. Outdoor secondhand smoke includes both emissions from outdoor smoking and emissions generated indoors that are ventilated to the outside. Due to the limited information available, it is difficult to determine indoor versus outdoor emissions. However, existing information shows that most smoking in California now occurs outdoors. Since the enactment of the state workplace smoking law (see below), most workplaces in California, including restaurants and bars, are now smoke-free. Data from the 2002 California Adult Tobacco Survey (CATS) show that over 80 percent of all California homes with children are smoke-free and about 50 percent of California smokers do not smoke in their own homes. Further, studies show that 50 to 80 percent of secondhand smoke generated indoors is ventilated to the outside, and that at least 80 percent of all secondhand smoke is emitted to the outdoor environment through a combination of outdoor smoking and ventilation. (Cal EPA, 2005)
Secondhand smoke exposure in outdoor areas is determined by the number of smokers, the size of the smoking area, and meteorological conditions. For people who do not associate with smokers, the only secondhand smoke exposure they may receive is in outdoor locations over which they have no control. This exposure is typically not desired. Recent surveys conducted by the California Department of Health Services show that 73 percent of Californians agree that smoking should be prohibited in outdoor dining areas at restaurants. (Cal DHS, 2005)
While studies of secondhand smoke have traditionally focused on its effects in indoor environments, recent studies have focused on secondhand smoke exposure in outdoor environments:
Health Effects The health effects of exposure of non-smokers to secondhand smoke were first considered in a 1972 Surgeon General report. By the time of the Surgeon General�s 1986 report on secondhand smoke, a causal link had been established between inhaling secondhand smoke and the risk for lung cancer. There was also evidence about the adverse effects of smoking by parents on their children. Today, the Surgeon General finds that there is �massive and conclusive scientific evidence [documenting] adverse effects of involuntary smoking on children and adults, including cancer and cardiovascular diseases in adults, and adverse respiratory effects in both children and adults.� Approximately 60 percent of non-smokers in the United States have biologic evidence of exposure to secondhand smoke. (US DHHS, 2006)
The 2006 Surgeon General�s report on secondhand smoke and the 2005 report by the California Environmental Protection Agency both reached conclusions and cited statistics regarding the health effects of secondhand smoke, as noted below. It is important to note that these conclusions and statistics are with regard to secondhand smoke exposure in general, including in indoor and outdoor environments, and including situations where individuals are directly and continuously exposed to secondhand smoke, such as when someone is exposed to family members smoking in the home. The smoking regulations included in the proposed ordinance may therefore not directly impact all of the statistics and health effects discussed below. Nonetheless, the California Environmental Protection Agency and the Surgeon General have concluded that there is no threshold level at which exposure to secondhand smoke has been shown not to cause adverse health effects (see citations above and below).
The 2006 Surgeon General�s report reached several conclusions regarding secondhand smoke, including the following (US DHHS, 2006):
In California alone, exposure to secondhand smoke is associated with the following health effects each year (Cal EPA, 2005):
Additionally, secondhand smoke has been linked to the following (Cal EPA, 2005):
In total, about 4,000 deaths in California can be attributed annually to diseases associated with secondhand smoke, not including deaths from secondhand smoke related cancers.
State Smoking Laws 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:
In addition to the workplace smoking law, other sections of California law also regulate smoking, as follows:
Burbank�s Current Smoking Ordinance In addition to state law provisions, the Burbank Municipal Code (BMC) contains additional smoking regulations that were first adopted in 1987 (Exhibit A). Certain provisions of Burbank�s smoking regulations have since been superseded by the state workplace smoking law. BMC Chapter 17, Article 7 prohibits smoking in the following locations:
The existing code requires that all areas where smoking is prohibited be posted with �No Smoking� signs.
Specifically with regard to the Starlight Amphitheater, BMC Section 15-1-1102.3.9 further prohibits open flames and lighting of combustible substances within the Starlight Amphitheater except in designated areas approved by the Fire Chief.
Smoking Ordinances in Other Cities and Counties 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 and counties have smoking regulation ordinances. Summaries of the approaches used by various California cities and counties are attached as Exhibit B-1. A table summarizing the cities and counties is attached as Exhibit B-2.
Staff notes that some of the ordinances discussed were adopted prior to the state workplace smoking law and were subsequently superseded by the state law, like Burbank�s own ordinance. For example, some cities prohibit smoking in areas that are also prohibited under state law, and 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 provide 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.
Smoking Policies at Privately Owned Facilities As a supplement to government regulations, many private facilities have their own no smoking policies. Providence St. Joseph Medical Center in Burbank designates itself as a �smoke free� facility. Smoking is prohibited at all indoor and outdoor areas of the medical center except in two designated outdoor smoking areas. The California Farmers Market Association Rules and Regulations for Certified Farmers Markets, which includes the Burbank Farmer�s Market, provide that �smoking is not permitted in produce display and immediate sales area[s].�
Outside of Burbank, a number of local tourist destinations, event venues, and shopping destinations have no smoking policies in indoor and outdoor areas, or allow smoking in designated areas only. The following are prominent examples of these policies:
ANALYSIS:
Proposed Ordinance: Locations Where Smoking is Prohibited The proposed ordinance would control public exposure to secondhand smoke by prohibiting smoking in locations where non-smokers are most likely to be exposed to secondhand smoke, with a focus on outdoor areas. Each of these locations is noted below, along with a discussion of the rationale behind prohibiting smoking there, issues related to enforcement, any possible adverse side effects or consequences from prohibiting smoking at the location, and a summary of the public input received regarding the particular location. The public input noted in this section is intended to be a brief overview and summary of the input received on a particular topic and is not intended to be comprehensive. A comprehensive listing of input received is featured later in this report. The locations noted below are a summary of the proposed ordinance. A copy of the complete text of the draft ordinance, as released for public review on March 9, 2007, is attached as Exhibit C.
City Facilities and Parks
Proposed Regulation: Smoking would be prohibited in all City facilities and parks including City Hall, City offices, parks, recreation facilities, playgrounds, senior centers, meeting or conference facilities, libraries, theaters and amphitheaters, child care facilities, recycling centers, and joint-use facilities owned by the Burbank Unified School District but open to the general public for recreation purposes. This would also include facilities that are not typically open to the public during such time that they are open to the public, such as an open house or other community event at a City yard or utility facility. This would not include the DeBell golf course except for the driving range; smoking would continue to be permitted on the 18-hole course and 9-hole �Par 3� course. Smoking would also be prohibited on all sidewalks and public rights-of-way within 20 feet of any City facility or park. Staff notes that the current policy of the Park, Recreation, and Community Services Department is to prohibit smoking on all playing fields and in all baseball dugouts at City parks, but not in adjacent bleachers or other viewing areas. As noted above, the BMC already prohibits smoking at the Starlight Amphitheater and other specified City facilities.
Reason for Regulation: The City of Burbank can most effectively control smoking at the facilities that are under its direct control. City facilities are community facilities that are intended for shared use by all members of the community. Many City facilities such as parks, libraries, and senior centers are frequented by senior citizens that may have heightened sensitivities to secondhand smoke, and by children that are particularly susceptible to the adverse health effects of secondhand smoke. Non-smoking members of the community should be able to visit and enjoy shared community facilities without having their experience affected by secondhand smoke or having to alter their location or activities to avoid secondhand smoke exposure.
Enforcement: The first line of enforcement in City facilities would be City staff, who would request compliance with the smoking law just as with other City regulations and policies at City facilities. City staff would likely be more familiar with and comfortable requesting compliance with this law than would a private business manager or owner. City staff could request compliance, but could not issue citations. The Police Department would be called if issuance of a citation became necessary.
Possible Side Effects: Staff believes that the proposed restriction would have the largest impact at City parks. Many families utilize Burbank�s parks for picnics, barbeques, parties, and other family events. Some of the public input received has indicated that smoking is often a part of these family events. The proposed ordinance would require park users to leave the park and move at least 20 feet away from the boundary of the park to smoke. This would be an inconvenience and would perhaps affect the ability of certain individuals or families to enjoy the park. However, this would also increase the ability of non-smoking individuals and families to enjoy the park free of secondhand smoke. Smokers participating in sports leagues or other recreation activities that take place at City parks may be discouraged from participating if they cannot smoke.
Public Input: Public input was mixed with some people supporting a smoking ban at City facilities. Some people were concerned that banning smoking at City parks and recreation facilities would discourage smokers from joining sports leagues and recreation programs that meet at the parks. Some people suggested an alternative of banning smoking at certain areas within public parks, such as sports fields and bleachers, but not the park as a whole. Others suggested that designated smoking areas be provided at convenient locations in all parks.
A member of the Advisory Council on Disabilities stated her belief that smoking was a concern outside of the Burbank Water and Power yard float barn during the time that the Tournament of Roses parade float is being constructed. This input was the impetus for the clarifying language that the proposed restriction applies in facilities that are not typically open to the public during such time that they are open to the public. Because the float building period is a time when the community is invited to view and work on the float, and cannot move to another area, staff believes it is appropriate for smoking to be prohibited there during the time of float construction.
Downtown Burbank
Proposed Regulation: Smoking would be prohibited in all pedestrian areas in Downtown Burbank including sidewalks, pedestrian alleys, pedestrian paseos and plazas, walkways providing access from parking lots and structures to stores or sidewalks, all other pedestrian paths or areas that are accessible to the general public, and all non-enclosed areas within 20 feet of the pedestrian areas. For smoking purposes, Downtown would be defined as the area bounded by Angeleno Avenue, Third Street, Magnolia Boulevard, and First Street; and the Burbank Town Center area bounded by Magnolia Boulevard, Third Street, Burbank Boulevard, and the Golden State Freeway.
Reason for Regulation: Downtown Burbank has been identified as the shopping, dining, and entertainment center of Burbank. Thousands of people, many of which are children and adolescents, visit the Downtown area each week, and most of them walk around the area to visit different shops, restaurants, and entertainment destinations. The City strives to maintain a pedestrian friendly atmosphere and to encourage walking around the Downtown area. Secondhand smoke adversely affects this atmosphere by forcing non-smokers to alter their path of travel or stay away from certain areas if they wish to avoid exposure to secondhand smoke. Prohibiting smoking in Downtown Burbank would help contribute to an enjoyable pedestrian experience for all Downtown patrons.
Enforcement: Most of the identified pedestrian areas in Downtown Burbank are in public rights-of-way or on City-owned property. Most enforcement would therefore be conducted directly by the Burbank Police Department.
Possible Side Effects: Many restaurants in Downtown Burbank have outdoor seating areas, and patrons can be frequently seen smoking in these areas, especially at coffee houses. The proposed ordinance would prohibit smoking in these seating areas, which would result in smokers moving to the nearby sidewalks to smoke. If smoking were in turn prohibited on the sidewalks and other pedestrian areas, smokers would be forced to go to a parking lot, a designated smoking area if any were nearby, or to leave the Downtown area to smoke. This could pose a major inconvenience for smokers and could potentially result in their choosing not to frequent the Downtown Burbank area. Although there is evidence to the contrary (as discussed later in this report), such a prohibition could be viewed by Downtown Burbank businesses as possibly having a negative impact on their business by inconveniencing or driving away some of their customers.
Public Input: Some people supported banning smoking in the Downtown area, and in particular on the sidewalks along San Fernando Boulevard. Some people were concerned about limiting smoking in private areas of the Downtown, which was the impetus for the proposed ordinance to focus on pedestrian paths and sidewalks as opposed to a blanket smoking ban in the entire Downtown area.
Chandler Bikeway
Proposed Regulation: Smoking would be prohibited along the Chandler Bikeway between Mariposa Street and the City border, including the paved bike and pedestrian paths, the landscaped areas, and the sidewalks and public right-of-way within 20 feet of the bikeway.
Reason for Regulation: The Chandler Bikeway is a community facility that is intended to be shared and enjoyed by everyone in the community. Further, as a bike and pedestrian path, the facility is used for commuting, exercise, and recreational activities that often involve physical exertion. Many users of the facility are children. Smoking along the Chandler Bikeway adversely affects the ability of non-smokers to enjoy the facility, and may have adverse health affects on sensitive individuals that breathe in secondhand smoke during exercise or other physical exertion.
Enforcement: The Chandler Bikeway is on public property and is not staffed. Given the community nature of the bikeway, it is hoped that a friendly notification or reminder from a non-smoker would be adequate for a smoker to stop smoking while on the bike path. Enforcement, if necessary, would be conducted by the Burbank Police Department.
Possible Side Effects: The proposed restriction would force persons wishing to smoke to leave the bike path. Bicyclists could legally ride in the street along Chandler Boulevard and persons walking could use the sidewalks north or south of the bikeway along Chandler if they wish to smoke.
Public Input: Some people opposed prohibiting smoking on the Chandler Bikeway because they believe it is a wide open outdoor area where non-smokers may easily avoid smokers. Other people noted that nearby sidewalks are available for smokers to use.
Outdoor Dining Areas
Proposed Regulation: Smoking would be prohibited at outdoor dining areas where food or beverages are served or consumed, including at restaurants and bars, and within 20 feet of outdoor dining areas.
Reason for Regulation: Many non-smokers are particularly sensitive to and bothered by secondhand smoke while eating. The state workplace smoking law recognizes this in some of its provisions, such as allowing smoking in banquet facilities except when food or beverages are being served. Persons dining in outdoor areas are a captive audience that is involuntarily exposed to secondhand smoke. Moving away from smokers to another part of the outdoor dining area is not always possible and even when possible, does not necessarily reduce or eliminate the exposure to secondhand smoke. While some argue that non-smokers should dine indoors where smoking is already prohibited under state law if they wish to avoid secondhand smoke, others believe that non-smokers should be able to enjoy dining in an outdoor area without being forced to expose themselves to secondhand smoke.
Enforcement: The primary means of enforcement in outdoor dining areas would be by the owner or manager of the establishment asking the smoker to stop smoking, and further asking them to leave if they refuse to stop. The proposed ordinance provides that a business would be in violation of the law and could be prosecuted for knowingly allowing a person to smoke in a place where smoking is prohibited. It would therefore be in the best interest of the restaurant, bar, or other business to ensure that smoking does not occur in its outdoor dining area. If a smoker was not responsive to the requests of the business and refused to stop smoking or leave, the Police Department could be called to enforce the law.
Possible Side Effects: Currently, many diners who wish to smoke while eating may sit in outdoor dining areas and smoke. Under the proposed ordinance, this would not be possible. Persons wishing to smoke would have to leave the restaurant premises to smoke. This is of particular concern at bars, since many bar patrons like to smoke while drinking alcoholic beverages. This is also of concern at restaurants and bars in Downtown Burbank, since smoking would also be prohibited on sidewalks and other nearby pedestrian areas where diners would go to smoke. Some restaurant and bar patrons who wish to smoke during their meal may choose to not patronize restaurants or bars in Burbank. However, as discussed later in this report, numerous studies have shown that smoking prohibitions do not negatively impact businesses.
Public Input: People in support of the proposed ordinance have generally been most supportive of prohibiting smoking in outdoor dining areas. Some individuals who have been opposed to some or most of the proposed prohibitions have expressed support for, or at least no opposition to, this prohibition. Many non-smokers are especially bothered by secondhand smoke while dining. Even some smokers have stated that they do not smoke, and prefer not to be exposed to secondhand smoke, while eating.
Outdoor Service Areas
Proposed Regulation: Smoking would be prohibited in outdoor areas where people wait for goods or services including ATM machines, information kiosks, banks, restaurants and other food service, tickets, admission to a theater or event, car washes and auto service establishments and valet parking pick-up; and within 20 feet of such areas.
Reason for Regulation: Non-smokers in waiting lines and areas are a captive audience that is involuntarily exposed to secondhand smoke. In most cases, non-smokers do not have the option of stepping out of line or moving to another area, since they must wait in a specified line or place to receive the good or service for which they are waiting. In many cases, non-smokers in waiting lines or areas are children or senior citizens that are especially sensitive to secondhand smoke.
Enforcement: For lines on private property, the owner or another representative of the business in control of the waiting area would be the first line of enforcement by asking the smoker to stop smoking or leave. For lines in a public right-of-way or on public property, persons in line could ask the smoker to stop. If enforcement were necessary, the business or other people waiting in line could call the Police Department.
Possible Side Effects: Persons wishing to smoke while waiting in line would be forced to relinquish their place in line. In a non-ordered waiting area, such as when waiting at a car wash, persons wishing to smoke would have to leave the area and perhaps be inconvenienced, but would not lose a position in a waiting line.
Public Input: Similar to outdoor dining areas, persons in support of the proposed ordinance have been particularly supportive of prohibiting smoking in waiting lines and areas. People tend to view non-smokers in these situations as a captive audience that is not able to relocate or avoid non-smokers due to the need to hold a place in line or wait in a particular area.
Public Transit Vehicles, Stations, and Stops
Proposed Regulation: Smoking would be prohibited in all City buses and shuttles and in all pedestrian areas at transit stations and stops including the Downtown Burbank Station, Burbank Airport Station, and all bus stops and taxi stands, but not in parking areas at such facilities. Smoking would also be prohibited within 20 feet of pedestrian areas at transit stations and stops.
Reason for Regulation: Non-smokers at transit stations and stops and on public transit vehicles are involuntarily exposed to secondhand smoke. Such non-smokers are relying upon public transit services for transportation and do not have the option of moving away from the station or stop or using different transit.
Enforcement: City employees and other agency staff at transit stations and stops and operating public transit vehicles would be the first line of enforcement by requesting that smokers stop smoking or leave the area. At taxi stands, the business owner or manager of the property on which the stand is located would be responsible for asking smokers to stop smoking or leave. If enforcement were necessary, the Police Department could be called.
Possible Side Effects: Transit riders who wish to smoke would be required to leave the area, which may cause them delay or otherwise affect their ability to use the transit system in a way that is most convenient for them.
Public Input: Some people have noted that smokers are already not allowed to smoke on most trains and buses. As such, waiting at a transit station or stop may be their last chance to smoke for an extended period of time, and that opportunity should not be taken away.
Outdoor Gathering and Event Areas
Proposed Regulation: Smoking would be prohibited in any non-enclosed area where the public gathers to watch or participate in events such as shows, movies, plays, lectures, exhibitions, demonstrations, concerts, competitions, sporting events, arts and crafts shows, fairs, pageants, and parades from one hour before the event until one hour after the event. Such areas may include grandstands, viewing areas, sports fields, and related areas such as restrooms and concession areas. Smoking would also be prohibited within 20 feet of such areas. Staff again notes that the current policy of the Park, Recreation, and Community Services Department is to prohibit smoking on all playing fields and in all baseball dugouts at City parks, but not in adjacent bleachers or other viewing areas.
Reason for Regulation: Persons attending or participating in events such as those listed are involuntarily exposed to secondhand smoke and typically cannot leave the area to avoid secondhand smoke. This is especially true in bleachers and other seating areas. Many events include large numbers of children participating in or viewing the event.
Enforcement: Due to the number of people around, the first step in enforcement at events would likely be a reminder from another person attending or participating in the event to the smoker. The second step would be a reminder from the event staff. If the smoker was not cooperative, the Police Department could be called.
Possible Side Effects: Persons attending or participating in events would have to leave the area entirely if they wished to smoke. This could result in them missing a portion of the event or choosing not to attend or participate in the event at all. In the case of event areas located within City parks, there would be no nearby area for smokers to go to smoke unless a designated smoking area was provided.
Public Input: Some people believe that smoking should be prohibited in event areas, and in particular seating areas such as bleachers where people cannot feasibly move away from secondhand smoke. Others have expressed concern about driving people away from viewing or participating in sports and events due to their inability to smoke nearby. Some people have noted that if smoking is prohibited in bleachers and seating areas, a designated smoking area should be provided nearby.
Outdoor Shopping Areas and Centers
Proposed Regulation: Smoking would be prohibited in outdoor shopping areas such as Farmers Markets, swap meets, and nurseries, and in pedestrian areas of an outdoor shopping center, such as the Burbank Empire Center. Smoking would also be prohibited within 20 feet of any pedestrian areas, but not in parking areas more than 20 feet from pedestrian areas.
Reason for Regulation: Shoppers in outdoor shopping areas do not have the option of moving to another area unless they choose to shop elsewhere or not shop at certain vendors (in the case of a Farmers Market or swap meet) where smokers are located. Shoppers at outdoor shopping centers typically have only one path available to them to get from one store to another and cannot choose to avoid secondhand smoke. Many shopping center patrons are children and elderly individuals.
Enforcement: Shopping center or tenant management would typically be the first line of enforcement by notifying a smoker that they are not allowed to smoke. The Police Department could be called if a smoker refused to quit or leave the area.
Possible Side Effects: Smokers at outdoor shopping areas or centers would have to leave the shopping area or center or go out to the parking area if they wished to smoke. This would be an inconvenience. Some smokers may choose to shop outside of Burbank in other cities where smoking at outdoor shopping areas is allowed.
Public Input: The Youth Board was generally supportive of prohibiting smoking at outdoor shopping areas and centers. Aside from the Youth Board, no specific public input had been received regarding this proposed prohibition as of the publication of this report.
Elevators
Proposed Regulation: Smoking would be prohibited in any elevator, whether or not accessible to the general public.
Reason for Regulation: Non-smokers riding in elevators are a captive audience that typically does not have a choice to use other facilities or move away from secondhand smoke. Elevators are small fully enclosed spaces that result in a high concentration of secondhand smoke with no opportunity for the smoke to dissipate and a high potential for exposure to non-smokers. Staff notes that the BMC currently prohibits smoking in elevators used by the general public for passenger service. The proposed ordinance would expand this to all elevators.
Enforcement: Enforcement in elevators would be very difficult. Elevators are closed-in spaces that are typically not visible from public rights-of-way or other adjacent spaces. Further, the amount of time that people spend in an elevator is very short and infrequent, so any violations would correct themselves very quickly by virtue of the smoker leaving the elevator.
Possible Side Effects: Given the short and infrequent period of time that people ride in elevators, a smoker would be required to extinguish a cigarette for only a short period of time before being able to continue smoking. This is assuming the elevator is in a location where smoking is otherwise permitted outside of the elevator, which would not be case in many situations. Staff believes that this would be a relatively minor inconvenience.
Public Input: No specific public input had been received regarding this proposed prohibition as of the publication of this report.
Proximity to Buildings
Proposed Regulation: Smoking would be prohibited within 20 feet of any door, operable window (including drive-through, drive-up, and walk-up service windows), air intake, or other opening of a building or other enclosed space that is accessible to the general public. This would include buildings such as offices, stores, restaurants, banks, museums, and theaters.
Reason for Regulation: Smoking in proximity to doors, operable windows, air intakes, and other building openings can result in secondhand smoke entering the building and increasing the risk of exposure for persons inside the building. Keeping smokers away from building openings reduces the likelihood of secondhand smoke entering the building. Staff notes that state law already prohibits smoking within 20 feet of any door or window to a government building, as discussed earlier in this report. The proposed ordinance would extend this prohibition to apply to all buildings and enclosed spaces.
In addition to smoke entering the building, the proposed prohibition addresses the concern about persons entering and exiting a building being required to walk through a cloud of secondhand smoke immediately outside a building entrance. Many smokers who are unable to smoke indoors at their job will go to the nearest convenient place to smoke, which is often right outside the door to the building. This results in higher concentrations of secondhand smoke forming at the entrance to the building, which in turn negatively affects non-smokers coming and going from the building that do not have another choice for getting to and from the building.
Enforcement: The first step in enforcement of this provision would likely be building owners or managers advising persons outside the building that smoking there is not allowed. Since many people that smoke outside of building entrances are employees that work in the building, their employers would advise them of the regulation. If smokers were not cooperative, the Police Department could be called.
Possible Side Effects: Smokers seeking an outdoor area to smoke would no longer be able to smoke in the closest and most convenient locations outside of buildings. In some situations where multiple building entrances are in close proximity to one another or where sidewalks are narrow, smokers may have to walk a distance from the building before being able to smoke. Further, in areas where building entrances are close together such as along Magnolia and Burbank Boulevards, the proposed regulations could have the effect of prohibiting smoking on most or all of the sidewalks in the area as the 20-foot radius areas overlap one another.
Public Input: Some people supported the proposed prohibition and raised concerns about having to walk through a cloud of secondhand smoke to enter a building when multiple people are gathered at the entrance smoking. Some people noted that this was especially a problem at large facilities such as the Burbank Town Center mall, where shoppers and store employees tend to smoke right outside the entrances.
Designated Non-Smoking Areas
Proposed Regulation: Smoking would be prohibited in any area where the person or business that owns or controls the area declares the area to be a non-smoking area.
Reason for Regulation: This requirement of the proposed ordinance would give property and business owners the flexibility to designate their own property as being non-smoking and have the force of law behind them. In adopting the proposed ordinance, the City Council would be setting a major policy regarding the control of secondhand smoke in Burbank. Staff believes that allowing businesses and property owners to implement this policy with enforcement support from the Municipal Code is appropriate.
Enforcement: Business and property owners would be the first line of enforcement. Since the owners themselves would have chosen to designate an area as non-smoking, they would have the most interest in enforcing it. The Police Department could be called if a smoker refused to comply.
Possible Side Effects: The areas where smoking would be prohibited under this aspect of the proposed ordinance would be at the discretion of business and property owners and not the City. It is therefore difficult to say what the potential impacts would be since the City does not know at this time what areas would be affected and how businesses and property owners would choose to apply this provision.
Public Input: No specific public input had been received regarding this proposed prohibition as of the publication of this report.
Common Residential Areas
Staff is recommending against this provision but has included it in the proposed ordinance due to City Council direction.
Proposed Regulation: Smoking would be prohibited in all indoor and outdoor common areas of multiple family residential projects including apartments, condominiums, retirement homes, and assisted living facilities. Common areas would include all areas that are accessible to all residents living in the development, including but not limited to hallways, stairways, elevators, lobbies, laundry rooms, trash rooms, swimming pools, decks, patios, yard areas, play areas, pedestrian paths, driveways, and parking lots and garages, and would not include private balconies or patios that are not generally accessible to other residents.
Reason for Regulation: Non-smokers living in multifamily residential projects may be exposed to secondhand smoke as they come and go from their residences and as they use common areas of the building. Secondhand smoke can affect the quality of life of non-smoking residents and cause them to stay in their unit rather than use and enjoy common spaces. In some common areas such as hallways, laundry rooms, and parking garages, non-smoking residents cannot avoid secondhand smoke. Many residents of multifamily residential projects are children and senior citizens.
Enforcement: Many residents may feel uncomfortable approaching their neighbors about smoking in prohibited areas. This could result in a lack of enforcement as people choose not to pursue any enforcement against their neighbors, or in the use of additional police resources as people immediately call the Police Department rather than approaching the smoker themselves.
Possible Side Effects: Prohibiting smoking in common areas may cause smokers to instead smoke inside their residence when they otherwise would not. This could result in family members or roommates of the smoker being exposed to secondhand smoke in an indoor environment when they otherwise would have little to no exposure. Alternatively, smokers would be required to leave their complex entirely and go to a public right-of-way, which could be a substantial inconvenience and affect their quality of life.
Public Input: A number of people believed that common areas of multifamily residential projects are private areas and should not be regulated under the proposed ordinance. These people believed that such regulation �goes too far� and is overreaching the limits of the areas that government should regulate with regard to smoking. The Senior Citizen Board discussed the pros and cons of prohibiting smoking in retirement homes and assisted living facilities, as detailed later in this report.
Proposed Ordinance: Locations Where Smoking is Permitted
Private Residences
Proposed Regulation: Smoking would be allowed within all private residences and on private patios and balconies, except when being used as a child care home or a health care facility.
Reason for Regulation: Staff believes that residences are private areas in which people should have the greatest degree of freedom and personal preference in their activities. Staff acknowledges that smoking in the home can result in high levels of secondhand smoke exposure to persons living in the residence and could potentially expose others living in adjoining units or in nearby outdoor areas. Nonetheless, staff does not support prohibiting smoking within private residences.
Possible Side Effects: People smoking on private outdoor balconies and patios could result in secondhand smoke entering areas where smoking is prohibited, including common areas of multifamily projects, nearby dining or waiting areas, and nearby buildings or enclosed spaces.
Public Input: A number of people have stated their support for allowing people to smoke in their own residences, even when attached to other units.
Private Vehicles
Proposed Regulation: Smoking would be allowed within private vehicles, except when the vehicle is located on private property and in an area where smoking is prohibited, such as within 20 feet of a building entrance or operable window.
Reason for Regulation: Many people that smoke in their cars do so with the windows rolled down. This causes secondhand smoke to leave the vehicle, which exposes other people nearby to secondhand smoke in the same manner as if the person were smoking outside of their car. In the case of drive-through or drive-up service windows, secondhand smoke could enter the building through the open service window.
Possible Side Effects: Smokers may choose not to patronize drive-through facilities if they have to extinguish their cigarette before entering the drive-through.
Public Input: No specific public input had been received regarding this issue as of the publication of this report.
Designated Smoking Areas
Proposed Regulation: Smoking would be allowed in any designated smoking area. Smoking areas could be designated in any City park or facility, any transit station or stop, any outdoor event or gathering area, or multifamily residential common area. Smoking areas would be designated by the City Manager for City-owned properties, or private property owners. Smoking areas would not be subject to approval by the City, but would have to meet certain criteria. The City Manager could require a smoking area to be modified or removed if it did not meet the criteria. The criteria would be as follows:
Reason for Regulation: Smoking areas would provide an opportunity for smokers to smoke in locations where smoking would otherwise be prohibited where the impact on non-smokers would be minimal. Staff is proposing that the designation of smoking areas not be subject to City approval to avoid the creation of another City process through which property owners would be subjected, and to conserve City resources. Staff from the City of Calabasas noted that although their ordinance requires City approval of smoking areas, they estimate that about two-thirds of all designated smoking areas in the City have been established by property owners without City approval. The vast majority of the areas nonetheless meet the criteria and would have been approved by the City. Calabasas staff therefore generally believe that City approval of designated smoking areas is not necessary, and that based upon their experience property owners will generally follow the criteria.
Possible Side Effects: Lack of City control over designated smoking areas could potentially result in areas being established that do not meet all of the required criteria. However, the proposed ordinance provides the City Manager with the ability to modify or remove any area that is found to not meet the criteria.
Public Input: Many people commented on the need to have designated smoking areas to provide opportunities for smokers to smoke at locations where exposure of non-smokers to secondhand smoke would be minimal.
Areas Not Covered in Proposed Ordinance The staff report provided to the City Council on January 30 included a long list of indoor and outdoor places where smoking could be prohibited. Based upon the direction of the Council, the proposed ordinance focuses largely on outdoor spaces and does not address most of the indoor spaces noted in the January 30 report. Some of the outdoor places noted in the report have also not been included in the proposed ordinance.
Indoor Areas Although some ordinances of other cities, including Calabasas, address some or all of the indoor areas listed below, staff believes that the restrictions provided under the workplace smoking law are adequate to address indoor smoking concerns. At this time, staff believes that it is not necessary for the City to further restrict smoking in these areas. Those indoor locations where exposure is of the greatest concern are already addressed by state law. Burbank�s existing ordinance includes a few additional indoor areas where smoking is prohibited that are not explicitly addressed in state law. These areas would not be included in the proposed ordinance given the focus of the ordinance on outdoor locations. Staff believes that these indoor areas are generally not of concern at this time and that there is no need to retain them as prohibited areas. If in the future, secondhand smoke exposure is identified as a concern in an indoor location not adequately covered by the state workplace smoking law, Burbank�s regulations could be amended as deemed necessary.
The following indoor/enclosed places were noted in the January 30 report and are not addressed in the proposed ordinance. In addition to the indoor locations noted above, smoking would continue to be permitted in the following areas as allowed under state law:
Outdoor Areas The proposed ordinance focuses on outdoor areas. Given the direction of the City Council that an ordinance as restrictive as that adopted by Calabasas was not desirable, the following outdoor areas have not been addressed in the proposed ordinance. The reasoning for not including each area is discussed below.
Staff believes that this restriction is adequate such that non-smoking employees would not have to interact with smokers when entering or exiting the building. Although non-smokers would potentially be exposed to secondhand smoke if they wished to use a courtyard or other outdoor area, staff believes that the limitation on smoking near building entrances and other openings is a fair compromise. If smokers were forced onto public sidewalks, persons walking by on the sidewalk would then be exposed to secondhand smoke, and would not be able to avoid the exposure as easily as employees that could avoid using a courtyard or other on-site area while a smoker was present.
(The Magnolia Park and Rancho areas were singled out in this discussion only because they were included as specific options in the January 30 City Council staff report.)
Areas Without Non-Smokers The original direction given by the City Council on January 30, 2007 was that the proposed ordinance should include a �common sense� exemption whereby smoking would be allowed at any location so long as no non-smoker was in the immediate area and it was reasonable to assume that a non-smoker would not come into the immediate area, even if smoking would otherwise be prohibited at the location. Staff is recommending that this provision not be included in the ordinance. While such an exemption seems logical, staff and the City Attorney�s office are concerned that such a provision could jeopardize the City�s ability to enforce the ordinance and prosecute offenders. Smokers would have to determine for themselves if other people were around, whether or not they were an acceptable distance away, and whether it would be reasonable to assume that another person would not come into the area. If they began smoking and a person then came into the area, it would be unclear whether or not the smoker would be required to stop. Staff believes that such a provision would be cause for subjective interpretation of when smoking is and is not allowed and would result in confusion over the way in which the ordinance is understood, administered, and enforced.
Staff believes that a simpler and better approach is to just prohibit smoking at specified locations without exception, except when clearly designated smoking areas have been established. This would minimize interpretation and misunderstanding and would make enforcement more straightforward. In reality, if no people are in a given location other than the person desiring to smoke, there would be nobody to ask the smoker to stop or report a violation of the ordinance. Although the smoker would be violating the ordinance, no non-smoker would be exposed to secondhand smoke and nobody would be harmed by the violation.
Proposed Ordinance: Disposal of Smoking Waste The proposed ordinance would prohibit the disposal of any cigarette, cigar, or other tobacco substance or product in an area where smoking is prohibited except in a designated waste disposal container. While this requirement is duplicative of existing anti-littering laws, it also pertains to secondhand smoke exposure because discarded tobacco products that are still burning can emit secondhand smoke.
Proposed Ordinance: Violation and Enforcement As noted throughout this report, the Police Department would be ultimately responsible for enforcing the proposed ordinance. The intent of the proposed regulations is that business and property owners and managers and people bothered by secondhand smoke will remind smokers of the law and ask that they stop smoking or move to an area where smoking is permitted. Staff from the City of Calabasas noted that in their experience thus far, most smokers will gladly stop smoking or move to another area once they are told that they are smoking in a prohibited area. If a smoker agrees to quit or leave, it would generally be unnecessary to involve the police, since the violation would have corrected itself. In situations where a smoker refuses to quit or leave, or where people do not feel comfortable approaching the smoker, the Police Department could be called. City of Calabasas staff stated that they have not yet had a situation where a smoker has refused to stop when asked.
Several people commenting on the draft ordinance noted that if the Police are called, the person may have quit smoking or left the area by the time the police arrive. While this may be true in some cases, staff notes that the goal of the proposed ordinance is to reduce exposure to secondhand smoke, not to prosecute people for smoking. Therefore, if the smoker has left or the situation has otherwise remedied itself before the police arrive, the secondhand smoke exposure concern has nonetheless been alleviated.
As noted in the ordinance, prosecution under the ordinance would be handled consistent with BMC Section 1-105 which is applicable to violations of the Municipal Code in general. The section provides that any code violation is a misdemeanor, unless the prosecutor determines that it should be prosecuted as an infraction. The proposed ordinance also declares smoking in prohibited locations to be a public nuisance, meaning that public or private legal action could be taken to remedy the nuisance.
Under the proposed ordinance, a person smoking in an area where smoking is prohibited could be prosecuted for a Municipal Code violation. In addition, any person, business, or entity that knowingly permits smoking in an area under its control could also be prosecuted for breaking the law. This places responsibility upon business owners and managers to ensure that the smoking law is obeyed in areas under their control. If someone is smoking in an area owned by a business, the business would be required to ask the person to stop smoking or leave, or contact the Police Department to resolve the situation. If the business facilitated smoking or otherwise took no action to stop it, the business could be prosecuted in addition to the smoker.
Police Department staff stated that if adopted, the proposed ordinance would be one of many laws that the Department is required to enforce. While some police resources are required to enforce any new law, they did not foresee that the additional proposed regulations would place a substantial additional burden on police resources. This assumes that enforcement of the law would be primarily in response to complaints or if an officer on patrol happened to observe a violation. The primary enforcement of the ordinance would be conducted by patrol officers throughout the City, and the bicycle patrol in the Downtown area when that patrol is active. Staff from the City Of Santa Monica stated that they are receiving approximately two to three calls per week regarding questions on enforcement of the smoking ordinance. Staff reports that the calls are referred to the Police Department since they are the enforcement power of the ordinance. If the City Council wished to perform any type of targeted proactive enforcement, the Police Department noted that such an approach would require a major commitment of Police Department staff and resources, probably from the Vice/Narcotics unit.
Proposed Ordinance: Signs
Sign Locations The proposed ordinance would require �No Smoking� or similar signs to be posted at the following locations where smoking is prohibited:
As proposed by staff, signs would not be required for the following locations:
Staff believes that posting signs would not be practical at outdoor service areas or outdoor gathering and event areas due to the changing and transient nature of such areas and difficulty in determining where and how signs would be posted. Staff believes that posting signs in elevators would not be cost effective due to the large number of elevators in the City and the other means available to building owners to notify their tenants. Smoking is already prohibited in most elevators due to their indoor locations. With regard to multifamily residential common areas, staff believes that property owners and associations with control over common areas can notify tenants through a number of means other than posting signs, including rental agreements, posted notices, and other documents.
Sign Responsibilities and Costs The proposed ordinance specifies that the City Manager would be responsible for posting all signs on City properties and public rights-of-way. The ordinance further requires that signs be posted in certain locations on private property. These signs could be provided to businesses and property owners by the City, or could be required to be provided by the businesses and property owners themselves.
The proposed ordinance specifies that signs must contain graphics and/or text and specifies the locations at which signs must be located. The manner in which signs are provided is not specified in the ordinance. Signs located in indoor areas could be made of paper or similar lower cost materials. The City of Santa Monica has produced window cling signs for businesses that operate in the City. These window clings are designated for the main entrances of businesses that are open to the public. The clings feature the �Fresh Air Santa Monica� logo and display the rule that smoking is prohibited within 20 feet, or in the case of the Third Street Promenade, the rule that smoking is prohibited in the area. These signs were produced with the assistance of a non-profit organization and will soon be mailed out to Santa Monica businesses.
The proposed ordinance would require that all signs located in non-enclosed areas be made of permanent, weather resistant materials, which would most likely be metal. The City of Calabasas requires businesses to either purchase metallic signs from the City or contract with a private sign maker to produce signs of the same design as those sold by the City. The metallic signs cost $28.50 for a 12-inch by 12-inch sign and $33 for a 12-inch by 18-inch sign (the size of a standard �no parking� street sign). The signs available for purchase are shown in Exhibit D.
Staff inquired with the Public Works Department sign shop about the estimated costs of producing and installing similar signs in Burbank. Public Works staff stated that a 12-inch by 18-inch sign costs $25 to produce. An 18-inch by 18-inch sign (the size of the �no skateboarding� signs located throughout the Downtown area) costs $31.50 to produce. Mounting such signs on an existing post would cost $10 for mounting hardware and would require about 30 minutes of time for a sign crew. Installing a new post would cost an additional $28 for the post and would require additional time. If such signs were installed throughout the Downtown area, at all City parks, and at all outdoor areas of other City facilities, the materials costs and staff time required to install the signs could be substantial.
A detailed discussion regarding the scope and costs of a sign program is beyond the scope of this report. If the proposed ordinance is adopted by the City Council, staff seeks direction from the Council on the sign issue and would return at a future date with additional information.
Education Staff believes that one of most important issues to address if the City Council adopts the proposed ordinance will be educating the public about the restrictions in the ordinance. While the ordinance includes requirements for sign posting, such signs are not likely to be posted in all locations where smoking is prohibited for several months or perhaps several years. While ignorance of the law is not an excuse for breaking the law, the City should be in a position of educating its residents, workers, and visitors about the smoking restrictions. Again, the goal of the proposed ordinance is to reduce public exposure to secondhand smoke, and educating people about where they can and cannot smoke is an important step toward that goal.
Aside from posting signs at appropriate locations, an education program could include the use of cable television; utility bill inserts; Burbank community newsletters and other publications; outreach to various community stakeholder groups and organizations; direct outreach to affected businesses; distribution of flyers or brochures to businesses, property owners, and visitors in the Downtown area; and other methods. City of Calabasas staff noted that two effective education methods used in their city have been small magnetic signs attached to metallic tables in outdoor dining areas and breath mints distributed to restaurants with wrappers that contain information about the ordinance.
Due to the aggressive schedule under which the proposed ordinance and this report were prepared, staff has not had adequate time to fully discuss and develop a proposed public outreach program. If the proposed ordinance is adopted by the City Council, staff would return at a later time with a proposed education program.
Impact on Businesses One of the primary concerns about enacting an ordinance prohibiting smoking is the impact that it may have on businesses, and in particular restaurants and bars. Studies have shown, however, that smoking ordinances generally do not have a negative effect on businesses, and in many cases can have positive economic impacts. A number of reports available on the internet from a variety of sources document this finding. Staff from the City of Santa Monica compiled a summary table of these documents and the pertinent findings of each one. Rather than restate the findings here, the list prepared by the City of Santa Monica, which includes a brief summary of the findings of each study, is attached as Exhibit E. In addition to the studies noted in the exhibit, the 2006 Surgeon General study discussed earlier in this report also concluded that evidence from peer-reviewed studies shows that smoke-free policies and regulations do not have an adverse economic impact on the hospitality industry. (US DHHS, 2006)
Staff acknowledges that in many of the studies cited, the smoking law being studied prohibited smoking in indoor areas at bars, restaurants, and other businesses, and not necessarily outdoor areas as the proposed ordinance would do. It may therefore be argued that patrons at the businesses in the studies still had some place to go to smoke, and were not entirely precluded from smoking at the businesses in question. Nonetheless, staff believes that the findings of the studies are relevant to the City Council�s consideration of the proposed ordinance since they provide evidence of an overall trend that laws that prohibit smoking are not economically detrimental to businesses.
Santa Monica staff stated that in the course of their research for the recent additions to their smoking ordinance, they learned that the Santa Monica Chamber of Commerce conducted a survey among its members asking their opinions about the proposed additions to the ordinance and how they believed it may impact their businesses. The results of the survey showed that while some business owners were concerned about how it would impact their outdoor business areas and specifically outdoor dining patios, the majority of businesses were very supportive of the proposed additions to the smoking ordinance that prohibited smoking at the Third Street Promenade, Farmers Market, 20 feet from any open door or window of a business that is open to the public, outdoor service lines, and outdoor dining patios.
Due to the aggressive schedule for the proposed ordinance requested by the City Council, there was not time to contact individual businesses that might be affected by the proposed ordinance. Staff estimates that there are at least 170 businesses in Burbank with outdoor dining areas that may be affected by the proposed prohibition on smoking in such areas. There are 18 restaurants in Burbank that have Encroachment Permits issued by the Public Works Department to place tables and chairs on the sidewalk within the public right-of-way. License and Code Services Division staff estimates that there are approximately 170 establishments in Burbank with outdoor dining areas either within the public right-of-way or on private property. These establishments include restaurants, bars, multi-tenant food courts, and snack bars in conjunction with non-restaurant establishments.
Input from City Boards, Commissions, and Committees and other Stakeholder Groups As directed by the City Council, staff met with a number of City boards, commissions, and committees and other community stakeholder groups to discuss the proposed ordinance and solicit input. The input received from the various groups is listed below. As directed by the City Council, further public outreach was not conducted for the proposed ordinance. Due to the schedule for this ordinance and report, there was not time to conduct community meetings or to conduct outreach to individual businesses that may be affected by the proposed ordinance. Although individual businesses were not contacted, input was received from various groups representing businesses in the Downtown area, Magnolia Park, and along Burbank Boulevard.
Planning Board The Planning Board discussed the proposed ordinance at its meeting on February 26, 2007. The Board did not seek to reach a consensus, and each Board member expressed their individual opinions. However, a majority of Board members believed that the proposed prohibition on smoking in common areas of multifamily projects was overreaching and would be too difficult to enforce. One Board member suggested a compromise for multifamily common areas such that smoking would be prohibited in those areas providing access to individual units such as entrance ways, lobbies, and hallways, but not in other common areas. Under this approach, smoking would be prohibited in areas where non-smoking residents are forced to go to gain access to their unit, but not in other areas.
Aside from these statements, individual Planning Board members had the following comments:
Park, Recreation, and Community Services Board The Park, Recreation, and Community Services Board discussed the proposed ordinance at its meeting of March 8, 2007. Two of the five board members were absent from the meeting. Two of the three board members at the meeting expressed their general support for the ordinance and noted that smoking is a public health and quality of life issue, although they were opposed to or had concerns about certain aspects of the proposed ordinance. The third Board member was supportive of some aspects of the proposed ordinance but continued to express concern about how the ordinance would be enforced and about the use of police resources to enforce it. All of the Board members expressed concern about allowing smoking at DeBell golf course due to the proximity of the brush area and the fire danger. They believed that if smoking is allowed there at all, it should be at or near the clubhouse due to its location away from the brush. Aside from these comments, individual Board members had the following comments and questions:
Youth Board The Youth Board discussed the proposed ordinance at its meeting of February 7, 2007. The Board reached a general consensus in support of prohibiting smoking at City parks and other City facilities, the Chandler Bikeway, outdoor shopping areas, pedestrian plazas and gathering areas, outdoor waiting lines, and Downtown Burbank. The Board related most to, and was the most supportive of, prohibiting smoking in Downtown Burbank and at outdoor waiting lines.
The Youth Board members� opinions were split over several issues. While some members supported prohibiting smoking, other Board members believed that smoking was not an issue or should not be regulated in transit stations and stops, outdoor dining areas at restaurants and bars, and common areas of multifamily projects. Two of the Board members consistently voiced their reservations about government involvement in regulating smoking and believed that decisions about smoking in multifamily projects and restaurants in particular should be left to private property owners.
Regarding the additional proposed 20-foot separation requirement that would apply in certain cases, some Youth Board members questioned why the additional separation would be needed in outdoor areas, some members questioned why 20 feet was the proposed distance, and others were concerned that the additional separation might be confusing, especially with regard to existing state laws about smoking within certain distances of children�s� play lots and public buildings.
The Youth Board was generally supportive of having designated smoking areas in certain locations. Some Board members expressed concern about the possibility of allowing smoking in areas where it would otherwise be prohibited if no non-smokers were present, stating that it would be problematic and difficult to enforce. Some Youth Board members said they would be reluctant to ask someone not to smoke when it was prohibited because of the possible repercussions of doing so. Some Board members expressed general concerns regarding enforcement of the ordinance.
Senior Citizen Board The Senior Citizen Board discussed the proposed ordinance at its meeting on February 28, 2007. The Board members had the following comments:
Joslyn House Committee The Joslyn House Committee is a Joslyn Adult Center group composed of representatives from the different clubs that meet at the center. The Committee discussed the proposed ordinance at its meeting on March 6, 2007. Many of the Committee members supported banning smoking at the locations proposed, and were especially supportive of banning smoking at restaurant and bar patio areas. Some members believed that if smoking is banned at City facilities including the Joslyn Center and George Izay Park in which it is located, there would be a need to have a designated smoking area near the Joslyn Center. This is because many Burbank seniors who use the Joslyn Center, including members of the various clubs that meet there, smoke. There was concern that if there was no place to smoke near the Joslyn Center, people would choose to drop out of the clubs and programs and stop coming to the center. This concern was also expressed about City parks in general, that people may choose to drop out of park and recreation activities and sports programs if there were no designated smoking areas at City parks. The representative from the Horseshoe Club noted that even though the Club has smokers, the majority of Club members supported banning smoking in parks and City facilities.
DeBell Golf Clubs The various DeBell golf clubs discussed the proposed ordinance at their meetings in February and March.
Burbank Athletic Federation The Burbank Athletic Federation discussed the proposed ordinance at its meeting on March 6, 2007. The consensus of the Board was support for the proposed ordinance. Several Board members specifically noted that they supported a smoking prohibition for all areas of all City parks, not just in proximity to athletic fields or aquatic program areas.
Advisory Council on Disabilities The Advisory Council on Disabilities considered the proposed ordinance at its meeting on February 22, 2007. Several of the Advisory Council members noted that many disabled individuals already have trouble breathing due to various pulmonary problems and that secondhand smoke makes breathing more difficult for those individuals. They noted that smoking is a barrier to survival for many individuals and that breathing impairment disabilities are widespread among the population. One member stated that exposure to secondhand smoke is not a matter of politeness; it is a matter of survival. Some member stated their belief that people should be able to do what they want except when it affects other people, as secondhand smoke exposure does.
Aside from these general comments, individual Advisory Council members had the following comments:
Chamber of Commerce The Chamber of Commerce was provided with a one-page summary of the proposed ordinance on February 26, 2007 prior to the completion of the draft ordinance, and was provided with a copy of the draft ordinance on March 8, 2007. As of the publication of this report, no input had been received from the Chamber. Any input received will be forwarded to the City Council.
Downtown Property-Based Business Improvement District Board The Downtown Property-Based Business Improvement District (PBID) board discussed the proposed ordinance at its meetings on February 26, 2007 and March 19, 2007. The input from the February 26 meeting is below. This report was finalized for publication prior to the March 19 meeting. Any input received at that meeting will be forwarded separately to the Council.
Board members had the following comments:
Downtown Property Owners and Merchants A special meeting was held on March 14, 2007 for Downtown property and business owners to discuss the proposed ordinance. Notices of the meeting were mailed to all property owners and business owners within the area bounded by First Street, Angeleno Avenue, Glenoaks Boulevard, and Burbank Boulevard. The meeting was attended by 13 people representing about five or six downtown restaurants and one or two retail stores. The overwhelming consensus of the group was that the proposed ordinance would be detrimental to restaurants, bars, and other businesses Citywide and in the Downtown area in particular.
The restaurant owners stated that their business models are based upon allowing smoking in the outdoor portion of the restaurant, and that many of their patrons smoke in the outdoor areas. They were concerned that prohibiting smoking altogether would drive their customers to Glendale, Pasadena, or other nearby destinations where smoking is allowed. They noted that people who dine and shop in Downtown Burbank are not only from Burbank, but also from surrounding areas. They noted that many patrons in Downtown Burbank, especially on weekends, are young adults that smoke and would be driven to other cities if they were not allowed to smoke here. They believed that a smoking prohibition would not only hurt restaurants but would hurt all businesses in the Downtown area and the economic vitality of the entire area as a result of smokers choosing to shop and dine elsewhere.
Other comments and questions from individual members of the group, which were largely agreed upon by all those in attendance, were as follows:
Magnolia Park Property-Based Business Improvement District Board The Magnolia Park PBID board discussed the proposed ordinance at its meeting on March 8, 2007. To solicit as much input as possible, a special board meeting was scheduled at the Buena Vista Library and over 900 notices of the meeting were mailed out to all Magnolia Park property owners. However, only a few property owners in addition to the regular board members in attended the meeting. Several of the board members expressed concern that the proposed ordinance was too far reaching and was indicative of too much government control. Aside form this input, other individual board members had the following input:
Magnolia Park Community Advisory Committee The Magnolia Park Community Advisory Committee (CAC) discussed the proposed ordinance at its meeting on February 15, 2007. The general consensus of the CAC members was that smoking in outdoor areas is not currently a problem in Magnolia Park, and that no regulation is necessary at this time. Some members commented that they do not like to be exposed to secondhand smoke while they are eating and were therefore supportive of prohibiting smoking in outdoor dining areas, but not throughout the Magnolia Park area as a whole. Other members were concerned about the impact that prohibiting smoking would have on business at restaurants and especially bars. There was some concern that if smoking is prohibited in outdoor bar areas, people will instead choose to go to bars in North Hollywood, since many bar patrons are smokers. This concern extended to prohibiting smoking on sidewalks in Magnolia Park, since bar patrons would then not be able to smoke at all, even by leaving the bar. Some members believed that outdoor areas at restaurants and bars should have designated smoking areas so that smoking customers can be accommodated and do not have to go elsewhere to smoke.
At least two CAC members believed that Magnolia Park and Downtown Burbank are similar and that whatever restrictions are applied to the Downtown area should be equally applied to Magnolia Park for consistency. However this view was not shared by other CAC members. At least one CAC member expressed concern about the role of businesses in enforcing the proposed ordinance and having liability if they do not ask a smoker to stop smoking.
Aside from the general consensus, individual CAC members had the following comments:
Burbank Boulevard Merchants The Burbank Boulevard Merchants group discussed the proposed ordinance at its meeting of February 21, 2007. A small minority of the group�s members was present so there was not an opportunity to reach a consensus. All of the members present agreed that the root of the secondhand smoke problem is that some smokers are not considerate in the places and manner in which they smoke. At least one member stated their belief that it was not possible to legislate considerate behavior. The individual members present had the following comments:
Information about the proposed ordinance was forwarded to all members of the group by those who were present at the February 21 meeting. As of the publication of this report, no additional input had been received from the other group members.
Public Comments In addition to the targeted outreach that was conducted to the various stakeholder groups listed above, notice of the proposed smoking ordinance and City Council public hearing was provided to the Burbank community by the following means:
In addition, copies of the full draft ordinance were available for public review at the three branches of the Burbank Public Library, at the Planning and Transportation Division office, and on the City web site beginning Friday, March 9. The availability of the document at these locations was announced in the post card mailed Citywide.
At the time this report was published, the Citywide post card mailing was still arriving in people�s mailboxes. Relatively little written correspondence was received prior to the publication of this report. That correspondence, which includes a petition submitted by a Downtown restaurant owner, is attached as Exhibit F. Aside from the written comments attached hereto, staff received the following verbal comments regarding the proposed ordinance:
All additional comments received prior to the public hearing on March 27 will be forwarded to the City Council.
Environmental Review The proposed ordinance is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines, which provides that an activity is exempt from environmental review where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Further, the proposed ordinance is not considered a �project� under CEQA per Section 15378 and is further exempt under Section 15060(c)(2) of the State CEQA Guidelines because the ordinance is not an activity that would result in a direct or reasonably foreseeable indirect physical change in the environment (Exhibit G). The proposed ordinance would prohibit the act of smoking in certain locations and would not cause or require any physical environmental changes. The proposed ordinance would reduce exposure of non-smokers to secondhand smoke.
FISCAL IMPACT: The fiscal impacts of the proposed ordinance on the City of Burbank, including direct costs and staff time and resources, could be substantial. Such impacts would be related to enforcement of the ordinance, public education and outreach, and making and posting signs for non-smoking and designated smoking areas. The potential costs related to each of these areas are discussed in greater detail above. As noted, the costs will depend upon the City Council�s direction regarding targeted enforcement, education programs, and provision of signs. A full discussion of these costs is beyond the scope of this report because complete information on these issues has not been gathered. If the proposed ordinance is adopted by the Council, staff seeks direction on these issues and will return at a future time with more detailed cost information and options for City Council consideration.
The cost to the City of the proposed ordinance cannot yet be determined and depends upon City Council direction, but could be substantial. The potential fiscal impacts can be generally summarized as follows:
CONCLUSION:
Exposure to secondhand smoke has been proven to cause adverse health effects. The State of California has addressed secondhand smoke exposure in indoor environments through the state workplace smoking law. While secondhand smoke traditionally was thought to be of concern primarily in indoor environments, recent studies have shown that secondhand smoke concentrations and exposure levels in outdoor environments can be equivalent to those in indoor environments and present a health risk. The proposed ordinance would complement the state smoking law by prohibiting smoking in a number of outdoor environments where non-smokers are typically exposed to secondhand smoke. Often, such exposure is involuntary and beyond the control of the non-smoker. The proposed ordinance seeks to protect the health, safety, and welfare of Burbank residents, workers, and visitors by limiting the locations in which exposure to secondhand smoke can occur.
If adopted, the proposed ordinance would inconvenience smokers and may cause some smokers to choose to shop or dine at locations outside of Burbank that have lesser or no smoking restrictions. Further, the proposed ordinance could result in substantial costs to the City and devotion of staff time and resources through implementation, education, and enforcement of its provisions.
The proposed ordinance may be adopted in whole as proposed by staff, or portions thereof may be adopted to restrict smoking at some but not all of the proposed locations. The locations where smoking is prohibited should strike a careful balance between protecting the public health by limiting exposure to secondhand smoke and addressing the needs of smokers to have convenient locations to smoke such that they do not feel alienated in Burbank�s public places.
RECOMMENDATION:
If the City Council wishes to proceed with an ordinance to control secondhand smoke exposure in Burbank, staff recommends that the City Council approve the proposed ordinance that would prohibit smoking in certain indoor and outdoor locations throughout the City. Staff recommends that the provision included in the public review draft ordinance to prohibit smoking in common areas of multifamily residential developments be removed and not adopted as part of the final ordinance. If the Council approves the proposed ordinance in whole or in part, staff seeks direction regarding public outreach efforts and the provision of signs as discussed earlier in this report.
BIBLIOGRAHY:
California Department of Health Services. Indoor & Outdoor Secondhand Smoke Exposure Fact Sheet. October 2005. (Exhibit H-1)
California Environmental Protection Agency. Proposed Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant. June 24, 2005. (Exhibit H-2)
California Environmental Protection Agency Office of Environmental Health Hazard Assessment. Notice to Interested Parties. June 9, 2006. http://www.oehha.ca.gov/prop65/prop65_list/files/060906lstnotice.pdf, accessed 3/7/2007. (Exhibit H-3)
Klepeis, Neil E. and Wayne R. Ott and Paul Switzer. Real-Time Monitoring of Outdoor Environmental Tobacco Smoke Concentrations: A Pilot Study (Pre-Release). Stanford University. March 1, 2004. (Exhibit H-4)
Repace, James. Measurements of Outdoor Air Pollution from Secondhand Smoke on the UMBC Campus. June 1, 2005. (Exhibit H-5)
U.S. Environmental Protection Agency. Setting the Record Straight: Secondhand Smoke is a Preventable Health Risk. 1994. http://www.epa.gov/smokefree/pubs/strsfs.html, accessed 3/7/2007. (Exhibit H-6)
U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program. Report on Carcinogens, Eleventh Edition. 2005. (Exhibit H-7)
U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General � Executive Summary. 2006. (Exhibit H-8)
LIST OF EXHIBITS:
Exhibit A Existing Burbank smoking ordinance (BMC Section 17-701 et seq.) Exhibit B-1 Text summary of city and county smoking ordinances B-2 Table summary of city and county smoking ordinances Exhibit C Draft of proposed ordinance as released for public review Exhibit D Smoking sign examples from City of Calabasas Exhibit E Summary of studies and reports of economic impacts of smoking laws Exhibit F Written correspondence received as of publication of this report Exhibit G Public Notice of Environmental Decision Exhibits H-1 References cited in bibliography through H-8
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