ORDINANCE NO. 17-O- B \ v9.doc

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1 ORDINANCE NO. 17-O- AN ORDINANCE OF THE CITY OF BEVERLY HILLS AMENDING CHAPTER 4 OF TITLE 5 OF THE BEVERLY HILLS MUNICIPAL CODE TO REGULATE SMOKING IN MULTI-UNIT RESIDENCES WHEREAS, tobacco use causes death and disease and continues to be an urgent public health threat, as evidenced by the fact that 480,000 people die prematurely in the United States from smoking-related diseases every year, making tobacco use the leading cause of preventable death.1 Tobacco use can cause disease in nearly all organ systems and is responsible for 87 percent of lung cancer deaths, 79 percent of all chronic obstructive pulmonary disease deaths, and 32 percent of coronary heart disease deaths.2 The World Health Organization estimates that tobacco accounts for the greatest cause of death worldwide accounting for nearly 6 million deaths per year.3 WHEREAS, secondhand smoke has repeatedly been identified as a health hazard as evidenced by the U.S. Surgeon General concluding that there is no risk-free level of exposure to secondhand smoke;4 the California Air Resources Board placing secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure;5 6 and the California Environmental Protection Agency including secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm.7 1 U.S. Department of Health and Human Services. The Health Consequences of Smoking 50 Years of Progress A Report of the Surgeon General Executive Summary Available at: 2 U.S. Surgeon General. Factsheet: The Health Consequences of Smoking 50 Years of Progress: A Report of the Surgeon General Available at: 3 World Health Organization. Tobacco Fact Sheet No June Available at: 4 U.S. Department of Health and Human Services, 2006 Surgeon General s Report - The Health Consequences of Involuntary Exposure to Tobacco Smoke Available at: 5 California Environmental Protection Agency Air Resources Board. Environmental Tobacco Smoke: A Toxic Air Contaminant. California Environmental Protection Agency Air Resources Fact Sheet Available at: 6 California Environmental Protection Agency Air Resources Board. California Identifies Secondhand Smoke as a Toxic Air Contaminant. News Release Available at: 7 State of California Office of Environmental Health Hazard Assessment. The Proposition 65 List. January Available at:

2 WHEREAS, the U.S. Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke.8 Since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to secondhand smoke. Secondhand smoke is responsible for an estimated 41,300 heart disease-related and lung cancer-related deaths among adult nonsmokers each year in the United States.9 Secondhand smoke kills more than 400 infants every year.10 Secondhand smoke exposure adversely affects fetal growth with an increased risk of low birth weight and of Sudden Infant Death Syndrome in infants of mothers who smoke.11 Just 30 minutes of exposure to secondhand smoke is sufficient to damage blood vessels in a healthy nonsmoker.12 WHEREAS, secondhand aerosol emitted from electronic smoking devices has been identified as a health hazard as evidence by research finding at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene to be present in electronic smoking devices U.S. Department of Health and Human Services, 2006 Surgeon General s Report - The Health Consequences of Involuntary Exposure to Tobacco Smoke Available at: 9 Centers for Disease Control and Prevention. Secondhand Smoke (SHS) Facts. Available at: 10 Centers for Disease Control and Prevention (CDC). Secondhand Smoke: An Unequal Danger. CDC Vital Signs Available at: 11 J. Wagner et al., Environmental Tobacco Smoke Leakage from Smoking Rooms, Journal of Occupational and Environmental Hygiene, 1: (2004). 12 Christian Heiss, MD, Nicolas Amabile, MD., Andrew C. Lee, MD, et al. Brief Secondhand Smoke Exposure Depresses Endothelial Progenitor Cells Activity and Endothelial Function: Sustained Vascular Injury and Blunted Nitric Acid Production, J Am Coll Cardiol (2008). 13 State of California Office of Environmental Health Hazard Assessment. The Proposition 65 List. January Available at: 14 California Department of Public Health California Tobacco Control Program. State Health Officer s Report on E- Cigarettes: A Community Health Threat. Sacramento, CA. Available at: 15 Grana R, Benowitz N, Glantz S. Background Paper on E-cigarettes (Electronic Nicotine Delivery Systems). Center for Tobacco Control Research and Education Available at: 17 German Cancer Research Center. Electronic Cigarettes An Overview. Red Series Tobacco Prevention and Tobacco Control. Heidelberg Available at: Cigarettes-EN.pdf 18 Goniewicz ML, Knysak J, Gawron M, et al. Levels of selected carcinogens and toxicants in vapour from electronic cigarettes. Tob Control. 2013;1:1 8. doi: /tobaccocontrol Schripp T, Markewitz D, Uhde E, Salthammer T. Does e-cigarette consumption cause passive vaping? Indoor Air. 2013; 23(1): doi: /j x. -2-

3 WHEREAS, secondhand marijuana smoke has been identified as a health hazard, as evidenced by the California Environmental Protection Agency including marijuana smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer Research on the health effects of marijuana smoke has found statistically significant associations with cancers of the lung, head and neck, bladder, brain, and testes.22 WHEREAS, it is the intent of the City Council of the City of Beverly Hills to provide for the public s health, safety, and welfare by discouraging the inherently dangerous activity of smoking around non-consenting individuals, protecting children from exposure to smoking where they live and play, and protecting the public from nonconsensual exposure to secondhand smoke in and around their homes. THE CITY COUNCIL OF THE CITY OF BEVERLY HILLS DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Code Amendment. The City Council hereby amends Section (DEFINITIONS) of Chapter 4 (SMOKING REGULATIONS) of Title 5 (PUBLIC HEALTH, WELFARE, AND SANITATION) of the Beverly Hills Municipal Code in its entirety to read as follows: For purposes of this Chapter, the following definitions apply: COMMON AREA: Every interior and exterior area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, recreation areas or rooms, playgrounds, gym facilities, swimming pools, jacuzzis, parking garages, parking lots, restrooms, laundry rooms, cooking areas, and eating areas. COMMON INTEREST COMPLEX: A multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development, as those terms are defined by California Civil Code section A common interest complex includes a townhouse. ELECTRONIC CIGARETTE: An electronic and/or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an e-cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. The term does not include any inhaler prescribed by a licensed doctor. 20 Tomar R, Beaumont J, Hsieh J. Evidence on the Carcinogenicity of Marijuana Smoke. The Office of Environmental Health Hazards Assessment (OEHHA) Reproductive and Cancer Hazard Assessment Branch Available at: 21 State of California Office of Environmental Health Hazard Assessment. The Proposition 65 List. January Available at: 22 Tomar R, Beaumont J, Hsieh J. Evidence on the Carcinogenicity of Marijuana Smoke. The Office of Environmental Health Hazards Assessment (OEHHA) Reproductive and Cancer Hazard Assessment Branch Available at: -3-

4 ENCLOSED: Closed in by a roof and walls with appropriate openings for ingress and egress. EXISTING BUILDING: A building that has obtained or is issued a certificate of occupancy before [insert date ordinance will go into effect]. EXISTING UNIT: A unit located in a building that has obtained or is issued a certificate of occupancy before [date ordinance will go into effect]. HOME OWNERS ASSOCIATION or HOA: An organization or entity established for the purpose of managing and/or maintaining a common interest complex. HOTEL: Shall have the same definition as that set forth in title 10, chapter 3 of this code. LANDLORD: Any person who owns property let for residential use, who lets residential property, or who manages such property, except that Landlord does not include a tenant who sublets a unit as long as such tenant sublets two or fewer units in a multi-unit residence. MULTI-UNIT RESIDENCE: A residential property containing three or more units and shall include a rental complex and a common interest complex. The following types of housing are specifically excluded from this definition: 1. A single-family home; zoned property; 2. A detached or attached accessory dwelling unit on a single-family 3. A duplex; 4. A hotel or motel; and Code section A long term health care facility as defined in Health and Safety NEW BUILDING: A building that is issued a certificate of occupancy on or after [insert date ordinance will go into effect]. NEW UNIT: A unit located in a building that is issued a certificate of occupancy on or after [insert date ordinance will go into effect]. NONENCLOSED: A predominantly outdoor area that does not meet the definition of enclosed, including, but not limited to, open air dining areas. OPEN AIR DINING AREA: Any nonenclosed area located on private or public property made available to or customarily used by the general public that is designed, established or regularly used for consuming food and/or beverages or where food and/or beverages are served whether or not for compensation. This includes, but is not limited to, restaurants, hotels, bar standing and seating areas, patios, and coffee shops. An open air dining area does not include open air dining areas that are immediately adjacent to and accessory to a private smokers lounge, as that term is defined in Labor Code section or its successor statute. -4-

5 RENTAL COMPLEX: A multi-unit residence for which the units are rented or leased, but that is not a common interest complex. A rental complex includes an apartment building. SMOKE: The gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco, nicotine, or plant product, and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term smoking includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana smoke. SMOKING: Inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic cigarette, or any plant product intended for human inhalation. UNIT: Any personal dwelling space in a rental complex or a common interest complex. A unit shall include any associated exclusive-use area, such as, for example, a private balcony, porch, deck, or patio. Section 2. Code Amendment. The City Council hereby renumbers Section (PENALTIES AND ENFORCEMENT) as Section (PENALTIES AND ENFORCEMENT) and adds a new Section (PROHIBITION ON SMOKING IN A RENTAL COMPLEX) to Chapter 4 (SMOKING REGULATIONS) of Title 5 (PUBLIC HEALTH, WELFARE, AND SANITATION) of the Beverly Hills Municipal Code to read as follows: 3. On or after [insert date that ordinance goes into effect], the landlord shall not knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within any common area : PROHIBITION ON SMOKING IN A RENTAL COMPLEX: Smoking in a rental complex shall be governed by the following rules. A. The following provisions apply to all new units and all new buildings in a rental complex: 1. Smoking is prohibited in all new units and all common areas of new buildings in a rental complex on and after [insert date that ordinance goes into effect]. 2. Every lease or other rental agreement for the occupancy of a new unit in a rental complex shall include a clause providing that it is a material breach of the lease or other rental agreement to allow or engage in smoking in the rental complex. Such clause shall be substantially consistent with the following: Beverly Hills Municipal Code section prohibits smoking in all new units and all common areas of new buildings in a rental complex. It is a material breach of this agreement for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, to engage in smoking on the property, including all new units and common areas (as those terms are defined in Beverly Hills Municipal Code section 5-4-1), or to violate any law regulating smoking while anywhere on the property.

6 4. On or before [insert date that is 60 days after ordinance goes into effect], the landlord shall post, or shall cause to be posted, clear and unambiguous No Smoking signs in sufficient numbers and locations in the rental complex to make it obvious to a reasonable person that smoking is prohibited in all new units and common areas of new buildings. The signs shall have letters of no less than one inch in height or contain the international No Smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by the landlord. The absence of signs shall not be a defense to a violation of any provision of this chapter. B. The following provisions apply to all existing units and all existing buildings in a rental complex: 1. Smoking is prohibited in all existing units and all common areas in existing buildings in a rental complex on and after [insert date that is 18 months after ordinance goes into effect]. 2. At least six months before [insert date that is 18 months after ordinance goes into effect], the landlord shall provide a written notice to all tenants of existing units clearly stating that smoking will be prohibited in all existing units and common areas of existing buildings on and after [insert date that is 18 months after ordinance goes into effect] [or an earlier date determined by the landlord]. The landlord does not need to comply with this provision if smoking is already prohibited in all common areas and existing units in the apartment complex. 3. Every lease or other rental agreement for the occupancy of an existing unit in a rental complex entered into, renewed, or amended on or after [insert date that is 18 months after ordinance goes into effect] shall include a provision providing that as of [insert date that is 18 months after ordinance goes into effect] [or an earlier date determined by the landlord], it is a material breach of the lease or other rental agreement to allow or engage in smoking in the rental complex. Such clause shall be substantially consistent with the following: Beverly Hills Municipal Code section prohibits smoking in all existing units and all common areas of existing buildings in a rental complex. On and after [insert date that is 18 months after ordinance goes into effect] [or an earlier date determined by the landlord], it is a material breach of this agreement for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, to engage in smoking on the property, including all existing units and common areas (as those terms are defined in Beverly Hills Municipal Code section 5-4-1), or to violate any law regulating smoking while anywhere on the property. 4. On or after [insert date that is 18 months after ordinance goes into effect], the landlord shall not knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within any common area. 5. On or before [insert date that is 18 months after ordinance goes into effect], the landlord shall post, or shall cause to be posted, clear and unambiguous No Smoking signs in sufficient numbers and locations in the rental complex to make it obvious to a reasonable person that smoking is prohibited throughout the rental complex. The signs shall have letters of no less than one inch in height or contain the international No Smoking symbol -6-

7 (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by the landlord. The absence of signs shall not be a defense to a violation of any provision of this chapter. C. Failure to enforce any smoking regulations required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. D. If the landlord has fully complied with this Section , the landlord shall not be criminally or civilly liable to any person for a person s breach of any smoking provision while on the rental complex. Section 3. Code Amendment. The City Council hereby adds Section (REGULATION OF SMOKING IN A COMMON INTEREST COMPLEX) to Chapter 4 (SMOKING REGULATIONS) of Title 5 (PUBLIC HEALTH, WELFARE, AND SANITATION) of the Beverly Hills Municipal Code to read as follows: : REGULATION OF SMOKING IN A COMMON INTEREST COMPLEX: Smoking in a common interest complex shall be governed by the following rules. A. Smoking is prohibited in all new units and all common areas in new buildings in a common interest complex on and after [insert date that ordinance goes into effect]. B. Smoking is prohibited in all common areas in existing buildings in a common interest complex on and after [insert date that 24 months after ordinance goes into effect]. C. On or before [insert date that is 24 months after ordinance goes into effect], the HOA shall determine whether the HOA will: 1. Prohibit smoking in all existing units; or 2. Allow existing units that are currently occupied by owners who smoke to be grandfathered in and designated as smoking units. Once an existing unit that has been designated as a smoking unit is sold to another owner smoking shall be prohibited in that previously designated smoking unit. All existing units will be designated as smoke free beginning on [insert date that is 24 months after ordinance goes into effect], unless the HOA notifies the City in writing which specific existing units will be grandfathered in and designated as smoking units. D. At least one year before [insert date that is 24 months after ordinance goes into effect], the HOA shall provide a written notice to all owners of existing units clearly stating that smoking will be prohibited in all common areas of existing buildings of the common interest complex beginning on [insert date that is 24 months after ordinance goes into effect] [or an earlier date determined by the HOA]. The HOA is not required to comply with this subsection if the rules or regulations of the common interest complex already prohibit smoking in all common areas of existing buildings. -7-

8 E. If the HOA will be prohibiting smoking in all existing units, then at least one year before [insert date that is 24 months after ordinance goes into effect], the HOA shall provide written notice to all owners of existing units clearly stating that smoking will be prohibited in all existing units beginning on [insert date that is 24 months after ordinance goes into effect] [or an earlier date determined by the landlord]. F. For new buildings, on or after [insert date that ordinance goes into effect], and for existing buildings, on or after [insert date that is 24 months after ordinance goes into effect], the HOA, or any person having legal ownership over the common areas of the common interest complex, shall not knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within any common area. G. For new buildings, on or before [insert date that is 60 days after ordinance goes into effect], and for existing buildings, on or before [insert date that is 24 months after ordinance goes into effect], the HOA or any person having legal ownership over the common areas of the common interest complex shall post clear and unambiguous No Smoking signs in sufficient numbers and locations in the common interest complex to make it obvious to a reasonable person that smoking is prohibited throughout the common interest complex. The signs shall have letters of no less than one inch in height or contain the international No Smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by the HOA or person with legal control over the common areas of the common interest complex. The absence of signs shall not be a defense to a violation of any provision of this chapter. H. After [insert date that is 24 months after ordinance goes into effect], if an owner leases or rents out an existing unit in a common interest complex, the owner shall provide written notice to the tenant stating that smoking is prohibited in the existing unit and all common areas of existing buildings of the common interest complex, and, if applicable, the starting date of such prohibitions. Any new lease or rental agreement for the occupancy of an existing unit in a common interest complex entered into, renewed, or amended on or after [insert date that is 24 months after ordinance goes into effect], shall include a provision notifying the tenant that it is a material breach of the lease or other rental agreement to allow or engage in smoking in the common interest complex. Such clause shall be substantially consistent with the following: It is a material breach of this agreement for the tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking on the property, including the unit and common areas, or to violate any law regulating smoking while anywhere on the property. I. Failure to enforce any smoking regulations required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. J. If the HOA Board has fully complied with this Section , the HOA shall not be criminally or civilly liable to any person for an owner s violation of any smoking provision. If an owner who leases or rents out an existing unit in a common interest complex includes a provision in the lease with the information contained in Section (H) above, then the owner shall not be criminally or civilly liable to any person for an owner s violation of any smoking provision. -8-

9 Section 4. Code Amendment. The City Council hereby amends Section (PENALTIES AND ENFORCEMENT) of Chapter 4 (SMOKING REGULATIONS) of Title 5 (PUBLIC HEALTH, WELFARE, AND SANITATION) of the Beverly Hills Municipal Code to add a new subsection E to read as follows: E. No provision of this Chapter shall authorize a criminal prosecution prohibited by Health and Safety Code sections or In the event of any conflict between the penalties enumerated under Title 1 of the Beverly Hills Municipal Code and any penalties set forth in state law, the maximum penalties allowable under State law shall govern. Section 5. CEQA. The City Council hereby finds that it can be seen with certainty that there is no possibility the adoption of this Ordinance will have a significant adverse effect on the environment because the Ordinance only expands upon existing smoking use restrictions. It is therefore exempt from California Environmental Quality Act review pursuant to Title 14, Section 15061(b)(3) of the California Code of Regulations. Section 6. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, the remainder of this Ordinance shall remain in full force and effect. Section 7. Publication. The City Clerk shall cause this Ordinance to be published at least once in a newspaper of general circulation published and circulated in the city within fifteen (15) days after its passage in accordance with Section of the Government Code, shall certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk s certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this city. Section 8. Effective Date. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage. Adopted: Effective: ATTEST: (SEAL) BYRON POPE City Clerk [Insert name] Mayor of the City of Beverly Hills APPROVED AS TO FORM: APPROVED AS TO CONTENT: -9-

10 LAURENCE S. WIENER City Attorney MAHDI ALUZRI City Manager -10-