Nicotine is a powerful pharmacologic agent that acts in the brain and throughout the body, is highly

COUNCIL AGENDA REPORT MEETING DATE: 05105115 ITEM NO: 11 DATE: TO: FROM: APRIL 23, 2015 MAYOR AND TOWN COUNCIL / LES WHITE, INTERIM TOWN MANA 0 SUBJECT: INTRODUCE AN ORDINANCE AMENDING TOWN CODE SECTION 18. 60.010 AND SECTION 18. 60.015 THAT WOULD REGULATE ELECTRONIC SMOKING PRODUCTS AND ALL NICOTINE DELIVERY DEVICES IN THE SAME WAY AS TRADITIONAL TOBACCO PRODUCTS WITHIN THE TOWN OF LOS GATOS RECOMMENDATION: Introduce an ordinance amending Town Code Section 18. 60.010 and Section 18. 60.015 that would regulate electronic smoking products and all nicotine delivery devices in the same way as traditional tobacco products within the Town of Los Gatos. BACKGROUND: Electronic smoking devices commonly known as " electronic cigarettes," " e- cigarettes," " e- cigars," " e- cigarillos," " e- pies, " e- hookahs," or " electronic nicotine delivery systems" are electronic and/ or battery- operated devices designed to deliver nicotine, flavor, and/or other substances in an aerosol or vapor form inhaled by the user. Electronic smoking devices are often designed to resemble and be used in the same manner, as conventional cigarettes. Despite a State law banning the sales of e- cigarettes to minors, the new " vaping" industry is targeting youth in the same manner that the tobacco industry has targeted children. As evidenced by findings from the 2011 and 2012 National Youth Tobacco Survey, use of electronic smoking devices by youth has increased significantly in recent years. Nicotine is a powerful pharmacologic agent that acts in the brain and throughout the body, is highly addictive, and can cause acute toxicity. During adolescence, a critical window for brain development, nicotine exposure heightens the risk of lasting adverse consequences development. for brain PREPARED BY: Reviewed by: Chief Matt Frisby ' Staff Liaison, Los Gatos Youth Commissi Assistant Town Manager _ Mown Attorney

PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: ELECTRONIC CIGARETTE REGULATION MARCH 8, 2015 BACKGROUND (cont' d): Neither federal nor state law requires that electronic smoking devices carry health warnings comparable to conventional cigarettes or FDA - approved nicotine replacement products. Although electronic smoking devices have been marketed as safer alternatives to traditional tobacco products, studies have found a number of dangerous chemicals in electronic smoking device emissions and cartridge contents. Additionally, at least ten chemicals listed as carcinogens and reproductive toxins have been identified in mainstream or secondhand e- cigarette aerosol. DISCUSSION: This substantial evidence against e- cigarettes has directly caused 108 municipalities and three states to include e- cigarettes as products that are prohibited from use in smoke free environments ( as of January 2, 2014). This agenda item provides the opportunity for the Town of Los Gatos to adopt the stance taken by the Los Gatos Saratoga High School District and many dozens of cities and high school districts throughout the nation who have regulated e- cigarettes. The purposes of the current Town Code regarding smoking in public places and places of employment are: ( 1) to protect the public health and welfare by prohibiting smoking in public places and places of employment, ( 2) to guarantee the right of nonsmokers to breathe smoke -free air, and ( 3) to recognize that the need to breathe smoke -free air shall have priority over the desire to smoke. However, these purposes are not entirely being met by the current Town Code. E- cigarette aerosol, containing numerous carcinogens, harms the public health and welfare. Additionally, nonsmokers cannot breathe non -toxic air, as emissions from e- cigarettes contain numerous toxins. The City of Saratoga, at their January 21, 2015 City Council meeting, directed staff to prepare an ordinance amending the definition of tobacco products to include e- cigarettes and flavored tobacco which would extend the restrictions on tobacco products to include these items in their proposed ordinance amendment. The Youth Commission recommends amending the current Town Code by adding e- cigarettes and all variations of like products to the current regulations to better meet the purposes of the current regulation. CONCLUSION: The Los Gatos Youth Commission recommends adopting an amendment to Town of Los Gatos Town Code Sec. 18. 60.010 and Sec. 18. 60.015 that would regulate electronic smoking products and all nicotine delivery devices in the same way as traditional tobacco products within the Town of Los Gatos. The Youth Commission is also working on a timeline and cost analysis to educate the community if the proposed amendment is adopted. It is estimated that the cost would be no more than $ 1, 000 and would be a one -time allocation.

PAGE MAYOR AND TOWN COUNCIL SUBJECT: ELECTRONIC CIGARETTE REGULATION April 23, 2015 ALTERNATIVES: The Council has two alternatives in addition to the recommendation: 1. Wait until the State of California or the Federal Government adopts legislation regarding the smoking of e- cigarettes in public places and places of employment and then modify Town Code accordingly. 2. Direct staff to bring back additional nonsmoking provisions to address smoking distances from building entrances and/ or other circumstances. Recently, Town residents have expressed concerns about smoking outside of businesses which negatively affects neighboring businesses. This issue was not part of the scope of the Youth Commission' s effort. COORDINATION: The project to amend the ordinance is a collaborated effort between, Los Gatos/ Monte Sereno Police Department, the Youth Commission, Los Gatos High School Leadership Team, the Town Attorney' Office, Town Manager' s Office, and Santa Clara County Public Health Department. If the ordinance amendments are approved by Council, the Youth Commission will continue to work with these teams to educate the community. Additional coordination with the business community will occur with the Economic Vitality Manager. FISCAL IMPACT: Under the direction of staff, the Youth Commission would create signs and post copies of the ordinance at major public locations to inform the public of the amendment to the Town Code after adoption of the amended ordinance. It is estimated that the cost would be no more than $ 1, 000 and would be a one -rime allocation paid from Manager contingency account. ENVIRONMENTAL ASSESSMENT: This is not a project defined under CEQA, and no further action is required. Attachments: 1. Town Code Section l 8. 60. 010 and Section 18. 60. 015, with proposed changes.

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ARTICLE Vl. - SMOKING REGULATIONS FOOTNOTE( S): 3) - -- Editor' s note Ord. No. 1880, 1, adopted Nov. 18, 1991, repealed former Art. VI, 18. 60.010 and 18. 60.015, relative to smoking regulations, which derived from Code 1968, 17-6 and 17-6. 5. Section II of Ord. No. 1880 enacted new smoking regulations which have been included herein as Art. Vl, 18. 60.010 Sec. 18. 60.010. - Smoking in public places and places of employment. a) Findings and purpose. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of disease, including lung cancer, in nonsmokers. At special risk are minors, elderly people, pregnant women, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Additionally studies have found a number of dangerous chemicals in electronic smoking, deb i_, ia. > n, and cartridge contents. At least ten chemicals listed as carcinogens and reproductive toxins have been identified in mainstream or secondhand e- cigarette aerosol Health hazards induced by breathing secondhand smoke/ e- cigarette vapoi and being in smoking environments include lung cancer, heart disease, respiratory infection, decreased respiratory function, birth defects, bronchoconstriction, and bronchi - spasm. Accordingly, the Town Council fords and declares that the purposes of this section are ( 1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and ( 2) to guarantee the right of nonsmokers to breathe smoke -free and non -toxic air, and to recognize that the need to breathe smoke -free air shall have priority over the desire to smoke. b) Definitions. For the purposes of this section, the following definitions shall apply: 1) Bar: A place not accessory to an eating establishment which serves alcoholic beverages for consumption on -site to the general public in which the serving of food is incidental to the consumption of such beverages. 2) Eating establishment: Any restaurant, coffee shop, cafeteria, soda fountain, cafe or other establishment primarily engaged in serving food and/ or beverages to the general public. 3) Eating establishment bar: A place located in the same building as and accessory to an eating establishment which serves alcoholic beverages for consumption on -site to the general public in which the serving of food is incidental to the consumption of such beverages: a. Which is ventilated by a separate system with direct external exhaust; and b. Is negatively pressured; and C. Either; i) Is physically separated from the eating area by a barrier of solid construction in which any opening is equipped with self closing - doors which prevent the passage of smoke when closed; or ii) In the opinion of the Director of Building Services, has incorporated sufficient alternative precautions to prevent smoke from entering other areas. 4) Employee. Any person who is employed by an employer in consideration for direct or indirect monetary wages or profit. 5) Employer: Any person or corporation including public agencies who employs the services of an individual person for compensation for services to be rendered. ATTACHMENTI

6) Enclosed public place: A public space enclosed on all sides by walls, partitions, windows, or similar barriers ( exclusive of ingress /egress) open to the general public, including but not limited to retail buildings, restaurants, theaters, museums, art galleries and similar structures. 7) No smoking sign: A sign in letters not less than one ( 1) inch in height printed on a contrasting background which states that smoking is not allowed or a sign which displays the international no- smoking symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. 8) Medical carefacility: Any health facility as defined in Section 1200 or 1250 of the Public Health and Safety Code, or any facility in which a physician provides health care to patients. 9) Public building: Any building or portion thereof owned or leased by the Town or any local government entity subject to Town zoning requirements. IO)Retail tobacco store: A retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is only incidental. II)Electronic smoking device: An electronic and/ or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances. Electronic smoking device" includes any such electronic smoking devices, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. ' Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment or prevention of diseases. 11) Smoking: Includes L) The act of inhalinglexhaling, burning or carrying any lighted tobacco product or by- product including cigarettes, cigars, pipes that bum tobacco or other plant material. (2) Overating using an electronic smoking device or any other nicotine delivery product 12) Workplace: Any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges and restrooms, conference and class rooms, employee cafeterias and hallways. c) Prohibition ofsmoking in public places. 1) Smoking shall be prohibited in all enclosed public places open to the general public within the Town of Los Gatos including but not limited to the following places: a Elevators. b. Public buildings. c d Medical health facilities. Eating establishments: i) After January 1, 1992 in all but twenty -five (25) percent of the seating; ii) After January 1, 1993 in all seating. e f Retail stores ( except retail tobacco stores). Theaters, auditoriums, museums and art galleries. g. Hotels and motels. 2) Smoking shall be prohibited in the following outdoor areas: a. Seating being used in connection with public events including entertainment, speaking performances, ceremonies and pageants. b. Seating provided by eating establishments. d) Regulation ofsmoking in the private workplace. 1) Within ninety ( 90) days of the effective date of the ordinance from which this section derives, each employer shall adopt, implement, and maintain a written smoking policy relating to smoking in the work place which shall contain at a minimum the following:

a. Prohibition of smoking in conference and meeting rooms, classrooms, auditoriums, restrooms, hallways, and elevators. b. Provisions and maintenance of a contiguous no- smoking area of not less than two- thirds of the seating capacity and floor space in each cafeteria or lunchroom. Smoking areas shall be physically separated and separately ventilated. C. Provisions and maintenance of a contiguous no- smoking area of not less than two- thirds of the seating capacity and floor space in each employee lounge or, at the discretion of the employer, where there is more than one such lounge in any one building, not less than one -half the number of such lounges and not less than one -half the square footage of such lounges. Smoking areas shall be physically separated and ventilated. d. Any employee in the private work place shall be given the right to designate his or her immediate area as a nonsmoking area and to post it with appropriate signs or sign. The policy adopted by the employer shall include a definition of the term immediate work area which gives preferential consideration to nonsmokers. e. In any dispute arising under the smoking policy, the rights of the nonsmoker shall be given precedence. e) Exceptions. Nothing in this section shall be construed to restrict smoking in the following areas, except as described below: 1) Retail tobacco stores; 2) Private residences ( except when used for family day care); 3) Closed banquet, conference or meeting rooms of hotels, motels and lodges except that a no smoking area must be provided for nonsmokers; 4) Any property owned or leased by other governmental agencies which is not subject to the Town's zoning authority; 5) Bars; 6) Eating establishment bars; 7) Private hotel and motel rooms: i) After January 1, 1992, a maximum of fifty (50) percent may be dedicated as smoking rooms; ii) After January 1, smoking rooms. 1993, a maximum of thirty-three and one -third (331 /3) percent maybe dedicated as i) Posting signs. No smoking signs shall be clearly and conspicuously posted in every building or other place where smoking is regulated by this section, by the owner, operator, manager or other person having control of such building or other place. g) Smoking Penalties. 1) Any person who violates this section by failing to post signs or failing to establish policies and procedures, is guilty of a violation of the Town Code and subject to a civil penalty of one hundred dollars 100.00) and the cost of enforcing this section which shall include all costs, staff and attorney time. Such persons shall be deemed to have committed a separate offense for each and every day during any portion of which any violation of this section is committed or permitted. 2) Any person who smokes where smoking is prohibited when signs are posted in the required manner is guilty of an infraction. Ord. No. 1880, 11( 17-6), 11-18 -91; Ord. No. 2026, XIX, 2-18 -97) Sec. 18.60.015. - Regulation ofcigarette, e- cigarette, and tobacco/nicotine delivery product vending machines.

a) Findings. The Surgeon General of the United States and the American Heart Association has released information that shows approximately sixty ( 60) percent of all smokers become addicted before their 14th birthday and that more than three thousand (3,000) teenagers become regular smokers every day. The Town Council finds that the availability of cigarettes, e- cigarettes or other nicotine delivery products and/ or tobacco products marketed through vending machines promotes the use of tobacco products among minors, contrary to existing State Laws which prohibit the sale or distribution of tobacco products to persons under the age of eighteen ( 18). The Town Council finds further that regulating vending machines will promote the health considerations which justify this Council' s comprehensive regulation of smoking by the general public in publicplaces. b) Prohibition. It shall be unlawful for any person, corporation or other entity to place, install or maintain or control any vending machine or any other machine or device designed for the dispensing, distribution or sale of Cigarettes, e- cigarettes, or other nicotine delivery products and/or tobacco products in any public place within the Town oflos Gatos. For the purposes of this section, " public place" is defined as any area to which any members of the public are invited, or in which any members of the public are permitted, including, but not limited to, public transportation facilities, reception areas, restaurants, restaurant/bar combinations, bars, retail stores, retail service establishments, retail food production and marketing establishments, waiting rooms, service clubs, public or private cafeterias, or any workplace or work areas. c) Penalties. Any person who violates this section is subject to a civil penalty of one hundred dollars ($ 100.00) and the cost of enforcing this section which shall include all costs, staff and attorney time. Such person shall be deemed to have committed a separate offense for each and every day during any portion of which any violation of this section is committed or pemritted. Ord. No. 1877, 1( 17-7), 11-4- 91) Editor's note At the direction of the Town, provisions enacted by Ord. No. 1877, 1( 17-7), adopted Nov. 4, 1991, have been included in the Code and designated at the discretion of the editor as 18. 60.015