ORDINANCE NO. 156-2012

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CLEARLAKE ADDING CHAPTER 5-11 TO THE CLEARLAKE MUNICIPAL CODE REGULATING SMOKING IN PARKS AND CERTAIN PUBLIC PLACES

The City Council of the City of Clearlake, State of California does hereby ordain as follows:

SECTION 1.      DECLARATION OF INTENT

The City Council of the City of Clearlake does hereby find, determine and declare that:

WHEREAS, smoking-related diseases claim an estimated 438,000 deaths in the U.S. each year are from smoking-related illnesses and cigarette smoking has been identified as the most important source of preventable morbidity and premature mortality worldwide; and

WHEREAS, according to the American Lung Association, about 8.6 million people in the United States have at least one serious illness caused by smoking; and

WHEREAS, smoking harms not just the smoker, but also family members, coworkers and others who breathe the smoker’s cigarette smoke, called secondhand smoke; and

WHEREAS, secondhand smoke, also known as environmental tobacco smoke (ETS), is a mixture of the smoke given off by the burning end of a cigarette, pipe or cigar and the smoke exhaled from the lungs of smokers. ETS is involuntarily inhaled by nonsmokers and can cause or exacerbate a wide range of adverse health effects, including cancer, respiratory function, asthmatics, and those with obstructive airway disease; and

WHEREAS, studies have shown that breathing environmental tobacco smoke can be a significant health hazard for several populations, including elderly people and children, individuals with cardiovascular disease, individuals with impaired respiratory function, asthmatics, and those with obstructive airway disease; and

WHEREAS, infants and young children are especially susceptible to secondhand smoke as their lungs are still developing and childhood exposure to secondhand smoke results in decreased lung function; and

WHEREAS, the current Surgeon General Report states that there is no risk-free level of secondhand smoke exposure; and

WHEREAS, smoking is a potential cause of fires; and

WHEREAS, discarding cigarettes, cigarette butts, tobacco, and used matches onto the grounds of public parks is unsightly, unclean, and particularly hazardous to small children who handle and sometimes ingest them; and

WHEREAS, Section 118910 and 118940 of the Health and Safety Code of the State of California permit the city to regulate smoking in any manner not inconsistent with the California Indoor Clean Air Act of 1976; and

WHEREAS, Section 104495 of the Health and Safety Code of the State of California (effective January 1, 2002), prohibiting smoking within 25 feet of a “playground” or “tot lot sandbox area” does not preempt the authority of a city to regulate smoking around playgrounds and permits cities to enact more restrictive local regulations prohibiting smoking around parks and playgrounds; and

WHEREAS, the current Clearlake Municipal Code does not contain any provisions related to smoking;

NOW THEREFORE, the City Council has determined that banning smoking and the improper disposal of tobacco products in City parks and limitation of smoking in certain public areas is necessary to protect the health, safety and welfare of Clearlake residents and visitors.

SECTION 2.    Chapter 5-11 of the Clearlake Municipal Code, is hereby added to read as follows:

5-11    SMOKING PROHIBITED IN PARKS AND CERTAIN PUBLIC PLACES

5-11.1.        Definitions
5-11.2.        Prohibitions
5-11.3    .    Disposal of Smoking Waste
5-11.4    .    Enforcement and Penalties
5-11.5    .    Threats
5-11.6    .    Signs

5-11.1        Definitions

The following words and phrases, as used in this chapter or any other applicable law regulating smoking, shall have the following meanings:

A.    Smoke or Smoking.  The carrying or holding of a lighted cigarette, cigar, pipe or any other lighted smoking product or equipment used to burn any tobacco products, weeds, plant, or any other combustible substance.  Smoking includes emitting or exhaling the fumes of any cigarette, cigar, pipe, or any other lighted smoking product or equipment used to burn any tobacco products, weeds, plant, or any other combustible substance.

B.    Tobacco Product.  Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, or any preparation of tobacco.

C.    Park.  Those facilities owned or controlled by the City of Clearlake as designated in the City’s General Plan or by action of the City Council.  Park shall include playgrounds, picnic, and seating areas, grass and landscaped areas, structures and buildings, piers and docks, sidewalk and ramps, and all other areas commonly used for park and recreation activities.  Future park facilities of the City designated in the General Plan or by action of the City Council as a park, playground, or recreational facility shall also be included in the definition of “Park” without further amendment of this section.

D.    Business.  Any sole proprietorship, joint venture, corporation, or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.

5-11.2        Prohibitions

A.    No person shall smoke or be in possession of a burning tobacco product, including, but not limited to cigarettes and cigars, within the boundaries of any City Park, playground, or recreation center.

5-11.3        Disposal of Smoking Waste

No person shall dispose of any unlighted cigarette, cigar, or tobacco, or any part of a cigarette or cigar in any place where smoking is prohibited under this Chapter, except in a designated waste disposal container.

5.11.4        Enforcement and Penalties

A.    Enforcement of this chapter shall be implemented by the City Manager or his/her designee.

B.    A violation of this Section is an infraction.

C.    Punishment under this section shall not preclude punishment pursuant to Health and Safety Code Section 13002, Penal Code Section 374.4, or any other law proscribing the act of littering.  Nothing in this section shall preclude any person from seeking any other remedies, penalties, or procedures provided by law.

5-11.5        Threats.

No person shall intimidate, threaten any reprisal, or effect any reprisal for the purpose of retaliating against another person who seeks to obtain compliance with this Section.

5-11.6        Signs.

A.    Signs which designate no smoking areas established in accordance with this Chapter shall be clearly, sufficiently, and conspicuously posted in places covered by this Chapter.

B.    Signage shall contain all capital lettering not less than one inch in height, on a contrasting background.  Signs of similar size containing 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 may be used in addition to or in lieu of any signs required herein.

Section 3.  If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance.

The City Council hereby declares that it would have passed this and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases or clauses be declared unconstitutional on their face or as applied.

SECTION 4.        EFFECTIVE DATE:

The effective date of this Ordinance is thirty (30) days after its adoption by the City Council.

Passed and adopted this 12th day of July, 2012 by the following vote:

AYES:        Mayor Luiz, Vice Mayor Spittler, Council Members Thein, Overton, and Giambruno

NOES:        None

ABSENT OR NOT VOTING:    None

_________________________                                     
Joey Luiz, Mayor, City of Clearlake

ATTEST:

_______________________________
City Clerk, City of Clearlake