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Item 6C CITY OF SOUTHLAKE MEMORANDUM February 9, 2016 To: Honorable Mayor and City Council From: Ken Baker, Senior Director of Planning and Development Services Subject: Item 6C —Ordinance No. 907A Action Requested: Consider 2nd reading for amendments to Chapters 10 "Health and Sanitation, Article V "Public Smoking" and 12 "Parks and Recreation, Article II "City Parks," of the Southlake City Code. Background Information: To regulate the use of e-cigarettes within the City limits in the same manner as smoking tobacco products. Financial Considerations: None Strategic Link: Safety & Security— C1 Achieve the highest standards of safety & security and C3 Provide attractive & unique spaces for enjoyment of personal interests. Citizen Input / Board Review: A SPIN Forum was held January 26, 2016. The summary report has been included as pages 2-4 of this memo. An email has been received in opposition to the proposed Ordinance and has been included as page 5 of this memo. Legal Review: The draft ordinance has been provided to the City Attorney for review. Supporting Document: Attached —Ordinance No. 907A (redline copy) Staff Recommendation: Approve as presented or provide feedback for modification(s). 1 QJ SOUTHLAKE SPIN MEETING REPORT Case Number: SPIN16-002 Project Name: Amendment to Chapter 10 Article V of the City's Smoking Ordinance related to Electronic Smoking Devices SPIN Neighborhood: Citywide Meeting Date: January 26, 2016 Meeting Location: 1400 Main Street, Southlake, TX City Council Chambers Total Attendance: 23 Host: Bobbie Heller, CEC Applicant(s) Presenting: Ken Baker, Senior Director of Planning and Development Services City Staff Present: Patty Moos, Planner I City Staff Contact: Lorrie Fletcher, Planner 1, email: Ifletchera-ci.southlake.tx.us phone:817- 748-8069 Attached to the end of this report are the Blackboard Connect Delivery Results for the January 26,2016 SPIN Town Hall Formas Presentation begin: 6:05 pm Presentation end: 6:15 pm Town Hall Forums can be viewed in their entirety by visiting http://www.citVofsouthlake.com and clicking on"Learn More" under Video On Demand;forums are listed under SPIN by meeting date. FORUM SUMMARY: Property Situation: Citywide Development Details: Amendment to Chapter 10, Article V. Public Smoking Ordinance No. 907A Two changes to the ordinance: • Distance requirement moved from 12 feet to 20 feet from doors • E-cigarette regulations to limit ENDS (Electronic Nicotine Delivery System) and PV (personal vaporizers) in all public places Amendment detail to add definition for e-cigarettes, distance to doors, and use in public spaces and 10-153 for parks and designated areas. City Council dates for the ordinance: February 2, 2016, first reading at 5:30 pm and February 16, 2016, 2nd reading at 5:30 pm. 2 Current Smoking Ordinance WPM • No smoking in a public building or within 12 feet of an E-cigarettes.also called Electronic Nicotine Delivery entrance to a public building Systems(ENDS)or personal vaporizers (PV) 11.11 L • "smoke"or"smoking"means inhaling, exhaling, or FDA does not currently regulate burning a lighted cigar; cigarette,pipe or other lighted Few studies on the effects of second hand e- tobacco product in any manner or form. cigarette smoke World Health Organization proposed a hon on the use of e-cigarettes indoors. E- Cigarette Components 14 >mcrwukn,m,v �•_�.......... American Academy of Pediatrics ""`"""e0e nsarmaaocsssox .•.. .-. Sales of e-cigarettes to minors younger than 18 years should be prohibited. !�a,iEfi cw•ds�eatn' rte igM • Candy and fruit flavored e-cigarettes.which encourage youth smoking initiation.should be banned. • Federal. state.and local governments should enact and enforce laws that mandate the provision of smoke-free environments, including e-cigarette vapor. in all public places and require employers to provide smoke-freele- " cigarette vapor-free work emnronments for their employees. Amendment Details Added Definition -10.151 • Add definition for Electronic Smoking Device(Section Electronic smoking device means an electronic or battery- 10-1551) operated device that delivers vapors for inhalation.This term shall include every variation and type of such devices whether they are • Include Electronic Smoking Device to list of prohibited manufactured. distributed: marketed or sold as an electronic smoking acts(Section 10-152) cigarette.an electronic cigar:an electronic cigarillo. an electronic pipe, an electronic hookah or any other product name or descriptor. HG SMOKING wiraixrs Fl OFINTEMRr Amended Definition- 10.151 Amended Text- 10.152 (a) Sec.10-152. Smcking prohibited in public buildings, or 'Smoke or smoking':means inhaling.exhaling.or burning a within 4-2 20 feet of an entrance or exit t0 a public building-, lighted cigar,cigarette,pipe or other lighted tobacco product in any manner or form:or inhalingexhaling from an electronic signs required, and prohibited acts. smoking device. 3 Amended Text Amended Text (a) It shall be unlawful for any person to perform the following acts in any public building in the city or within 12 2D feet of any entrance Sec.10-153.City Parks. _ or exit to any public building _ 1) Smoke. Smokingyrohibited except in designated areas. 2) Garry a lighted cigarette,ci(jar.tobacco-containing pipe,or an operating electronic smoking device. or Sec.1232. -Rules and regulations.[rhissectlon will hedeleted frumthe City Gude) 3) Light a cigarette,cigar,tobacco-containing pipe or operate an The following regulations and restrictions are prescribed for the use of city electronic smoking device. parks: _ SrAgk:Ag P,1P :b;j9d.. Gpf W.1...-:.,...jed f{51...11 big -,.'­Ehf. jo R QUESTIONS / CONCERNS: 1. Comment- Alternative studies, both positive and negative, are rarely citied, it is not smoke, it is a water vapor. To outlaw this doesn't pass a common sense test. What is driving this? Response: City Council wants to check into this. Vapor is safer, but some metals are elevated and the AAP study on this. City Council has previously visited this item in the past. This is a tool for citizens to respond or speak. You may send an email to the Planning Department or City Council or attend the meeting. 2. The smell of both vapor and cigarettes can be smelled in Starbucks. It can hurt business. SPIN Meeting Reports are general observations of SPIN Meetings by City staff and SPIN Representatives.The report is neither verbatim nor official meeting minutes;rather it serves to inform elected and appointed officials,City staff,and the public of the issues and questions raised by residents and the general responses made. Responses as summarized in this report should not be taken as guarantees by the applicant. Interested parties are strongly encouraged to follow the case through the Planning and Zoning Commission and final action by City Council. 4 From:William Johnson Date: February 2,2016 at 11:44:44 PM CST To:"mayorandcitycounciI Rci.southlake_tx_us' <mayorandcitycounciIO#ci.southlake_tx_Us> Subject:An ordinance—9D7A— a. Smoking bans are ostensibly enacted to protect the public from the harm of secondhand smoke, but e-cigarettes have not been found to pose a risk to bystanders. In fact,all evidence to date shows that the low health risks associated with a-cigarettes are comparable to other smokeless nicotine products. b. The low risks of e-cigarettes is supported by research done by Dr. Siegel of Boston University, Dr. Eissenberg of Virginia Commonwealth; DrMaciej L Goniewicz of the Roswell Park Cancer Institute, Dr Laugesen of Health New Zealand, Dr. Igor Burstyn of Drexel University. and by the fact that the FDA testing, in spite of its press statement; failed to find harmful levels of carcinogens or toxic levels of any chemical in the vapor. c_ A comprehensive review conducted by Dr. Igor Burstyn of Drexel University School of Public Health based on over 9,000 observations of e-c garette liquid and vapor found"no apparent concern"for bystanders exposed to e-Cigarette vapor, even under"worst case" assumptions about exposure. d. Electronic cigarette use is easy to distinguish from actual smoking. Although some e-cigarettes resemble real cigarettes, many do not. It is easy to tell when someone lights a cigarette from the smell of smoke. E-cigarette vapor is often practically odorless, and generally any detectable odor is not unpleasant and smells nothing like smoke. Additionally,e-cigarette users can decide whether to release any vapor ("discreet vaping")_ With so little evidence of use,enforcing use bans on electronic cigarettes would be nearly impossible. e. The ability to use electronic cigarettes in public spaces will actually improve public health by inspiring other smokers to switch and reduce their health risks by an estimated 99%. f. Losing the ability to test e-liquids before purchasing will have a significant and negative impact on yourability to purchas&sell e-liquids. g. Many smokers first try e-cigarettes because they can use them where they cannot smoke, however; they often become"accidental quitters."This is a documented phenomenon unique to e-cigarettes_ It may take a few months oronly a few days, but they inevitably stop smoking conventional cigarettes_This is why including e,- cigarettes in smoking bans could have.serious unintended consequences! h. By making e-cigarette users go outdoors; the City will also be sending a strong message to traditional smokers that a-cigarettes are no safer than smoking. This will actually maintain the number of smokers: rather than help reduce smoking. This is a far more realistic risk to public health than any unfounded concems about possible youth or nonsmoker use uptake. In fact, the most recent report by the CDC showed that the dramatic inc rease in e-cigarette use over that past 3 years has not led to an increase in youth smoking. Youth smoking of traditional cigarettes continues todecIineto record low levels. i. The c hiIdran of smoking parents are far more likely to bec oma smokers than the children of non-smoking parents who see smoking behaviors in public. The children of smoking parents who quit aren't any more likely to smoke than those of non smoking parents. Prohibiting vapor products in public does little to protect the children of non-smoking parents from becoming smokers, but significantly increases the likelihood that many smoking parents won't switch to e-cigarettes. This only serves to keep the highest-risk children at risk. j. E-cigarette use does not promote the smoking of traditional cigarettes, nor does it threaten the gains of tobacco control over the past few decades. In fact, by normalizing a-cigarette use overtraditional smoking; the efforts of tobacco control are being supported. If anything,e�cigarette use denormalizes conventional smoking by setting the example of smokers c housing a far less harmful alternative to traditional smoking. The CDC surveys clearly show that there has been no "gateway effect" causing nonsmokers to start smoking. As e-cigarettes have become more popular. all available evidence is showing that more and more smokers are quitting traditional cigarettes, including youth smokers. 5 ORDINANCE NO.907a AN ORDINANCE AMENDING CHAPTER 10, ARTICLE V, "PUBLIC SMOKING", OF THE SOUTHLAKE CITY CODE TO PROHIBIT SMOKING IN ALL PUBLIC BUILDINGS AND WITHIN 4-2-20 FEET OF THE ENTRANCE TO A PUBLIC BUILDING, REQUIRING "NO SMOKING" SIGNS IN RESTAURANTS, BARS AND TAVERNS; PROHIBITING CERTAIN ACTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR SAVINGS AND CODIFICATION;PROVIDING FOR A PENALTY AND PUBLICATION; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Southlake, Texas, finds that secondhand tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer, and further finds as follows: WHEREAS, the National Cancer Institute in 1999 found that secondhand smoke is responsible for the early deaths of approximately 53,000 Americans annually. (National Cancer Institute (NCI), "Health effects of exposure to environmental tobacco smoke: the report of the California Environmental Protection Agency. Smoking and Tobacco Control Monograph 10," Bethesda,MD:National Institutes of Health,National Cancer Institute(NCI),August 1999)l- WHEREAS, 999);WHEREAS, the Public Health Service's National Toxicology Program(NTP)has listed secondhand smoke as a known carcinogen. (See Environmental Health Information Service (EHIS), "Environmental tobacco smoke: first listed in the Ninth Report on Carcinogens," US. Department of Health and Human Services (DHHS), Public Health Service, NTP, 2000; reaffirmed by the NTP in subsequent reports on carcinogens,2003,2005)l- WHEREAS, 005);WHEREAS, based on a fmding by the California Environmental Protection Agency in 2005, the California Air Resources Board has determined that secondhand smoke is a toxic air contaminant, fmding that exposure to secondhand smoke has serious health effects, including low birth-weight babies; sudden infant death syndrome (SIDS); increased respiratory infections in children; asthma in children and adults; lung cancer, sinus cancer, and breast cancer in younger, premenopausal women; heart disease; and death. (Appendix II Findings of the Scientific Review Panel: Findings of the Scientific Review Panel on Proposed Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant as adopted at the Panel's June 24, 2005 Meeting," California Air Resources Board(ARB),September 12,2005)l- WHEREAS, 005);WHEREAS, there is no safe level of exposure to secondhand smoke, (Environmental Protection Agency(EPA), "Respiratory health effects of passive smoking: lung cancer and other disorders, the report of the U.S. Environmental Protection Agency, Smoking and Tobacco Control Monograph 4," Bethesda,MD:National Institutes of Health. National Cancer Institute; Environmental Protection Agency (EPA), August 1993; California. Environmental Protection Agency, "Health Effects of Exposure to Environmental Tobacco Smoke," 1997; California Air Resources Board, "Proposed identification of environmental tobacco smoke as a toxic air contaminant," Sacramento: California Environmental Protection Agency (Cal-EPA). Air Resources Board, Stationary Source Division, Air Quality Measures Branch, Office of Environmental Health Hazard Assessment(OEHHA),September 29,2005)l- WHEREAS, 005);WHEREAS, a study of hospital admissions for acute myocardial infarction in Helena, Montana before, during, and after a local law eliminating smoking in workplaces and public places was in effect,has determined that laws to enforce smokefree workplaces and public places may be associated with a reduction in morbidity from heart disease. (Sargent, Richard P.1- Shepard, .;Shepard, Robert M; Glantz, Stanton A., "Reduced incidence of admissions of myocardial infarction associated with public smoking ban: before and after study,"British Medical Journal 328:977-980,April 24,2004)l- WHEREAS, 004);WHEREAS, secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. (California Environmental Protection Agency (Cal EPA), "Health effects of exposure to environmental tobacco smoke," Tobacco Control 6(4)346-353,Winter, 1997)l- WHEREAS, 997);WHEREAS, the Americans with Disabilities Act, which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability. (Daynard,R.A., "Environmental tobacco smoke and the Americans with Disabilities Act,"Nonsmokers'Voice 15(l):8-9.)l- WHEREAS, 5(1):8-9.);WHEREAS, the U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke. (Department of Health and Human Services. The Heath Consequences of Involuntary Smoking: A Report of the Surgeon General. Public Health Service,Centers for Disease Control, 1986)l- WHEREAS, 986);WHEREAS, the U.S. Centers for Disease Control and Prevention have determined that the risk of acute myocardial infarction and coronary heart disease associated with exposure to tobacco smoke is non-linear at low doses, increasing rapidly with relatively small doses such as those received from secondhand smoke or actively smoking one or two cigarettes a day, and has warned that all patients at increased risk of coronary heart disease or with known coronary artery disease should avoid all indoor environments that permit smoking. (Pechacek, Terry F.; Babb, Stephen, "Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke?" British Medical Journal 328:980-983,April 24,2004)l- WHEREAS, 004);WHEREAS, given the fact that there is no safe level of exposure to secondhand smoke, the American Society of Heating,Refrigerating and Air Conditioning Engineers(AHRAE)bases its ventilation standards on totally smokefree environments. ASHRAE has determined that there is currently no air filtration or other ventilation technology that can completely eliminate all the carcinogenic components in secondhand smoke and the health risks caused by secondhand smoke exposure, and recommends that indoor environments be smokefree in their entirety. (Samet, J.; Bohanon, Jr., H.R.; Coultas, D.B.; Houston, T.P.; Persily, A.K.; Schoen, L.J.; 2 Spengler,J.; Callway, C.A.,"ASHRAE position document on environmental tobacco smoke and the development of acute coronary syndromes: the CARDIO2000 case-control study," Tobacco Control 11(3)220-225, September 2005)1- WHEREAS, 005);WHEREAS, the Society of Actuaries has determined that secondhand smoke costs the U.S. economy roughly $10 billion a year: $5 billion in estimated medical costs associated with secondhand smoke exposure, and$4.6 billion in lost productivity. (Behan, D.F.; Eriksen,M.P.,- Lin, .P.;Lin, Y., "Economic Effects of Environmental Tobacco Smoke,"Society of Actuaries, March 31, 2005)1- WHEREAS, 005); WHEREAS, numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smokefree. Creation of smokefree workplaces is sound economic policy and provides the maximum level of employee health and safety. (Glantz, S.A. & Smith, L. The effect of ordinances requiring smokefree restaurants on restaurant sales in the United States. American Journal of Public Health, 87:1687-1693, 1997; Colman,R.;Urbonas, C.M.,"The economic impact of smoke-free workplaces: an assessment for Nova Scotia, prepared for Tobacco Control Unit, Nova Scotia Department of Health," GPI Atlantic, September 2001)1- WHEREAS, 001);WHEREAS, hundreds of communities in the U.S., plus numerous states, including Texas, California, Delaware, Florida, Massachusetts, Montana, New Jersey, New York, and Washington, have enacted laws requiring workplaces, restaurants, bars, and other public places to be smokefree, as have numerous countries, including Ireland, New Zealand, Norway, Scotland,Sweden,Uganda,and Uruguay; WHEREAS, smoking is a potential cause of fires, cigarette and cigar burns and ash stains on merchandise and fixtures, and other economic damage to businesses. (`The high price of cigarette smoking,"Business&Health 15(8),Supplement A:6-9,August 1997)1- WHEREAS, 997);WHEREAS, the City Council finds there is no legal or constitutional "right to smoke." Business owners have no legal or constitutional right to expose their employees and customers to the toxic chemicals in secondhand smoke. On the contrary,employers have a common law duty to provide their workers with a workplace that is not unreasonably dangerous; WHEREAS,the City Council fmds the congregation of smokers within 42-20 feet of the entrances or exits of buildings in which smoking is prohibited can impair entry into and exit from these buildings, create noxious clouds of concentrated nuisance smoke that harm the rights of nonsmoking patrons and passersby,and create a hazard of such concentrated smoke drifting into the indoor environment;and WHEREAS, the City Council Also the smoking of tobacco is a form of air pollution,a positive danger to health,and a material public nuisance. WHEREAS,the American Academy of Pediatrics recommends local governments should enact and enforce laws that mandate the provision of smoke-free environments, including e- 3 cigarette vapor, in all public places and require employers to provide smoke-free/e-cigarette vapor free work environments for their employees. -Accordingly, the City Council finds and declares that the purposes of this ordinance 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. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE,TEXAS: SECTION 1. The declarations,determinations and findings made in the preamble of this ordinance are hereby adopted and made a part of the operative provisions hereof. SECTION 2. The Article V, Chapter 10 of the Southlake City Code is hereby amended to read as follows: ARTICLE V. PUBLIC SMOKING See. 10-151.Definitions. The following definitions shall apply to this article: "Smoke" or "Smoking" means inhaling, exhaling, or burning a lighted cigar, cigarette, pipe or other lighted tobacco product in any manner or form, or inhaling, exhaling from an electronic smoking device. "Electronic smoking device"means an electronic or battery-operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar,an electronic cigarillo,an electronic pipe, an electronic hookah or an, other ther product name or descriptor. "Person"means any individual. "Public building"means any building other than a building used as a private residence. If portions of a building are used as a private residence and another portion of the building is used for business purposes or commercial activities,then"public building" as used herein shall apply to the portions of the building used for business purposes or commercial purposes, but not the portion used solely as a residence. The term "public building" includes, but is not limited to, restaurants,bars and taverns. 4 "Restaurant"means an establishment that primarily serves food prepared in the kitchen of the same establishment for patrons and may serve alcohol with a valid Texas Alcoholic Beverage Commission License as long as the establishment derives less than 75% of its gross revenues from alcohol sales and includes all indoor and outdoor seating areas,kitchen,bar area,restrooms and lobby. "Bar" or "Tavern" means an establishment that derives 75% or more of the establishment's gross revenue from the on-premise sale of alcoholic beverages. Sec. 10-152. Smoking prohibited in public buildings, or within 41-20 feet of an entrance or exit to a public building;signs required;and prohibited acts. (a) It shall be unlawful for any person to perform the following acts in any public building in the City of Southlake or within 4-2---20 feet of any entrance or exit to any public building: (1) smoke, (2) carry a lighted cigarette, cigar, or tobacco-containing pipe, or an�- Formatted:Indent:Left: 0.5",Hanging: 0.5" operating electronic smoking device,or (3) light a cigarette, cigar or tobacco-containing pipe or operate aria- Formatted:Indent:Left: 0.5",Hanging: 0.5" electronic smoking device. (b) It shall be unlawful for any owner of any restaurant, bar and tavern to allow the operation of the establishment unless one or more of the following signs have been posted at a location clearly visible to a person entering the establishment: (1) a"No Smoking"sign,or (2) the international"No Smoking" symbol(depiction of a burning cigarette enclosed in a red circle with a red bar across it). (c) It shall be unlawful for any owner or operator of any public building to place or allow to be placed any of the following items in any public building or within 4-2-20 feet from an entrance or exit to any public building: (1) ashtrays; (2) smoking paraphernalia,or (3) signs that indicate that smoking is permitted. (d) It shall be unlawful for the owner or operator of any public building to allow smoking in such public building in violation of the provisions of this article. 5 Sec.10-153.City Parks. Formatted:Font:Bold Smokingprohibitedexcept in designated areas., Formatted:Font:Not Bold Sec. 10-1543.Penalty. Any person who violates this article shall be guilty of a health and sanitation misdemeanor violation and subject to a fine of not more than$500.00.Each day that a violation is permitted to exist shall constitute a separate offense. Any association, partnership or cooperation that violates this article shall be guilty of a health and sanitation misdemeanor violation and subject to a fine of not more than $2000.00. Each day that a violation is permitted to exist shall constitute a separate offense. Sec. 12-32.-Rules and regulations.(This section will be deleted from the City Code) ' Formatted:Font:Times New Roman Formatted:Indent:Left: 0.5.. The following regulations and restrictions are prescribed for the use of city parks: Formatted:Strikethrough H144, e,4Ak Formatted:Font:Times New Roman,Not Bold,Italic SECTION 3. Sections 10-154 through 10-158 of the Southlake City Code are hereby repealed effective on 3uH+--March 1,201687-. SECTION 4. If any provision of this ordinance, or the application thereof to any person or circumstances, shall be held invalid or unconstitutional by a Court of competent jurisdiction, such invalidity shall not affect the other provisions, or application thereof, of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable. SECTION 5. It is the intention of the City Council that this ordinance shall become a part of the Code of the City of Southlake, Texas, and it may be renumbered and codified therein accordingly, in the manner approved by the City Attorney. The Code of the City of Southlake, Texas, as amended,shall remain in full force and effect,save and except as amended by this ordinance. SECTION 6. This ordinance shall take effect on duffwMarch 1,201687-,following final passage by the City Council and publication in accordance with the Charter of the City of Southlake. 6 JPASSED AND APPROVED ON FIRST READING THIS DAY OF Few Code Changed 920160-7. MAYOR ATTEST: CITY SECRETARY PASSED AND APPROVED ON SECOND READING THIS DAY OF 201607. MAYOR ATTEST: CITY SECRETARY EFFECTIVE: APPROVED AS TO FORM AND LEGALITY: City Attorney 7