2023-02 Citywide Smoking BanORDINANCE NO. 2023-02
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ENCINITAS AMENDING
CHAPTER 11.08 (SMOKING) OF THE ENCINITAS MUNICIPAL CODE TO ESTABLISH A
CITYWIDE BAN ON SMOKING IN PUBLIC PLACES, AND REPEALING CHAPTER 11.09
(SMOKING PROHIBITED IN BEACHES, PARKS, TRAILS AND OUTDOOR/PATIO DINING
AREAS OF EATING ESTABLISHMENTS) OF THE ENCINITAS MUNICIPAL CODE.
(CASE NUMBER: PLCY-005913-2023; CITYWIDE)
The City Council of the City of Encinitas hereby finds and declares as follows:
WHEREAS, tobacco use and exposure to secondhand smoke cause death and disease
and impose great social and economic costs;
WHEREAS, according to the Centers for Disease Control and Prevention, more than
440,000 people die in the United States from tobacco-related diseases every year, making it the
nation's leading cause of preventable death, and secondhand smoke is responsible for an
estimated 41,000 deaths among non-smokers each year, which includes deaths from lung cancer
and heart disease;
WHEREAS, the World Health Organization estimates that tobacco accounts for 8 million
deaths per year, making it the greatest cause of death worldwide;
WHEREAS, the United States Environmental Protection Agency has found secondhand
smoke to be a risk to public health and has classified secondhand smoke as a group A carcinogen,
the most dangerous class of carcinogen;
WHEREAS, according to the California Department of Public Health, it is estimated that
90% of Californians are non-smokers;
WHEREAS, California law declares that anything that is injurious to health or obstructs the
free use of property so as to interfere with the comfortable enjoyment of life or property is a
nuisance;
WHEREAS, local governments have broad latitude to declare nuisances and are not
constrained by prior definitions of nuisance;
WHEREAS, according to the Surfrider Foundation, cigarette butts and other smoking
waste are commonly littered and blown out of trash receptacles so that such waste migrates to the
storm drain system and eventually pollutes the ocean and beaches;
WHEREAS, cigarette butts, made of plastic cellulose acetate, take approximately 10 years
to decompose. In the meantime, the toxins trapped in the filters leach into water sources;
WHEREAS, smoking waste pollutes the marine environment, negatively impacting water
quality and harming marine wildlife that often mistake smoking waste for food;
WHEREAS, an expansion of the City's smoking prohibition would lead to a reduction in
smoking waste that is deposited into the storm drain system by eliminating areas in the public right-
of-way that are available for smoking;
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WHEREAS, a reduction in cigarette litter will advance compliance with Federal, State, and
City clean water mandates, including Total Maximum Daily Loads and other requirements of the
National Pollutant Discharge Elimination System, and reduce pollution in the nearby marine
environment and at the City's beaches;
WHEREAS, it is the intent of the City Council of the City of Encinitas in enacting this
Ordinance to provide for the public health, safety, and welfare by reducing smoking waste to
protect the marine environment by discouraging the inherently dangerous behavior of smoking
around non-tobacco users and by protecting the public from exposure to secondhand smoke and
health risks;
WHEREAS, it is the intent of the City Council of the City of Encinitas that the exemption
from this ordinance for private residential properties applies whether or not a resident of that
property employs persons within the home, unless the private residence is subject to state
licensing requirements as a child-care or health-care facility, in which case it is a “place of
employment” as set forth in EMC Section 11.08.020.C;
WHEREAS, the City Council finds in its independent judgment that the proposed
amendment to the Encinitas Municipal Code is exempt from the provisions of the California
Environmental Quality Act ("CEQA") pursuant to Section 15308 of the CEQA Guidelines because
it is an activity undertaken "to assure the maintenance, restoration, enhancement and protection
of the environment" and pursuant to Section 15061(b)(3) because there is no possibility that the
activity in question may have a significant effect on the environment; and
WHEREAS, the City Council of the City of Encinitas seeks to amend Chapter 11.08 of its
Municipal Code.
NOW, THEREFORE, the City Council of the City of Encinitas, California, hereby ordains
as follows:
SECTION ONE. The above findings and declarations are true and correct.
SECTION TWO. Chapter 11.08 of the Encinitas Municipal Code is hereby amended in its entirety
to read as follows:
Chapter 11.08 SMOKING
11.08.010 Purpose.
Because the smoking of tobacco, electronic cigarettes, or any other weed or plant, is a danger to
health and a cause of material annoyance, inconvenience, discomfort and a health hazard to
those who are present in confined places, and in order to preserve public health, safety and
welfare, the provisions of this chapter are intended to establish a comprehensive citywide ban on
smoking, with the limited exceptions set forth in this chapter. This chapter shall be interpreted in
a manner supplementary to and consistent with California Labor Code Section 6404.5 and
California Health and Safety Code Sections 104495 and 118875, et seq., as amended, and in all
cases of conflict between this chapter and any state law, the applicable state law provision shall
prevail.
11.08.020 Definitions.
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The following definitions shall govern construction of this chapter, unless the context clearly
requires otherwise:
A. "Employee" means any person who is employed by, or retained as an independent
contractor by, any Employer, or any person who volunteers his or her services for a
business or Employer.
B. "Employer" means any person, partnership, corporation, association, nonprofit or other
entity who or which employs or retains the service of one or more Employees.
C. “Motor vehicle that is actively being driven” means a motor vehicle that is driving within or
through the City on a City or private street and stopping only as necessary to obey traffic
regulations, but does not include a vehicle that is pulled off to the side of the road, that is
parked on a City or private street or parking lot, and/or that is driving within in a City or
private parking lot.
D. “Place of employment” means any area under the legal or de facto control of an Employer
that an Employee or the general public may enter in the normal course of operations, but
regardless of the hours of operation, including, for example, indoor and outdoor work
areas, construction sites, vehicles used in employment or for business purposes, taxis,
employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term
health facilities, warehouses, and any private residences subject to state licensing
requirements that are used as child-care or health-care facilities.
E. “Public place” means any public place, or any private place open to the general public
regardless of any fee or age requirement, including, but not limited to, streets, sidewalks,
trails, plazas, bars, restaurants, clubs, stores, stadiums, farmers' markets, festivals,
outdoor events, bus shelters, ATM or ticket lines, theaters, parking lots open to the public,
parks, playgrounds, beaches, recreational areas, taxis, and buses. This also shall include
outdoor dining areas open to the general public.
F. “Smoke” means the gases, particles, vapors, or aerosols 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 material contains no tobacco, nicotine, or cannabis and the
purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The
term "smoke" includes, but is not limited to, tobacco smoke, cannabis smoke, and
electronic cigarette vapors from tobacco and cannabis.
G. “Smoking” means engaging in an act that generates smoke, such as, for example:
possessing a lighted pipe or a lighted hookah pipe; operating an electronic cigarette or
vaping device, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a
pipe, a hookah pipe, a cigar, or a cigarette of any kind.
11.08.030 Prohibition Against Smoking.
A. Except as otherwise provided by this chapter or by state or federal law, Smoking is
prohibited in the following locations:
1. Public Places;
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2. Places of Employment, including those regulated by California Labor Code Section
6404.5; and
3. Any area within 20 feet of a Public Place, except private residential property.
B. Smoking is permitted in the following locations within the City, unless otherwise provided
by state or federal law:
1. Private property that does not meet the definition of a public place, including private
residential property.
2. In up to twenty percent of guest rooms in any hotel or motel, if the hotel or motel
permanently designates at least 80 percent of its guest rooms as nonsmoking rooms,
appropriately signs non-smoking rooms and permanently removes ashtrays and
matches from them. Smoking rooms shall be segregated from non-smoking rooms
on separate floors, wings, or portions of either; smoking and non-smoking rooms shall
not be interspersed. Nothing in this ordinance shall require a hotel or motel to provide
Smoking rooms and the owner or operator of a hotel or motel may choose to prohibit
Smoking throughout the property.
3. Within a motor vehicle that is actively being driven on a public or private street or
highway.
C. No person shall dispose of any smoking waste, including but not limited to any part of a
cigarette, cigar, pipe, tobacco or vaping product, in an area in which smoking is prohibited by this
chapter or other law, except in specific receptacles designated for smoking waste, as allowed by
this chapter.
11.08.040 Allowing, Aiding or Abetting Illegal Smoking.
No person shall knowingly permit smoking in an area under their legal or de facto control where
Smoking is prohibited by this chapter.
11.08.050 Additional Prohibition.
All managers and owners of any establishments serving or doing business with the public may
at their discretion post “no smoking” signs within the various areas of their businesses, in
addition to the signs required to be posted per 11.08.060.
11.08.060 Posting of Signs.
The person who has legal or de facto control of any public place or place of employment shall
post a "No Smoking" sign, with letters of no less than one inch in height or the international "No
Smoking" symbol (consisting of a pictorial representation of a burning cigarette and e-cigarette
enclosed in a red circle with a red bar across it), at the primary entrance to each public place or
place of employment in which smoking is prohibited by this chapter. Notwithstanding this
provision, the presence or absence of signs shall not be a defense to the violation of any other
provision of this chapter.
11.08.070 Penalties and Enforcement.
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Each separate violation of this chapter is an infraction punishable pursuant to Chapter 1.08.
SECTION THREE. Chapter 11.09 of the Encinitas Municipal Code is hereby repealed in its
entirety.
SECTION FOUR. SEVERABILITY.
If any section, subsection, sentence, clause, phrase or word of this Ordinance is for any reason
held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of
the remaining portions of this Ordinance. The City Council hereby declares that it would have
passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact
that one or more provisions may be declared invalid.
SECTION FIVE. PUBLIC NOTICE.
The City Clerk is directed to prepare and have published a summary of the Ordinance no less
than five days prior to consideration of its adoption, and again within 15 days following adoption,
indicating the votes cast.
SECTION SIX. EFFECTIVE DATE.
This ordinance shall take effect and be in force on June 6, 2023, or on the 90th day after adoption,
whichever is later.
SECTION SEVEN. INTRODUCTION AND ADOPTION.
This Ordinance was introduced at a regular meeting of the City Council held on February 15, 2023
and reintroduced at a regular meeting of the City Council held on March 15, 2023.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council held on the 12th
day of April, 2023.
Tony Kranz, Mayor
ATTEST:
Kathy Hollywood, City Clerk
APPROVED AS TO FORM
Tarquin Preziosi, City Attorney
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CERTIFICATION: I, Kathy Hollywood, City Clerk of the City of Encinitas, California, do hereby
certify under penalty of perjury that the foregoing ordinance was duly and regularly introduced at
a meeting of the City Council on the 15th day of March, 2023 and that thereafter the said
ordinance was duly and regularly adopted at a meeting of the City Council on the 12th of April,
2023 by the following vote, to wit:
AYES: Blackwell, Ehlers, Hinze, Kranz, Lyndes
NOES: None
ABSENT: None
ABSTAIN: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of
Encinitas, California, this 12th day of April, 2023.
Kathy Hollywood, City Clerk
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