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Home My WebLink AboutMINUTES - 09282010 - D.1RECOMMENDATION(S): INTRODUCE Ordinance No. 2010-10, which prohibits smoking in certain outdoor areas of existing multi-unit residences; prohibits smoking in all dwelling units of new multi-unit residences and requires non-smoking provisions to be added to specified leases and lease amendments, WAIVE reading, and FIX October 12, 2010 for adoption. FISCAL IMPACT: Minimal fiscal impact. A portion of the Proposition 99 funding Contra Costa Health Services receives for it Tobacco Prevention Project could be allocated to implementation. BACKGROUND: Secondhand Smoke is designated a Class A, known human carcinogen by the U.S. Environmental Protection Agency. A 2005 California Environmental Protection Agency report points to even stronger evidence linking secondhand tobacco smoke to a wide variety of adverse health effects, including increased incidences of cancer, heart disease and respiratory ailments. This report led to the designation of secondhand smoke as a toxic air contaminant by the California Air Resources APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 09/28/2010 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Gayle B. Uilkema, District II Supervisor Susan A. Bonilla, District IV Supervisor Federal D. Glover, District V Supervisor NO:Mary N. Piepho, District III Supervisor Contact: Wendel Brunner, M.D., 313-6712 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: September 28, 2010 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Barbara Borbon, Jamie Jenett D. 1 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:September 28, 2010 Contra Costa County Subject:Strengthening Secondhand Smoke Protections to Protect Residents of Multi-Unit Housing from Secondhand Smoke Exposure BACKGROUND: (CONT'D) Board in January 2006. In June 2006, the US Surgeon General declared that there was no safe level of exposure to secondhand smoke. The Board of Supervisors adopted the Secondhand Smoke Protections Ordinance later that year and strengthened these protections in October 2009. Since January 2009, four cities in Contra Costa County have adopted Comprehensive Secondhand Smoke Protections policies with strong Multi-unit housing provisions, including three that prohibit smoking in 100% of all new Multi-unit housing. Multi-unit housing drifting smoke complaints received by staff have increased and now constitute over 50% the calls received. After hearing a staff report in October 2009 on challenges to protecting residents from secondhand smoke in Multi-unit housing and to implementing the County’s Ordinance, the Family and Human Services Committee directed Health Services staff to work with County Counsel to draft several new provisions to the Secondhand Smoke Protections Ordinance for Board of Supervisor consideration. These new provisions were presented to the Committee in May 2010 and include: 1) Designation of all new multi-unit housing units as 100% smokefree; 2) Designation of all balconies, patios, decks and carports as smokefree for all existing and new multi-unit housing residences; and 3) Requiring lease terms that designate smoking in a non-smoking area as a breach of the lease. The proposed amendments to the Secondhand Smoke Protections Ordinance are intended to address drifting secondhand smoke issues for those residents living in multi-unit housing. There was discussion of staff’s implementation plan for the proposed new provisions, which included notification of landlords of these changes through a mailing to landlords and through the Conservation and Development’s permit center. The Family and Human Services Committee recommended these provisions move forward to the full Board for consideration. Staff presented these recommendations and the proposed ordinance amendments to the Board of Supervisors on July 27, 2010. The Board directed County Counsel and the Tobacco Prevention Project staff to 1) clarify language regarding the use of a lease addendum in “existing” versus “new” multi-unit housing and 2) to evaluate whether the definition of “Smoking” includes medical marijuana. The Board also asked staff to consult with the California Apartment Association on the language of the proposed revisions. Section 445-4.014 has been revised to further distinguish between new multi-unit housing and existing multi-unit housing. In addition, staff consulted with the California Apartment Association on the proposed new provisions and we believe that we have incorporated all substantive comments and concerns. Based on that organization's feedback, subsection (e) has been added to section 445-4.014 to provide that a landlord is not liable for a tenant's breach of smoking regulations if the landlord has fully complied with all provisions of Ordinance Code Chapter 445-4 and if the landlord provides two written warnings to a tenant that has violated smoking prohibitions. After providing two written warnings, a landlord may evict a tenant for breach of the lease but is not liable for failing to do so. Medical Marijuana As per direction from the Board, County Counsel and Tobacco Prevention Project staff have reviewed the issue of whether medical marijuana is included in the County’s smoking prohibitions. The County’s Secondhand Smoke Ordinance prohibits the smoking of marijuana for medical purposes at all locations where tobacco smoking is prohibited. The County ordinance defines “smoking” as “inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe or any other device containing any tobacco product or any other leaf, weed or plant.” (Ordinance Code, § 445-2.006(h).) Marijuana, whether used for medical purposes or not, is a plant, so if it is smoked, it falls within the ordinance’s definition of “smoking.” California’s medical marijuana laws do not require the County to allow medical marijuana smoking at locations where the County’s ordinance prohibits tobacco smoking. In general, the Medical Marijuana Program Act (Health and Safety Code sections 11362.7 through 11362.83) gives certain people – qualified patients, primary caregivers, and holders of valid medical marijuana program identification cards – an affirmative defense if they are charged with specific state crimes for transporting, processing, administering, or giving away marijuana to qualified persons for medical use. The Medical Marijuana Program Act, however, does not allow qualified patients or people who hold valid identification cards to smoke at any location. The Medical Marijuana Program Act does not allow medical marijuana smoking: in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a schoolbus; while in a motor vehicle that is being operated; or while operating a boat. (Health and Saf. Code, § 11362.79.) The Medical Marijuana Program Act also does not allow medical marijuana smoking in “any place where smoking is prohibited by law.” (Health and Saf. Code, §11362.79(a).) This provision means that medical marijuana smoking is not allowed in any place where smoking is prohibited by the County’s ordinance. County Counsel has provided relevant chapters of Section 445 of the County Ordinance Code related to Secondhand Smoke with proposed language as ‘strikeouts’ (Attachment 1). County Counsel has also provided a final version of the proposed amendments to the County Secondhand Smoke Ordinance (Attachment 2). CONSEQUENCE OF NEGATIVE ACTION: CHILDREN'S IMPACT STATEMENT: CLERK'S ADDENDUM Denise Dennis, Contra Costa Tobacco Prevention Project, presented the staff report. Supervisor Piepho noted her concern that extending the provisions of the ordinance to 100 percent of new multiunit housing residences was too far-reaching into property rights and privileges, and said she would not support the ordinance because of that. The following people presented public comment: Paul Doolittle, International Brotherhood of Electrical Workers (IBEW) Local 302; Julie M. Waters, American Lung Association; Theresa Karr, California Apartment Association Contra Costa/Napa/Solano; Willie Mims, Black Political Association. The Board of Supervisors: INTRODUCED Ordinance No. 2010-10, which prohibits smoking in certain outdoor areas of existing multi-unit residences; prohibits smoking in all dwelling units of new multi-unit residences and requires non-smoking provisions to be added to specified leases and lease amendments, WAIVED reading, and FIXED October 12, 2010 for adoption. ATTACHMENTS Ordinance Showing Strikeout Changes Final Ordinance