I. RECOMMENDATION:
Introduce and Waive First Reading of Ordinance No. 832 Adding Chapter 16 to Title 5 of the Coalinga Municipal Code to Regulate Smoking and Tobacco Product Use in the City of Coalinga.
II. BACKGROUND:
On June 20, 2019 Council approved updating city definition of tobacco products and smoking to align with State of California's definition. The Department of Public Health has provided a proposed ordinance which will fit the City of Coalinga and which prohibits smoking in public parks, in addition to any other "recreational area" defined to mean an area owned or controlled or used by the City of Coalinga and open to the general public for recreational purposes including parks, playgrounds, sports fields, walking paths, and bike trails. The ordinance prohibits smoking in those areas in addition to other public places being used as a public event such as a parade, farmer's market or other festival open to the general public.
III. DISCUSSION:
The ordinance does not prohibit smoking at any other location other than one owned or controlled or used by the City. The provision of proposed 5-16-4(d), although phrased to apply to any person, employer or non-profit entity, includes the City and requires the City erect appropriate signs notifying persons of the prohibitions against smoking in recreational areas or other areas used by the City and within 25 feet thereof. The ordinance does not impose any requirement on any person, employer or non-profit entity using an unenclosed area if it is not being used by the City or is not owned or controlled by the City. The requirements for the placement of signs, therefore, apply only to the City.
Although the provision states that the presence or absence of a sign is not a defense to a charge of smoking or the use of a tobacco product in violation of the ordinance, to make the ordinance enforceable, there does need to be signage erected at appropriate locations as mandated by Section 5-16-4(d).
Otherwise, although one is presumed to know what the law is, in a criminal enforcement proceeding, (violation of the ordinance is an infraction) a person clearly has a defense to the type of citation that could be issued under this ordinance if there is no sign because he has not received what the law characterizes as the constitutionally required "fair notice" of the prohibitions of the ordinance. Consequently, code enforcement, Police or any other officer of the City cannot consistent with law, take enforcement action, by issuance of a citation, or otherwise unless and until the signs are erected and in place. The penalties and enforcement clause (at 5-16-5) is standard for most provisions of this type and makes the remedies and enforcement mechanisms provided cumulative", meaning the City can enforce the ordinance by issuing a citation in accordance with the citation issuance procedures currently in the Municipal Code. The fine proposed to be imposed for the infraction is $100. Higher fees or penalties could be obtained (up to $1,000) by filing a civil action, which would be likely reserved for what are repeat offenders.
B. Revisions to Proposed Ordinance
Although the ordinance prohibits smoking in public places other than Parks and Recreation areas such as at a parade or farmers market open to the public, it would not be practical to install permanent signage as such areas are used for other activities besides public events, which typically last for a temporary period of time. Accordingly, temporary signage or other notification is required to be provided to those attending public events by the person or entity sponsoring the event.
The provision at subdivision (d) of 5-16-4 provides for the posting of signage at the "point of ingress" to the particular area and in the case of a City park, there is typically no specific point of ingress. The posting of a sign at the point of ingress, therefore, to most City parks would mean posting a sign in the most conspicuous point at each area in which a park may be entered which, for a park surrounded by City streets would mean posting no less than 4 signs along the frontage of each street where it meets the park.
IV. ALTERNATIVES:
The Council can choose to amend the proposed ordinance and direct staff to bring back a revised ordinance for first reading or bring the amendments, if determined to be minor, back to the council at their next meeting to waive the second reading and adopt the ordinance.
V. FISCAL IMPACT:
No fiscal impact to the General Fund for signage. Signage will be provided by Fresno County Department of Public Heath. | | |