CC SR 20180501 04 - Drinking Smoking Ordinance01203.0005/404505.2
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 05/01/2018
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to introduce ordinances, banning the possession of
open containers of alcohol in City parks, beaches, open space areas, and public places,
and eliminating the current language allowing smoking in designated areas.
RECOMMENDED COUNCIL ACTION:
(1) Provide direction to Staff to return to City Council with an ordinance
prohibiting the possession of open containers of alcohol in City Parks,
beaches, open space areas and public places.
(2) Provide direction to Staff to return to City Council with an ordinance
eliminating the current language permitting smoking in designated areas in
City Facilities and banning the use of aerosol or vapor producing devices.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Matt Waters, Senior Administrative Analyst, Recreation and Parks
REVIEWED BY: Cory Linder, Director of Recreation and Parks
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS
A. Municipal Code 8.28.010 (Smoking Definitions) & 8.28.010 Smoking
Prohibited (page A-1)
BACKGROUND AND DISCUSSION:
At the March 7, 2017, City Council Meeting, the City Council directed Staff to look at
possible changes to the City’s Municipal Code regarding a number of issues including
restrictions on open containers of alcohol in City parks and open space areas.
There is currently no City ordinance restricting or prohibiting the possession of open
containers of alcohol in City parks and open areas. If directed by Council, Staff can
prepare draft language of a potential Ordinance for Council review that prohibits the
possession of open containers of alcohol within City facilities which includes all City Parks
and open space areas, including all City buildings and the Palos Verdes Nature Preserve
(Preserve). This ordinance would also prohibit the possession of open containers of
alcohol in public places.
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Part of Section 22 of Article XX of the California Constitution provides that “[t]he State of
California … shall have the exclusive right and power to license and regulate the
manufacture, sale, purchase, possession and transportation of alcoholic beverages within
the State.”
Section 25620 of the Business & Professions code provides that “[a]ny person possessing
any can, bottle, or other receptacle containing any alcoholic beverage that has been
opened, or a seal broken, or the contents of which have been partially removed, in any
city … owned park or other city … owned public place, or any recreation and park district,
or any regional park or open-space district shall be guilty of an infraction if the city … has
enacted an ordinance that prohibits the possession of those containers in those areas or
the consumption of alcoholic beverages in those areas.” Neither the Business &
Professions Code nor the Municipal Code define “public place,” but it is reasonable to
assume that it includes property owned or controlled by the City that is open to the public.
The California Constitution leaves regulation of possession of alcohol to the State, but
does not restrict the ability of local government to regulate consumption. Additionally,
Section 25620 of the Business & Professions Code has carved out authority for cities to
regulate the possession of open containers in public places. Therefore, an ordinance that
is not preempted by the California Constitution can only regulate the possession of open
containers and consumption of alcohol in public places.
A potential draft ordinance would include language covering reasonable exceptions. The
City Council could authorize the City Manager to issue permits allowing the possession
of open containers of alcohol. Typical examples would include indoor rentals at park sites
and special events such as the annual Fourth of July Celebration and Whale of a Day.
The great majority of cities within Los Angeles County have adopted prohibitions on the
possession of open containers of alcohol in city parks, open space areas, or public right
of ways. The family nature of park sites and open space areas is seen as not compatible
with open containers by cities throughout Los Angeles County. While many people might
drink responsibly, allowing for limited use would require Staff and law enforcement
personnel to make judgement calls about the relative intoxication of an individual. A
complete ban on open containers of alcohol products eliminates the need for such
judgement calls and also reduces the possibility of drunk driving and public intoxication.
This prohibition could also result in a reduction of litter and broken glass in parks, open
space and beaches.
Violators of the open containers of alcohol provisions would be guilty of an infraction
and subject to a fine.
Staff reached out to the Lomita Sheriff’s Department concerning law enforcement’s
perspective on open containers of alcohol. The Sheriff’s Department said they would not
oppose an ordinance prohibiting drinking in public and/or possession of an open
container, should the City Council wish to enact a ban. Such an ordinance would be
another tool deputies could use for problem-specific enforcement, although they do not
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receive many calls for service for such activity. The ordinances are not widely utilized as
an enforcement tool. It would be difficult to gauge whether creation of an ordinance
would deter such activity, as most people are under the impression that it is unlawful to
drink in public areas which are not licensed to serve alcohol. This is often evidenced by
individuals attempting to conceal alcohol upon seeing approaching deputies. Typically,
when calls are received and deputies encounter an individual who is too intoxicated to
care for themselves, they are taken into custody for being drunk in public.
The Sheriff’s Department stated that most cities do have prohibitions against public
consumption or possession of open containers. Palos Verdes Estates does not have an
ordinance. Rolling Hills Estates has prohibitions only for city parks. Lomita, Torrance,
the City of Los Angeles, and the County of Los Angeles have ordinances prohibiting
consumption of alcohol and possession of open containers on public streets, city or
county owned property, and parks.
It was also noted there were no citations for violations of the open container ordinances
issued in Lomita and Rolling Hills Estates during Fiscal Year 16-17. Torrance Police
Department issued only one citation during the same period.
When asked about how this proposed ban might affect local residents having a quiet
glass of wine while enjoying a sunset at a park setting like the Point Vicente Interpretive
Center, the Sheriff’s Department noted that the ban would make such activities illegal.
If approved tonight, a Public Hearing process would be initiated regarding the adoption
of an ordinance prohibiting the possession of open containers of alcohol in City parks,
beaches, open space areas, and public places.
Smoking
Currently, smoking is not permitted within City facilities except in designated smoking
areas. The “designated smoking area” exception in City Facilities is essentially
meaningless, because there are no such designated areas in our City Buildings, parks,
beaches or open space areas.
“Smoking” is defined in the City’s Municipal Code 8.28.010-Definitions as “the carrying
or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted tobacco or
other weed-smoking equipment, or the lighting thereof, or emitting or exhaling the
smoke of a pipe, cigar or cigarette of any kind.” “City Facilities” is defined in the City’s
Municipal Code 8.28.010-Definitions as “any structure, lot or parcel that is owned,
leased or operated by the City of Rancho Palos Verdes, including without limitation, any
park, beach, recreation or open space area” (emphasis added). Additionally, MC
8.28.060 states that any person smoking in a prohibited area is in violation of the law
and is subject to prosecution either as a misdemeanor or an infraction. Smoking
regulations are not preempted by State law or the California Constitution, and fall within
the police powers of the City.
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There are a number of reasons for the ordinance prohibiting smoking. The hazards of
second-hand smoke are well-established. Smoking and the discarding of cigarettes
pose a significant risk of fire, particularly in open space areas. The Public Use Master
Plan, adopted by the City Council, identifies smoking as a prohibited activity in the
Preserve, due to the hazard to human safety, private property and the potential for
adverse biological impact. Similar broad prohibitions on smoking in public parks and
public properties is common-place in California cities. The Municipal Code prohibition
on smoking could also be broadened to ban aerosol or vapor producing devices.
ALTERNATIVES:
In addition to the Staff recommendations, the following alternative actions are available
for the City Council’s consideration:
1. Direct Staff not to proceed with an Ordinance prohibiting open containers of
alcohol in all City facilities, which includes parks, beaches and open space areas;
and consumption of alcohol in public places.
2. Direct Staff to prepare an Ordinance prohibiting open containers of alcohol at
specific areas, such as City beaches or the Nature Preserve, rather than a
comprehensive prohibition.
3. Staff can return with an ordinance eliminating the exception permitting smoking in
designated areas which would essentially establish a complete ban on smoking
in park, beach, and open space recreation areas.
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8.28.010 - Definitions.
Except where the context otherwise requires, the definitions given in this section govern the
construction of this chapter:
"Bar" means any enclosed area which is devoted to the serving of alcoholic beverages for
consumption on the premises and in which the service of food is only incidental to the consumption of
such beverages. Any area of a restaurant which is devoted to the serving of alcoholic beverages and in
which the serving of food is only incidental to the consumption of such beverages shall also be
considered to be a bar. The service of food shall be conclusively presumed not to be incidental to the
service of alcoholic beverages where the gross receipts of the sale of food exceed 25 percent of the total
gross receipts of the establishment.
"City facility" means any structure, lot or parcel that is owned, leased or operated by the City of
Rancho Palos Verdes, including, without limitation, any park, beach, recreation or open space area.
"Enclosed" means surrounded by a roof and four walls with openings for ingress and egress, with or
without windows.
"Restaurant" means any dinner house, coffee shop, cafeteria, luncheonette, soda fountain, fast food
service, and any other establishment where cooked or otherwise prepared food is sold to the general
public, and where seating for consumption is available on the premises.
"Smoking" means the carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other
lighted tobacco or other weed-smoking equipment, or the lighting thereof, or emitting or exhaling the
smoke of a pipe, cigar or cigarette of any kind.
(Ord. 425 § 1, 2005; Ord. 288 (part), 1993)
8.28.020 - Smoking prohibited.
In addition to any smoking prohibitions otherwise imposed by law, smoking shall be prohibited and
unlawful in all of the following places in the city:
A. In the enclosed portions of every restaurant, whether publicly or privately owned, including, but
not limited to, lobbies, waiting areas, restrooms, and dining areas of restaurants;
B. In no less than 50 percent of the enclosed seating capacity of every publicly or privately owned
bar:
1. Any bar that elects to designate a smoking area pursuant to this section may change the
boundaries of the smoking/nonsmoking areas at its discretion, provided that at all times
any designated smoking area in the enclosed area of the bar shall remain a contiguous
area that contains no more than 50 percent of the enclosed seating capacity,
2. When a bar is operated in connection with a restaurant and is not contained in an enclosed
area which is separate from the restaurant, the smoking area shall be located in that
portion of the bar which is the farthest from the restaurant and shall utilize portable air
purifiers or other similar devices which are designed to reduce the amount of smoke which
emanates from the bar to the restaurant. Such air purifier or other devices shall be
regularly maintained and kept in good operating order at all times. The owner, operator or
manager of the facility shall keep a record or log which reflects the dates of maintenance or
replacement of such air purifiers or devices. The log shall be kept on the premises and
shall be made available to the city for inspection upon request,
3. Nothing in this subsection shall be construed to limit or restrict an owner, operator or
manager of a bar from expanding the nonsmoking seating area;
C. In every city facility, except within a designated smoking area;
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D. Subsections A and B of this section shall become effective on July 18, 1993, which is 60 days
after adoption of the ordinance codified in this chapter by the city council.
(Ord. 425 § 2, 2005; Ord. 288 (part), 1993)
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