In a 3-1 vote Tuesday, the Oakley City Council agreed to include the use of e-cigarettes in a ban on public smoking on city-owned properties, restaurants, and public outdoor areas. The Ordinance also prohibits the use of e-cigarettes by minors.
The Ordinance is set to take effect in July and Oakley will be the fourth city in Contra Costa County to regulate the use of e-cigarettes following Concord, Richmond and Walnut Creek who Oakley modeled their ordinance after—Pittsburg is scheduled to vote on a similar Ordinance on Monday.
Ultimately Oakley Mayor Randy Pope suggested that those who opposed the ordinance, or any other ordinance, they have the ability to move to another City or State.
“If you feel so strongly about this issue or any one issue, you can now move to a city where the policy and procedures of the local government reflect your beliefs or change your state,” said Pope. “I believe this is well within what we should be doing and protecting the rights of our residents for free enjoyment of our public spaces.”
The Council debated the issue for the third time in as many months and Tuesdays discussion was nearly 40-minutes where they heard both pros and cons from speakers.
Jim Root, California Vapor Association, shared he has several issues with the ordinance not just in content, but in procedure.
“By waiving the reading of this proposed Ordinance, you have actually inaccurately characterized it as a way of protecting kids. It’s not as the way it’s written. This is an overreaching attempt to throw E-Cigarettes in with Cigarettes as a public health hazard,” said Root. “They are not a public health hazard and your report uses my three worst words in industry which is may, might, could. It may do this. It might do that and could do that. These are not words that should be used when talking about ordinances and there needs to be a clear understanding of what is going on.”
He further explained that there are many studies done in the last five years where most of the regulations fall on a 2009 study from the FDA which is not the standard in the industry today.
“As an Association, we support age restrictions, but this Ordinance is overreaching,” said Root. “What I would like to see is a re-write to properly protect kids and that would be supported by our association. But as this stands, it will not stand up to litigation and not even to the basic. legal standard.”
Stefan Didak, stated he was a nationally recognized advocate and leading advocate for reducing tobacco harm in California, shared that he opposed the portions of public usage ban that covers vapor products and use and possession prohibition for minors.
“The letter is about parental rights, not vapor products. The City is not the parent, nor should it try and be. As written, the prohibition is impotent and fails to provide any real solution to any problem perceived or otherwise,” said Didak. “If you want something that works, look at Georgia State Law. I do not agree with a ban on outdoor public use of vapor products. I do however support the owners of private property who should be the ones to decide what is or isn’t allowed on their property.
He shared that after reading the staff reports, its scientifically unfounded and based on outdated science and an “unhealthy dose of fear mongering”. He called the basis of the ordinance “ridiculous” and stated the same rules should apply to perfumes, body odor and other odors.
He stated that ordinances that are pushed forward like this come not from the City, but from organizations that profit such as the American Lung Association and American Cancer Society.
“Has any organization offered the City of Oakley a bride, oops, pardon my words, I believe they call it a grant in exchange for passing ordinances like this one. If not, please learn to bargain because normally they do,” said Didak.
Sallie Goetsch, a resident of Oakley since 2011, said she was never a smoker but her husband was. She explained that she never thought he would quit and once he discovered E-Cigarettes that he found he was no longer able to tolerate cigarettes.
“If the City of Oakley includes the definition of E-Cigarettes in its definition of smoking and then decides to pass an outdoor smoking ban, what it means is people like my husband who have finally stopped breathing smoke everyday of their lives are going to have nowhere to stand to vape except in the designated smoking areas where they will have to breath second hand smoke. Are you sure you want to be responsible for that?” asked Goetsch. “I urge this council to put the public health of real people as opposed to the theoretical possible nuisance effects first and go back and rewrite this ordinance.”
Meanwhile, others supported the ban inlcuding Denise Dennis, Contra Costa Health Services Tobacco Prevention Program, who thanked the council for supporting the public’s health which included the E-Cigarette.
“The County and seven cities have actually responded to the well documented and scientific findings around second hand smoke and have adopted very similar and comprehensive outdoor second hand smoke protections to protect residents and visitors where people live, work and play,” said Dennis. “In April of last year, the Board of Supervisors voted to include electronic devices including e-cigarettes in the county’s second hand smoking ordinance prohibiting the use of these devices where smoking is prohibited.”
Dennis explained that since the US Food and Drug Administration does not truly regulate these devices, consumers really have no idea what is being placed in these devices. There is no regulation on amount of carcinogens, how many chemicals or nicotine is in any one of these brands or variation of cross brand.
Councilman Kevin Romick stated there is still a lot of unknowns about the product. The same thing can be said for cigarettes in the 1940s when they were handing them out to soldiers or sending them to women working in the factories.
“It took them almost 20-years after the end of World War II until 1964 when the Surgeon General came out and said well we have an issue with them and we have slowly been fighting against the whole process and trying to get people to stop smoking for their own good hopefully,” said Romick.
Romick also shared in a recent University of California San Francisco study they came out it was the first analysis of the relationship between e-cigarettes use and smoking amongst adolescents in the United States. The study found that adolescents who use the device are more likely to smoke cigarettes and less likely to stop smoking.
“My concern is that we do the same thing as cigarettes is we ignore it as long as we can as we start noticing some issues, we do some studies and then 10-15 years down the road we find out issues and we poison an entire generation of young people or old people or people in general,” explained Romick.
Romick mentioned the other communities such as New York, San Francisco, Los Angeles, State of New Jersey, State of New Jersey and asked what was referenced to create Oakley’s own Ordinance since they have been threatened to be sued if they pass it.
“We certainly are not trailblazing so what ordinances did we use to build ours,” asked Romick.
William R. Galstan explained that the definition of E-Cigarettes which comes from the State of California State Law and sale to minors. Referenced Contra Costa County, Walnut Creek, Concord and Richmond have these Ordinances—all are similar and Oakley’s is based on those.
“In my opinion, we should stick to our guns and persevere in what we do,” said Romick. “I don’t want to wake up one morning and wake up and say gee, if we had done this 10-years ago we could have saved lives.”
Councilwoman Diane Burgis stated the reason why this is here is because this council wanted it here.
“We are not serving anybody’s agenda, this is something as a council we have decided it’s something we are willing to stand up together with,” said Burgis. “I think the reason why we are doing this is to protect people’s health and people’s quality of life. It’s just the basic bottom line!”
Vice Mayor Doug Hardcastle shared he believed it’s about parental control and how we raise our kids and teach them what is right and wrong.
“It does all start at home and I think we are overstepping,” said Hardcastle. “I just have a real problem when we step on people’s rights. Where they can walk, where they can talk, how they can smoke. If we really want to get down and get people fresh air, we need to close off all the cars that drive down our streets. They put out more pounds of crap than what people put out smoking their vapor cigarettes.
Mayor Randy Pope stated these types of ordinances are meant for local government, not the Federal Government or the State.
“The ordinance as a whole is sound. I am not in favor of waiting or encouraging the federal government to step in the nanny state and tell us what to do and the entire country what to do. Or the state. I much prefer ordinances to be local where locals like you can come and have input and talk to us and see us in a coffee shop or store and tell us we are stupid for passing an ordinance and influence us to change it or revoke it. You can’t do that at the state or federal level,” said Pope.
The Ordinance passed 3-1.
Yes – Randy Pope, Diane Burgis, Kevin Romick
No – Doug Hardcastle.
Absent – Carol Rios
The City Council of the City of Oakley does ordain as follows:
Section 1. Paragraph (f) of Section 4.19.004 is hereby amended to read as follows:
(f) “Smoke” and “Smoking” shall be defined as follows: “Smoke” means the gases, particles, or vapors 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 for smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, marijuana smoke and gases, particles, and vapors from electronic cigarettes. “Smoking” means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette as defined in Section 4.19. 011, a lighted cigar, or a lighted cigarette of any kind and a lighted marijuana joint, pipe, or other implement an includes smoking marijuana for medical or recreational purposes; or lighting or igniting a pipe, a hookah pipe, a cigar or a cigarette.
Section 2. Article 3 is hereby added to the Oakley Municipal Code, to read as follows:
Article 3. OUTDOOR AREAS
For the purposes of this Article, the terms “smoke” and “smoking” shall have the same definitions as are contained in Section 4.19.004(±) of this Chapter.
4.19.204. Prohibition of Smoking at City-Owned Facilities.
Smoking, as defined in Section 4.19.004(±), is prohibited at any enclosed or outdoor area owned by the City of Oakley, including, but not limited to the following: parks, sports facilities, picnic areas, playgrounds, walking paths, hiking trails, amphitheaters, plazas, nature interpretative areas, or special-use recreational facilities such as ball fields, fishing piers, swimming pools, skateboard parks, etc. This section does not apply to smoking in privately-owned vehicles traveling on City-owned streets, nor to pedestrians on concrete sidewalks. However this Section shall apply to streets or sidewalks closed for authorized farmer’s markets, festivals or parades. The presence or absence of signs prohibiting smoking shall not be a defense to a charge of smoking in violation of this Section.
4.19.206. Prohibition of Smoking at Designated Private Facilities.
Smoking, as defined in Section 4.19 .004(f), is prohibited at any outdoor area which is privately owned at the following locations: outdoor dining areas at bars and restaurants; all areas within twenty feet of doors, windows, air ducts and ventilation systems; exterior areas of shopping centers and malls; automobile or vehicle display areas; swap meets, nurseries, Christmas Tree lots, temporary outdoor sales and display areas, bus shelters, movie lines and outdoor sales areas and other similar locations. “No smoking” signs consisting of letters of not less than one inch in height, or the international “no smoking” symbol shall be conspicuously posted in every building or other place where smoking is regulated by section by the owner, operator, manager or other person having control of the place. The lack of a sign being posted shall not be a defense to a charge of smoking in violation of this section.
Section 3. Section 4.19.011 is hereby added to the Oakley Municipal Code, to read as
4.19.011 Use/Possession of Electronic Cigarettes by Minors Prohibited.
The use and/or possession of any electronic cigarette or electronic cigarette paraphernalia by a minor is prohibited throughout the City of Oakley. “Electronic cigarette” means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution, irrespective of whether liquid nicotine is actually being vaporized. “Electronic cigarette paraphernalia” means any part of an electronic cigarette, or any cartridge or other liquid used for the purpose of vaporizing the liquid in an electronic cigarette. The legislative findings supporting this provision and portions of Section 4.19. 004 are contained in a separate Resolution adopted by the City Council.
Section 4. California Environmental Quality Act (CEQA) Finding.
This ordinance is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3), Review for Exemption, because it can be seen with certainty that the project will not have a significant effect on the environment; therefore the project is not subject to CEQA.
Section 5. Severability.
In the event any section or portion of this ordinance shall be determined to be invalid or unconstitutional, such section or portions shall be deemed severable and all other sections or portions hereof shall remain in full force and effect.
Section 6. Effective Date and Publication.
This ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk shall cause the ordinance to be published within fifteen (15) days after its passage in a newspaper of general circulation, or by publishing a summary of the proposed ordinance, posting a certified copy of the proposed office in the City Clerk’s Office at least five (5) days prior to the City Council meeting at which the ordinance is to be adopted, and within fifteen (15) days after its adoption, publishing a summary of the ordinance with the names of the Council Members voting for and against the ordinance.