Chapter 8.05
REGULATION OF SMOKING
Sections:
Article 1. In General
8.05.010 Legislative intent.
8.05.020 Definitions.
8.05.030 Prohibition of smoking in public places.
8.05.040 Regulation of smoking in places of employment.
8.05.050 Smoking not controlled.
8.05.060 Posting requirements.
8.05.070 Enforcement.
8.05.080 Nondiscrimination.
8.05.090 Violations and penalties.
8.05.100 Private claim/action.
8.05.110 Public education.
Article 2. Regulation of Vending Machines and Self Service Displays
8.05.210 Tobacco product defined.
8.05.220 Vending machine sales prohibited.
8.05.230 Self service displays prohibited.
8.05.240 Violations and penalties.
Article 1. In General
8.05.010 Legislative intent.
The city council finds and declares as follows:
A. The 1992 Environmental Protection Agency report on “Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders” concluded that:
1. Widespread exposure to environmental tobacco smoke (ETS) in the U.S. presents a serious and substantial public health impact;
2. ETS is causally associated with lung cancer in adults and by the total weight of evidence belongs in the category of compounds classified by the EPA as Group A or known human carcinogens;
3. In children ETS is causally associated with respiratory tract infections and irritations and asthma.
B. The group Action on Smoking and Health, in a September, 1992 study, “The Americans with Disabilities Act as Applicable to Sensitive Nonsmokers,” concluded from a number of court and federal agency decisions that those with impaired respiratory function, including sensitive nonsmokers, qualify as disabled under the Americans with Disabilities Act, which requires that persons with disabilities have access to workplaces and public places.
C. Michael Siegel, M.D., M.P.H., of the University of California at Berkeley/University of California at San Francisco Preventive Medicine Residency Program, in his September, 1992 report, “Smoking and Restaurants: A Guide for Policy-Makers,” concluded from his analysis of seven scientific studies that restaurant employees subject to prolonged exposure to second hand smoke in the workplace experience a significantly elevated risk of lung cancer.
Furthermore, Dorothy P. Rice and Wendy Max of the Institute for Health and Aging at the University of California at San Francisco School of Nursing, reported in their study, “The Cost of Smoking in California, 1989,” that California employers pay higher costs associated with smoke in the workplace due to increases in absenteeism, accidents, costs of medical care, insurance and loss of productivity.
D. The Surgeon General’s 1986 report found that simply separating smokers and nonsmokers within the same air space may reduce but does not eliminate nonsmokers’ exposure to carcinogenic ETS.
E. Regulations within the California Indoor Clean Air Act of 1976, as amended (Health and Safety Code Paragraph 25940, et seq.) appear to be inadequate to protect the public health, safety and welfare, and said act does not preempt local regulation of smoking.
F. Persons have a right to be free from exposure to second hand smoke if they so desire.
G. The purpose of this chapter is to protect the public health and welfare by regulating smoking in public places as set forth herein. (Ord. 402 § 1 (part), 1994)
8.05.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
“Bar” means an area devoted to the serving of alcoholic beverages for consumption on the premises and in which the service of food, if any, is only incidental to the consumption of such beverages. Although a restaurant or other service may contain a bar, the term “bar” shall not include the area devoted to the serving of alcoholic beverages unless it is enclosed as defined in this section. If it is not enclosed such area shall be defined as part of the restaurant or other service; except when food is no longer being served and consumed an entire restaurant may be defined as a bar for the purpose of permitting smoking; patrons shall receive posted and oral notice in advance if smoking is permitted under these circumstances.
“Business” means any sole proprietorship, partnership, joint venture, corporation or other entity formed for either profitmaking or charitable purposes, including without limitation by reason of enumeration manufacturing concerns, retail or commercial establishments where goods or services are sold, and professional corporations or other entities where legal, medical, dental, engineering, architectural, financial or other professional services are delivered.
“Common areas” - please see “Public places” for definition.
“Dining area” means an area containing tables or counters upon which meals are served.
“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his/her services for a nonprofit agency.
“Employer” means any person, partnership, corporation, business, governmental agency, municipal corporation, nonprofit entity or person having one or more employees.
“Enclosed” means closed in by a roof and by four or more connected floor-to-ceiling walls with appropriate openings for ingress and egress, except for bars as defined in this section. For bars, “enclosed” means closed in by a roof and by three or more connected floor-to-ceiling walls with appropriate openings for ingress and egress.
“Nonprofit entity” means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character building, political, social or other similar purposes, the net proceeds from which are not for private financial gain. A public agency is not a nonprofit entity within the meaning of this chapter.
“Open to the public” means available for use by or accessible to the general public during the normal course of business conducted by either private or public entities.
“Parking garage” means an enclosed garage where members of the general public park their cars.
“Place of employment” means any enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to auditoria, conference and classrooms, employee cafeterias, employee lounges and restrooms, hallways, meeting rooms, private offices, stairs, hallways, work areas, all company vehicles not permanently assigned to one person, and all facilities utilized for manufacturing, processing, assembly, maintenance or repair of any products, goods, equipment, tools, appliances, furnishings or other objects.
Private residences and private vehicles are not places of employment except during the time that the residence is used as a child care or health care facility.
“Private function” means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement or dining where membership or specific invitation is a prerequisite to entry and where such event is not intended for attendance by the public.
“Public place” means any enclosed area to which the public is invited or in which the public is permitted or invited where goods or services are sold, including but not limited to retail establishments, restaurants (all available seating) retail food markets, enclosed shopping malls, places of employment, professional corporations or other entities where legal, medical, dental, engineering, architectural, financial or other professional services are delivered, educational facilities, health facilities, bingo parlors, public transportation facilities, reception areas, libraries and museums, retail food production and marketing establishments, restrooms, service lines, elevators, escalators, hallways, lobbies, reception areas, stairways, theaters, sports arenas, automobile dealerships, barber or beauty shops, cleaners, laundromats, polling places and places of public assembly.
“Restaurant” means any coffee shop, cafeteria, short order cafe, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club (including veterans’ club), boardinghouse or guesthouse, the primary function of which is to give, sell or offer for sale food to the public, guests, patrons or employees; except that the term “restaurant” shall not include a tavern or a cocktail lounge if the tavern or cocktail lounge is a “bar” as defined in this section.
“Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental.
“Semiprivate room” means a room in a public or private health care facility containing two beds for patients of the facility.
“Separately ventilated” means the ventilation system for an enclosed indoor smoking area must not allow air from the enclosed indoor smoking area to be circulated, filtered or otherwise intermingled with air used to ventilate nonsmoking areas.
“Service line” means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
“Smoke or smoking” means and includes inhaling or exhaling upon, burning or carrying any lighted cigarette, cigar, pipe, weed, plant or other combustible substance used for the personal habit commonly known as smoking.
“Smoking victim” means any person present in a place where smoking is prohibited pursuant to this chapter at the time that smoking occurs in such a place.
“Sports arena” means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition or witness sports events. (Ord. 402 § 1 (part), 1994)
8.05.030 Prohibition of smoking in public places.
Smoking shall be prohibited in the following public places and other public places similarly situated, including, but not limited to, the following areas:
A. All enclosed areas available to and customarily used by the general public, including, but not limited to, all “public places” as defined in this chapter, unless specifically excepted in this chapter;
B. Elevators, escalators and stairways;
C. Public restrooms;
D. Service lines;
E. Buses, taxicabs and other means of public transit operating under the authority of the city, and ticket, boarding and waiting areas for public transit;
F. All reception and waiting areas;
G. Galleries, libraries and museums;
H. All enclosed areas, including buildings owned or operated by the city; also included in this definition are all public vehicles owned or operated by the city and not permanently assigned to one person;
I. All enclosed indoor seating in restaurants; at least fifty percent of the outside seating area of restaurants shall be designated as a “nonsmoking area”; smoking may be permitted in up to fifty percent of the outside seating areas of restaurants;
J. Retail stores;
K. Libraries and museums;
L. Any building not open to the sky that is used primarily for exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of any such production;
M. Enclosed sports arenas and convention halls;
N. Doctors’ offices, dentists’ offices, waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities and offices of all other health care providers;
O. Lobbies, hallways, stairwells, elevators, escalators and other common areas in apartment buildings, condominiums, senior citizen retirement or residential care houses, nursing homes, licensed community care facilities and other multiresidential facilities and buildings; notwithstanding any provision of this chapter to the contrary, smoking may be permitted in designated areas of multiresidential facilities and buildings as long as the designated area is enclosed, separately ventilated, and not the only space available for a particular activity or service (e.g., craft room, laundry room, etc.); smoking may be permitted in all outside common areas of multiresidential facilities and buildings;
P. Hotels and motels, which shall designate at least fifty percent of the rooms as fixed “nonsmoking” rooms and shall post signs informing guests of the requirement. No ashtrays or matches shall be supplied in such rooms. Notice of prohibition of smoking shall be posted. (Ord. 402 § 1 (part), 1994)
8.05.040 Regulation of smoking in places of employment.
A. Smoking is prohibited in all places of employment as defined in this chapter, except those places where smoking is not controlled under this chapter. This regulation applies to all private, public and nonprofit employers in the city.
B. Notwithstanding any provision of this chapter to the contrary, smoking may be permitted in designated areas in places of employment as long as the designated area is enclosed, separately ventilated, and not the only space available for a particular activity or service (e.g., mailroom, cafeteria/lunchroom, etc.). Smoking may be permitted in all outside areas adjacent to places of employment.
C. All employers within the city shall communicate notice of the provisions of this chapter to their employees within ninety days of the date of adoption of this chapter. (Ord. 402 § 1 (part), 1994)
8.05.050 Smoking not controlled.
A. Notwithstanding any other provision of this chapter to the contrary, the following enclosed areas shall not be subject to the provisions of this chapter:
1. Bars as defined in this chapter;
2. Private residences, except when the residence is utilized as a health care facility, child care facility, family care home, foster care center, group home or senior care home;
3. Retail tobacco stores;
4. Any conference or meeting room in hotels or motels or private banquet areas when these places are being used for private functions; and
5. Public places in which there is a designated area for smoking that is enclosed and separately ventilated, when used for charity or fund-raising activities, services or events by churches, service organizations or other similar not-for-profit community groups.
B. Notwithstanding any other provision of this chapter any owner, proprietor, manager or other person who controls any public place described in this section may declare that entire public place as nonsmoking.
C. All newly established or constructed bars receiving a certificate of occupancy after the effective date of the ordinance codified in this chapter shall in order to be eligible for the exemption under this section have a ventilation system separate from that of any public place in which smoking is not permitted by this chapter. This requirement is to prevent venting or circulation of smoke from the bar into any other public place. Filtering of air in the bar shall not be deemed compliance with this section. (Ord. 405 § 1, 1994; Ord. 402 § 1 (part), 1994)
8.05.060 Posting requirements.
A. Each owner, operator, manager or other person having control of a public place or place of employment within which smoking is regulated by this chapter shall conspicuously post “No Smoking” signs with letters not less than one inch in height or the international “No Smoking” symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it. At least one sign shall be placed at the entrance to every applicable facility.
B. An owner, operator or manager of a building in which no smoking is permitted in any space in the building may limit the “No Smoking” postings to first floor entrances and exits and to elevator lobby areas of all other floors. (Ord. 402 § 1 (part), 1994)
8.05.070 Enforcement.
A. It is the responsibility of the city manager or his/her designee to enforce the provisions of this chapter.
B. Any owner, manager, operator or employer of any establishment subject to this chapter shall have the responsibility to inform any apparent violator, whether public or employee, about any smoking restrictions in said establishment.
C. Any citizen who wishes to register a complaint hereunder may do so by sending a letter to the city council, mayor or city manager.
D. Notice of these requirements shall be given every new business license applicant and to every existing business licensee at the time of business license renewal. (Ord. 402 § 1 (part), 1994)
8.05.080 Nondiscrimination.
No person shall discharge, refuse to hire or in any manner discriminate against any employee or applicant because such employee or applicant exercises any rights in this section. (Ord. 402 § 1 (part), 1994)
8.05.090 Violations and penalties.
A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with any of its provisions.
B. It is unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.
C. It is unlawful for any person who owns or controls premises subject to the prohibitions of this chapter to fail to post sign(s) as required by this chapter.
D. Any person who violates any provision of this Chapter shall be guilty of an infraction, punishable by:
1. A fine not exceeding one hundred dollars for a first violation;
2. A fine not exceeding two hundred dollars for a second violation of this chapter within one year;
3. A fine not exceeding five hundred dollars for each additional violation of this chapter within one year.
E. Violation of the provisions of this chapter are declared to be a public nuisance that may be abated by appropriate civil action.
F. The remedies provided by this section are cumulative and are in addition to any other remedy existing at law or in equity. (Ord. 402 § 1 (part), 1994)
8.05.100 Private claim/action.
Any aggrieved person under this chapter may bring a civil action to compel compliance with this chapter, provided, that the person shall have first requested in writing that the city take appropriate enforcement action and the city shall have failed to do so after forty-five days. (Ord. 402 § 1 (part), 1994)
8.05.110 Public education.
The city manager or his/her designee shall engage in a continuing program to explain and clarify the purposes of this chapter to citizens affected by it and guide owners, operators and managers in their compliance with it. Within ninety days of enactment of the ordinance codified in this chapter, the city manager or his or her designee shall have prepared a brochure that can be used to explain the ordinance to businesses and citizens and that can be enclosed in letters sent pertaining to complaints. (Ord. 402 § 1 (part), 1994)
Article 2. Regulation of Vending Machines and
Self Service Displays
8.05.210 Tobacco product defined.
“Tobacco product” means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or by means of ingestion. (Ord. 428 § 1 (part), 1996)
8.05.220 Vending machine sales prohibited.
No cigarette or other tobacco product may be sold, offered for sale or distributed by or from a vending machine or appliance, or other device designed or used for vending purposes. (Ord. 428 § 1 (part), 1996)
8.05.230 Self service displays prohibited.
A. No person, firm, association or corporation shall sell, permit to be sold, or offer for sale any cigarette or other tobacco product by means of self service displays or by any means other than vendor assisted sales.
B. Self service display shall mean an open display of tobacco products that the public has access to without the intervention or assistance of an employee. Vendor assisted shall mean that only a store employee has access to the tobacco product and assists the customer by supplying the product.
C. A business which meets all of the following criteria shall be exempt from this section:
1. Allows members only to purchase products;
2. Requires all members to be eighteen years or older. (Ord. 428 § 1 (part), 1996)
8.05.240 Violations and penalties.
A. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:
1. A fine not exceeding one hundred dollars for a first violation.
2. A fine not exceeding two hundred dollars for a second violation of this chapter within one year.
3. A fine not exceeding five hundred dollars for each additional violation of this chapter within one year.
B. Violations of the provisions of this chapter are declared to be a public nuisance which may be abated by appropriate civil action. (Ord. 428 § 1 (part), 1996)