Chapter 19B
SMOKING POLLUTION CONTROL1

Sections:

19B.1    Definitions.

19B.2    Smoking prohibited.

19B.3    Smoking regulated—Places of employment.

19B.4    Posting of signs.

19B.5    Enforcement and penalties.

19B.1 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as follows:

“Bar” means any area or a room utilized primarily for the sale of intoxicating liquors for consumption by guests on the premises and in which the sale of food and the provision of entertainment are merely incidental to the sale of intoxicating liquors.

“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit.

“Employer” means any person who employs the services of an individual person.

“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.

“Park” means a park, playground, swimming pool, recreation center or any other area in the city, owned or used by the city and devoted to active or passive recreation, with the exceptions that “park” does not include the Gilroy Municipal Golf Course, Gilroy Gardens, or Christmas Hill Park during the Gilroy Garlic Festival.

“Restaurant” means any coffee shop, cafeteria, short order cafe, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private school cafeteria or eating establishment, and any other eating establishment, organization, club (including veterans club), boarding house, 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 said tavern or cocktail lounge is a bar as defined in this section.

“Smoke” or “smoking” means and includes inhaling or exhaling upon, burning or carrying any lighted smoking equipment for tobacco, or any other plant or product used for the personal habit commonly known as smoking. (Ord. No. 95-3, 1-23-95; Ord. 2012-09 § 1, 6-18-12)

19B.2 Smoking prohibited.

Labor Code Section 6404.5 prohibits smoking in enclosed places of employment (as defined in that code section) in the State of California. In addition, pursuant to Labor Code Section 6404.5, local governments retain the right to adopt and implement stricter anti-smoking requirements than are imposed pursuant to Labor Code Section 6404.5, including the right to regulate and prohibit smoking in any area not defined as a place of employment or in which smoking is not regulated pursuant to Labor Code Section 6404.5. This chapter is intended to supplement the provisions of Labor Code Section 6404.5.

All places within the city shall be subject to the provisions of Labor Code Section 6404.5, as such section may be amended or recodified from time to time. In addition, smoking is prohibited in all of the following places within the city:

(1) Outdoor Eating Areas. Fifty (50) percent of outdoor eating areas for all restaurants, which shall be reserved for nonsmokers.

(2) Elevators. Elevators in buildings generally open to and used by the public, including elevators in apartment buildings, irrespective of the number of living units in such apartment buildings.

(3) Hospitals and Health Care Facilities. Every public and private health care facility including, but not limited to, hospitals, clinics, and physicians and dentists offices, provided that smoking is permitted in patient smoking areas of long-term health care facilities, as defined in Section 1418 of the Health and Safety Code.

(4) Places of Public Assembly. Hearing rooms or places of public assembly owned by the city or in which the business of the city, or any of its boards or commissions, is conducted.

(5) Public Lobbies, Public Hallways. Waiting rooms, lobbies and public hallways of every building under direct or indirect control of the city.

(6) Museums, Libraries, Galleries. All museums, libraries and galleries.

(7) Designated Nonsmoking Areas. Any area of any business, governmental or charitable establishment which has been designated by the owner or person in charge of such establishment as a nonsmoking area and marked with a nonsmoking sign or signs. Exceptions set forth later in this chapter shall not apply to this subsection.

(8) Public Restrooms. Public restrooms.

(9) Parks. Parks, as defined in section 19B.1, except for specific areas within parks that are designated as permissible smoking areas. Permissible smoking areas within parks shall be designated from time to time by resolution of the city council. Notwithstanding the above, the city administrator may temporarily permit or prohibit smoking in designated areas of parks during special public or private events. In such cases, the city administrator shall require the event applicant to post paper signs indicating the temporary change in park smoking rules in a form and at locations required by the city administrator. (Ord. No. 95-3, 1-23-95; Ord. 2012-09 § 2, 6-18-12)

19B.3 Smoking regulated—Places of employment.

Within ninety (90) days after the effective date of this chapter, each employer shall adopt, implement, make known and maintain a written smoking policy consistent with all of the provisions of this chapter and with the provisions of Labor Code Section 6404.5.

(1) In any dispute arising under the smoking policy, the rights of the nonsmoker shall be given precedence.

(2) The smoking policy shall be communicated to all employees within three (3) weeks after its adoption, and at least yearly thereafter.

(3) All employers shall supply a written copy of the smoking policy to any prospective employee who so requests. Employers shall also furnish all signs required to implement the smoking policy for their business. (Ord. No. 95-3, 1-23-95)

19B.4 Posting of signs.

(a) Posting of signs shall be the responsibility of the owner, operator, manager or other person having control of any place where smoking is prohibited by this chapter.

(b) “No Smoking” signs with letters of not less than one (1) 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) shall be clearly, sufficiently and conspicuously posted in every room, building or other place where smoking is regulated by this chapter, including, but not limited to, all entrances, all restrooms and all elevators. Signs of equivalent size and character reading “Smoking Permitted” may be posted where legally applicable. Alternative means of notification (individual place cards, etc.) may be employed, provided they are equivalent to the aforementioned signs in their effect. All other signs required by this chapter shall be posted within ninety (90) days after the effective date of this chapter.

(c) The absence of signs prohibiting smoking or permitting smoking in designated areas shall not be a defense to a violation of any provision of this chapter. (Ord. No. 95-3, 1-23-95; Ord. 2012-09 § 3, 6-18-12)

19B.5 Enforcement and penalties.

(a) Enforcement of this chapter and Labor Code Section 6404.5 shall be carried out by the city administrator of the city or his/her designee. During business license renewal, the finance department of the city shall require from any establishment which comes under the provisions of this chapter or Labor Code Section 6404.5 a self-certification from the owner, manager, operator, or other person having control of such establishment, that all requirements of this chapter and Labor Code Section 6404.5 have been complied with in such form required by the city from time to time. Any owner, manager, operator, or other person having control of such establishment shall respond to the city’s request for certification within sixty (60) days after said request. Failure to self-certify shall be grounds to deny said business license, and initiate proceedings for violation of this chapter. Any owner, manager, operator, or employee of any establishment shall have the right to inform persons violating this chapter of the appropriate provisions thereof.

(b) Any person violating any of the provisions of this chapter shall be guilty of an infraction punishable according to city and state codes. (Ord. No. 95-3, 1-23-95)


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Prior legislation: Ord. Nos. 86-18 and 93-4.