Chapter 9.45
TOBACCO PRODUCTS1
Sections:
Article I. Regulation of Smoking
9.45.010 Findings.
9.45.020 Purpose.
9.45.030 Definitions.
9.45.040 City facilities.
9.45.050 Smoking prohibition.
9.45.060 Exceptions.
9.45.070 Smoking waste.
9.45.080 Duty to control – Signs.
9.45.090 Vending machines.
9.45.100 Distribution of free samples and coupons.
9.45.110 Out-of-package sales.
9.45.120 Implementation.
9.45.130 Penalties.
9.45.140 Nonretaliation.
9.45.150 Other applicable laws.
Article II. Restricting the Advertising and Promotion of Tobacco Products to Minors
9.45.160 Purpose.
9.45.170 Definitions.
9.45.180 Administration.
9.45.190 Restrictions on the advertising of tobacco products – Exceptions.
9.45.200 Sale and distribution of tobacco-related promotional items prohibited.
9.45.210 Self-service displays prohibited.
9.45.220 Violations.
9.45.230 Additional remedies – Disclaimers.
Article III. Retail Licenses
9.45.240 Retailer license requirement – Generally.
9.45.250 Retailer license – Application procedure.
9.45.260 Retailer license – Issuance.
9.45.270 Retailer license – Fee.
9.45.280 Retailer license – Display.
9.45.290 Retailer license – Nontransferable.
9.45.300 Retailer license – Suspension.
9.45.310 Enforcement.
Article I. Regulation of Smoking
9.45.010 Findings.
The city council of the City of Pleasant Hill hereby finds that:
A. The U.S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution; and
B. Reliable studies have shown that breathing secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and
C. Health hazards induced by breathing secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and
D. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; and
E. The smoking of tobacco, or any other weed or plant, is a danger to health; and
F. The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community; and
G. The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products, and tempts those who had quit smoking to begin smoking again; and
H. Free distribution of cigarettes and other tobacco products promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets, and also causes pedestrian traffic congestion. (Ord. 814 § 1, 2006)
9.45.020 Purpose.
The compelling purpose and intent of this article includes, but is not limited to, generally promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products. (Ord. 814 § 1, 2006)
9.45.030 Definitions.
The following words and phrases, whenever used in this article, shall be construed as set forth here, unless it is apparent that they have a different meaning:
Bar means an area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (e.g., as allowed by Department of Alcoholic Beverage Control Type 42, 48 or 61 licenses).
Business means an entity formed for profit-making purposes that has an employee, as defined in this section.
Dining area means an area available to or customarily used by the general public for consuming food or drink.
Distribute means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense, or issue.
Employee means a person who is employed by; retained by an independent contractor for; or volunteers his or services for an employer.
Employer means a person or entity, including a nonprofit entity, which employs the services of one or more persons or supervises volunteers.
Enclosed means:
1. A covered or partially covered space having more than 50% of its perimeter area walled in or otherwise closed to the outside (such as, for example, a covered porch with more than two walls); or
2. An uncovered space of 3,000 square feet or more having more than 75% of its perimeter area walled in or otherwise closed to the outside (such as, for example, a courtyard).
General public includes but is not limited to shoppers, customers, patrons, patients, students, clients and other similar invitees of a business or nonprofit entity.
Nonprofit entity means an entity that (1) meets the requirements of California Corporations Code section 5003 or (2) a corporation, association or other entity created for charitable, religious, philanthropic, educational, political, social or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this section.
Outdoor area means an area that is not enclosed, as defined in this section.
Place of employment means an enclosed area under the control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation. Place of employment includes, but is not limited to: indoor work areas, construction sites, vehicles used for business purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health care facilities, warehouses, and private residences that are used as child care or health care facilities subject to licensing requirements (during the hours and in the areas of operation).
Smoking means possessing a lighted pipe, lighted cigar, or lighted cigarette, or the lighting of a pipe, cigar or cigarette. (The pipe, cigar or cigarette may be of tobacco or any other weed or plant.)
Vending machine means any electronic or mechanical device which dispenses or releases a tobacco product and/or tobacco accessories. (Ord. 814 § 1, 2006)
9.45.040 City facilities.
Smoking is prohibited in each city building, vehicle, enclosed area used by employees, or outdoor area within 20 feet of a main doorway or operable window of a city building. This prohibition applies to property owned, leased or operated by the city. (Ord. 814 § 1, 2006)
9.45.050 Smoking prohibition.
Smoking is prohibited in the following places within the city, except as provided in PHMC § 9.45.060:
A. Places of employment;
B. An enclosed area adjacent to a place of employment that has a common or shared air space, ventilation, air conditioning or heating system. The fact that smoke enters one enclosed area from another is conclusive proof that the areas share a common or shared air space, ventilation, air conditioning or heating system.
C. An outdoor area within 20 feet of the main entrance, exit or operable window of a place of employment, except while actively passing on the way to another destination and so long as smoke does not enter the area where smoking is prohibited. (Ord. 814 § 1, 2006)
9.45.060 Exceptions.
Smoking is permitted in the following places, notwithstanding the prohibitions of PHMC § 9.45.050.
A. Restaurants. Smoking is permitted in up to 25% of the outdoor area of a restaurant if:
1. The smoking section is designated with signs;
2. The entire smoking section is in the same area and is located the furthest distance from the restaurant entrance or operable windows, so as to minimize the chance of smoke entering the restaurant; and
3. Smoke from the outdoor area does not enter an adjacent worksite or residence.
B. Bars. Smoking is permitted in up to 100% of the outdoor area of a bar if:
1. The smoking area is marked with signs;
2. Reasonable efforts are made to minimize the chance of smoke entering the bar; and
3. Smoke from the outdoor area does not enter an adjacent worksite or residence.
C. Guest rooms. Up to 25% of hotel and motel guest rooms, if the hotel or motel permanently designates the other, particular guest rooms as nonsmoking rooms. In the nonsmoking rooms, ashtrays and matches must be permanently removed, and “no smoking” signage posted in the rooms.
D. Theatrical productions. By performers during theatrical productions if smoking is an integral part of the story in the theatrical production. (Ord. 814 § 1, 2006)
9.45.070 Smoking waste.
No person shall dispose of smoking waste within an area in which smoking is prohibited. (Ord. 814 § 1, 2006)
9.45.080 Duty to control – Signs.
A. Duty to control. No person, employer, business or nonprofit entity shall knowingly permit the following in areas under his or her control:
1. Smoking of tobacco products in an area in which smoking is prohibited by law;
2. The placement or presence of ash receptacles (i.e., ash trays or ash cans) in an area in which smoking is prohibited, including an outdoor place within 20 feet of an entrance, exit or operable window.
B. Greater control. Notwithstanding any other provision of this chapter, a property owner, landlord, employer, business or nonprofit entity may prohibit smoking in any area in which smoking would otherwise be permitted.
C. Signs. Each person, employer, business or nonprofit entity who controls any property shall conspicuously post either:
1. A “No Smoking” or “Smoke Free” sign, with letters at least one-inch high; or
2. 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.
The absence of a required sign is a separate violation. The presence or absence of a sign shall not be a defense to the violation of another provision of this chapter. (Ord. 814 § 1, 2006)
9.45.090 Vending machines.
Cigarette vending machines may not be installed, utilized or operated on or within any premises in the city. (Ord. 814 § 1, 2006)
9.45.100 Distribution of free samples and coupons.
No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes, or agent or employee thereof, shall in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute any of the following on or in a public street, sidewalk, park, playground or building: (A) any cigarette or other tobacco or smoking product, including any smokeless tobacco product; or (B) coupons, certificates, or other written material which may be redeemed for tobacco products without charge. (Ord. 814 § 1, 2006)
9.45.110 Out-of-package sales.
No person shall sell or offer for sale cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer. (Ord. 814 § 1, 2006)
9.45.120 Implementation.
Administration of this article shall be by the city manager or his or her designee. (Ord. 814 § 1, 2006)
9.45.130 Penalties.
A. The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35.
B. Exposing other people to secondhand smoke constitutes a public nuisance and may be abated. (PHMC § 1.25.030.) (Ord. 814 § 1, 2006)
9.45.140 Nonretaliation.
No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this article. (Ord. 814 § 1, 2006)
9.45.150 Other applicable laws.
This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 814 § 1, 2006)
Article II. Restricting the Advertising and Promotion of Tobacco Products to Minors
9.45.160 Purpose.
The purpose of this article is to promote the welfare of minors by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors as well as the unlawful purchase or possession of tobacco products by minors. (Ord. 737 § 2, 1999; 1991 code § 9-3.1)
9.45.170 Definitions.
As used in this article:
Advertising display sign means a sign, billboard, signboard, poster, placard, freestanding sign, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. It includes a sign which is temporary or permanent, placed on or affixed to the ground, sidewalk, a pole or post, fence, or a building, or displayed in the window or door of a commercial establishment.
Chief of police means the city chief of police or his or her designee.
Mobile billboard means an advertising display sign which is placed on or affixed to a vehicle if the vehicle is parked within a public right-of-way or on private property and is used primarily to advertise a product. (See Prohibited signs, PHMC § 18.60.060.)
Offering for sale means that tobacco products are actually sold and/or displayed in the retail establishment.
Promotion means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand that calls the public’s attention to the product brand.
Publicly visible location means an outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or a location inside a commercial establishment that is in or adjacent to a window or doorway and is visible from any street, sidewalk, or other public thoroughfare. To be considered publicly visible, an inside location must be within one foot of a window or doorway.
Tobacco product means a substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, and smokeless tobacco. (Ord. 737 § 2, 1999; 1991 code § 9-3.2)
9.45.180 Administration.
This article shall be administered by the chief of police. The chief may develop guidelines to ensure implementation of this article. (Ord. 737 § 2, 1999; 1991 code § 9-3.3)
9.45.190 Restrictions on the advertising of tobacco products – Exceptions.
A. Restriction. No person shall place or maintain, or cause or allow to be placed or maintained, any advertising or promotion of tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of: a public or private elementary, middle or secondary school; or a public playground or play-
ground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts).
B. Exceptions. Subsection A of this section does not apply to advertising or promotion for tobacco products which are:
1. Located inside a commercial establishment, unless the advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare;
2. On vehicles, other than mobile billboards;
3. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product; or
4. On tobacco product packaging. (Ord. 737 § 2, 1999; 1991 code § 9-3.5)
9.45.200 Sale and distribution of tobacco-related promotional items prohibited.
A. No manufacturer, distributor, or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item (other than tobacco products) or service to a minor which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.
B. No person in the business of selling or otherwise distributing tobacco products for commercial purposes shall, in the course of such business, distribute, or direct, authorize or permit any agent or employee to distribute any of the following on a public street or sidewalk, in a public park or playground, or on any other public ground or in a public building: (1) a cigarette or other tobacco product; or (2) a coupon, certificate, or other written material which may be redeemed for tobacco products without charge. (Ord. 737 § 2, 1999; 1991 code § 9-3.6)
9.45.210 Self-service displays prohibited.
It is unlawful for a person to sell, permit to be sold, offer for sale, or display for sale any packaged tobacco product by means of a self-service display, rack, counter top or shelf that allows a self-service customer access to a packaged tobacco product. All packaged tobacco products shall be offered for sale exclusively by means of seller assistance. Packaged tobacco products shall be located exclusively in a locked case, located behind counters out of reach from customers, or in a similar location that is inaccessible to customers, requiring seller assistance for the customer to obtain access to the packaged tobacco products. (Ord. 737 § 2, 1999; 1991 code § 9-3.7)
9.45.220 Violations.
A. Chief of police review. A private citizen or a city officer or employee may submit a written complaint to the chief of police concerning any advertising or promotion prohibited by this article. The chief will review and, if determined to be appropriate, act upon the complaint in a timely manner. The chief may serve written notice requiring correction of any violation of this article upon the person responsible for the business or for the advertising display sign or promotion or self-service display prohibited by this article. Any notice issued shall specify a date by which the violation must be corrected. The notice shall be served by (1) personal service or by (2) certified and first class mail.
B. Correction. The person responsible shall correct the violation within the time specified in the notice.
C. Each display and each day a separate offense. Each separate display of tobacco advertising or promotion prohibited by this article is considered a separate violation. Each day a violation continues is considered a separate violation.
D. Each business location a separate entity. For purposes of determining liability, each individual franchise or business entity is deemed a separate entity. (Ord. 737 § 2, 1999; 1991 code § 9-3.8)
9.45.230 Additional remedies – Disclaimers.
A. Intent as to additional legal restrictions and remedies. Nothing in this chapter is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this chapter. The remedies set forth in this article are not exclusive. If any action prohibited by this chapter is also unlawful under any other law, the penalties and remedies under other laws may be pursued in addition to those provided in this chapter.
B. Disclaimers. By prohibiting the advertising or promotion of tobacco products in outdoor or publicly visible locations, prohibiting the distribution of tobacco-related promotional items and self-service displays of tobacco products, the city is only promoting the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. (Ord. 737 § 2, 1999; 1991 code § 9-3.9)
Article III. Retail Licenses
9.45.240 Retailer license requirement – Generally.
A. License required. It is unlawful for a person or retailer who, within the last 12 months, has been determined to be in violation of a provision of this chapter, or applicable state or federal law governing the sale and distribution of tobacco, to sell or offer for sale any tobacco products within the city without first obtaining and maintaining a tobacco retailer’s license from the city.
It is unlawful for a person or retailer who is required to have a tobacco retailer’s license to sell or offer for sale any tobacco products if the license has been suspended under PHMC § 9.45.300.
A tobacco retailer’s license shall be obtained from the chief of police.
B. Term of license – Obligation to maintain. A license is valid for three years, and a person or retailer subject to this license requirement must maintain the license during the three-year period. If there are no further violations of any laws regulating the sale or distribution of tobacco in that three-year period, a tobacco retailer’s license will no longer be required. (Ord. 737 § 2, 1999; 1991 code § 9-3.10)
9.45.250 Retailer license – Application procedure.
An application for a tobacco retailer’s license shall be submitted in the name of the person or retailer who, following a finding of violation as specified in PHMC § 9.45.240, proposes to conduct retail tobacco sales on the business premises. The application shall be signed by the person or retailer or its authorized agent. The application shall be submitted on a form provided by the city and shall contain the following information:
A. The name, address, and telephone number of the applicant;
B. The business name, address, and telephone number where tobacco is to be sold; and
C. Such other information as the chief of police determines is reasonably necessary for implementation of this chapter. (Ord. 737 § 2, 1999; 1991 code § 9-3.11)
9.45.260 Retailer license – Issuance.
Upon receipt of a completed application for a tobacco retailer’s license, including payment of the license fee, the chief of police will issue a license. A license may not be issued if there are continuing, uncorrected violations. (Ord. 737 § 2, 1999; 1991 code § 9-3.12)
9.45.270 Retailer license – Fee.
The fee for a tobacco retailer’s license shall reflect the actual cost of processing the license, including inspection of the tobacco retailer’s business premises and implementation of the licensing program, as established by resolution of the city council. The fee shall not exceed $500.00 annually. (Ord. 737 § 2, 1999; 1991 code § 9-3.13)
9.45.280 Retailer license – Display.
The license must be prominently displayed at the location where tobacco retail sales are conducted. (Ord. 737 § 2, 1999; 1991 code § 9-3.14)
9.45.290 Retailer license – Nontransferable.
The tobacco retailer’s license is nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration date as the previous one. (Ord. 737 § 2, 1999; 1991 code § 9-3.15)
9.45.300 Retailer license – Suspension.
A. Suspension of license. In order to discourage violations of law, a tobacco retailer’s license may be suspended if the chief of police finds that the licensee or his or her employee has violated any law regulating the sale or distribution of tobacco. (See PHMC § 9.45.240.A.) The chief may suspend the license only after giving the licensee notice and a reasonable opportunity to be heard on the matter. The chief shall put his or her findings in writing.
B. Time period of suspension.
1. The first time that the chief finds a violation occurred, the license to sell tobacco products may be suspended for up to 60 days.
2. After the second time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to 120 days.
3. After the third and each subsequent time that the chief finds a violation occurred within a 12-month period, the license to sell tobacco products may be suspended for up to one year.
C. Appeal of suspension. A decision of the chief to suspend a tobacco retailer’s license may be appealed to the city manager or his or her designee. (Ord. 737 § 2, 1999; 1991 code § 9-3.16)
9.45.310 Enforcement.
The city may enforce this article by any means authorized in PHMC Chapter 1.25, including an administrative citation under PHMC Chapter 1.35. (Amended during 2005 recodification; Ord. 737 § 2, 1999; 1991 code § 9-3.17)
Editor’s note: Prior ordinances codified herein include portions of Ords. 589, 600 and 681.