Chapter 8.28
NONSMOKING REGULATIONS

Sections:

8.28.010 Definitions.

8.28.020 Smoking regulated – Places of employment.

8.28.030 Smoking optional where.

8.28.040 Smoking prohibited where.

8.28.050 Posting of signs.

8.28.060 Enforcement.

8.28.070 Violations and penalties.

8.28.080 Nonretaliation.

8.28.090 Severability.

8.28.100 Public education.

8.28.110 Other applicable laws.

8.28.120 Exemptions.

8.28.010 Definitions.

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

A. “Bar” means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term “bar” shall not include the restaurant dining area.

B. “Business” means any sole proprietorship, partnership, corporation or other business entity formed, including retail establishment where goods or services are sold as well as professional corporations and other entities under which legal, medical, dental, engineering, architectural or other professional services are delivered.

C. “Employee” means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit. Employees include those employed full-time, part-time, temporary or contracted for from a third party.

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

E. “Enclosed” means closed in by a roof and four walls with an appropriate opening for ingress and egress.

F. “Nonprofit entity” means any corporations, unincorporated association, or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a “nonprofit entity” within the meaning of this section.

G. “Place of employment” means any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to:

1. Conference rooms and classrooms;

2. Employee cafeterias;

3. Employee lounges and restrooms;

4. Hallways;

5. Work areas;

6. A private residence is not a “place of employment” unless such residence is used as a child care or health care facility;

7. The dining area of a restaurant is not a “place of employment”;

8. It is not the intent of this chapter to regulate governmental agencies not under the jurisdiction of the city;

9. It is the intent of this chapter to include nonprofit corporations, offices and other facilities maintained by public agencies which are under the jurisdiction of the city and other entities not commonly understood to be business enterprises, though frequented by the public.

H. “Public place” means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to:

1. Banks;

2. Educational facilities;

3. Health facilities;

4. Public transportation facilities;

5. Reception areas;

6. Restaurants;

7. Retail stores;

8. Retail service establishments;

9. Retail food production and marketing establishments;

10. Waiting rooms;

11. A private residence is not a “public place” unless it is used as a child care or a health care facility.

I. “Restaurant” means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, or bar during the time it offers a menu, dinner theater, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, boardinghouse, or guesthouse which offers food to the public, guests or employees.

J. “Service line” means any indoor line area 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.

K. “Smoking” means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed, plant or other combustible substance in any manner or in any form.

L. “Sports arena” means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller or ice rinks, bowling alleys and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition or witness sports events.

M. “Tobacco store” means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

N. “Work area” or “workplace” means any area of a place of employment enclosed by floor to ceiling walls in which two or more employees are assigned to perform work for an employer. (Ord. 88-529 § 1).

8.28.020 Smoking regulated – Places of employment.

It shall be the responsibility of employers to provide nonsmoking areas for nonsmokers within existing facilities to the maximum extent possible, but employers are not required to incur any expense to make structural or other physical modifications in providing these areas.

Within 90 days of the effective date of the ordinance codified in this chapter, each employer shall adopt, implement, make known and maintain a written smoking policy which shall contain as a minimum the following requirements:

A. Any employee in a place of employment shall be given the right to designate his or her work area as a nonsmoking area and to post the same with an appropriate sign or signs.

B. Provision and maintenance of a separate and contiguous nonsmoking area of not less than 25 percent of the seating in cafeterias, lunchrooms and employee lounges or provision and maintenance of separate and equal-sized cafeterias, lunchrooms and employee lounges for smokers and nonsmokers.

C. Prohibition of smoking in employee:

1. Auditoriums;

2. Classrooms;

3. Conference and meeting rooms;

4. Elevators;

5. Hallways;

6. Medical facilities;

7. Restrooms.

D. Employers must make a reasonable effort to separate smokers from nonsmokers who request a smoke-free workplace, and will give nonsmokers preferential consideration.

E. The smoking policy shall be communicated, in writing, to all employees within three weeks of its adoption, and at least yearly thereafter, or have the smoking policy posted in a conspicuous place.

F. All employers shall supply a written copy of the smoking policy to all newly hired employees.

G. Notwithstanding the provisions of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area.

H. An employer who makes reasonable efforts to develop and promulgate a reasonable policy regarding smoking and nonsmoking in the workplace shall be deemed to be in compliance with this section. (Ord. 88-529 § 1).

8.28.030 Smoking optional where.

Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

A. Bars;

B. Private residences, except when used as a child care or health care facility;

C. Hotel and motel rooms rented to guests;

D. Retail tobacco stores;

E. Eating establishments, hotel and motel conference/meeting rooms and public and private assembly rooms while these places are being used for private functions;

F. A private residence which may serve as a place of employment;

G. A private enclosed office workplace occupied exclusively by smokers, even though such an office workplace may be visited by nonsmokers;

H. Semiprivate rooms of health facilities occupied by one or more patients, all of whom are smokers who have requested in writing on the health care facilities admissions forms to be placed in a room where smoking is permitted;

I. Private clubs during events attended by members of an organization and their invited guests;

J. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls a business may declare the entire business as a nonsmoking establishment. (Ord. 88-529 § 1).

8.28.040 Smoking prohibited where.

Smoking shall be prohibited in the following places within the city:

A. Elevators;

B. Buses, taxicabs and other means of public transit under the authority of the city, while within the boundaries of the city, and in ticket, boarding and waiting areas of public transit depots; provided, however, this prohibition does not prevent the establishment of separate, equal-sized waiting areas for smokers and nonsmokers, or establishing no more than 50 percent of a given waiting area as a smoking area;

C. Public restrooms;

D. Indoor service lines;

E. Retail stores doing business with the general public, except areas in said stores not open to the public and all areas within retail tobacco stores;

F. All enclosed areas available to and customarily used by the general public in all businesses or nonprofit entities patronized by the public, including, but not limited to, attorney’s offices and other offices, banks, hotel and motel registration areas. The intent is to include nonprofit corporations, offices and other facilities maintained by public agencies which are under the jurisdiction of the city and other entities not commonly understood to be business enterprises, though frequented by the public;

G. Within all restaurants and other eating establishments, including dinner theaters; provided, however, this prohibition does not prevent the designation of a contiguous area within the restaurant that contains no more than 75 percent of the seating of the restaurant for smoking. The nonsmoking area may be flexible as long as it is contiguous.

H. In public areas of libraries, and museums when open to the public; provided, however, this prohibition does not prevent the designation of a separate room for smoking;

I. Within any building not open to the sky which is primarily used for, or designed for, the primary purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production (in which case, notice shall be made in advertising); provided, however, this prohibition does not prevent designating a contiguous area containing no more than 50 percent of any area commonly called a lobby as a smoking area.

An exception to this regulation shall be made in the case of theaters that have a well-ventilated upper section where smoking can be permitted as long as it does not affect the air quality in the nonsmoking lower section. In such theaters there would be no smoking allowed in the lobby;

J. Within sports areas and convention halls, except in designated smoking areas;

K. Within every room, chamber, place of meeting or public assembly, including school buildings under the control of any council, council commission, committee, including joint committees, or agencies of the city or any political subdivision of the state during such time as a public meeting is in progress;

L. Waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ and dentists’ offices, except in separate designated smoking areas;

M. In bed space areas utilized for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health facility’s admission forms to be placed in a room where smoking is permitted;

N. Retail grocery stores, in compliance with state law, Section 25947 of the Health and Safety Code;

O. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. (Ord. 88-529 § 1).

8.28.050 Posting of signs.

A. “Smoking” or “No Smoking” signs, whichever are appropriate, with letters of 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) shall be clearly, sufficiently and conspicuously posted in every room, building or other place where smoking is regulated by this chapter by the owner, operator, manager or other person having control of such building or other place.

B. Every theater owner, except dinner theater owners, manager or operator shall post signs conspicuously in the lobby stating that smoking is prohibited within the theater or auditorium, and in the case of motion picture theaters, such information shall be shown upon the screen for at least five seconds prior to the showing of each feature motion picture.

C. Every restaurant will have posted at its entrance a sign clearly stating that a nonsmoking section is available and every patron shall be asked as to his or her preference. (Ord. 88-529 § 1).

8.28.060 Enforcement.

A. Enforcement shall be implemented by the city manager or his designee.

B. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the city manager.

C. Any owner, manager, operator or employee of any establishment controlled by this chapter may inform persons violating this chapter of the appropriate provisions thereof. (Ord. 88-529 § 1).

8.28.070 Violations and penalties.

A. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to comply with its provisions.

B. The owner, manager or operator of a restaurant shall not be held liable if their host or hostess fails to ask the seating preference of patrons. Such persons will be held liable if the restaurant has no stated policy concerning asking the preference of patrons.

C. It shall be unlawful for any person to smoke in any area restricted by the provisions of 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 $100.00 for a first violation;

2. A fine not exceeding $200.00 for a second violation;

3. A fine not exceeding $500.00 for each additional violation of this chapter within one year. (Ord. 88-529 § 1).

8.28.080 Nonretaliation.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. (Ord. 88-529 § 1).

8.28.090 Severability.

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. (Ord. 88-529 § 1).

8.28.100 Public education.

A. The public health officer shall engage in a continuing program to inform and clarify the purposes of this chapter to citizens affected by it, and to guide owners, operators and managers in their compliance.

B. The city manager shall leave the responsibility of conducting a public education campaign regarding the health consequences of smoking to other governmental and health agencies equipped with the needed expertise to conduct such campaigns. (Ord. 88-529 § 1).

8.28.110 Other applicable laws.

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes. (Ord. 88-529 § 1).

8.28.120 Exemptions.

A. Any owner or manager of a business or establishment subject to this chapter may apply to the city for an exemption or modification to any provision of this chapter due to unusual circumstances or conditions.

B. Such exemption shall be granted only if the city council finds from the evidence presented by the applicant for exemption at a public hearing that it is financially impracticable for a business to comply with this chapter.

C. The applicant for an exemption shall pay for the variance fee. (Ord. 88-529 § 1).