Chapter 8.38


8.38.010    Findings.

8.38.020    Purpose.

8.38.030    Definitions.

8.38.040    Application of chapter to city facilities.

8.38.050    Prohibition of smoking in indoor public places.

8.38.060    Prohibition of smoking in outdoor public places.

8.38.070    Smoking prohibited in certain places.

8.38.080    More restrictive private rules allowed.

8.38.090    Smoking policy in places of employment.

8.38.100    Retaliation against persons exercising rights under chapter provisions.

8.38.110    Where smoking is not regulated.

8.38.120    Posting of signs. Revised 2/20

8.38.130    Repealed. Revised 2/20

8.38.140    Enforcement.

8.38.150    Violations and penalties.

8.38.160    Other applicable laws.

*    Prior ordinance history: Ord. 600.

8.38.010 Findings.

The city council of the city of Capitola finds that:

A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing secondhand smoke is a cause of disease in nonsmokers; and

B. The U.S. Environmental Protection Agency has classified secondhand smoke as a carcinogen for which there is no safe level of exposure. At special risk are children, 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 lung cancer, heart disease, respiratory infection, decreased respiratory function, bronchoconstriction and bronchospasm. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994)

8.38.020 Purpose.

The city council of the city of Capitola declares that the purposes of the ordinance codified in this chapter are:

A. To protect the public health, safety and welfare by prohibiting smoking in public places and workplaces; and

B. To guarantee the right of nonsmokers to breathe smoke-free air shall have priority over the desire to smoke; and

C. To make the public aware of hazards of secondhand smoke. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994)

8.38.030 Definitions.

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

A. “Business” means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

B. “City health officer” means the director of the county health department or designee serving as the city’s health officer.

C. “E-cigarette” means an electronic smoking device which can be used to deliver an inhaled dose of nicotine or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “E-cigarette” includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

D. “Employee” means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services to a nonprofit entity.

E. “Employer” means any person, partnership, corporation, public agency or nonprofit entity which employs the services of one or more individual persons.

F. “Enclosed area,” for purposes of Section 8.38.050, which prohibits smoking in enclosed public places, means an area substantially surrounded by a combination of walls, windows, doors, partitions or other architectural features which significantly prevent smoke from escaping into the open air.

G. “Nonprofit entity” means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, charter 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 subsection.

H. “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, work areas, employee lounges and restrooms, conference rooms and classrooms, employee cafeterias and hallways. A private residence is not a place of employment unless it is used as a child care, health care, board and care, or community foster care facility.

I. “Public libraries” means any public library maintained and operated within the city of Capitola.

J. “Public place” means any area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, places of employment, health facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a public place.

K. “Reasonable distance” means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. This distance shall be a minimum of twenty feet.

L. “Restaurant” means any coffee shop, cafeteria, sandwich stand, private or public school cafeteria, outdoor dining areas, and any other eating establishment which gives or offers for sale food to the public, guests or employees; any kitchen in which food is prepared on the premises for serving elsewhere, including catering facilities. The term “restaurant” shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a “stand alone bar” as defined in this section.

M. “Retail tobacco store” means a retail store where the majority of its sales are from tobacco products and smoking accessories and in which the sale of other products is merely incidental.

N. “Right-of-way” means any portion of the street, sidewalk or adjacent public property over which people and goods have the right to pass or travel.

O. “Schools” means any public or private pre-school, elementary, middle, junior high or high school within the city of Capitola.

P. “Service line” means any indoor or outdoor 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.

Q. “Smoking” means inhaling, exhaling, burning, or carrying any lighted, heated or ignited cigar, cigarette, e-cigarette, cigarillo, pipe, hookah, or any plant product intended for human inhalation.

R. “Sports arena” means auditoriums where sporting events are conducted from time to time; gymnasiums, health spas; indoor or outdoor swimming pools, skating rinks; bowling hallways; and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sporting events.

S. “Stand alone bar” means an area in which: (1) the serving of alcoholic beverages for consumption by patrons on the premises is its primary purpose; (2) persons under the age of twenty-one are not permitted on the premises; and (3) serves no food but snack-type foods. A “stand alone bar” for the purpose of this chapter does not include any bar which is structurally part of a building also hosting other business operations, unless it is physically separate from other uses in the same building and has a separate ventilating system ventilating directly to the outside of the building. “Physically separate” means separated (except for doors and windows left closed during business hours) by durable, smoke impervious materials from other areas (except open air areas) of the same structure.

T. “Tobacco” or “tobacco product” shall mean:

1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and

2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an e-cigarette, cigar, pipe, or hookah.

3. Notwithstanding any provision of subsections (T)(1) and (2) of this section to the contrary, “tobacco product” includes any component, part, or accessory of a tobacco product, whether or not sold separately. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sales as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

U. “Tobacco retailer” shall mean any person or business which sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products, tobacco paraphernalia or e-cigarettes, or who distributes free or low-cost samples of tobacco products, tobacco paraphernalia or e-cigarettes. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, tobacco paraphernalia or e-cigarettes sold, offered for sale, exchanged, or offered for exchange. (Ord. 1000 § 1 (part), 2015: Ord. 994 § 1, 2014: Ord. 980 § 1, 2013; Ord. 943 § 1, 2009; Ord. 771, 1994)

8.38.040 Application of chapter to city facilities.

Facilities owned, operated or leased by the city of Capitola are not exempt from this chapter. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994)

8.38.050 Prohibition of smoking in indoor public places.

Except as provided in Section 8.38.110, smoking is prohibited in all enclosed public places within the city, including, but not limited to, the following: because of the effects of residual smoke, this prohibition is applicable twenty-four hours a day unless another time frame is specifically provided:

A. Elevators;

B. Restrooms;

C. Retail stores;

D. All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, offices, banks, laundromats, hotels and motels;

E. Restaurants and outdoor dining areas (except the open air portions thereof);

F. Theater-bar combinations and dinner theaters;

G. Public areas of galleries, libraries and museums;

H. Any area or facility which is primarily used for exhibiting a motion picture, stage or drama production, lecture, musical recital or other similar performance, except when smoking is part of the production or performance;

I. Sports areas and convention halls;

J. Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, 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, to the extent such place is subject to the jurisdiction of the city;

K. Waiting rooms, hallways, wards and patient rooms of health facilities, including, but not limited to, hospitals, medical centers, clinics, physical therapy facilities, and medical, dental and chiropractic offices;

L. Lobbies, hallways and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes and other multiple-unit facilities;

M. Lobbies, hallways and other common areas in multiple-unit commercial facilities;

N. Polling places;

O. Video arcades, bingo parlors, card rooms, game rooms, pool halls, dance halls, amusement centers and bowling alleys;

P. Areas which share their air space, including, but not limited to, air conditioning, heating or other ventilation systems, entries, doorways, open windows, hallways and stairways with other enclosed areas in which smoking is prohibited;

Q. At least seventy-five percent of the guest rooms in every hotel and motel shall be maintained as fixed nonsmoking rooms;

R. Service lines including, but not limited to, food services lines and ticket or admissions lines. (Ord. 1000 § 1 (part), 2015: Ord. 980 § 2, 2013; Ord. 943 § 2, 2009; Ord. 875 § 1, 2004; Ord. 771, 1994)

8.38.060 Prohibition of smoking in outdoor public places.

Smoking is prohibited in the following specifically delineated outdoor public places:

A. Capitola Beach;

B. Any portion of the Esplanade right-of-way;

C. Any portion of Stockton Avenue right-of-way between Wharf Road and Capitola Avenue;

D. Any portion of Monterey Avenue right-of-way south of Capitola Avenue;

E. Any portion of San Jose Avenue right-of-way between Esplanade and Capitola Avenue;

F. Any portion of Lawn Way right-of way;

G. Any portion of Capitola Avenue right-of-way between Stockton Avenue and Monterey Avenue;

H. Esplanade Park;

I. Capitola Wharf;

J. Jade Street Park;

K. Library property at 2005 Wharf Road;

L. Rispin Mansion property;

M. Peery Park;

N. Soquel Creek Park;

O. Public parcel located north of Stockton Bridge at 101 Stockton Avenue;

P. City Hall property;

Q. Noble Gulch Park;

R. Monterey Park;

S. Cortez Park;

T. McGregor Park;

U. Public events that are open to the general public regardless of any fee or age requirement, to include farmer’s markets, theater plays and permitted public events. (Ord. 1004 § 1, 2015; Ord. 1000 § 1 (part), 2015: Ord. 980 § 3, 2013; Ord. 943 § 3, 2009. Formerly 8.38.055)

8.38.070 Smoking prohibited in certain places.

Smoking is prohibited in the following places:

A. Taxicabs, para-transit, and other public transit vehicles at all times;

B. Child care facilities, as defined in California Health and Safety Code Section 1596.750, and private residences where used as day care homes. This prohibition applies even when children are not present. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.060)

8.38.080 More restrictive private rules allowed.

Notwithstanding any other provision of this chapter, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility, including its outdoor areas, to be a nonsmoking establishment or facility. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.070)

8.38.090 Smoking policy in places of employment.

A. Within ninety days of the effective date of the ordinance codified in this chapter, each employer with an enclosed place of employment located within the city of Capitola shall make known and maintain a written smoking policy which shall contain the following requirements:

Smoking is prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, locker rooms, dressing areas, and all other enclosed facilities.

B. The smoking policy shall be communicated to all employees upon its adoption.

C. All employers shall comply with the provisions of this section and shall be responsible for implementation of its provisions in their place(s) of employment.

D. All employers shall make available a written copy of the smoking policy to any employee who so requests. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.080)

8.38.100 Retaliation against persons exercising rights under chapter provisions.

No person or employer shall discharge, refuse to hire, refuse to serve or in any other manner retaliate against any employee, applicant for employment, customer, service user, business patron or any other person because that person exercises any rights afforded by this chapter. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.090)

8.38.110 Where smoking is not regulated.

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. Private residences, except where used as a child day care, health care, board and care, or community care facility;

B. Retail tobacco stores;

C. Stand alone bars;

D. Smoking that is an integral part of medical research and treatment. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.100)

8.38.120 Posting of signs. Revised 2/20

A. Where smoking is prohibited throughout the building or structure, a sign stating “No Smoking” shall be posted at each entrance to the building or structure.

B. Where smoking is permitted in designated areas of the building or structure, a sign stating “Smoking is Prohibited Except in Designated Areas” shall be posted at each entrance to the building or structure.

C. Every hotel and motel shall have plainly visible signs posted in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available. Rooms designated as nonsmoking rooms shall have signs designating such restriction conspicuously placed within the room.

D. Businesses that sell tobacco products shall visibly post Penal Code Section 308(c) signage at the entrance of any premises subject to regulation under this chapter and applicable state or federal law.

E. Businesses that sell tobacco products shall visibly post signs at the point of purchase of tobacco products which comply with the signage requirements of California Business and Professions Code Section 22952, as amended from time to time.

F. Businesses that sell tobacco products shall visibly post signs at each entrance to any premises on which any tobacco product is offered for sale, plainly visible from outside the premises, which state the current fine for buying tobacco or e-cigarettes for anyone under twenty-one in letters at least one-half inch tall, and which cite California Penal Code Section 308(a). These signs shall be updated to conform to any subsequent state or federal requirements and/or amendments to Penal Code Section 308(a). (Ord. 1031 § 1, 2019; Ord. 1000 § 1 (part), 2015: Ord. 980 § 4, 2013; Ord. 771, 1994. Formerly 8.38.110)

8.38.130 Regulating the sale of tobacco products. Revised 2/20

Repealed by Ord. 1031. (Ord. 1000 § 1 (part), 2015: Ord. 994 § 2, 2014: Ord. 980 § 5, 2013. Formerly 8.38.112)

8.38.140 Enforcement.*

A. Any person who desires to register a complaint under this chapter should direct such complaints to the health officer.

B. Whenever any facility in which smoking is prohibited by this chapter applies for any permit or regulatory approval from the city or undergoes any required inspection, the city department to whom the application is submitted shall require a certification from the owner, manager, operator or other person having control of such facility that all requirements of this chapter have been complied with.

C. Any owner, operator or employee of any facility in which smoking is prohibited may inform persons violating this chapter of the appropriate provisions of this chapter.

D. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.120)

*Code reviser’s note: Ord. 1000 sets out this section as 8.38.130. This section and those following have been editorially renumbered to avoid duplication of numbering.

8.38.150 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. Any person, business or owner, proprietor, manager or operator of any establishment or facility subject to this chapter who violates any provision of this chapter shall be guilty of an infraction, punishable in accordance with Section 1.01.090 and Title 4 of this code.

D. Business or property owners required to post signs and notify customers or visitors of smoking prohibitions are not otherwise required to compel such customers or visitors to comply with this chapter. (Ord. 1000 § 1 (part), 2015: Ord. 955 § 7, 2011; Ord. 771, 1994. Formerly 8.38.130)

8.38.160 Other applicable laws.

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 1000 § 1 (part), 2015: Ord. 771, 1994. Formerly 8.38.140)