Chapter 8.20
SMOKING IN PUBLIC AND WORKPLACES
Sections:
8.20.040 City-owned facilities.
8.20.050 Prohibition of smoking in enclosed places.
8.20.060 Regulation of smoking in places of employment.
8.20.070 Optional smoking areas.
8.20.080 Posting requirements.
8.20.100 Distribution of free samples and coupons.
8.20.110 Out of package sales.
8.20.150 Other applicable laws.
8.20.010 Findings.
The city council 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 sidestream or 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 sidestream or 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 sidestream or 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; and
I. The U.S. Food and Drug Administration has determined that some electronic cigarettes, which deliver an inhalable dose of nicotine or other chemicals by vaporized solution, contain carcinogens and toxic chemicals such as diethylene glycol, an ingredient used in antifreeze; and
J. According to the U.S. Food and Drug Administration, the safety and efficacy of electronic cigarettes has not been fully studied, and for that reason non-users of electronic cigarettes exposed to smoke or vapor from electronic cigarettes have no way of knowing whether or to what extent such exposure is safe; and
K. The use of electronic cigarettes in public places and places of employment complicates efforts to enforce and comply with smoke-free regulations; and
L. Smoking is initiated and established primarily during adolescence, where nearly nine out of 10 smokers started smoking by age 18, and 99 percent started by age 26; and
M. According to the U.S. Centers for Disease Control and Prevention, the number of students in grades 6 through 12 reporting having ever used an e-cigarette doubled from 3.3 percent to 6.8 percent from 2011 to 2012. [Ord. 14-1382 § 2, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.020 Purpose.
The compelling purpose and intent of this chapter 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 and smoking products, and compliance with California Labor Code Section 6405.4. [Ord. 14-1382 § 3, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.030 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:
“Area open to the public” means any area available to and customarily used by the general public.
“Bars” means a facility primarily devoted to the serving of alcoholic beverages for consumption by guests on the premises, in which the serving of food is incidental. Bar includes those facilities located within a hotel, motel or other similar transient occupancy establishment. However, when located within a building in conjunction with another use, including a restaurant, bar includes only those areas used primarily (more than half of the total gross sales are derived from the sale and service of alcoholic beverages) for the sale and service of alcoholic beverages. Bar does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein.
“Bowlers’ settee” means the area immediately behind the bowling lane in which score is kept and seating is provided for bowlers waiting their turn to bowl.
“Bowling center concourse” means that area separated from the bowling lane, bowlers’ settee and visitors’ settee by at least one step or a physical barrier.
“Bowling lane” means the bowler’s approach, the foul line and the lanes.
“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.
“Electronic cigarette” means “a device that can provide an inhalable dose of nicotine by delivering a vaporized solution” as defined in California Health and Safety Code Section 119405(b), as that section may be amended from time to time, or any device designed to vaporize a liquid solution that releases flavored vapor.
“Electronic cigarette paraphernalia” means any device designed to provide an inhalable dose of nicotine or a flavored liquid solution through vaporization, nicotine-based or flavored solution-based cartridges for use with electronic cigarettes, and any other item designed for the vaporization, preparation, storing, or consumption of electronic cigarette products.
“Electronic cigarette product” means any substance containing nicotine or a flavored liquid solution for vaporization, including any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.
“Employer” means any person, partnership, corporation, including municipal corporation or public entities, who employs the services of two or more persons or two or more people to conduct business within the establishment.
“Enclosed” means closed in by a roof and walls with appropriate openings for ingress and egress.
“General public” means shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise or nonprofit entity.
“Park,” “city park,” or “recreation area” means the land and easements owned or leased by the city which, by ordinance, resolution, encroachment permit, regulation or agreement, are dedicated to or operated by the city for purposes of sports or public recreation. The terms shall include the buildings, parking lots, plazas, streets and sidewalks within the territorial boundaries establishing the park or recreation area.
“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, conference rooms and employee cafeterias. A private residence is not a place of employment unless it is used as a child care or health care facility.
“Smoking” means inhaling or exhaling from, or burning or carrying, any lighted cigarette, cigar, pipe, weed, plant, or other combustible substance whose smoke is intended to be inhaled, or inhaling or exhaling from, or carrying, any operating electronic cigarette.
“Sports arena” means sports pavilions and stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, halls and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.
“Tobacco or smoking product” means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipes, tobacco, snuff, chewing tobacco and dipping tobacco, and any electronic cigarette, electronic cigarette paraphernalia, and electronic cigarette product.
“Vending machine” means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.
“Visitors’ settee” means seating provided immediately behind the bowlers’ settee. [Ord. 14-1382 §§ 4, 5, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.040 City-owned facilities.
A. Smoking is prohibited in all buildings, vehicles or other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city.
B. Smoking is prohibited within the boundaries of any city park or recreation area. [Ord. 14-1382 § 6, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.050 Prohibition of smoking in enclosed places.
Smoking is prohibited in the following places within the city:
A. All enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including, but not limited to, retail stores, the common areas of hotels and motels, pharmacies, banks, shopping malls, and all places of employment unless otherwise excepted herein;
B. Waiting rooms, hallways, wards and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices, except that health facilities shall also be subject to the provisions of PMC 8.20.060 regulating smoking in places of employment; except that patient smoking areas in long-term health-care facilities, as defined in Section 1418 of the Health and Safety Code are permitted;
C. Elevators, public restrooms, indoor services lines, busses, taxicabs and other means of public transit under the authority of public entities, and in ticket, boarding and waiting areas of public transit depots;
D. Museums and galleries;
E. Theaters, auditoriums, concert facilities and halls which are used for motion pictures, stage dramas and musical performances, ballets or other exhibitions, except when smoking is an integral part of any such production; provided, however, in outdoor facilities, designated smoking areas may be provided which shall be segregated from nonsmoking areas. Where seating area is provided in an outdoor facility, no more than 40 percent of the total seats of the facility may be designated as smoking seats;
F. Retail food marketing establishments, including grocery stores, and supermarkets;
G. Public schools and other public facilities under the control of another public agency, which are available to and customarily used by the general public, to the extent that the same are subject to the jurisdiction of the city;
H. Sports arenas, both indoor and outdoor, and convention halls;
I. Bowling centers, including but not limited to bowling lanes, bowlers’ settees, visitors’ settees and game rooms; provided, however, that a designated smoking area may be provided on the bowling center concourse and bar. The owner, manager or operator of the bowling center shall post signs as prescribed by PMC 8.20.080 and remove all ashtrays from nonsmoking areas;
J. Private residences during hours of operation when used as child care or health care facilities. Board and care facilities shall provide smoke-free living quarters for nonsmoking boarders;
K. Bingo parlors, except a separate enclosed room, may be designated as a smoking room. The owner, manager or operator of the bingo parlor shall post signs as prescribed by PMC 8.20.080 and remove all ashtrays from the nonsmoking room;
L. 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. 14-1382 § 7, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.060 Regulation of smoking in places of employment.
A. Pursuant to Labor Code Section 6404.5(c), no employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.
B. The provisions of this chapter shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.070 Optional smoking areas.
Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
A. A private residence, including one which may serve as a place of employment, except when covered by PMC 8.20.050(J);
B. Outdoor patio areas of restaurants;
C. Bars, except as provided otherwise in this chapter; and until January 1, 1997, or until adoption of regulatory standards pursuant to Labor Code Section 6404.5(f)(1), (2) and (3), and compliance with those standards;
D. Licensed cardrooms until January 1, 1997, or until adoption of regulatory standards pursuant to Labor Code Section 6404.5(f)(1), (2) and (3), and compliance with those standards;
E. Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less that 35 percent of their guest rooms as nonsmoking rooms and removes ashtrays from these rooms;
F. Areas of the lobby in a hotel, motel or other similar transient lodging establishment designated for smoking by the establishment. Such an establishment may permit smoking in a designated lobby area that does not exceed 25 percent of the total floor area of the lobby or, if the total area of the lobby is 2,000 square feet or less, that does not exceed 50 percent of the total floor area of the lobby. For purposes of this paragraph, “lobby” means the common public area of such an establishment in which registration and other similar or related transactions, or both, are conducted and in which the establishment’s guests and members of the public typically congregate;
Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similar to a hotel or motel, restaurant or public convention center, except while food or beverage functions are taking place, including setup, service and cleanup activities, or when the room is being used for exhibit purposes. At times when smoking is not permitted in such a meeting or banquet room pursuant to this paragraph, the establishment may permit smoking in corridors and prefunction areas adjacent to and serving the meeting or banquet room if no employee is stationed in that corridor or area on other than a passing basis;
G. Retail stores that deal exclusively in the sale of tobacco or smoking products and paraphernalia;
H. “Private smokers’ lounges,” which are enclosed areas in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco or smoking products, including, but not limited to, cigars and pipes;
I. Repealed by Ord. 1382;
J. Medical research or treatment sites, if smoking is integral to the research and treatment being conducted;
K. In places of employment, employers may provide specific smoking areas for employees provided all of the following conditions are met:
1. Air from the smoking room shall be exhausted directly to the outside by an exhaust fan. Air from the smoking room shall not be recirculated to other parts of the building.
2. The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the Federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board shall be no less stringent than the standards adopted by the Federal Environmental Protection Agency.
3. The smoking room shall be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter. For purposes of this subsection, “work responsibilities” does not include any custodial or maintenance work carried out in the breakroom when it is unoccupied.
4. The smoking area shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors, and all doors leading to the smoking area shall be self-closing. The doors shall be provided with a gasket so installed as to provide a seal where the door meets the stop on both sides and across the top.
5. The smoking areas shall maintain a minimum negative pressure of 0.005-inch water column relative to nonsmoking areas.
6. The employer shall submit written verification and test results to the city manager or his designee prepared by a licensed mechanical contractor or engineer that the HVAC system has been designed and tested and meets the requirements set forth in subsections (K)(1) through (5) of this section.
7. If the HVAC system is part of a smoke removal system or pressurization system, any modifications to these systems to provide smoking areas will require approval from the fire district. Written verification of this approval shall be provided to the city manager.
8. If the specific smoking area is an employee break room, lunch room or other area which may be used by nonsmoking employees, then a separate nonsmoking break room, lunch room or other area shall be provided of equal or larger size and include at least equal facilities.
9. No employer is required to provide reasonable accommodation to smokers, or to provide breakrooms for smokers or nonsmokers. [Ord. 14-1382 §§ 7, 8, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.080 Posting requirements.
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 building or other place where smoking is controlled by this chapter, by the owner, operator, manager or other person having control of such building or other place. 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.
B. Every hotel or motel regulated by this chapter shall have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his or her preference.
C. Each restaurant shall post a sign outside, clearly visible at the entryway, indicating whether it permits smoking. Letters on the sign shall be not less than one inch in height. A sign indicating the international “No Smoking” symbol satisfies the requirements of this subsection. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.090 Vending machines.
Coin-operated cigarette vending machines may be located only on those premises which have either a Type 42, Type 48 or Type 61 license from the Department of Alcoholic Beverage Control. Cigarette vending machines must be located no less than 25 feet from any entry into the premises. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.100 Distribution of free samples and coupons.
A. No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall in the course of such business distribute, or direct, authorize or permit any agent or employee to distribute: (1) any cigarette or other tobacco or smoking product, including any smokeless tobacco product; or (2) coupons, certificates or other written material which may be redeemed for tobacco or smoking products without charge, to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building.
B. No agent or employee of any person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall in the course of such business distribute: (1) any cigarette or other tobacco or smoking product; or (2) coupons, certificates or other written material which may be redeemed for tobacco or smoking products without charge, to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building.
C. For purposes of this section, “public ground” and “public building” include sports arenas as defined in PMC 8.20.030 and any entertainment facility whether enclosed or not (except a bar) for which a charge is made for admission, whether publicly or privately owned. [Ord. 14-1382 § 9, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.110 Out of package sales.
No person shall sell or offer for sale cigarettes, smokeless tobacco, or other tobacco or smoking products not in the original packaging provided by the manufacturer. [Ord. 14-1382 § 10, 2014; Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.120 Enforcement.
A. Administration of this chapter shall be by the city manager or his designee.
B. Any citizen may register a complaint for an alleged violation of this chapter with the city manager.
C. Any owner, manager, operator or employer of any establishment controlled by this chapter may inform persons violating this chapter of the appropriate provisions hereof. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.130 Penalties.
A. It is 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 properly post signs required hereunder.
B. It is unlawful for any person to smoke in any area restricted by the provisions of this chapter.
C. Any person or business who violates subsection (A) or (B) of this section, or any other provision of this chapter, shall be guilty of an infraction, punishable as provided in PMC 1.12.020. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.140 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 chapter. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]
8.20.150 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws, including but not limited to Labor Code Section 6404.5. [Ord. 1098 § 1, 1995; Ord. 1087 § 2, 1994.]