Chapter 7.88
SMOKING POLLUTION CONTROL

Sections:

7.88.010    Title.

7.88.020    Findings.

7.88.030    Purpose.

7.88.040    Definitions.

7.88.050    Application of chapter to County facilities.

7.88.060    Prohibition of smoking in indoor/enclosed public places.

7.88.070    Prohibition of smoking in outdoor public places.

7.88.080    Regulation of smoking in places of employment.

7.88.090    Places of employment—Retaliation against persons exercising rights under chapter provisions.

7.88.100    Where smoking not regulated.

7.88.110    Posting of signs.

7.88.120    Enforcement.

7.88.130    Violations and penalties.

7.88.140    Public education.

7.88.150    Other applicable laws.

7.88.160    Severability.

7.88.010 Title.

This chapter shall be known as the “Smoking Pollution Control Ordinance.” [Ord. 4322 § 2, 1994].

7.88.020 Findings.

The Board of Supervisors of the County of Santa Cruz hereby finds and declares as follows:

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

(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. 5232 § 1, 2016; Ord. 4322 § 2, 1994].

7.88.030 Purpose.

The Board of Supervisors of the County of Santa Cruz hereby declares that the purposes of this chapter are:

(A)    To protect the public health, safety and welfare by prohibiting smoking in public places and places of employment; and

(B)    To guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke. [Ord. 4322 § 2, 1994].

7.88.040 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, but not limited to, 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)    “Dining area” means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and that is designed, established, or regularly used, for consuming food or drink.

(C)    “Electronic smoking device” means an electronic device that 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. “Electronic smoking device” includes any such 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, or any person who volunteers his or her services for an employer.

(E)    “Employer” means any business or nonprofit entity who retains the services of one or more employees.

(F)    “Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has (1) any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation that exceeds six feet in height, whether or not those boundaries include vents or other openings.

(G)    “Nonprofit entity” means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, 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 for private financial gain. A public agency is not a nonprofit entity within the meaning of this section.

(H)    “Place of employment” means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation. This includes, but is not limited to, work areas, employee lounges and restrooms, conference rooms and classrooms, employee cafeterias and hallways. A private residence used as a child care, family day care, health care, board and care, or community foster care facility is a place of employment.

(I)    “Public place” means any area, publicly or privately owned, to which the public is invited or in which the public is permitted, regardless of any fee or age requirement, including, but not limited to, common area of any hotel, motel, inn or other lodging, banks, educational facilities, 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 used as a child care, family day care, health care, board and care, or community foster care facility is a public place.

(J)    “Reasonable distance” means a distance of 25 feet in any direction from an area in which smoking is prohibited.

(K)    “Restaurant” means any bar, coffee shop, cafeteria, sandwich stand, private and public school cafeteria, outdoor dining areas, and any other eating or drinking establishment which gives or offers for sale food or drink to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.

(L)    “Retail tobacco store” means a retail store where at least 50 percent of the annual gross receipts are from the sale of tobacco products and smoking accessories and in which the sale of other products is merely incidental.

(M)    “Service line” means any indoor 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.

(N)    “Smoking” means inhaling, exhaling, burning or carrying any lighted, heated or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

(O)    “Smoking accessories” means any item designed for the consumption, use, or preparation of tobacco products.

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

(Q)    “Tobacco product” means:

(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 smoking device.

(3)    Notwithstanding any provision of subsections (1) and (2) of this definition 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 sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(R)    “Unenclosed area” means any area that is not an enclosed area. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994].

7.88.050 Application of chapter to County facilities.

All enclosed facilities owned, operated or leased by the County of Santa Cruz shall be subject to the provisions of this chapter. [Ord. 4322 § 2, 1994].

7.88.060 Prohibition of smoking in indoor/enclosed public places.

Except as expressly allowed under SCCC 7.88.100, smoking shall be prohibited in all enclosed public places within the County of Santa Cruz, including, but not limited to, those public places hereinafter listed; and to those other places not enclosed, but otherwise specifically designated and hereinafter listed as follows:

(A)    Elevators;

(B)    Buses, taxicabs and other means of public transit under the authority of the County of Santa Cruz, and ticket, boarding and waiting areas of public transit depots;

(C)    Restrooms;

(D)    Service lines;

(E)    Retail stores;

(F)    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, professional offices and other offices, banks, laundromats, hotels and motels;

(G)    Restaurants and bars;

(H)    Public areas of aquariums, galleries, libraries and museums when open to the public;

(I)    Any area or facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except for smoking which is part of a stage production;

(J)    Sports arenas and convention halls;

(K)    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 County during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the County;

(L)    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;

(M)    Lobbies, hallways and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes and other multiple-unit facilities;

(N)    Lobbies, hallways and other common areas in multiple-unit commercial facilities;

(O)    Polling places;

(P)    Private residences which are used as a child care, family day care, health care, board and care, or community foster care facility, as those terms are defined by State law;

(Q)    Shopping malls;

(R)    Video arcades, bingo parlors, card rooms, game rooms, pool halls, dance halls, amusement centers and bowling alleys;

(S)    Areas which share the air space—including but not limited to air conditioning, heating, or other ventilation systems, entries, doorways, open windows, hallways, and stairways—with other public places in which smoking is prohibited;

(T)    At least 90 percent of the guest rooms in every hotel, motel, inn or other place of lodging, which shall be maintained as permanently designated nonsmoking rooms;

(U)    Warehouse facilities, as defined in California Labor Code Section 6404.5(d)(6);

(V)    Cabs of motortrucks, as defined in California Vehicle Code Section 410, or truck tractors, as defined in California Vehicle Code Section 655.

Notwithstanding any other provisions of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994].

7.88.070 Prohibition of smoking in outdoor public places.

Smoking is prohibited in the following specifically delineated unenclosed areas:

(A)    All parks, beaches, outdoor recreation areas, and recreational trails.

(B)    Outdoor dining areas.

(C)    Within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.

(D)    Within a reasonable distance from any unenclosed areas in which smoking is prohibited under this section, except while the person smoking is actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited. [Ord. 5232 § 1, 2016].

7.88.080 Regulation of smoking in places of employment.

(A)    It shall be the responsibility of employers to provide a smoke-free workplace for all employees.

(B)    Every employer having an enclosed place of employment located within the County shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements: Smoking shall be 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, employer vehicles, and all other enclosed facilities.

(C)    Each employer shall supply a written copy of the employer’s smoking policy to each employee within three weeks of the policy’s adoption.

(D)    All employers shall supply a written copy of the smoking policy to each newly hired employee, and upon request to any prospective employee. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.070].

7.88.090 Places of employment—Retaliation against persons exercising rights under chapter provisions.

(A)    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.

(B)    No person or employer shall discharge, discriminate against, or in any manner retaliate against any employee who smokes, if the employee obeys the employer’s no smoking policies and regulations. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.080].

7.88.100 Where smoking not regulated.

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

(A)    Private residences, except if the private residence is used as a child care, family day care, health care, board and care, or community foster care facility;

(B)    Retail tobacco stores.

Notwithstanding any other provisions of this chapter, any owner, operator, manager or person who controls any establishment described in this section may declare that entire establishment as a no smoking establishment. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.090].

7.88.110 Posting of signs.

(A)    A person, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous “No Smoking” or “Smoke Free” sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in SCCC 7.88.070. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

(B)    Every hotel, motel, inn or other place of lodging shall have no smoking signs conspicuously posted in the registration and lobby areas which further state that nonsmoking rooms are maintained and may be available. Each room designated as being nonsmoking shall have a sign designating such restriction permanently affixed to the entry door of the room as well as conspicuously placed within the room itself. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.100].

7.88.120 Enforcement.

(A)    The County Health Officer or designee shall be authorized to enforce and implement this chapter.

(B)    Any person who desires to register a complaint under this chapter may request an investigation by the County Health Officer.

(C)    Whenever any facility in which smoking is prohibited by this chapter applies for any permit or regulatory approval of the County or undergoes any required inspection, the Health Services Agency shall require a written certification in a form acceptable to the County Health Officer from the owner, manager, operator or other person having control of such facility that all requirements of this chapter have been complied with.

(D)    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.

(E)    Notwithstanding any other provision of this chapter, any person may seek and obtain, by action of any court of competent jurisdiction, an injunction or other mandatory order against a person or establishment subject to the provisions of this chapter for any failure to comply with its provisions. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.110].

7.88.130 Violations and penalties.

(A)    It is unlawful and constitutes an infraction for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to violate or fail to comply with any of its provisions.

(B)    It is unlawful and constitutes an infraction for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.

(C)    A conviction for any violation of this chapter shall be punishable by:

(1)    A fine not exceeding $100.00 for a first violation;

(2)    A fine not exceeding $200.00 for a second violation of this chapter within one year;

(3)    A fine not exceeding $500.00 for each additional violation of this chapter within one year. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.120].

7.88.140 Public education.

(A)    The County Health Officer, or designee, shall engage in a continuing program to explain and clarify the purposes of this chapter to persons affected by it, and to guide owners, operators and managers in their compliance with it. Where feasible, such education program shall be undertaken and maintained in conjunction and coordination with appropriate health or safety-oriented community-based organizations and coalitions. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.

(B)    The County Health Officer shall, in coordination with other health agencies and programs, have the responsibility for providing public education of the health consequences of smoking. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.130].

7.88.150 Other applicable laws.

(A)    This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

(B)    It is not the intention of this chapter to regulate any conduct where the regulation of such conduct has been preempted by the State of California. [Ord. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.140].

7.88.160 Severability.

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstance 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. 5232 § 1, 2016; Ord. 4322 § 2, 1994. Formerly 7.88.150].