Chapter 8.28
SMOKING IN PUBLIC PLACES AND SALE OF TOBACCO PRODUCTS
Sections:
8.28.020 Application of chapter to City-owned vehicles and facilities.
8.28.030 Prohibition of smoking in public places.
8.28.040 Regulation of smoking in places of employment.
8.28.050 Smoking optional areas.
8.28.070 Regulating the manner of sale of tobacco.
8.28.090 Violations and penalties.
8.28.110 Other applicable laws.
8.28.010 Definitions.
The following words and phrases, whenever used in this chapter shall be construed as defined in this section:
A. “Bar” shall mean an enclosed area which is primarily devoted to the serving of alcoholic beverages and in which the service 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. A “bar” for the purpose of this definition does not include any bar where smoke can filter into a restaurant through a passageway, ventilation system, or any other means.
B. “Business” shall mean 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.
C. “Dining area” shall mean any enclosed area containing a counter or tables upon which meals are served.
D. “Employee” shall mean any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.
E. “Employer” shall mean any person, partnership, corporation, or nonprofit entity, including a municipal corporation, who employs the services of one or more persons.
F. “Enclose” shall mean closed in by roof and four walls with appropriate openings for ingress and egress.
G. “Food which is only incidental to the consumption of alcoholic beverages” shall mean and be strictly limited to food which is not prepared by or at the business or establishment. Examples of such incidental food shall include items such as nuts, pretzels, gum, food sold by means of vending machines and candy. Although the following items shall not constitute an exhaustive list, items such as sandwiches, pizzas, soups, hamburgers, stews, casseroles, side dishes (such as french fries, onion rings and similar items), salads, hot dishes, entrees, desserts (such as cake, pie, fruit plates, ice cream and similar items), meals and other similar foods prepared by or at the business or establishment shall not be included as or considered to be such incidental food.
H. “Nonprofit entity” shall mean any corporation, unincorporated association, or other entity created for charitable, educational, 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.
I. “Place of employment” shall mean 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 and classrooms, cafeterias and hallways. Except:
1. A private residence is not a place of employment, unless it is used as a child care or health care facility.
J. “Public place” shall mean any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, and waiting rooms.
K. “Restaurant” shall mean any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boardinghouse, or guest house which gives or offers food for sale to the public, guests, patrons, or employees, except that the term “Restaurant” shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a “bar” as defined in subsection (A) of this section.
L. “Retail tobacco store” shall mean a retail store utilized primarily for the sale of tobacco products and accessories.
M. “Self-service merchandising” shall mean open display of tobacco products or tobacco related promotional products to which the public has access without the intervention of an employee.
N. “Semi-enclosed” shall mean any area covered by a solid (nonpermeable) roof of any type including, but not limited to, open sided tents and kiosks.
O. “Service line” shall mean any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service includes the exchange of money.
P. “Smoking” shall mean inhaling, exhaling, burning, or carrying any lighted pipe, cigar, or cigarette of any kind, or any other combustible substance.
Q. “Sports arena” shall mean sports pavilions, gymnasiums, health spas, swimming pools, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.
R. “Tobacco product” shall mean any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion.
S. “Tobacco vending machine” shall mean any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product.
T. “Vendor-assisted” shall mean only a store employee has access to the tobacco product or tobacco-related promotional products and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. (Ord. 510 § 1, 1995).
8.28.020 Application of chapter to City-owned vehicles and facilities.
All City-owned vehicles, including jitneys and buses and other means of public transit under the authority of the City, and all enclosed facilities owned and controlled by the City, including any board, council, commission or agency of the City shall be subject to the provisions of this chapter. (Ord. 510 § 2, 1995).
8.28.030 Prohibition of smoking in public places.
A. Smoking shall be prohibited in all enclosed public places within the City, including, but not limited to the following places:
1. Elevators;
2. Buses, taxicabs and other means of public transit under the authority of the City, and in ticket, boarding, and waiting areas of public transit depots;
3. Restrooms;
4. Service lines;
5. Retail stores, except areas thereof not open to the public and all areas within retail tobacco stores;
6. Retail food marketing establishments, including grocery stores and supermarkets, except areas thereof not open to the public;
7. Businesses and nonprofit entities. 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 business offices, banks, registration areas, lobbies, hallways, and conference rooms of hotels, motels, inns, bed and breakfasts, and guest houses;
8. Restaurants;
9. Public areas of libraries and museums when open to the public;
10. Any building not open to the sky which is used primarily for exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of any such production;
11. Enclosed sports arenas;
12. Every room, chamber, and place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, or agency 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;
13. Doctors’ offices, dentists’ offices, waiting rooms, hallways, and wards of health facilities including, but not limited to clinics and physical therapy facilities;
14. Polling places.
B. 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. 510 § 3, 1995).
8.28.040 Regulation of smoking in places of employment.
A. Within 60 days of the effective date of this chapter, each employer and each place of employment located within the City shall adopt, implement, make known and maintain a written smoking policy, which shall contain at a minimum the following requirements:
Smoking shall be prohibited in all enclosed and semi-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, vehicles and all other enclosed facilities.
B. The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter.
C. All employers shall supply a written copy of the smoking policy to any prospective employee who so requests.
D. All employees shall comply with these nonsmoking provisions and shall be responsible for their implementation in their places of employment.
E. “No Smoking” signs shall be conspicuously posted at building entrances and in employee lounges, cafeterias and lunchrooms.
F. Places of employment exempt from the prohibition on smoking in other sections of this chapter shall also be exempt from this section. (Ord. 510 § 4, 1995).
8.28.050 Smoking optional areas.
A. Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
1. Bars;
2. Private residences, except when used as a child care or health care facility;
3. Fifty percent of all rooms rented to guests in each hotel, motel, inn, bed and breakfast, or guest house;
4. Retail tobacco stores;
5. Enclosed or semi-enclosed restaurant, hotel, motel and inn conference or meeting rooms and public and private assembly rooms, which are equipped with a ventilation system which conducts air to the outside, while these places are being used for private functions; provided, that 50 percent of these areas are designated nonsmoking;
6. An enclosed or semi-enclosed place of employment which employs only the owner and no other employee; provided, that:
a. The place of employment is not a public place, and
b. The place of employment does not share a ventilation system with any other enclosed place of employment or public place;
7. Property owned or leased by County, State or Federal governmental entities, to the extent that such property is not subject to the jurisdiction of the City.
B. Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment, or any portion thereof, as a nonsmoking establishment. (Ord. 510 § 5, 1995).
8.28.060 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 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.
B. Every theater owner, manager, or operator shall conspicuously post signs 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 and shopping complex shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. (Ord. 510 § 7, 1995).
8.28.070 Regulating the manner of sale of tobacco.
A. Any person, business, tobacco retailer or other establishment subject to this chapter shall post plainly visible signs at the point of purchase of tobacco products which state “THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW AND SUBJECT TO PENALTIES. VALID I.D. MAY BE REQUIRED.” The letters of said sign should be at least one-quarter-inch high.
B. No person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser’s age as 18 years or greater unless the seller has some reasonable basis for determining the buyer’s age.
C. It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, or offer for sale any tobacco product or tobacco-related promotional product by means of self-service merchandising, or by any means other than vendor assisted sales. “Tobacco-related promotional products” means baseball caps, tee-shirts, gym bags, coffee mugs, lighters, sunglasses, jackets, and related items which have tobacco product advertising logos, images, characters, messages and themes printed on them.
D. No person, business, or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping maintenance or use of his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product unless it is operated by vendor assistance. Any tobacco vending machine in use on the effective date of this chapter which is not operated by vendor-assistance shall be removed within 90 days after the effective date of this chapter.
E. Nothing herein shall be construed to conflict with and shall be construed to supplement provisions of the Penal Code. (Ord. 521 § 1, 1995; Ord. 510 § 8, 1995).
8.28.080 Enforcement.
A. Enforcement shall be implemented by the City Manager.
B. Any citizen who desires to register a complaint thereunder may initiate enforcement with the City Manager or his or her designee.
C. Any owner, manager operator, employer, or employee of any establishment regulated by this chapter shall have the right to inform persons violating this chapter of the appropriate provisions thereof.
D. Registered Environmental Health Specialists, on their regular restaurant inspections, other County employees on their inspections (including but not limited to County Fire Wardens), and City staff shall participate in inspections for compliance with the regulations of this chapter.
E. Any violation of this chapter shall be and is hereby declared to be a public nuisance, and may be abated as such through appropriate civil proceedings brought by the City or by a private individual. (Ord. 510 § 9, 1995).
8.28.090 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 regulations under this chapter to fail to comply with its provisions.
B. It shall be unlawful for any person to smoke in any area restricted by the provisions of this chapter.
C. Any person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this chapter who violates any of the provisions of this chapter shall be guilty of an infraction. Upon conviction of any infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in California Government Code Section 36900, as that section may from time to time be amended. (Ord. 510 § 10, 1995).
8.28.100 Nondiscrimination.
No person or employer shall discharge, refuse to hire, or in any manner, discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. (Ord. 510 § 11, 1995).
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 laws. (Ord. 510 § 12, 1995).