Chapter 8.05
REGULATION OF SMOKING
Sections:
8.05.010 Legislative intent.
8.05.020 Definitions.
8.05.030 Prohibition of smoking.
8.05.040 Regulation of smoking in places of employment.
8.05.050 Smoking not controlled.
8.05.060 Posting requirements.
8.05.070 Enforcement.
8.05.080 Nondiscrimination.
8.05.090 Violations and penalties.
8.05.100 Private claim/action.
8.05.110 Public education.
8.05.010 Legislative intent.
The city council finds and declares as follows:
A. In January 2006 the California Air Resources Board declared secondhand smoke a toxic air contaminant and in June 2006 the U.S. Surgeon General declared that there is no risk-free level of exposure to secondhand smoke.
B. The purpose of this chapter is to protect the public health and welfare by regulating smoking in public places under circumstances where other persons will be exposed to secondhand smoke as set forth herein.
C. The purpose of this chapter is to strike a reasonable balance between the interests of persons who smoke and the interests of nonsmokers, including children, to breathe smoke-free air, recognizing the threat to public health and the environment which smoking causes and recognizing the right of residents and visitors to the city to be free from unwelcome secondhand smoke. (Ord. 592 § 1 (part), 2014)
8.05.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
“Business” means any sole proprietorship, partnership, joint venture, corporation or other entity formed for either profitmaking or charitable purposes, including without limitation by reason of enumeration manufacturing concerns, retail or commercial establishments where goods or services are sold, and professional corporations or other entities where legal, medical, dental, engineering, architectural, financial or other professional services are delivered.
“Common areas” means the entire common interest development except the separate interests therein or those portions of apartment properties which are maintained on behalf of and at the expense of all residents, which may also consist of mutual or reciprocal easement rights appurtenant to the separate interests. It does not include areas determined to be “exclusive use common areas.”
“Common interest development” means a housing development, such as condominiums, townhouses, or single-family homes, that allows individual owners the use of common areas and provides for a system of self-governance through an association of the homeowners within the development.
“Dining area” means an area containing tables or counters upon which meals are served.
“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his/her services for a nonprofit agency.
“Employer” means any person, partnership, corporation, business, governmental agency, municipal corporation, nonprofit entity or person having one or more employees.
“Enclosed” means closed in by a roof and by four or more connected floor-to-ceiling walls with appropriate openings for ingress and egress.
“Exclusive use common area” means a portion of the common area designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest or interests.
“Nonprofit entity” means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character building, political, social or other similar purposes, the net proceeds from which are not for private financial gain. A public agency is not a nonprofit entity within the meaning of this chapter.
“Open to the public” means available for use by or accessible to the general public during the normal course of business conducted by either private or public entities.
“Parking garage” means an enclosed garage where members of the general public park their vehicles.
“Place of employment” means any enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, auditoria, conference and classrooms, employee cafeterias, employee lounges and restrooms, hallways, meeting rooms, private offices, stairs, hallways, work areas, all company vehicles not permanently assigned to one person, and all facilities utilized for manufacturing, processing, assembly, maintenance or repair of any products, goods, equipment, tools, appliances, furnishings or other objects. Private residences and private vehicles are not places of employment except during the time that the residence or vehicle is used as a child care or health care facility.
“Primary entrance” means an entryway prominently delineated with signage and used by members of the public as the main source of access for ingress/egress to a facility.
“Private function” means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement or dining where membership or specific invitation is a prerequisite to entry and where such event is not intended for attendance by the public.
“Private residence” means all private single-family and multifamily residential living units, including apartment rental units.
“Public place” means any area to which the public is invited or in which the public is permitted where goods or services are sold or provided, including but not limited to retail establishments, restaurants (all available seating) retail food markets, shopping centers and their parking lots, places of employment, professional corporations or other entities where legal, medical, dental, engineering, architectural, financial or other professional services are delivered, educational facilities, health facilities, bingo parlors, public transportation facilities, reception areas, libraries and museums, retail food production and marketing establishments, restrooms, service lines, elevators, escalators, hallways, lobbies, reception areas, stairways, theaters, sports arenas, automobile dealerships, barber or beauty shops, cleaners, laundromats, polling places and places of public assembly.
“Public property” means property or rights-of-way that are owned or under the control of the city of Foster City or the Estero Municipal Improvement District.
“Restaurant” means any coffee shop, cafeteria, short order cafe, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club (including veterans’ club), boardinghouse or guesthouse, the primary function of which is to give, sell or offer for sale food to the public, guests, patrons or employees.
“Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental.
“Semiprivate room” means a room in a public or private health care facility containing two beds for patients of the facility.
“Separately ventilated” means the ventilation system for an enclosed indoor smoking area must not allow air from the enclosed indoor smoking area to be circulated, filtered or otherwise intermingled with air used to ventilate nonsmoking areas.
“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.
“Sidewalk” means a pedestrian walkway as otherwise defined in Section 5600 of the Streets and Highways Code, as well as all privately maintained pathways in the City, including but not limited to commercial and retail developments, common interest developments, apartments, multifamily developments, single-family developments, and shopping centers.
“Smoke” or “smoking” means and includes inhaling or exhaling upon, burning or carrying any lighted cigarette, cigar, pipe, hookah, weed, plant or other combustible substance used for the personal habit commonly known as smoking or an activated electronic cigarette or similar device used for the personal habit commonly known as vaping.
“Smoking victim” means any person present in a place where smoking is prohibited pursuant to this chapter at the time that smoking occurs in such a place.
“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 public assemble to engage in physical exercise, participate in athletic competition or witness sports events. (Ord. 617 § 1 (part), 2018: Ord. 592 § 1 (part), 2014)
8.05.030 Prohibition of smoking.
Smoking shall be prohibited in the following public places and other places similarly situated, including, but not limited to, the following areas:
A. “Public places” as defined in this chapter, unless specifically excepted in this chapter;
B. Elevators, escalators and stairways;
C. Public restrooms;
D. Service lines;
E. Buses, taxicabs and other means of public transit operating under the authority of the city, and ticket, boarding and waiting areas for public transit;
F. All reception and waiting areas;
G. Galleries, libraries and museums;
H. All enclosed areas, including buildings owned or operated by the city; also included in this definition are all public vehicles owned or operated by the city and not permanently assigned to one person;
I. Restaurants;
J. Retail stores;
K. Shopping centers, including their parking lots and sidewalks;
L. Libraries and museums;
M. Any building not open to the sky that 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;
N. Enclosed sports arenas and convention halls;
O. Doctors’ offices, dentists’ offices, waiting rooms, hallways, wards and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities and offices of all other health care providers;
P. Hotels and motels, which shall designate at least fifty percent of the rooms as fixed “nonsmoking” rooms and shall post signs informing guests of the requirement. No ashtrays or matches shall be supplied in such rooms. Notice of prohibition of smoking shall be posted;
Q. All community-wide special events, including but not limited to the annual Arts and Wine Festival, the Fourth of July celebration and summer concerts;
R. Areas that are on or adjacent to public property, including all city facilities and parks, sidewalks, pathways, pedways and parking lots. If required by law, the city shall designate an outdoor smoking area for city buildings that are places of employment;
S. All sidewalks;
T. All streets, except within closed vehicles;
U. All apartment units for which new leases are executed subsequent to the effective date of the ordinance codified in this section, their balconies and patios. For apartment units with existing leases, their balconies and patios, smoking shall be prohibited commencing twelve months after the effective date of the ordinance codified in this section. This subsection shall be reviewed by the city council within six months of the effective date of the ordinance codified in this section;
V. Condominiums and townhomes with shared common walls, floors or ceilings, their balconies and patios;
W. All indoor and outdoor common areas of apartment units, condominiums and townhomes, including but not limited to lobbies, hallways, stairwells, elevators, escalators, lawns, gardens, balconies, patios, yards and driveways. Exception: Smoking may be permitted in specifically designated areas of condominium, townhome and apartment facilities as long as the designated area is not located within thirty feet of an entrance/doorway, and marked with signage identifying the smoking area. The area, if interior, shall be fully enclosed, separately ventilated, and not the only space available for a particular activity or service;
X. Senior citizen retirement or residential care houses, nursing homes or licensed community care facilities. Exception: Smoking may be permitted in specifically designated areas of the facilities listed in this subsection as long as the designated area is not located within fifty feet of an entrance/doorway and is marked with signage identifying the smoking area. The area, if interior, shall be fully enclosed, separately ventilated, and not the only space available for a particular activity or service. (Ord. 617 § 1 (part), 2018: Ord. 593 § 1 (part), 2014: Ord. 592 § 1 (part), 2014)
8.05.040 Regulation of smoking in places of employment.
A. Smoking is prohibited in all places of employment as defined in this chapter, except those places where smoking is not controlled under this chapter. This regulation applies to all private, public and nonprofit employers in the city.
B. Notwithstanding any provision of this chapter to the contrary, smoking may be permitted in designated areas in places of employment as long as the area is marked with signage identifying the smoking area, the area is enclosed, separately ventilated, and not the only space available for a particular activity or service (e.g., mailroom, cafeteria/lunchroom, etc.). Smoking may also be permitted in outside areas adjacent to places of employment provided the area is not within fifty feet of entrances/doorways.
C. All employers within the city shall communicate notice of the provisions of this chapter to their employees. (Ord. 592 § 1 (part), 2014)
8.05.050 Smoking not controlled.
A. Except as provided for in Section 8.05.030(T), the following enclosed areas shall not be subject to the provisions of this chapter:
1. Private residences, except when the residence is utilized as a health care facility, child care facility, family care home, foster care center, group home or senior care home;
2. Retail tobacco stores;
3. Any conference or meeting room in hotels or motels or private banquet areas when these places are being used for private functions; and
4. Public places in which there is a designated area marked with signage identifying the smoking area, fully enclosed and separately ventilated, when used for charity or fundraising activities, services or events by churches, service organizations or other similar not-for-profit community groups.
B. Notwithstanding any other provision of this chapter any owner, proprietor, manager or other person who controls any place described in this section may declare their entire property as nonsmoking. (Ord. 592 § 1 (part), 2014)
8.05.060 Posting requirements.
A. Each owner, operator, manager or other person having control of multifamily apartment units, condominiums or townhomes, public places or places of employment within which smoking is regulated by this chapter shall be in compliance with this chapter upon conspicuously posting “No Smoking” signs with letters 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. At least one sign shall be placed at the entrances to every applicable facility.
B. An owner, operator or manager of a building in which no smoking is permitted in any space in the building may limit the “No Smoking” postings to first floor entrances and exits and to elevator lobby areas of all other floors. (Ord. 593 § 1 (part), 2014: Ord. 592 § 1 (part), 2014)
8.05.070 Enforcement.
A. It is the responsibility of the city manager or his/her designee to enforce the provisions of this chapter.
B. Any owner, manager, operator or employer of any establishment or property subject to this chapter shall have the responsibility to inform any apparent violator, whether public or employee, about any smoking restrictions in said establishment or on the property. In the case of public property, the city manager or his/her designee shall have the responsibility to inform any apparent violator about any smoking restrictions on public property.
C. Any citizen who wishes to register a complaint hereunder may do so in writing addressed to the city manager.
D. Notice of these requirements shall be given to every new business license applicant. (Ord. 592 § 1 (part), 2014)
8.05.080 Nondiscrimination.
No person shall discharge, refuse to hire or in any manner discriminate against any employee or applicant because such employee or applicant exercises any rights in this chapter. (Ord. 592 § 1 (part), 2014)
8.05.090 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. It is unlawful for any person who owns or controls premises subject to the prohibitions of this chapter to fail to post sign(s) as required by this chapter.
D. It is unlawful for any person to intimidate, harass, or otherwise retaliate against any person who seeks to attain compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to secondhand smoke in response to that person’s effort to achieve compliance with this chapter.
E. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:
1. A fine not exceeding two hundred fifty dollars for a first violation;
2. A fine not exceeding five hundred dollars for a second violation of this chapter within one year;
3. A fine not exceeding one thousand dollars for each additional violation of this chapter within one year.
F. Violation of the provisions of this chapter is declared to be a public nuisance that may be abated by appropriate civil action.
G. The remedies provided by this section are cumulative and are in addition to any other remedy existing at law or in equity. (Ord. 623 § 1, 2018: Ord. 592 § 1 (part), 2014)
8.05.100 Private claim/action.
Any aggrieved person under this chapter may bring a civil action to compel compliance with this chapter; provided, that the person shall have first requested in writing that the city take appropriate enforcement action and the city shall have failed to do so after forty-five days. (Ord. 592 § 1 (part), 2014)
8.05.110 Public education.
The city manager or his/her designee shall engage in a continuing program to explain and clarify the purposes of this chapter to citizens affected by it and guide owners, operators and managers in their compliance with it. (Ord. 592 § 1 (part), 2014)