Chapter 5-28
SMOKING AND SALE OF TOBACCO PRODUCTS*
Sections:
5-28.010 Purpose and findings.
5-28.020 Definitions.
5-28.030 Prohibition of smoking in places accessible to the public.
5-28.040 Prohibition of smoking in places of employment.
5-28.050 Tobacco vending machines prohibited.
5-28.060 Self-service display—Requirement of vendor assisted sales.
5-28.070 Posting of signs—General.
5-28.120 Power to adopt more restrictive smoking policies.
*Prior History: Ord. 99-5; prior code §§ 5-15.005—5-15.120.
5-28.010 Purpose and findings.
The purpose of this chapter is to protect the public health and welfare from the harmful health effects associated with secondhand smoke by regulating smoking in public places and places of employment. In addition, the purpose of this chapter is to reduce the availability of tobacco products to minors by banning the sale of tobacco products from vending machines and from self-service displays. This chapter is based on the following findings:
A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution.
B. Studies have shown that breathing secondhand tobacco smoke is a significant health hazard for several populations, including children, elderly people, individuals with cardiovascular disease, individuals with impaired respiratory function, asthmatics, and those with obstructive airway disease.
C. The Americans with Disabilities Act, which requires access for disabled persons in public places and work places, deems impaired respiratory function a disability.
D. The Surgeon General of the United States found in a 1986 report that secondhand tobacco smoke is a cause of lung disease, including lung cancer, in healthy nonsmokers. The Surgeon General further found that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand tobacco smoke.
E. Studies have shown that secondhand tobacco smoke is a cause of cardiovascular disease in healthy nonsmokers.
F. Nonsmokers with allergies, respiratory disease, and those who suffer other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of reactions to secondhand tobacco smoke.
G. Studies have shown some nonsmokers cannot dine in restaurants because of an adverse reaction to or annoyance from secondhand tobacco smoke.
H. The EPA has designated secondhand smoke as a Class A carcinogen and a significant cause of respiratory problems in children.
I. Prohibiting the sale of tobacco products through vending machines will help prevent cigarette use by minors, and by diminishing accessibility to tobacco products, will help promote a smoke-free environment.
J. The Centers for Disease Control report that tobacco products are often the first drug used by minors who use alcohol and illegal drugs, that three out of four teenage smokers have tried to quit at least once but failed, and that although it is illegal in all states to sell tobacco products to minors, more than seventy-five (75) percent of underage tobacco users across the country are not asked to show proof of age when they purchase tobacco products in stores.
K. The United States Department of Health and Human Services reports that the tobacco industry loses two million (2,000,000) smokers each year because they either quit smoking or die, and that those smokers are replaced by three thousand (3,000) youngsters who begin smoking every day.
L. The Food and Drug Administration reports that if individuals do not begin to use tobacco as youngsters, they are highly unlikely to begin using tobacco products as adults, and that ninety (90) percent of all smokers begin smoking by age nineteen (19) and sixty (60) percent begin by age fourteen (14).
M. Studies have shown that youth addiction to tobacco products is a public health problem with serious health consequences. In recognition of the Surgeon General’s conclusion that nicotine is as addictive as cocaine or heroin, action is needed to curtail the easy access of minors to cigarettes and to other tobacco products.
N. The California Youth Tobacco Survey reports that approximately fifty (50) percent of minors who smoke cigarettes purchase their own cigarettes from stores in their communities. Additionally, a significant number of studies have shown that there is a direct correlation between self-service tobacco displays and increased youth access to tobacco products. These studies have shown that self-service tobacco displays contribute to youth access by promoting shoplifting and illegal sales of tobacco to minors.
O. Prohibiting the sale of tobacco products through self service displays will help prevent tobacco use by minors, and diminishing accessibility to tobacco products will help promote a smoke-free environment.
P. Numerous economic analyses examining the restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring workplaces to be smoke-free. Creation of smoke-free workplaces is sound economic policy and provides the maximum level of employee health and safety.
Q. The increasingly frequent use of electronic cigarettes, which emit a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products and are largely unregulated by the federal or state government, involuntarily exposes members of the public to potentially dangerous secondhand byproducts, undermines enforcement of no-smoking laws, and threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in certain locations. Therefore, it is appropriate to regulate the use, sale and distribution of electronic cigarettes in the same manner as cigarettes and other traditional tobacco products.
(Ord. 2014-5 § 3; Ord. 2005-1 § 2 (Exh. A (part)))
5-28.020 Definitions.
For the purposes of this chapter, the following words and phrases have the following meaning:
“Ashtray” means any receptacle or device used to hold, contain, or extinguish a cigarette, cigar, pipe, match, weed, plant, or other combustible substance in any form.
“Bar” means an area, which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of alcoholic beverages, and for which the owner/operator has a valid ABC Type 61, 41, 42, 47, or 70 liquor license.
“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 under which professional services are delivered and any nonprofit entity.
“Cigar lounge” means a private smokers’ lounge that excludes minors consisting of an enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including but not limited to cigars and pipes.
“Dining area” means any area containing a counter or tables upon which food or beverage are consumed or served.
“Electronic cigarette” means an electronic and/or battery-operated device, the use of which may resemble the smoking of tobacco, that can be used to deliver nicotine or other substances through vapor inhaled by the user. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an e-cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor, including any component, part or accessory of such a device, whether or not sold separately. The term does not include any inhaler or other device specifically approved by the United States Food and Drug Administration for therapeutic purposes or for use in the mitigation, treatment, or prevention of disease, where such product is marketed and sold solely for such an approved purpose.
“Employee” means any person who is employed by any employer for direct or indirect monetary wages or profit, including those employed full-time, part-time, temporary, or contracted for from a third party; employee also means any person who serves as a volunteer for a business or nonprofit entity.
“Employer” means any person, business, or nonprofit entity, which employs the services of one or more persons, and includes the city of Laguna Hills.
“Enclosed” means closed in by a roof and four or more connected, floor-to-ceiling walls with appropriate openings for ingress or egress.
“Food service counter area” means a bar or counter area which is primarily devoted to the service of food and where the service of alcoholic beverages is only incidental thereto. Where the gross receipts from the sale of food is more than fifty (50) percent of the total gross receipts from the bar or counter area, it shall be conclusively presumed that the bar or counter area is primarily for the service of food.
“Mall” means any enclosed public walkway or hall area, which serves to connect retail or professional establishments.
“Minor” means any person less than eighteen (18) years of age.
“Parking garage” means an enclosed garage where members of the general public park their cars.
“Person” means any individual, corporation, nonprofit corporation, partnership, or unincorporated association.
“Place of employment” means any enclosed area under the control of an employer, which employees normally frequent during the course of employment. A private residence being used for home occupation purposes shall not be construed as a place of employment, except when the residence is being used for child day care and elder care which is licensed under the Health and Safety Code.
“Public place” means any area to which the public is invited or in which the public is permitted.
“Restaurant” means any eating establishment, organization, club, boardinghouse, or guest house which gives or offers food for sale to the public, guests, patrons, or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, and includes outside dining areas, except that the term “restaurant” shall not include a “bar” as defined in this chapter. A restaurant includes, but is not limited to, a food service counter area, donut shop, sandwich shop, juice store, luncheonette, coffee shop, or fast food outlet of any type.
“Self-service display” means the open display of tobacco products that the public has access to without the intervention of a store employee, including but not limited to a rack, a shelf, or a counter top display.
“Service line” means any 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.
“Smoking” means inhaling, exhaling, burning, or carrying any lighted cigarette, cigar, pipe, operating electronic cigarette, weed, plant, or other combustible substance in any manner or in any form.
“Sports arena” means an enclosed sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, bowling alley, and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition, or witness sports events.
“Tobacco product” means any manufactured substance made from the tobacco plant, including but not limited to cigarettes, cigars, pipe tobacco, smokeless tobacco products or any other form of tobacco or tobacco papers which may be utilized for smoking, chewing, inhalation, or other means of ingestion. For purposes of this chapter, the term “tobacco product” shall also include an electronic cigarette, as defined in this chapter.
“Tobacco retailer” means any person or business that operates a store, stand, booth, concession, or other place at which sales of tobacco, tobacco products, or tobacco paraphernalia are made to purchasers for consumption or use.
“Tobacco shop” means a business establishment whose principal purpose is the sale of tobacco products, including but not limited to, cigars, pipe tobacco, and smoking accessories.
“Tobacco vending machine” means any machine or device designed for or used either wholly or partly for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coins, bills, or slugs.
“Vendor-assisted” means a purchase requiring a direct, face-to-face exchange between the store proprietor or employee and the customer, in which the store proprietor or employee assists the customer by supplying the tobacco product. The customer does not take possession of the tobacco product until after it is purchased.
“Work area” or “workplace” means any area of a place of employment enclosed by floor to ceiling walls in which two or more employees are assigned to perform work for an employer. (Ord. 2014-5 § 4; Ord. 2005-1 § 2 (Exh. A (part)))
5-28.030 Prohibition of smoking in places accessible to the public.
Smoking is prohibited and is unlawful in the following public places and other public places similarly situated, including, but not limited to, the following areas:
A. All enclosed areas (including lobbies, hallways, and other common areas) available to and customarily used by the general public, including, but not limited to, the public area of retail stores, a bank, and other service establishments;
B. Elevators, escalators, and stairways;
C. Public restrooms;
D. Service lines;
E. All reception and waiting areas;
F. Galleries, libraries, and museums;
G. Within any facility which is primarily used for, or designated for the primary purpose of, exhibiting any motion picture, stage drama, lecture, musical recital, or other similar performance;
H. All enclosed areas available to and customarily used by the general public in hotels and motels, including, but not limited to, lobby and registration areas, hallways, dining areas, banquet and conference rooms, and retail shops; smoking may be permitted in sixty-five (65) percent of guest rooms at the discretion of the management;
I. Public parks, sports arenas, and convention halls;
J. Video arcades, bingo parlors, card rooms, game rooms, pool halls, dance halls, and other amusement centers;
K. Child day care and elder care facilities as defined in the California Health and Safety Code and private residences while used as family day care homes;
L. Rooms, chambers, or other enclosed areas where a meeting is being held which is or can be attended by the general public;
M. Retail food marketing establishments, including grocery stores, supermarkets, and convenience stores;
N. Restaurants, public and private, including outdoor patio and dining areas;
O. Within twenty (20) feet of an outdoor dining or patio area;
P. Theaters and theater-bar combinations;
Q. Laundromats;
R. Beauty shops, nail parlors, barber shops, or similar uses;
S. Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, and nursing homes;
T. Malls;
U. Polling places;
V. Parking garages;
W. Bars;
X. Public transportation facilities, including waiting areas and bus stops;
Y. Within twenty (20) feet of main entrances, exits, and operable windows of any building owned, leased, and occupied by the state, county, or city, and buildings of the University of California (UC), California State University (CSU), and California community colleges;
Z. Within all facilities and areas specified by state law, including workplaces, schools, tot lots, and playgrounds.
(Ord. 2005-1 § 2 (Exh. A (part)))
5-28.040 Prohibition of smoking in places of employment.
Except as otherwise prohibited by Section 5-28.030, smoking is also prohibited and is unlawful in all enclosed facilities within a place of employment. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, and all other enclosed facilities. (Ord. 2005-1 § 2 (Exh. A (part)))
5-28.050 Tobacco vending machines prohibited.
No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a tobacco vending machine. No tobacco vending machines shall be placed or maintained in any public place or place of employment. (Ord. 2005-1 § 2 (Exh. A (part)))
5-28.060 Self-service display—Requirement of vendor assisted sales.
It shall be unlawful for any person, business, or tobacco retailer to display for sale or to sell any tobacco product by means of a self-service display. All sales of any tobacco products shall be vendor-assisted. The provisions of this section shall not apply to tobacco shops and cigar lounges as defined in this chapter. (Ord. 2005-1 § 2 (Exh. A (part)))
5-28.070 Posting of signs—General.
Every public place and place of employment where smoking is prohibited by this chapter shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited, as follows:
A. Indoor Sign Requirements. “No Smoking” signs with letters of not less than one inch in height, and 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 posted (and visible from the interior) on every entrance door, or within five feet of an entrance door, and sufficiently and conspicuously posted at other appropriate locations within the building (i.e. kitchen, restroom, etc.) by the owner, operator, manager, or other person having control of such building or other place. Signs, which have been removed, shall be replaced within five working days.
B. Outdoor Sign Requirements. “No Smoking” signs, with letters of not less than one inch in height, and 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 posted (and visible from the exterior) on every entrance door, or within five feet of every entrance door, by the owner, operator, manager, or other person having control of such building or other facility. “No Smoking” signs, with letters of not less than one inch in height, and the international “No Smoking” symbol shall be posted in the outdoor dining areas, which specifically state that smoking is not allowed within twenty (20) feet of every outdoor area regulated by this chapter. In addition, a “No Smoking” sign or the international “No Smoking” symbol shall be attached to the top of every outdoor dining table, so that it is clearly visible. No ashtrays are allowed in any outdoor dining area. Signs, which have been removed, shall be replaced within five working days.
(Ord. 2005-1 § 2 (Exh. A (part)))
5-28.080 Enforcement.
The City Manager or his or her designee and the City Attorney shall enforce this chapter.
A. Registration of Complaints. Any citizen, employee, or business patron who desires to register a complaint under this chapter may initiate enforcement with the City Manager or his or her designee.
B. Inspection. As part of any certificate of use and occupancy application, the city’s Community Development Department shall provide a copy of this chapter’s regulations to the new business. At final inspection and prior to issuance of the certificate of use and occupancy permit, the Department shall verify that all requirements of this chapter have been complied with.
C. Duty to Orally Inform. Except under circumstances involving a risk of physical harm to the employer or any employee, an owner, manager, or authorized agent of any business regulated by this chapter, shall orally request a non-employee who is smoking to refrain from smoking where smoking is prohibited.
D. Responsibility of Businesses. It is unlawful for any person who owns, operates, manages, or otherwise controls the use of any business subject to the restrictions of this chapter, to fail to comply with its provisions. All ashtrays shall be removed from any area where smoking is prohibited in this chapter. However, the owner, operator, manager or other person having control of the area, of a business shall not be responsible for violations of this chapter within their premises by patrons or citizens who continue to smoke, provided that such patrons or citizens have been adequately orally informed that their actions are in violation of the law, and the owner, operator, manager, or other person having control of the area, has complied with the posting of signage and removal of ashtrays in accordance with this chapter.
(Ord. 2005-1 § 2 (Exh. A (part)))
5-28.090 Violation—Penalty.
A. Any person who violates any provision of Sections 5-28.010 through 5-28.040 and 5-28.080 of this chapter shall be subject to a citation and:
1. Upon the first violation shall be guilty of an infraction and, upon conviction, shall be subject to a fine not to exceed one hundred dollars ($100.00) punishment in accordance with state law.
2. Upon the second violation within one year shall be guilty of an infraction and, upon conviction, shall be subject to a fine not to exceed two hundred dollars ($200.00).
3. Upon the third violation within one year shall be guilty of an infraction and, upon conviction, shall be subject to a fine not to exceed two hundred fifty dollars ($250.00).
B. Any person who violates any provision of Sections 5-28.010 through 5-28.040 and 5-28.080 of this chapter, and this is the fourth violation of this chapter within one year, shall be guilty of a misdemeanor and subject to punishment in accordance with state law.
C. Any person who violates the provisions of Section 5-28.050 of this chapter shall be guilty of a misdemeanor and subject to punishment in accordance with state law.
D. Any person who violates the provisions of Section 5-28.060 of this chapter shall be guilty of a misdemeanor and subject to punishment in accordance with state law.
(Ord. 2005-1 § 2 (Exh. A (part)))
5-28.110 Citation authority.
The City Manager and his or her designees shall have the authority to issue citations for violations of this chapter, however, such individuals shall only be deemed qualified to issue citations consistent with satisfying the requirements of Sections 1-28.020 and 9-98.040 of the Laguna Hills Municipal Code. The Chief of Police Services and police officers shall also have the authority to issue citations for violations of this chapter. (Ord. 2005-1 § 2 (Exh. A (part)))
5-28.120 Power to adopt more restrictive smoking policies.
Notwithstanding any other provisions of this chapter, any owner, operator, manager, employer, or other person who controls any establishment or place of employment regulated by this chapter may adopt policies relating to smoking which are more restrictive than those provided therein. (Ord. 2005-1 § 2 (Exh. A (part)))