Chapter 8.06
SMOKING CONTROL
Sections:
8.06.010 Findings and purpose of provisions.
8.06.040 Other applicable laws.
8.06.050 Prohibition of smoking in public places.
8.06.060 Smoking not controlled—Where.
8.06.070 Posting requirements.
8.06.110 Violations and penalties.
8.06.120 Private claim/action.
8.06.140 Applicability to existing businesses.
8.06.010 Findings and purpose of provisions.
The City Council finds that:
A. The 1993 Environmental Protection Agency (EPA) report on “Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders,” concluded that:
1. The widespread exposure to environmental tobacco smoke (ETS) in the United States presents a serious and substantial public health impact.
2. ETS, casually associated with lung cancer in adults, and ETS by the total weight of evidence belongs in the category of compounds classified by the EPA as Group A (known human) carcinogens.
3. In children, ETS is causally associated with respiratory tract infections and irritations, and asthma.
B. The Americans with Disabilities Act, which requires access of handicapped persons in public places and workplaces, deems impaired respiratory function a disability.
C. Employees subject to the prolonged exposure to secondhand smoke in the workplace have been found in scientifically conducted studies to experience a loss of job productivity and may be forced to take periodic sick leave because of reactions to secondhand smoke. Furthermore, studies have shown higher costs to the employer are associated with smoke in the workplace due to increases in absenteeism, accidents, costs of medical care, insurance, loss of productivity, and cleaning and maintenance requirements.
D. 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 carcinogenic secondhand smoke.
E. Smoking in public places and places of employment is a major cause of fires and damage to merchandise and equipment as well as costly repairs to furniture and fixtures.
F. Studies have shown higher costs to the employer are associated with smoking in the workplace due to increases in absenteeism, accidents, costs of medical care, loss of productivity and cleaning and maintenance requirements.
G. Nonsmokers with allergies, respiratory diseases 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 environmental tobacco smoke.
H. Studies have shown some nonsmokers cannot dine in restaurants because of adverse reaction or annoyance from environmental tobacco smoke.
I. That the regulations within the California Indoor Clean Air Act of 1976, as amended (Health and Safety Code Section 25940, et seq.) are inadequate to protect the public health, safety and welfare, and that said Act does not preempt local regulation of smoking.
J. Persons have a right to be free from exposure to secondhand smoke if they desire.
K. Opinion surveys show that a majority of both nonsmokers and smokers favor restrictions on smoking in public places and places of employment.
L. The State of California has enacted regulations prohibiting smoking in places of employment including restaurants and bars. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.020 Purpose.
This chapter is enacted for the purpose of restricting and regulating smoking in public places in order to protect the public health and welfare against the proven health hazards and harmful effects of secondhand smoke. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.030 Definitions.
As used in this chapter, those terms identified in this section shall, unless the context indicates otherwise, be ascribed the meaning contained in this section.
“Bar” means an enclosed area which is devoted to the serving of alcoholic beverages for consumption on the premises, and in which the serving of food, if any, is incidental to the consumption of such beverages.
“Business” means any sole proprietorship, partnership, joint venture, corporation or other entity formed for either charitable or profit-making 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, architecture, financial or other professional services are delivered.
“Enclosed” means closed in by a roof and four or more connected floor-to-ceiling walls with appropriate openings for ingress and egress.
“Public building” means a public building owned or operated by the City of San Carlos.
“Public place” means any enclosed area to which the public is invited or in which the public is permitted or invited, where goods or services are sold, including, but not limited to, retail establishments, restaurants (all available seating), retail food markets, enclosed shopping malls, 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.
“Restaurant” means any eating establishment, organization, club, boardinghouse or guesthouse where the primary function is the serving of food and which gives or offers for sale food to the public, guests, patrons, or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering functions.
“Retail tobacco store” means a retail store primarily used for the sale of tobacco products and accessories.
“Smoking” means inhaling, exhaling, burning or carrying any lighted cigarette, cigar, pipe, weed, plant or other combustible substance in any manner or in any form.
“Tobacco,” “tobacco or smoking product,” or “tobacco or nicotine 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, and snuff;
2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.
3. Notwithstanding any provision of subsections (1) and (2) of this definition to the contrary, “tobacco product” includes any component, part, or accessory intended or reasonably expected to be used with 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. (Ord. 1544 § 3, 2019: Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.040 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.050 Prohibition of smoking in public places.
Smoking shall be prohibited in the following public places and other public places similarly situated, including, but not limited to, the following areas:
A. All enclosed areas available to and customarily used by the general public, including, but not limited to, all “public places” and all “businesses” patronized by the public as defined in this chapter;
B. Elevators, escalators and stairways;
C. Buses, taxicabs, and other means of public transit operating under the authority of the City of San Carlos, and ticket areas, indoor or sheltered boarding and waiting areas of public transit depots;
D. All enclosed areas, including vehicles, owned or operated by the City of San Carlos, or any other government entity within the City of San Carlos, and within twenty feet of the main entrance(s) of any public building owned or operated by the City of San Carlos;
E. Lobbies, hallways, stairwells and other common areas in apartment buildings, condominiums, senior citizen retirement or residential care houses, nursing homes, licensed community care facilities and other multiresidential facilities and buildings;
F. All bars and restaurants. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.060 Smoking not controlled—Where.
Notwithstanding any other provision of this chapter to the contrary, the following enclosed areas shall not be subject to the provisions of this chapter:
Private residences, except when the residences are utilized as a healthcare facility, childcare facility, licensed community-care facility, or senior citizen or retirement care home; except senior care facilities may set aside an area(s) where smoking is permitted. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.070 Posting requirements.
A. Each owner, operator, manager or other person having control of an enclosed public place within which smoking is regulated by this chapter shall conspicuously post “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 entrance to every applicable facility.
B. Hotels and motels required by this chapter to maintain nonsmoking rooms shall prominently post in the lobby a sign notifying patrons of the availability of nonsmoking accommodations. Any room designated as nonsmoking shall have a “No Smoking” sign conspicuously placed in the room. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.080 Nondiscrimination.
No person and no employer shall discharge, refuse to hire, or in any manner discriminate or retaliate against any person or any employee seeking to exercise rights afforded by this chapter. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.100 Enforcement.
A. It shall be 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 subject to this chapter shall have the responsibility to inform any apparent violator, whether public or employee, about any smoking restrictions in the establishment, and shall request voluntary compliance.
C. Any citizen who desires to register a complaint under this section shall do so by sending a letter to the City Manager.
D. Notice of these requirements shall be given to every new business license applicant, and every existing business licensee at the time of business license renewal. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.110 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. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:
1. A fine not exceeding one hundred dollars for a first violation;
2. A fine not exceeding two hundred dollars for a second violation of this chapter within one year;
3. A fine not exceeding five hundred dollars for each additional violation of this chapter within one year.
E. Violation of the provisions of this chapter are declared to be a public nuisance which may be abated by appropriate civil action.
F. The remedies provided by this section are cumulative, and are in addition to any other remedy existing at law or in equity. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.120 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. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.130 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. Within ninety days of enactment of the ordinance codified in this chapter, the City Manager shall have prepared a brochure which can be used to explain the provisions of this chapter to businesses and citizens and can be enclosed in letters sent pertaining to complaints. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)
8.06.140 Applicability to existing businesses.
The provisions of Section 8.06.050(F) regulating smoking in bars shall apply to all existing bar businesses, except that a bar qualifying for the owner/operator exemption under state law (presently, Labor Code Section 6404.5), having a certificate of owner/operator exempt status as of the effective date of the ordinance codified in this chapter and continuing to so qualify under state law may retain such exemption. (Ord. 1328 § 1 (part), 2003: Ord. 1123 § 2 (part), 1993)