Chapter 8.38
PROHIBITION OF SMOKING IN DESIGNATED PUBLIC PLACES
Sections:
8.38.010 Purpose and findings.
8.38.030 Prohibition in certain public places.
8.38.040 Regulation of smoking in places of employment.
8.38.050 Cigarette vending machines.
8.38.060 Miscellaneous prohibitions.
8.38.010 Purpose and findings.
The city council finds as follows: Numerous studies have found that tobacco is a major contributor to indoor air pollution; reliable studies have shown that breathing secondhand smoke is a significant health hazard for several population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; ease of accessibility to tobacco and tobacco-related products through cigarette vending machines must be diminished in order to promote smoke-free environments; the smoking of tobacco, or any other weed or plant, is a proven danger to health. Accordingly, it has been determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this city would be benefited by the elimination of smoking in designated enclosed places, including places of employment and certain restaurants, as provided in this chapter. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992)
8.38.020 Definitions.
For the purpose of this chapter, the following words shall have the following meanings:
“Electronic cigarette” means an electronic or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances, including any such device that is manufactured, distributed, marketed or sold as an electronic cigarette, e-cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah or any other product name or descriptor. “Electronic cigarette” does not include any inhaler prescribed by a licensed physician.
“Employee” means any individual who receives remuneration for services performed within the city.
“Employer” means any person, partnership or corporation who employs the services of an individual person or persons.
“Private clubs” means a “members only” facility not open to the general public unless by invitation or agreement of the membership.
“Restaurant” means any coffee shop, cafeteria, luncheonette, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club, boardinghouse or guesthouse, 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 facilities.
“Service line” means an indoor line or area where persons await service of any kind, regardless of whether or not such service involves exchange of money. Such service shall include, but is not limited to, sales, giving of information, directions or advice, and transfers of money or goods.
“Smoke” or “smoking” means processing, using, or lighting of tobacco or tobacco paraphernalia (including but not limited to a lighted pipe, lighted hookah pipe, lighted cigar, or lighted cigarette of any kind), or using an electronic cigarette.
“Workplace” means any interior space 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, conference rooms, and employee cafeterias. A private residence is not a workplace under this section. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992)
8.38.030 Prohibition in certain public places.
Smoking shall be prohibited in the following places within the city:
A. All buildings, vehicles, or other enclosed areas occupied by city staff, owned or leased by the city, or otherwise operated by the city, except in areas which the city manager may designate a smoking area. The city manager may designate a smoking area only if the area involved: (1) is not regularly open to the public; (2) does not require major room or building modifications; and (3) is not regularly occupied by nonsmokers;
B. Elevators, museums, galleries, public transportation facilities open to the public and service lines of establishments doing business with the general public;
C. Waiting rooms, sleeping rooms or public hallways of every private or public health or child care facility, including, but not limited to, day care centers, hospitals, clinics, physical therapy facilities, doctors’ offices and dentists’ offices. In bed space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health care facility’s admission forms to be placed in a room where smoking is permitted;
D. Within all public areas in every retail store, including, but not limited to, retail service establishments, retail food production and marketing establishments, retail, grocery, and drug stores;
E. All restrooms open for public use;
F. All areas in a laundromat open to and available for use by the public;
G. Within 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, hotels and motels;
H. In and within twenty-five feet of playgrounds and tot lot sandbox areas, as the terms are defined in California Health and Safety Code Section 104495(a), where the smoking of tobacco products is prohibited by California Health and Safety Code Section 104495(b) and sections mandatory or supplementary thereto;
I. In and within five feet of all public parks, public schools, public playgrounds, or publicly operated recreational ground facilities or buildings, except while actively passing on the way to another destination;
J. Restaurants. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992)
8.38.040 Regulation of smoking in places of employment.
Smoking is prohibited in all enclosed spaces at places of employment, as “places of employment” is defined in California Labor Code Section 6404.5(b), where the smoking of tobacco products is prohibited by California Labor Code Section 6404.5 and sections amendatory or supplementary or any successor statute thereto. Smoking electronic cigarettes is not prohibited in an enclosed place of employment that is a permitted electronic cigarette retailer, unless otherwise limited by the land use limitations contained in the city’s zoning ordinance. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992. Formerly 8.38.050)
8.38.050 Cigarette vending machines.
Beginning on May 16, 1992, coin-operated cigarette vending machines may be located only in bars and in full view of the owner, operator or individual in charge of the premises. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992. Formerly 8.38.070)
8.38.060 Miscellaneous prohibitions.
A. The sale of single cigarettes is prohibited in the city.
B. No individual or group shall distribute free tobacco products anywhere in the city. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992. Formerly 8.38.080)
8.38.070 Compliance.
A. The city manager or his designated representative shall be responsible for compliance with this chapter as to facilities which are owned, operated or leased by the city. The finance director shall provide each business license applicant with a copy of this chapter.
B. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply with the provisions of this chapter. Notice of these regulations shall be given to all applicants for a business license. Such owner, operator or manager shall post or cause to be posted all no-smoking signs required by this chapter and shall not allow service to any person who violates this chapter by smoking in a posted no-smoking area.
C. Any place of employment conducted or operated without compliance with the provisions of SMC 8.38.040 applicable thereto shall be and the same is declared to be a public nuisance. Whenever there is reason to believe such public nuisance exists, any affected employee or any resident of the city, in his or her own name, may maintain an action in equity to abate and prevent such nuisance and to perpetually enjoin the employer from maintaining or permitting it. Upon the granting of equitable relief, in whole or in part, by a court of competent jurisdiction, an employer determined to be in violation of SMC 8.38.040 shall be liable for the attorney’s fees, as may be determined by the court, incurred by the party bringing the action.
D. The city manager or his designee may enforce SMC 8.38.040 by either of the following actions:
1. Serving notice requiring the correction of any violation of that section; or
2. Requesting the city attorney to maintain an action for injunction to enforce the provisions of SMC 8.38.040, to cause the correction of any such violation, and for assessment and recovery of a civil penalty of such violation, including attorney’s fees.
E. Any employer who violates SMC 8.38.040 may be liable for a civil penalty, not to exceed five hundred dollars, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the city. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this subsection shall be paid to the finance director of the city.
F. In undertaking the enforcement of SMC 8.38.040, the city is assuming an undertaking only to promote the general welfare. It is not assuming any duty or obligation, nor is it imposing any duty or obligation on its officers and employees, nor is it liable in money damages or otherwise to any person who claims that (1) the city or one of its officers or employees breached any such obligation, and (2) the breach proximately caused injury. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992. Formerly 8.38.100)
8.38.080 Penalties.
Any person who violates any provision of this chapter, including smoking in a posted no-smoking area, or by failing to post or cause to be posted a no-smoking sign required by this chapter, or by serving any person who violates this chapter by smoking in a posted no-smoking area, is subject to penalties as provided for by state law or city ordinance. (Ord. 1021 § 4, 2015; Ord. 806 § 1 (Exh. A), 1992. Formerly 8.38.110)