Chapter 6.16
SMOKING AND TOBACCO1
Sections:
6.16.020 City-owned facilities and vehicles.
6.16.040 Repealed.
6.16.050 Optional smoking areas.
6.16.055 Repealed.
6.16.060 Posting requirements.
6.16.090 Out of package sales.
6.16.110 Violation – Penalties.
6.16.130 Other applicable laws.
6.16.010 Definitions.
A. “Area open to the public” means any area available to and customarily used by the general public.
B. “Bar” means an enclosed or unenclosed establishment in which alcoholic beverages are served, and includes that area of a dining area which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages.
C. “Dining area” means any enclosed or unenclosed seating at any restaurant, dinner house, coffee shop, cafeteria, luncheonette, soda fountain, fast food service and other establishment where cooked or otherwise prepared food is sold to the general public for consumption on the premises.
D. “Distribute” means to give, sell, deliver, issue or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense or issue.
E. “Electronic cigarette” means an electronic cigarette as defined in California Health and Safety Code Section 119405 or similar device intended to emulate smoking that permits a person to inhale vapors or mists that may or may not include nicotine.
F. “Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or other compensation.
G. “Employer” means any person, partnership, corporation, including municipal corporation or public entities, who employs the services of two or more persons or two or more people conducting business within the establishment.
H. “Enclosed” means closed in by a roof and walls with appropriate openings for ingress and egress.
I. “General public” means shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise or nonprofit entity.
J. “Hookah” means a glass filled pipe (a single or multi-stemmed instrument) used for vaporizing and smoking flavored tobacco (commonly called shisha) or other substances in which the vapor or smoke is passed through a water basin (often glass-based) before inhalation.
K. “Place of employment” means 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, conference rooms, and employee cafeterias. A private residence is not a place of employment unless it is used as a child care, day care, health care or other similar facility.
L. “Playground” means any park or recreational area specifically designed to be used by children that has play equipment installed, or any similar facility located on public or private school grounds, or on city property.
M. “Self-service merchandising” means open display of tobacco products and point-of-sale tobacco-related promotional products to which the public has access without the intervention of any employee.
N. “Smoking” means (1) the carrying, holding, or use of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking equipment or the lighting or emitting or exhaling the smoke of a pipe, cigar or cigarette of any kind; or (2) the carrying, holding, or use of an electronic cigarette as defined in California Health and Safety Code Section 119405 (“e-cigarette”) or a similar device intended to emulate smoking that permits a person to inhale vapors or mists that may or may not include nicotine. “Smoking” also includes emitting or exhaling the fumes or vapor of any pipe, cigar, cigarette, or any other lighted smoking equipment used for burning any tobacco product, weed, plant or any other combustible substance, or any e-cigarette, hookah, or other similar device.
O. “Sports arena” means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling centers, halls and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.
P. “Street fair” means a gathering of people to display, sell, or trade produce or other goods, usually held on the main street of a neighborhood or in some other designated public place, such as in a park or parking lot, in which the main component is booths or stands used to sell goods, including food, or convey information. A street fair may also include carnival rides, parades, live music and/or dances.
Q. “Tobacco product” means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, dipping tobacco, bidis, hookahs, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale or otherwise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the federal Food and Drug Administration for use in treating nicotine or tobacco product dependence.
R. “Unenclosed area” means any area which is not an enclosed area.
S. “Vending machine” means an electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.
T. “Vendor-assisted” means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. (Ord. 450 § 2, 2014; Ord. 447 § 2, 2014; Ord. 403 § 1, 2009; Ord. 158 § 1, 1992)
6.16.020 City-owned facilities and vehicles.
Smoking is prohibited in all buildings and vehicles, including cabs of motortrucks or truck tractors or other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city. (Ord. 403 § 2, 2009; Ord. 158 § 1, 1992)
6.16.030 Smoking prohibited.
Smoking is prohibited in the following places within the city of Solana Beach and city-owned facilities:
A. Within 20 feet of all entry ways and all enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including but not limited to, retail stores, the common areas, including lobbies, of hotels and motels, pharmacies, banks, shopping malls, and other offices;
B. All enclosed or unenclosed dining areas and bars. The owner, manager or operator of the restaurant shall post signs as prescribed by SBMC 6.16.060 and remove all ashtrays from tables;
C. Elevators and public restrooms, indoor services lines, buses, taxicabs and other means of public transit under the authority of public entities, and in ticket, boarding and waiting areas of public transit depots;
D. In public area of museums and galleries;
E. Theaters, auditoriums, concert facilities and halls which are used for motion pictures, stage dramas and musical performances, ballets or other exhibitions, both indoor and outdoor, except when smoking is part of any such production;
F. Enclosed or unenclosed retail food marketing establishments, including grocery stores, farmer’s markets, and supermarkets;
G. Public schools and other public facilities under the control of another public agency, which are available to and customarily used by the general public, to the extent that the same are subject to the jurisdiction of the city;
H. Sports arenas, both indoor and outdoor, and convention halls;
I. Private residences when used as child care, day care, health care, or other similar facilities;
J. Board and care facilities, except that long-term health care facilities, as defined in Section 1418 of the California Health and Safety Code, may provide patient smoking areas;
K. In, and within 20 feet of, any tot lot, any playground, and any recreational area. A tot lot is defined as any area located in a city park or city playground, or in a privately owned playground open to the public, where playground equipment, intended for use by children, is located. Playground equipment includes but is not limited to swings, slides, sandboxes and climbing apparatus;
L. Street fairs.
Notwithstanding any other provisions of this section, any owner, operator, manager, employer, or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. (Ord. 403 § 3, 2009; Ord. 158 § 1, 1992)
6.16.040 Regulation of smoking in places of employment.
Repealed by Ord. 403. (Ord. 158 § 1, 1992)
6.16.050 Optional smoking areas.
Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
A. A private residence, including one which may serve as a place of employment, except for private residences licensed as family day care homes, during the hours of operation as family day care homes and in those areas where children are present;
B. In up to 25 percent of hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than 75 percent of their guest rooms as nonsmoking rooms and removes ashtrays from these rooms. Smoking rooms shall be segregated from nonsmoking on separate floors, wings, or portions of either; smoking and nonsmoking rooms shall not be interspersed. Nothing in this chapter shall require a hotel or motel to provide smoking rooms and the owner or operator of a hotel or motel may choose to prohibit smoking throughout the property;
C. In any unenclosed area other than those specifically provided for in this chapter or in SBMC 11.12.020(EE);
D. Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia. (Ord. 403 § 5, 2009; Ord. 158 § 1, 1992)
6.16.055 Procedures and conditions for granting exemptions for restaurants.
Repealed by Ord. 403. (Ord. 171 § 1, 1993)
6.16.060 Posting requirements.
A. “No Smoking” signs 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. Where smoking is permitted, a sign shall be placed which warns persons that smoking is permitted in the establishment.
B. Every hotel or motel regulated by this chapter will have posted at its entrance a sign clearly stating that nonsmoking rooms are available. (Ord. 158 § 1, 1992)
6.16.070 Vending machines.
No cigarette or other tobacco product, cigarette paper or wrapper, electronic cigarette, or other similar product may be sold, offered for sale, or distributed by or from a tobacco vending machine or other appliance, or any other device designed or used for vending purposes. (Ord. 450 § 3, 2014; Ord. 403 § 7, 2009; Ord. 158 § 1, 1992)
6.16.080 Distribution of free samples and coupons for tobacco products and e-cigarettes, and method of sales of tobacco products and e-cigarettes.
A. No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products, e-cigarettes, or similar products for commercial purposes shall, in the course of such business, distribute, or direct, authorize or permit any agent or employee to distribute: (1) any cigarette or other tobacco or smoking product, including any smokeless tobacco product, e-cigarette, or similar product; or (2) coupons, certificates or other written material which may be redeemed for tobacco or smoking products, e-cigarettes, or similar products without charge to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building.
B. No agent or employee of any person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or tobacco or smoking products, e-cigarettes, or similar products for commercial purposes shall, in the course of such business, distribute: (1) any cigarette or other tobacco or smoking product, including any smokeless tobacco product, e-cigarette, or similar product; or (2) coupons, certificates or other written material which may be redeemed for tobacco or smoking products, e-cigarettes, or similar products without charge to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building.
C. For purposes of this section, “public ground” and “public building” mean and include sports arenas as defined in SBMC 6.16.010(O), and for any entertainment facility whether enclosed or not for which a charge is made for admission, whether publicly or privately owned.
D. It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, offer for sale, or display for sale any tobacco or smoking product, e-cigarette, or similar product by means of self-service merchandising or by means other than vendor-assisted sales. (Ord. 450 § 4, 2014; Ord. 403 § 8, 2009; Ord. 158 § 1, 1992)
6.16.090 Out of package sales.
No person shall sell or offer for sale cigarettes, smokeless tobacco, or e-cigarettes not in the original packaging provided by the manufacturer. (Ord. 450 § 5, 2014; Ord. 158 § 1, 1992)
6.16.100 Enforcement.
A. Administration of this chapter shall be by the city manager or his/her designee.
B. Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the city manager or his/her designee.
C. Any owner, manager, operator or employer of any establishment controlled by this chapter may inform persons violating this chapter of the appropriate provisions thereof. (Ord. 158 § 1, 1992)
6.16.110 Violation – Penalties.
A. Unless otherwise specifically provided to the contrary, the violation of any provisions of this chapter by any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this section is an offense punishable pursuant to Chapter 1.16 SBMC.
B. It is unlawful for any person to smoke in any area restricted by the provisions of this section. Violation of this section is an offense punishable pursuant to Chapter 1.16 SBMC. (Ord. 158 § 1, 1992)
6.16.120 Nonretaliation.
No person shall intimidate, threaten or effect any retaliation against an individual seeking enforcement of this chapter. Violation of this section is a misdemeanor punishable according to Chapter 1.16 SBMC. (Ord. 403 § 10, 2009; Ord. 158 § 1, 1992)
6.16.130 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 158 § 1, 1992)
6.16.140 Severability.
If any provision or clause of this chapter or the application thereof to any person or circumstances is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions, clauses or applications thereof which can be implemented without the invalid provision, clause or application, and to this end the provisions and clauses of this chapter are declared to be severable. (Ord. 158 § 1, 1992)
Prior legislation: 1987 Code §§ 5.12.010 – 5.12.080; Ord. 46.