Alameda County Municipal Code Ch. 6.72 Smoking

Footnotes:

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Prior ordinance history: prior code §§ 2-180.0—2-180.11.

The Alameda County board of supervisors does find that:

Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand tobacco smoke is a cause of disease, including lung cancer, in nonsmokers. At special risk are children, elderly people, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

Health hazards induced by exposure to environmental tobacco smoke (ETS) include lung and other forms of cancer, respiratory infection, decreased respiratory function, including broncho-constriction and broncho-spasm, and premature death from heart disease.

In 1989, the health care costs and lost productivity resulting from smoking-related disease and death amounted to three hundred seventy million dollars ($370,000,000.00) in Alameda County and represent a heavy and avoidable financial drain on our community.

Section 6404.5 of the California Labor Code regulates smoking in California workplaces, and requires local governments to initiate enforcement of this law.

The U.S. Surgeon General and the U.S. Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents before the age of legal consent.

The U.S. Surgeon General has declared that nicotine is as addictive as cocaine or heroin; no other addictive product or drug, or cancer-causing product or drug is sold through vending machines.

The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products, and tempts those who had quit to begin smoking again. Minors currently have ready access to tobacco products as a result of noncompliance with existing laws that prohibit the furnishing of tobacco products to minors and the marketing practice of distributing free tobacco product samples and the widespread availability of tobacco vending machines.

Accordingly, the Alameda County board of supervisors finds and declares that the purposes of this chapter are: (A) to protect the public health and welfare by prohibiting smoking in public places and places of employment not under the jurisdiction of state law; (B) to enforce the state law prohibiting smoking in the workplace; (C) to guarantee the rights of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke; (D) to reduce addiction to tobacco products by minors; and (E) to generally promote the health, safety, and welfare of all people in the county of Alameda against the health hazards and harmful effects of the use of tobacco products.

According to recent studies, exposure to secondhand smoke is the third leading cause of preventable death in the United States, killing over fifty-three thousand (53,000) non-smokers each year, including three thousand (3,000) deaths from lung cancer.

(Ord. 98-6 § 1 (part))

(Ord. No. 2009-52, § 1, 11-10-09)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

"Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which any food served is incidental. "Bar" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein.

"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 corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.

"Business vehicle" means automobile, truck or van, owned, leased or otherwise controlled by an employer, which is available, by advance request, reservation or otherwise, for the use, in the course of employment, of any employee or employees.

"Distribute" means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense or issue, as part of an advertising plan or program.

"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 or her services for a nonprofit entity, and shall have the same meaning as the term "employee" as defined in Sections 3350 through 3352.94, inclusive, of the California Labor Code.

"Employer" means every person or public service corporation which has any natural person in service, and shall have the same meaning as the term "employer" in Section 3300 and Section 3301 of the California Labor Code.

"Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passageways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures.

"Gaming club" means any establishment where legal gambling, as defined in Section 19802(a) of the Business and Professions Code, is conducted, or bingo facility, as defined in Section 326.5 of the Penal Code, that restricts access to minors under eighteen (18) years of age.

"Place of employment" means any enclosed area under the control of a public or private employer in which employees normally meet or work during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a child care or health care facility.

"Public place" means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, laundromats, public transportation facilities, reception areas, indoor shopping malls, theaters and waiting rooms.

"Reasonable distance" means a distance of at least twenty (20) feet to insure that occupants of a building and those entering or exiting the building are not exposed to secondhand smoke created by smokers outside of the building. The determination of the health officer or appropriate designee shall be final in any disputes relating to reasonable distance beyond twenty (20) feet for smoking outside of buildings regulated by this chapter.

"Restaurant" means any indoor and outdoor coffee shop, cafeteria, sandwich stand, private and public school cafeteria, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that the term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined in this section.

"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

"Sample" means a distribution to a member or members of the general public at no cost or at nominal cost for the purpose, in whole or in part, of promoting a tobacco product.

"Seller" shall mean any natural person, company, corporation, firm, partnership, organization, or other legal entity, who sells, dispenses, distributes or issues tobacco products for commercial purposes.

"Service area" means any area designated to be or regularly used by one or more persons to receive or wait to receive a service, to enter a public place, or to make a transaction, whether or not such service includes the exchange of money, including but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops, waiting rooms, restrooms, and taxi stands.

"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 cigar, cigarette, weed, plant, or other combustible substance in any manner or in any form.

"Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling centers and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

"Tobacco accessories" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed primarily for the smoking or ingestion or chewing of tobacco products.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco, and smokeless tobacco.

"Vending machine" means any electronic or mechanical device or appliance, the operation of which depends upon insertion of money, whether in coin or in paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.

(Ord. 98-6 § 1 (part))

(Ord. No. 2009-52, § 1, 11-10-09)

All enclosed facilities owned by the county of Alameda shall be subject to the provisions of this chapter. Smoking is prohibited in all enclosed facilities which the county of Alameda owns and/or operates, including, but not limited to, work areas, employee lounges, conference rooms, employee cafeterias, private enclosed spaces and offices, and vehicles.

(Ord. 98-6 § 1 (part))

The sale of tobacco products by any means, including vending machines, in facilities in which the county conducts its business is prohibited.

(Prior gen. code § 2-180.25)

A. Smoking shall be prohibited in all enclosed public places within the unincorporated areas of Alameda County, including, but not limited to, the following places:

1. All facilities owned or operated by the county of Alameda;

2. Elevators;

3. Buses, taxicabs, and other means of public transit under the authority of Alameda County, and ticket, boarding and waiting areas of public transit depots, including bus stops;

4. Outdoor areas near any entrance or exit to any facility in which smoking is prohibited. Smokers must maintain a "reasonable distance" of at least twenty (20) feet from all such entrances, exits, windows, ventilation systems or any other means and to ensure that those indoors and those entering or leaving the building are not involuntarily exposed to secondhand tobacco smoke;

5. All service areas and lines, indoor and outdoor;

6. 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 laundromats, indoor and outdoor dining areas of restaurants, hotels and motels, waiting rooms, hallways;

7. Public areas of aquariums, galleries, libraries, museums, and other exhibits open to the public;

8. Any facility used for exhibiting any motion picture, stage drama, musical recital or other similar performance, except when smoking is part of a stage production;

9. Sports arenas and convention halls;

10. Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including joint committees, or agencies of the county or any political subdivision of the state to the extent such a place is subject to the jurisdiction of the county;

11. Lobbies, hallways, and other common areas in apartment buildings, condominiums, mobilehome parks, retirement facilities, nursing homes, and other multiple-unit residential facilities;

12. Restrooms, lobbies, hallways, and other common areas in multiple-unit commercial facilities;

13. Polling places;

14. Any other enclosed place open to the general public not regulated under the smoking restrictions in Section 6404.5 of the California Labor Code.

B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment.

(Ord. 98-6 § 1 (part))

(Ord. No. 2009-52, § 1, 11-10-09)

A. It shall be the responsibility of employers to comply with smoking restrictions enumerated in Section 6404.5 of the California Labor Code and to provide a smoke-free workplace for all employees.

B. Within ninety (90) days of the effective date of the ordinance codified in this chapter, each employer otherwise exempt from the smoke restrictions in Section 6404.5 of the California Labor Code having an enclosed place of employment located within the unincorporated areas of Alameda County shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements: Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles and all other enclosed facilities.

C. The smoking policy shall be communicated to employees within three weeks of its adoption.

D. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

(Ord. 98-6 § 1 (part))

Smoking shall occur at a reasonable distance of at least twenty (20) feet outside any enclosed area where smoking is prohibited to ensure that smoke does not enter the area through entrances, windows, ventilation systems or any other means to ensure that those indoors and those entering or leaving the building are not involuntarily exposed to secondhand tobacco smoke.

(Ord. 98-6 § 1 (part))

(Ord. No. 2009-52, § 1, 11-10-09)

A. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

1. Private residences, unless used as a child care or health care facility;

2. Retail tobacco stores that deal exclusively in the sale of tobacco and smoking paraphernalia unless minors are allowed access. If minor access is allowed, then smoking shall be prohibited;

3. Twenty-five (25) percent of hotel and motel rooms rented to guests, provided that each hotel and motel designates not less than seventy-five (75) percent of their guest rooms as nonsmoking rooms and removes ashtrays and matches from these rooms;

4. Bars and gaming clubs as defined by Section 6.72.020 of this chapter until January 1, 1998, the date by which the standards board or Environmental Protection Agency must adopt standards prescribed for reducing employee exposure to ETS in order to permit continuance of the exemption for bars and taverns and gaming clubs as stated in Section 6404.5 of the California Labor Code as amended on February 23, 1996.

B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment.

(Ord. 98-6 § 1 (part))

A. "No Smoking" signs or "Smoke Free" signs, with letters of no less than one inch in height, or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed by a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted in or at the entrance of every building or other place where smoking is prohibited by this chapter, by owner, operator, manager or other person having control of such building or other place. The "No Smoking" signs shall include a citation of the ordinance number, and the telephone number to report violations. For purposes of this chapter, the general services agency shall be responsible for the posting of signs in regulated facilities in the county of Alameda.

B. Every public place and workplace covered under this chapter shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. The "No Smoking" signs shall follow the regulation listed in subsection A of this section.

C. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited including outdoor areas such as doorways where smoking is prohibited by this chapter by the owner, operator, manager or other person having control of such area.

D. The owner, operator, manager or other person having control of any establishment that continues to allow smoking as permitted in this chapter shall conspicuously post in, at every entrance of their business adjacent to any warning sign required under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), a "Smoking Permitted" sign.

(Ord. 98-6 § 1 (part))

A. This chapter, and those provisions of state law which provide for complete one hundred (100) percent smoking prohibition in enclosed places of employment under Section 6404.5 of the California Labor Code, shall be enforced by the county health officer or appropriate designee.

B. Notice of the provisions set forth in this chapter shall be given to all applicants for a business license in the unincorporated areas of Alameda County.

C. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the County Department of Health or appropriate designee.

D. The health department shall require, while an establishment is undergoing otherwise mandated inspections, a "self-certification" from the owner, manager, operator, or other person having control of such establishment that all requirements of this chapter have been complied with. Citations shall be issued by the Alameda County sheriff's department at the direction of the health officer.

E. Any owner, manager, operator or employee of any establishment regulated by this chapter may inform persons violating this chapter of the appropriate provisions thereof.

F. The department of health shall file a complaint with the California Division of Occupational Safety and Health, Department of Industrial Relations against any employer who has been found guilty of a third violation within twelve (12) months of the smoking restrictions in Section 6404.5 of the California Labor Code.

G. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter.

(Ord. 98-6 § 1 (part))

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. Any person who violates any provision of this chapter shall be guilty of a misdemeanor, punishable by:

1. A fine of five hundred dollars ($500.00) for a first violation;

2. A fine of one thousand dollars ($1,000.00) for a subsequent violation.

(Ord. 98-6 § 1 (part))

No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded in this chapter.

(Ord. 98-6 § 1 (part))

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws or regulations.

(Ord. 98-6 § 1 (part))

If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared severable.

(Ord. 98-6 § 1 (part))

The health officer or appropriate designee shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.

(Ord. 98-6 § 1 (part))