Alameda Municipal Code § 24-11 Smoking Prohibitions in Places of Employment and Unenclosed Public Places

For the purposes of this Section, the following definitions shall govern, in accord with state statute, unless the context clearly requires otherwise:

Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.

Business means a sole proprietorship, partnership, joint venture, corporation, or other business entity, including retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered; and private clubs.

Cannabis means any and all parts of the plant cannabis sativa linnaeus, cannabis indica, or cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this section, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.

City means the City of Alameda.

Commercial-area sidewalks means any sidewalk in front of or abutting any property designated on the City's official Zoning Map appended to the City's Zoning Ordinance with a "C" prefix, which districts are listed on the Map as the Neighborhood Business District, Central Business District, Community-Commercial District and Commercial-Manufacturing District.

Dining area means any area available to or customarily used by the general public, which is designed, established, or regularly used for consuming food or drink. The term "Dining Area" shall not include a bar with a rear or outside area.

Employee means a person who is employed by an employer, in consideration for direct or indirect monetary wages or profit, including independent contractors, or any person who volunteers his or her services for a non-profit entity.

Employer means a person, business, partnership, association, corporation, including a municipal corporation, trust, or non-profit entity that employs the services of one (1) or more individual persons, or utilizes volunteers.

Enclosed area means an area in which outside air cannot circulate freely to all parts of the area, and includes:

1. Any covered or partially covered space having more than fifty (50%) percent of its perimeter area closed to the outside such as, for example, a covered porch with more than two (2) walls;

2. Any space open to the sky (hereinafter "uncovered") having more than seventy-five (75%) percent of its perimeter area closed to the outside such as, for example, a courtyard; or

3. Notwithstanding subsections 2 and 3 above, an uncovered space of three thousand (3,000) square feet or more, such as, for example, a field in an open-air arena, is not an Enclosed Area.

Health care facility means an office or institution providing care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to, hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, long-term care facilities, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, psychiatrists, dentists, and all specialists within these professions. This definition shall include all waiting rooms, hallways, private rooms, semiprivate rooms, and wards within health care facilities.

Hookah bar means any facility or location whose business operation, whether as its primary use or as an accessory use, is denoted by the smoking of tobacco through one (1) or more pipes (commonly known as hookah, shisha, or narghile) designed with a tube passing through an urn of water that cools the smoke.

No smoking sign means a sign with letters of no less than one (1") inch in height or which contains the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar).

Nonprofit entity means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, educational, political, social or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this section.

Openings shall include main entrances, exits, operable windows, and ventilation intake systems.

Person means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity and including government agencies.

Place of employment or workplace means an area under the legal or actual control of a public or private employer, including sole proprietor, that an employee or member of the public may enter during the normal course of operations, regardless of hours of operation, including but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices, vehicles, and private residences that are used as a child care, adult day care, or health care facility, and are subject to licensing.

Playground means any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds or on City grounds.

Public events means occurrences where people are seated or congregate in close proximity including, but not limited to, parades, fairs, farmers' markets, concerts, and ceremonies.

Reasonable distance means a distance of at least twenty (20') feet.

Recreation areas means any outdoor area that is open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes but is not limited to playing fields, playgrounds, parks, picnic areas, golf courses, walking paths, gardens, hiking trails, bike paths, swimming pools, and skateboard parks, sports arenas, amusement parks, and beaches.

Service line means an indoor or outdoor line in which one (1) or more persons waits for or receives service of any kind, whether or not the service involves the exchange of money, including but not limited to, ATM lines, concert lines, food vendor lines, movie ticket lines, sporting event lines, payphones, newsstands, bus stops, and taxicab stands.

Shopping mall means a collection of retail or professional establishments and includes the public walkways or hall areas that serve to connect them.

Smoking means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, hookah, or pipe, or any other lighted or heated tobacco or cannabis intended for inhalation, in any manner or in any form, including what is commonly referred to as electronic or e-cigarettes, or any device or product that delivers nicotine (or other substances in tobacco) or cannabis. Smoking shall also include any nicotine-containing product, such as flavored tobacco, or any cannabis-containing product unless in accordance with state and local law, or any paraphernalia of any device or product that delivers nicotine (or other substances in tobacco) or cannabis, including cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of any device or product that delivers nicotine (or other substances in tobacco) or cannabis.

Sports arena means a place where people assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, and bowling alleys.

Unenclosed area means any area that is not an enclosed area.

(Ord. No. 3038 N.S., § 1, 11-1-2011; Ord. No. 3202 N.S., § 1, 11-21-2017)

Smoking shall be prohibited in all enclosed and unenclosed places of employment as follows:

a. Hotel/Motel lobbies, meeting and banquet facilities;

b. Ninety (90%) percent or more of hotel/motel guest rooms;

c. Retail or wholesale tobacco shops and hookah bars;

d. Taxi cabs, cabs of trucks, tractors, or other vehicles;

e. Warehouse facilities;

f. Theatrical production sites;

g. Medical research sites;

h. Private residences licensed as child care, adult care, and health care facilities;

i. Small businesses with fewer than five (5) employees;

j. Owner-operated businesses that are open to the public;

k. Outdoor worksites, including construction sites, arenas, and convention halls, or anywhere where working crews may be.

Nothing in this subsection shall be construed to prohibit smoking in any area in which such smoking is already prohibited by state or federal law unless the applicable state or federal law does not preempt additional regulation.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

Except as otherwise expressly authorized by state or federal law, smoking shall be prohibited in the following unenclosed public places within the City:

Dining areas;

Recreation areas;

Public events;

Service lines;

Commercial-area sidewalks; and

Shopping Malls.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

Smoking that is not otherwise prohibited in unenclosed areas shall be prohibited within a reasonable distance from any entrance, window, opening, or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any enclosed area in which smoking is prohibited.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. The owner, operator, manager, or other person in control of a public place or place of employment where smoking is prohibited by this section shall:

1. Clearly and conspicuously post "no smoking" signs within or adjacent to unenclosed dining areas, or by other means necessary to clearly indicate that smoking is prohibited in the dining area.

2. Remove all ashtrays from any area where smoking is prohibited by this section, except for ashtrays displayed for sale and not for use on the premises.

b. No person, employer, business, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, employer, business, or nonprofit entity and in which smoking is prohibited by law and the person, employer, business or nonprofit entity is not otherwise compelled to act under state or federal law.

c. No person, employer, business, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area which is under the legal or de facto control of the person, employer, business, or nonprofit entity and in which smoking is prohibited, including, without limitation, inside the perimeter of any reasonable distance required by this section.

d. Notwithstanding any other provision of this section, any owner, employer, business, nonprofit entity, or other person who controls any property, establishment, or place of employment regulated by this section may declare any part of such area in which smoking would otherwise be permitted to be a non-smoking area.

(Ord. No. 3038 N.S., § 1, 11-1-2011; Ord. No. 3202 N.S., § 1, 11-21-2017)

The remedies provided by this subsection are cumulative and in addition to any other remedies available at law or in equity.

a. Enforcement of this section shall be the responsibility of the Alameda Police Department, although any peace officer, or fire or code enforcement officer, may also enforce this section.

b. While an establishment is undergoing otherwise mandatory inspections, fire and code enforcement officers shall inspect for compliance with this section.

c. Notice of this section will be provided to all applicants for a business license or renewal thereof; provided, however, lack of such notice shall be no defense to a violation of this section.

d. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this section.

e. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this section to refuse to comply with any of its provisions, or to permit any employee or patron to violate this section.

f. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this section.

g. Any person who violates any provision of this section shall be deemed guilty of an infraction, punishable by:

1. A fine not exceeding one hundred ($100.00) dollars for the first violation.

2. A fine not exceeding two hundred ($200.00) dollars for a second violation within one (1) year.

3. A fine not exceeding five hundred ($500.00) dollars for each additional violation of this section within one (1) year.

h. Violations of this section are subject to a civil action brought by the City Attorney, punishable by a civil fine not less than two hundred fifty ($250.00) dollars and not exceeding one thousand ($1,000.00) dollars per violation.

i. Notwithstanding any other provision of this section, a private citizen may bring legal action to enforce the requirements of this section.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

No person or employer shall discharge or in any manner retaliate against any employee because such employee exercises any right to a smoke-free environment afforded by the section.

(Ord. No. 3038 N.S., § 1, 11-1-2011)