Alturas Municipal Code Art. II Twenty-Foot Entry Way and Outoor Smoke-Free Dining

The following words and phrases, whenever used in this chapter shall have the meanings defined in this section unless the context clearly requires otherwise:

"Business" means any sole proprietorship, partnership, joint venture, corporation, association, landlord, or other entity formed for profit-making purposes.

"Dining area" means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and that is designed, established, or regularly used, for consuming food or drink.

"Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

"Employee" means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer.

"Employer" means any business or nonprofit entity that retains the service of one or more employees.

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

(1) Any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

(2) Four walls or other vertical constraints to airflow including, but not limited to, vegetation that exceed six feet in height, whether or not those boundaries include vents or other openings.

"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 government agency is not a Nonprofit Entity within the meaning of this chapter.

"Person" means any natural person, cooperative association, employer, personal representative, receiver, trustee, assignee, or any other legal entity including a government agency.

"Place of employment" means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation.

"Public place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.

"Reasonable distance" means a distance of twenty feet in any direction from an area in which smoking is prohibited.

"Service area" means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.

"Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "Smoke" includes, but is not limited to, tobacco smoke, electronic smoking device vapors, marijuana smoke, and crack cocaine smoke.

"Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

"Tobacco 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, snuff; and

(2) Any electronic smoking device.

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory of 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.

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

(Ord. No. 507, § 1, 2-21-2017; Ord. No. 516, § 1, 1-15-2019)

(a) Smoking, and the use of tobacco products, is prohibited in the unenclosed areas of the following places within the City of Alturas:

(1) Repealed;

(2) Service areas;

(3) Dining areas;

(4) Places of employment;

a. The area must be located a reasonable distance from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate that as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;

b. The area must not include, and must be a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;

c. The area must have a clearly marked perimeter;

d. The area must be identified by conspicuous signs;

e. The area must be completely within an unenclosed area; and the area must not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.

(b) Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking, and the use of tobacco products on any part of such property, even if smoking, or the use of tobacco products, is not otherwise prohibited in that area.

(c) The tobacco education project coordinator or his/her designee shall conduct an ongoing educational program to explain and clarify the purposes and requirements of this chapter, as well as to provide guidance to persons, employers, and nonprofit entities about compliance. However, lack of such education shall not be a defense to a violation of this chapter.

(Ord. No. 507, § 1, 2-21-2017; Ord. No. 516, § 2, 1-15-2019)

(a) Smoking in all unenclosed areas shall be prohibited within a twenty-foot distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while the person smoking is actively passing on the way to another destination.

(b) Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under section 30-15 of this chapter, except while the person smoking is actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited.

(Ord. No. 507, § 1, 2-21-2017)

(a) No person, employer, or nonprofit entity shall knowingly permit smoking, or the use of tobacco products, in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking, or the use of tobacco products, is prohibited by law.

(b) No person, employer, 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 under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking, or the use of tobacco products, is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which smoking, or the use of tobacco products, is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking, or the use of tobacco products, in violation of any provision of this chapter.

(c) No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking, or the use of tobacco products, is prohibited, including within any reasonable distance required by this chapter.

(d) A person, employer, or nonprofit entity that has legal or de facto control of an area in which smoking, or the use of tobacco products, is prohibited by this chapter shall post a clear, conspicuous and unambiguous "No Smoking" and "No Use of Tobacco Products" or "Smoke-Free" and "Tobacco-Free" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include 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. Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in section 30-16. Any sign placed by the city for the purpose of prohibiting smoking shall contain the Modoc County Tobacco Policy and Education phone number. For purposes of this section, the city planner or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the City of Alturas. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking, or the use of tobacco products, in violation of any other provision of this chapter.

(e) No person, employer, or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter.

(f) Each instance of smoking, or the use of tobacco products, in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation.

(Ord. No. 507, § 1, 2-21-2017; Ord. No. 516, § 3, 1-15-2019)

(a) The remedies provided by this chapter are cumulative and in addition to any other remedies available by law.

(b) Each incident of smoking, or the use of tobacco products, in violation of this chapter is an infraction subject to a one hundred dollar fine or otherwise punishable pursuant to section 30-12 of this Code. Other violations of this chapter may, at the discretion of the district attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the police department. In addition, any peace officer or code enforcement official also may enforce this chapter.

(c) Violations of this chapter are subject to a civil action brought by the City of Alturas/County of Modoc's Tobacco Education, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(e) Any violation of this chapter is hereby declared to be a nuisance.

(f) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the district attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(g) Any person acting for the interests of itself, its members, or the general public (hereinafter "private enforcer") may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including: (1) awarding damages; and (2) issuing an injunction or a conditional judgment. If there is insufficient or no proof of actual damages for a specific violation, the court shall award one hundred and fifty dollars for each violation as statutory damages.

(Ord. No. 507, § 1, 2-21-2017)

Smoking in public buildings and vehicles; city employees and volunteers:

(1) No person shall smoke within any enclosed or city-leased facility in the city. No person shall smoke within city owned or city-leased vehicles as defined by the vehicle code of the state.

(2) Enforcement of this chapter may be enforced by any peace officer with jurisdiction.

(3) Any person violating any regulatory or prohibitive provision shall be guilty of an infraction. However, the third or any subsequent violation of any regulatory or prohibiting provision of this chapter by the same person within a twelve-month period may face discipline time off without pay, and/or termination.

(4) A separate offense is committed for each and every act, event or occurrence in violation of any regulatory or prohibitory provision of this chapter. Each offense shall be punishable separately from every other offense.

It is not the intention of this chapter to regulate any conduct where the regulation of such conduct has been preempted by the State of California.

(Ord. No. 507, § 1, 2-21-2017)

It is the intent of the City Council of the City of Alturas to supplement applicable state and federal law and not to duplicate or contradict such law and this chapter shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. City Council of the City of Alturas hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof independently, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable.

Findings. All findings referenced in this chapter can be found on file with the City of Alturas or the Modoc County Health Department.

(Ord. No. 507, § 1, 2-21-2017)