Chapter 8 — SMOKING

Section

6-8.01 Findings and purpose

6-8.02 Definitions

6-8.03 Prohibition of smoking in city-owned facilities

6-8.04 Regulation of smoking in enclosed and open places

6-8.05 Regulation of smoking in places of employment

6-8.06 Optional smoking areas

6-8.07 Posting requirements

6-8.08 Vending machines

6-8.09 Distribution of free samples and coupons; out-of-package sales

6-8.10 Enforcement; penalty

6-8.11 Tobacco-free youth ordinance

6-8.12 Sale and distribution of tobacco-related promotional items

6-8.13 Self-service displays

6-8.14 Restrictions on tobacco retailers

6-8.15 Enforcement of state law

6-8.16 Application procedure

6-8.17 Issuance and display of license

6-8.18 License Fee Transference

6-8.19 Suspension of license

6-8.20 Administrative fine

6-8.21 Enforcement tools cumulative

(A) The City Council finds that:

(1) The U. S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution;

(2) Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular disease, and

individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease;

(3) Health hazards induced by breathing sidestream or secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function,

bronchoconstriction, and bronchospasm;

(4) 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;

(5) The smoking of tobacco, or any other weed or plant, is a danger to health;

(6) The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community; and

(7) The free distribution of cigarettes and other tobacco products is aimed at encouraging people to begin smoking and using tobacco products and tempts those who quit smoking to begin

smoking again.

(B) Purpose. The compelling purpose and intent of this chapter includes, but is not limited to, promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products.

('66 Code, § 6-8.01) (Ord. 869-C-S, passed 9-23-93)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

AREA OPEN TO THE PUBLIC. Any area available to and customarily used by the general public.

BAR. An area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (Department of Alcoholic Beverages Control Type 61, 42 or 48 licenses). That area of a restaurant 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 shall also be considered a bar. An area in which food service is only incidental shall not exceed 40% of a restaurant's total seating capacity, or shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40%. The operator of each restaurant shall designate by which method it determines its bar area.

BOWLERS' SETTEE. The area immediately behind the bowling line in which score is kept and seating is provided for bowlers waiting their turn to bowl.

BOWLING CENTER CONCOURSE. That area separated from the bowling lane, bowlers' settee and visitors' settee by at least one step or a physical barrier.

BOWLING LANE. The bowler’s approach, the foul line and the lanes.

CHARACTERIZING FLAVOR. A taste or aroma other than the taste or aroma of tobacco, imparted either prior to or during consumption of tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverages, herb, or spice, provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

CIGAR. Any roll of tobacco, other than a cigarette, wrapped entirely or in part in tobacco or in any substance containing tobacco and weighing more than three pounds per thousand.

DISTRIBUTE. 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.

EMPLOYEE. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.

EMPLOYER. Any person, partnership, corporation, including municipal corporation or public entity, who employs the services of two or more persons or two or more people conduct business within the establishment.

ENCLOSED. Closed in by a roof and walls with appropriate openings for ingress and egress.

GENERAL PUBLIC. Shoppers, customer, patrons, patients, students, clients and other invitees of a commercial enterprise or nonprofit entity.

LITTLE CIGAR. Any roll of tobacco, with or without a filter, other than a cigarette, wrapped entirely or in part in tobacco or in any substance containing tobacco and weighing no more than three pounds per thousand. LITTLE CIGAR includes, but is not limited to, any tobacco product known or labeled as "small cigar" or "cigarillo."

PLACE OF EMPLOYMENT. 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 or health care facility.

SMOKING. The carrying or holding 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 including, but not limited to, tobacco, cannabis, or any other weed or plant. SMOKING shall also include the use, whether by vaping or other means, of an “electronic cigarette” or “e-cigarette” (such as an electronic and/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. ELECTRONIC CIGARETTE or E-CIGARETTE also 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 similar product name or descriptor.

SPORTS ARENA. 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 sporting events.

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

VISITORS’ SETTEE. Seating provided immediately behind the bowlers’ settee.

(‘66 Code, § 6-8.02) (Ord. 869-C-S, passed 9-23-93; Am. Ord. 2196-C-S, passed 6-8-21; Am. Ord. 2207-C-S, passed 3-8-22)

Smoking is prohibited in all buildings, vehicles and other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city.

('66 Code, § 6-8.03) (Ord. 869-C-S, passed 9-23-93) Penalty, see § 6-8.10

(A) Smoking is prohibited in the following places within the city:

(1) In 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 of hotels

and motels, pharmacies, banks, shopping malls, and other offices;

(2) All restaurants. The owner or operator of the restaurant shall post signs as prescribed by § 6-8.07(A) and remove all ashtrays from tables and counter(s);

(3) Waiting rooms, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices, except that health facilities

shall also be subject to the provisions of § 6-8.05 regulating smoking in places of employment;

(4) Elevators, public restrooms, indoor service 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 facilities; provided, however, this prohibition does not prevent the establishment of separate waiting areas of smokers of non-smokers, provided at least 60% of a given waiting area shall be designated as a non-smoking area;

(5) In the public area(s) of museums and galleries;

(6) 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; provided, however, in outdoor facilities, designated smoking areas may be provided which shall be segregated from non-smoking areas;

(7) Retail food marketing establishments, including grocery stores, and supermarkets;

(8) 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;

(9) Sports arenas, both indoor and outdoor, and convention halls, except in outdoor sports arenas, designated smoking areas may be provided which shall be segregated from non-smoking areas;

(10) Bowling centers, including, but not limited to, bowling lanes, bowlers’ settees, visitors’ settees, and game rooms; provided, however, that a designated smoking area may be provided on the

bowling center concourse. The owner, manager or operator of the bowling center shall post signs as required by § 6-8.07 and removal all ashtrays from non-smoking areas;

(11) Private residences when used as child care or health care facilities. Board and care facilities shall provide smoke-free living quarters for non- smoking boarders;

(12) All city-owned facilities and any area, public or private, open to the general public for recreational purposes, regardless of any fee or age requirement, including, but not limited to parklands, including portions of parks, such as picnic areas, playgrounds, or sports fields, walking paths, hiking trails, bike paths, athletic fields, skateboard parks, amusement parks, and beaches.

(B) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a non-smoking establishment.

(‘66 Code, § 6-8.04) (Ord. 869-C-S, passed 9-23-93; Am. Ord. 873-C-S, passed 10-12-93; Am. Ord. 2196-C-S, passed 6-8-21) Penalty, see § 6-8.10

(A) Smoking is prohibited in any place of employment, including, but not limited to, open office areas, shared offices and private offices occupied by employees performing clerical, technical, admini- strative or other business or work functions; and, conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators.

(B) The provisions of this section shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter.

('66 Code, § 6-8.05) (Ord. 869-C-S, passed 9-23-93) Penalty, see § 6-8.10

Notwithstanding any provision of the 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 when covered by §6-8.04(A)(11);

(B) Bars, except as provided otherwise in this chapter;

(C) Licensed cardrooms;

(D) Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than 30% of their guest rooms as non-smoking rooms and removes ashtrays from these rooms;

(E) Rooms in restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while these rooms are being used for private functions;

(F) Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia;

(G) In places of employment, employers may provide specific smoking areas for employees provided all of the following conditions are met:

(1) The smoking area shall be provided with a heating, ventilating and air-conditioning (HVAC) system designated such that none of the air from the smoking area will be recirculated into the other

areas of the building.

(2) The smoking area shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors and all doors leading to the smoking area

shall be self-closing. The doors shall be provided with a gasket so installed as to provide a seal where the door meets the stop on both sides and across the top.

(3) The smoking areas shall maintain a minimum negative pressure of 0.005-inch water column relative to non-smoking areas.

(4) The employer shall submit written verification and test results to the City Manager or his/her designee prepared by a licensed mechanical contractor or engineer that the HVAC system has

been designed and tested and meets the requirements set forth in subdivisions (1) through (3) of this division.

(5) If the HVAC system is part of a smoke removal system or pressurization system, any modifications to these systems to provide smoking areas will require approval from the Riverview Fire

Protection District. Written verification of this approval shall be provided to the City Manager.

(6) If the specific smoking area is an employee break room, lunch room or other area which may be used by non-smoking employees, then a separate non-smoking break room, lunch room or

other area shall be provided of equal or larger size and include at least equal facilities;

(H) Bingo parlors.

('66 Code, § 6-8.06) (Ord. 869-C-S, passed 9-23-93; Am. Ord. 873-C-S, passed 10-12-93) Penalty, see § 6-8.10

(A) “Smoking” or “No Smoking” signs whichever are appropriate, 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 diagonal 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.

(B) Every hotel or motel regulated by this chapter will have posted at its entrance a sign clearly stating that non-smoking rooms are available, and every patron shall be asked as to his or her preference.

('66 Code, § 6-8.07) (Ord. 869-C-S, passed 9-23-93) Penalty, see § 6-8.10

Vending machines as defined in § 6-8.02 may be located only on those premises which have either a type 61, type 42 or type 48 license from the Department of Alcoholic Beverage Control. Vending machines must be at least 25 feet from any entry into the premises.

('66 Code, § 6-8.08) (Ord. 869-C-S, passed 9-23-93) Penalty, see § 6-8.10

(A) No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute, any cigarette or other tobacco or smoking product, including smokeless tobacco product; or coupons, certificates, or other written material which may be redeemed for tobacco 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 other tobacco or smoking products for commercial purposes shall in the course of such business distribute, any cigarette or product; or coupons, certificates, or other written material which may be redeemed for tobacco 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 include sports arenas as defined in § 6-8.02, and any entertainment facility, except a bar, whether enclosed or not, for which a charge is made for admission, whether publicly or privately owned.

(D) Out of package sales. No person shall sell or offer for sale cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer.

('66 Code, § 6-8.09) (Ord. 869-C-S, passed 9-23-93) Penalty, see § 6-8.10

(A) Enforcement.

(1) Administration of this chapter shall be by the City Manager or his/her designees.

(2) Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his/her designees.

(3) Any owner, manager, operator or employer of any establishment subject to this chapter may inform persons violating this chapter of the appropriate provisions hereof.

(B) Violations.

(1) It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to properly post signs required

hereunder.

(2) It shall be unlawful for any person to smoke in any area restricted to non-smoking by the provisions of this chapter.

(C) Penalty. Any person or business who violates division (B) of this section or any other provision of this chapter, shall be guilty of an infraction, punishable by fines as specified in §§ 1-2.01 et seq. of this code.

(D) Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any person, employee or applicant for employment because such person exercises any rights afforded by this chapter.

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

('66 Code, § 6-8.10) (Ord. 869-C-S, passed 9-23-93)

This ordinance shall be known and may be cited as the City of Antioch Tobacco-Free Youth Ordinance. It encompasses §§ 6-8.11 through 6-8.21 and § 9-5.519 of this Code. In adopting this ordinance, it is the intent of City Council to discourage teenagers from beginning the habit of smoking and to assist in the enforcement of existing tobacco products laws.

(Ord. 961-C-S, passed 9-14-99)

No manufacturer, distributor or retailer of tobacco products may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product. However, nothing in this section shall be construed to prevent minors, or any person, from wearing or possessing such items.

(Ord. 961-C-S, passed 9-14-99)

(A) It shall be unlawful for any person to sell, permit to be sold, offer for sale, or display any tobacco product by means of a self-service display rack, counter-top or shelf that allows any self-service customer access to any tobacco product.

(B) All tobacco products shall be offered for sale exclusively by means of seller assistance. Tobacco products shall be located exclusively in a locked case, located behind counters out of reach of customers, or in a similar location that is inaccessible to customers, requiring seller assistance for the customer to obtain access to the tobacco products.

(Ord. 961-C-S, passed 9-14-99)

(A) No tobacco retailer or business shall sell, offer for sale, possess with the intent to sell, offer in exchange for any form of consideration, or provide at no cost any tobacco or tobacco product that contains a constituent or additive, other than tobacco, that imparts a characterizing flavor.

(B) No tobacco retailer or business shall sell, offer for sale, possess with the intent to sell, offer in exchange for any form of consideration, or provide at no cost any electronic cigarette or e-cigarette for use with tobacco or tobacco products.

(Ord. 2207-C-S, passed 3-8-22; Am. Ord. 2215-C-S, passed 6-14-22; Am. Ord. 2228-C-S, passed 6-27-2023)

If an employee sells a tobacco product to a minor, the retailer shall immediately notify the Chief of Police or his designee of the violation of Penal Code section 308 for enforcement under that statue.

(Ord. 961-C-S, passed 9-14-99)

An application for a tobacco retailer's license shall be submitted in the name of the retailer who, following a finding of violation, proposes to conduct retail tobacco sales on the business premises and shall be signed by such retailer or its authorized agent. All applications shall be submitted on a form supplied by the city and shall contain the following information:

(A) The names, addresses and telephone number of the applicant;

(B) The business name, address and telephone number of each establishment where tobacco is to be sold; and

(C) Such other information as the City Manager or his designee determines is necessary for implementation of this ordinance.

(Ord. 961-C-S, passed 9-14-99)

Upon receipt of a completed application for a tobacco retailer's license, including payment of the license fee, the Director or his designee, will issue a license, which each licensee shall display prominently at the location where the tobacco retail sales are conducted.

Ord. 961-C-S, passed 9-14-99)

The fee for a tobacco retailer's license is non-transferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for a change of location. The new license will retain the same expiration date as the previous one.

(Ord. 961-C-S, passed 9-14-99)

(A) Grounds for suspension. A tobacco retailer's license may be suspended as stated herein by the Director of Health Services or his designee upon a finding, after giving the licensee notice and opportunity to be heard, that the licensee or his employee, has violated any law regulating the sale or distribution of tobacco products.

(B) Time period of suspension of license.

(1) Upon the first time that the Director makes a finding of violation, the license to sell tobacco products may be suspended for up to 60 days.

(2) Upon the second time that the Director makes a finding of violation within 12 months of the first determination, the license to sell tobacco products may be suspended for up to 120 days.

(3) Upon the third and each subsequent time that the Director makes a finding of violation within twelve months of the prior determination, the license to sell tobacco products may be suspended

for up to one year.

(C) Appeal of suspension. The decision of the Director to suspend a tobacco retailer's license may be appealed to the Board of Administrative Appeals.

(Ord. 961-C-S, passed 9-14-99)

(A) Grounds for fine. If the City Manager or his designee, after giving notice and an opportunity to be heard, finds a person is selling or offering tobacco products for sale without a required tobacco retailer's permit, that person may be subject to an administrative fine, as permitted under Government Code Section 53069.4, as follows:

(1) Up to a maximum of $100 for a first violation;

(2) Up to a maximum of $200 for a second violation within one year;

(3) Up to a maximum of $500 for the third and subsequent violations within one year.

(B) Fine procedures. Notice of the fine shall be served on the tobacco retailer or person who is owner of the establishment by certified mail and shall be deemed properly served and delivered if mailed to the address shown on the business license for the establishment. The notice shall contain an advisement of the right to request a hearing before the City Manager or his designee contesting the imposition of the fine. Said hearing must be requested within ten days of the date of the notice of the fine.

(C) Appeal to the Small Claims Court. Any fine imposed by the City Manager may be appealed by filing claim with the Small Claims Court.

(D) Failure to pay fine. Prior to the issuance of any license by the Contra Costa Health Services, any outstanding fines must be paid.

(E) Fine and license separate. The administrative fine provided for in this section is separate and apart from the tobacco retailer's license issued by the Director and for which a separate fee is obtained.

(Ord. 961-C-S, passed 9-14-99)

The enforcement mechanisms contained in this Tobacco-Free Youth Ordinance are cumulative with other procedures provided for in this code, and nothing herein shall prevent the issuance of citations or the application for injunctive relief, all as provided for in this code.

(Ord. 961-C-S, passed 9-14-99)