Brisbane Municipal Code Ch. 8.45 Smoking in Certain Public Places and Businesses Patronized by The…

A. This chapter shall apply in every location within the geographical limits of the city and to structures owned or leased by the city, wherever located.

B. Smoke produced in violation of this chapter or state law is a nuisance.

(Ord. No. 602, § 1, 12-8-15)

This chapter shall be construed and applied to promote its basic purposes and policies which are:

A. To protect the public health and welfare by prohibiting or limiting smoking in public places and places of employment, as hereinafter set forth.

B. To strike a reasonable balance between the needs of persons who smoke and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air should have priority.

C. To promote smoke-free environments by diminishing ease of accessibility to tobacco and tobacco-related products through vending machine sales of tobacco and tobacco-related products.

D. To reduce the initiation and maintenance of tobacco use, especially by minors, by prohibiting the distribution and sale of tobacco products through vending machines and self-service displays, and the out-of-package sales of those products.

(Ord. No. 602, § 1, 12-8-15)

For the purpose of this chapter, unless the context clearly requires a different meaning, the words, terms, and phrases set forth in this section have the meanings given to them in this section:

A. "Enclosed" means closed in by a roof and walls on all sides with appropriate openings for ingress and egress, windows and ventilation. For purposes of this chapter, any city-owned multilayer parking structure shall be considered an enclosed structure.

B. "Public roadway" means that portion of the public right-of-way designed and ordinarily used for motor vehicle travel, including any contiguous medians, curbs and any narrow planting areas that may exist on public property between the curb and a public sidewalk. "Public roadway" does not include sidewalks or other areas adjacent to public streets unless specifically included in the prior sentence.

C. "Self-service display" means an open display of tobacco products that the public has access to without the intervention or assistance of an employee.

(d) "Smoke" (noun) means any vapors, gases, particles or other by-products released as a result of combustion or electrical ignition, when the apparent or usual purpose of the combustion or electrical ignition is human inhalation of the byproducts, except when the combusting or igniting material both contains no tobacco or nicotine and the usual purpose of inhalation is solely olfactory such as with the burning of incense. Smoke does not include combustion of substances regulated by the United States Food and Drug Administration and used for medical or therapeutic purposes. Smoke specifically includes but is not limited to gases, particles, vapors or other by-products released by electronic cigarettes, tobacco cigarettes, herbal cigarettes, marijuana cigarettes and any other type of cigarette, pipe or other implement for the purpose of inhalation of vapors, gases, particles or other by-products released as a result of combustion or ignition.

E. "Smoking" or to "smoke" (verb) means possessing a lighted or ignited tobacco or nicotine product or paraphernalia; or engaging in an act that generates smoke (including, but not limited to, possessing a lighted or ignited pipe, hookah pipe, cigar, or cigarette of any kind including but not limited to an electronic cigarette); or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind including but not limited to an electronic cigarette.

F. "Tobacco," "tobacco product," "tobacco or smoking product," or "tobacco or nicotine product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco which can be used for smoking, chewing, inhalation or other means of ingestion; and any electronic cigarette or other electronic device used to generate smoke; and 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 cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

G. "Vendor assisted" means that only a store employee has access to the tobacco product and assists the customer by supplying the product.

(Ord. No. 602, § 1, 12-8-15)

Smoking shall be prohibited at each of the following locations:

A. within any enclosed structure owned or leased by the city wherever located except private residences leased from the city; and within thirty (30) feet in any direction from any enclosed structure owned by the city, as determined by the director of public works, up to the edge of city property except areas that are fewer than thirty (30) feet from the enclosed structure that lie within a public roadway or a public sidewalk that is contiguous to a public roadway.

B. Within all enclosed areas available to, and customarily used by, the general public, in all businesses patronized by the public and all enclosed passageways between businesses.

C. At the following city-owned beaches, parks, trails and outdoor sports facilities: Mission Blue Field, Upper Bicentennial Walkway, Lower Bicentennial Walkway, Mono and Klamath Walkway, Hydrant Park, Skateboard Park, Community Center Park site, Community Park, Community Pool, Firth Park, Silverspot/Tot Lot site, Dog Park, Old Quarry Road Park, Crocker Park Trail, Mission Blue Tennis Courts, and at the Marina on the Bay Trail pathway along the shoreline and at the adjoining picnic and recreational areas.

D. At any city-owned public parking area at any of the beaches, parks, trails and sports fields set forth in subsection (c) above except that smoking is not prohibited at the public parking lots at Sierra Point.

E. At any city-operated or co-sponsored recreational program or recreational activity that takes place on property that is not owned by the city.

F. At all public transit shelters.

(Ord. No. 602, § 1, 12-8-15)

"Smoking" or "no smoking" signs, whichever are appropriate, with letters 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 conspicuously posted in every room, building or other place where smoking is regulated by this chapter, by the owner, operator, manager or other person having control of such building or other place.

(Ord. No. 602, § 1, 12-8-15)

Any owner, manager, operator, or employee of any establishment controlled by this chapter shall have the right to inform persons violating this chapter of the requirements of the provisions being violated and the consequences of such violation.

(Ord. No. 602, § 1, 12-8-15)

It shall be 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 comply with its provisions.

(Ord. No. 602, § 1, 12-8-15)

It shall be unlawful for any person to smoke in any area restricted by the provisions of this chapter.

(Ord. No. 602, § 1, 12-8-15)

A. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:

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

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

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

B. Misdemeanors. Any person who violates any provision of this chapter in excess of three (3) times within one year, shall be guilty of a misdemeanor, punishable by the fines, penalties and enforcement provisions set forth in Chapters 1.14, 1.16 and 1.18 of this code.

C. Each day that a violation of this chapter continues shall constitute a separate violation of this chapter.

D. The remedies provided for by this chapter are not intended to preclude or in otherwise limit any other remedy available by law or equity.

(Ord. No. 602, § 1, 12-8-15)

No person shall retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by the ordinance.

(Ord. No. 602, § 1, 12-8-15)

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

(Ord. No. 602, § 1, 12-8-15)

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable chapter of this code or other law or regulation.

(Ord. No. 602, § 1, 12-8-15)

Any owner or manager of a business or establishment subject to this chapter may apply to the city manager or the city manager's designee for an exemption or modification to any provision of this chapter due to unusual circumstances or conditions.

A. Such exemption shall be granted only if the city manager or the city manager's designee finds from the evidence presented by the applicant for exemption that due to such unusual circumstances or conditions it would cause a substantial impairment of the function of the establishment or business to carry out some or all of the provisions of this chapter.

B. The applicant for an exemption shall pay the fee prescribed by the city manager or the city's manager's designee to cover the cost of the hearing and noticing of hearing.

(Ord. No. 602, § 1, 12-8-15)

Cigarette vending machines and the sale of tobacco products and accessories are prohibited in city-owned structures and in those areas of other structures leased by the city, wherever located.

(Ord. No. 602, § 1, 12-8-15)

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 to any person on any public street or sidewalk or in any public park or playground or on any other public place (1) any cigarette or other tobacco or smoking product without charge, or (2) coupons, certificates, or other written material that may be redeemed for tobacco products without charge.

(Ord. No. 602, § 1, 12-8-15)

No person shall sell or offer for sale cigarettes or other tobacco products not in the original packaging provided by the manufacturer.

(Ord. No. 602, § 1, 12-8-15)

No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a vending machine or appliance, or any other device designed or used for vending purposes.

(Ord. No. 602, § 1, 12-8-15)

No person, firm, association or corporation shall sell, permit to be sold or offer for sale any tobacco product by means of self-service displays, or by any means other than vendor assisted sales.

(Ord. No. 602, § 1, 12-8-15)