Butte County Municipal Code Art. V Regulation of Smoking in Workplaces and Enclosed Public Places

* Editor's note—Ord. No. 2581, § 1, adopted Feb. 10, 1987, pertaining to regulation of smoking in designated enclosed public places and workplaces, has been deleted as being superseded by Ord. No. 3039, § 1, adopted Dec. 1, 1992, pertaining to similar subject matter.

This article is enacted pursuant to the provisions of Section 25946 of the Health and Safety Code, Article I, section 1 of the Butte County Charter and Article XI, Section 7 of the California Constitution, for the purpose of restricting and prohibiting smoking in all enclosed areas open to the public in order to reduce the hazards which smoking causes to those involuntarily exposed thereto, and to restrict and otherwise prohibit smoking within workplaces for the protection of employees who are involuntarily exposed to sidestream or secondhand smoke.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

The following findings are hereby made:

(1) Tobacco smoke is a major contributor to indoor air pollution; and

(2) Breathing sidestream or secondhand smoke is a cause of disease, including lung cancer, in nonsmokers; and

(3) Persons at special risk from the breathing of sidestream or secondhand smoke include pregnant women, children, and elderly persons, persons with cardiovascular disease, and persons with impaired respiratory function, including asthmatics, and persons with obstructive airway disease; and

(4) Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, bronchospasm, and ear infections in children; and

(5) Nonsmokers with allergies or respiratory diseases and persons who suffer ill effects from 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; and

(6) The smoking of tobacco or any other weed or plant is a hazard to the health of the general public; and

(7) Existing studies on electronic smoking devices' vapor emissions and cartridge contents have found a number of dangerous substances and concerns including:

i. The existence of chemicals known to the State of California to cause cancer such as formaldehyde, acetaldehyde, lead, nickel, and chromium;

ii. The existence of very small particulate matter that reaches deep into the lungs (PM 2.5), xylene, acrolein, tin, toluene, and aluminum, which are associated with a range of negative health effects such as skin, eye, and respiratory irritation, neurological effects, damage to reproductive systems, and even premature death from heart attacks and stroke;

iii. There has been an increase in the reports of poisonings from electronic smoking devices and products, including acute poisonings of young children; and

iv. The existence of nicotine in most electronic smoking devices. Nicotine is a highly addictive neurotoxin included in the Proposition 65 list of Chemicals Known to the State to Cause Cancer or Reproductive Toxicity and is known to cause birth defects. Nicotine is a component of the emissions from electronic smoking devices.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 1, 9-15-15)

The following words and phrases, whenever used in this article, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning:

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

(2) "Dining area" means any enclosed area containing a counter or tables upon which meals are served.

(3) "Electronic smoking device" means an electronic and/or battery-operated device, which can be used to deliver an inhaled dose of nicotine or other substances. "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.

(4) "Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profits, and any person who volunteers his or her time or service for a nonprofit entity.

(5) "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, who employs the services of one (1) or more individual persons.

(6) "Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors 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.

(7) "Nonprofit entity" means any corporation, unincorporated association, or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a nonprofit entity within the meaning of this section.

(8) "Place of employment" means any enclosed area under the operation or control of a public or private employer which employees normally frequent during the course of employment, including but not limited to, work areas, individual and group offices, employee lounges, restrooms, conference rooms, classrooms, employee cafeterias and hallways.

(9) "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including but not limited to, banks, educational facilities, health facilities, public transportation facilities, reception areas, recreation facilities, sports arenas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a public place.

(10) "Retail food facility" means any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption directly to the consumer or indirectly through a delivery service regardless of whether there is a charge for the food.

(11) "Service line" means any indoor line at which one (1) or more persons are waiting for or are receiving service of any kind, whether or not such service involves the exchange of money.

(12) "Smoking" means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, operating an electronic smoking device, or a lighted cigarette, of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, a cigarette or an electronic smoking device, of any kind.

(13) "Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice skating rinks, bowling alleys, pool halls, 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.

(14) "Tobacco product" means any product that contains tobacco, is derived from tobacco, or contains synthetically produced nicotine and is intended for human consumption.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 2, 9-15-15)

All enclosed facilities owned, leased or rented by the county shall be subject to the provisions of this article. No public employee or member of the public shall smoke any tobacco product or operate any electronic smoking device in an outdoor area within twenty (20) feet of a main exit, entrance, or operable window of a county building.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 3, 9-15-15)

(a) Smoking shall be prohibited in all enclosed public places within the unincorporated area of the county, including but not limited to, the following places:

(1) 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, attorneys' offices and other offices, banks, and hotels and motels except rooms rented to guests.

(2) Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production and, in said event, the only smoking permitted in such a facility will be that smoking that is part of an incident to the performance.

(3) Buses, shuttle buses, taxi cabs, and other means of public transit sponsored by or subject to the authority of the county, and ticket, boarding, and waiting areas of public transit depots.

(4) Common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and adult day care facilities.

(5) Elevators.

(6) 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 of California during such time as a public meeting is in progress, to the extent the same is subject to the jurisdiction of the county.

(7) Polling places.

(8) Public areas of galleries, libraries, and museums when open to the public.

(9) Retail food facilities.

(10) Restrooms.

(11) Retail stores.

(12) Service lines.

(13) Sports arenas.

(14) Convention halls.

(15) Waiting rooms, hallways, wards and semi-private rooms of health facilities, including but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices.

(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 or facility. Upon such declaration and posting of notice pursuant to Section 15-157, smoking shall be prohibited in such establishment or facility.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 4, 9-15-15)

It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or other physical modifications.

Each employer, and each place of employment located within the unincorporated area of the county shall adopt, implement, make known and maintain a written smoking policy in which smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes, but is not limited to, the facilities specified in Section 15-154.

The smoking policy as set forth above shall be communicated to all employees within three (3) weeks of its adoption. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employees.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 5, 9-15-15)

(a) Notwithstanding any other provisions of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article:

(1) Private residences, unless such residence is used as a childcare or healthcare facility.

(2) Retail stores that deal primarily in the sale of tobacco products, smoking paraphernalia, or electronic smoking devices, and in which the sale of other products is merely incidental.

(3) Hotel and motel rooms rented to guests.

(4) Public or private assembly rooms while these places are being used for private functions.

(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 nonsmoking establishment. Upon such declaration and posting of notice pursuant to Section 15-157, smoking shall be prohibited in such establishment or facility.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 6, 9-15-15)

No Smoking signs or the international "No Smoking" symbol (consisting of the pictorial representation of a burning cigarette enclosed in a red circle not less than four (4) inches in diameter with a red bar across it) shall be clearly, sufficiently, and conspicuously posted in every building or other place where smoking is regulated by this article, by the owner, operator, manager or other person having control over the place.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(Ord. No. 4100, § 7, 9-15-15)

(a) Administration of this article shall be by the Butte County Health Officer or said officer's designees.

(b) Any citizen who desires to register a complaint hereunder may request the Butte County Health Officer or designees to consider enforcement.

(c) Enforcement may include any of the following actions:

(1) Service of a notice upon a person violating the provisions of this chapter requiring the correction of such violation;

(2) Commencement of a civil action in a court of appropriate jurisdiction to enjoin violation of the provisions of this chapter or otherwise require compliance herewith; and

(3) Initiation of criminal proceedings to assess any of the penalties hereinafter provided by this article.

(d) Any owner, manager, operator, or employer of any establishment controlled by this article shall have the right to inform persons violating this article of the appropriate provisions thereof;

(e) The fire department or 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 article have been complied with. For purposes of this article, said "self-certification" shall be sworn under penalty of perjury;

(f) No liability for nonenforcement. In undertaking the enforcement of this chapter, the county is assuming and undertaking only to promote the general welfare. It is not assuming, nor is it imposing upon its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury;

(g) When the provisions of this article are not remedied by county officials or any other public employee with authority to remedy any violations of this article, civil action against the County of Butte is denied and the county is absolved of any responsibility to enforce and/or of any liability for failure to enforce any provision hereof;

(h) Notwithstanding any other provision of this article, a private citizen may commence a civil action in a court of appropriate jurisdiction to enjoin violation of this article or otherwise require compliance herewith.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

(a) It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this article to fail to comply with any of its provisions.

(b) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this article.

(c) It shall be unlawful for any person to mutilate or destroy any signs posted pursuant to the provisions of the article.

(d) Any person who violates any provision of this article 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 of this article within any consecutive twelve (12) month period;

(3) A fine, not exceeding five hundred dollars ($500.00) for each additional violation of this article within any consecutive twelve (12) month period.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

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 for employment exercises any rights afforded by this article.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

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

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)

If any provision or clause of this article or the application thereof to any person or circumstances is held to be unconstitutional or to otherwise be invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses or applications thereof which can be implemented without the invalid provision or clause, or application, and to this end the provisions and clauses of this article are declared to be severable.

(Ord. No. 2581, § 1, 2-10-87; Ord. No. 3039, § 1, 12-1-92)