Chapter 6.11 — SMOKING POLLUTION CONTROL

Editor's note— Ord. No. 2151, § 4(Exh. B), adopted October 4, 2011, amended Ch. 6.11, in its entirety, to read as herein set out. Prior to inclusion of said ordinance, Ch. 6.11 pertained to similar subject matter. See also the Code Comparative Table and Disposition List.

The city council of the city finds and declares that secondhand smoke from pipes, cigars and cigarettes is a severe nuisance and hazard to the health of the general public. In enacting this chapter the city council is also aware of substantial medical evidence indicating that inhalation of secondhand tobacco smoke can endanger the health of nonsmokers.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

Smoking shall be prohibited within the following places within the city:

(1)

Elevators;

(2)

Buses and other means of public transit;

(3)

Public restrooms;

(4)

Hearing rooms of the city council of the city;

(5)

Within every room, chamber or place of public assembly during public meetings;

(6)

Waiting rooms, hallways, wards and semiprivate rooms of health facilities, including but not limited to hospitals, clinics, physical therapy facilities, doctors' and dentists' offices;

(7)

Reasonable distance areas;

(8)

Public recreational areas;

(9)

Bars, taverns, lounges, nightclubs;

(10)

Restaurants;

(11)

Service areas;

(12)

Dining areas;

(13)

Places of employment:

(14)

In all enclosed places of employment, as defined in subsection (15) of Section 6.11.110 of this chapter.

(15)

Other enclosed or unenclosed Public Places, when being used for a public event, including a farmer's market, parade, craft fair, or any event which may be attended by the general public, provided that smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

(a)

No person or employer shall knowingly permit smoking in an area which under legal or de facto control of the person or employer and in which smoking is prohibited by law, unless otherwise required by state or federal law.

(b)

No person or employer 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 the person or employer and in which smoking 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 in violation of any provision of this chapter.

(c)

No person or employer 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.

(d)

Each instance of smoking 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. 2151, § 4(Exh. B), 10-4-2011)

Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the Smoking restrictions of this chapter:

(1)

Hotel/motel guest rooms: Sixty-five percent of guest rooms in a hotel, motel or similar transient lodging establishment may be set aside for smokers. This means that at least thirty-five percent of hotel/motel sleeping rooms must be nonsmoking rooms.

(2)

Hotel/motel lobbies: Smoking is permitted in a designated hotel/motel lobby area that does not exceed twenty-five percent of the total floor area of the lobby, or, if the total area of the lobby is two thousand square feet or less, that does not exceed fifty percent of the total floor area of the lobby.

(3)

Meeting and banquet rooms: Smoking is permitted in meeting and banquet rooms only during private functions in a hotel, motel or other transient lodging establishment. However, Smoking may not be permitted when food or beverage functions are taking place, including setup, service and cleanup activities, or when the room is being used for exhibit purposes.

(4)

Truck cabs: Smoking is permitted in cabs of motor trucks or truck tractors, if no nonsmoking employees are present.

(5)

Theatrical productions: Smoking is permitted at theatrical production sites if Smoking is an integral part of the story.

(6)

Medical research/treatment site: Smoking is permitted at medical research or treatment sites if Smoking is integral to the research or treatment being conducted.

(7)

Private Residences: Smoking is permitted in private residences, except for those residences licensed as family day care homes. In those cases, Smoking is prohibited during the hours when the home is used as a family day care home and in those areas where children are present.

(8)

Patient Smoking areas: Smoking is permitted in patient Smoking areas of long-term health care facilities, as defined in Section 1418 of the Health and Safety Code. This generally includes any licensed facility that is a skilled nursing, intermediate care, developmentally disabled or congregate care facility.

(9)

Employee breakrooms: Smoking is permitted in employer-designated Smoking rooms, except for within publicly owned or operated buildings, provided all of the following conditions are met:

(A)

Air from the Smoking room shall be exhausted directly to the outside. Air from the Smoking room shall not be recirculated to other parts of the building.

(B)

The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, adopted by the Occupational Safety and Health Standards Board, or the EPA, whichever is stronger.

(C)

The Smoking room shall be located in a nonwork area where no one, as part of their job responsibilities, is required to enter.

(D)

There are sufficient nonsmoking breakrooms to accommodate nonsmoking employees.

(10)

Small businesses: Smoking is permitted in places of employment with five or fewer full- or part-time employees, if all of the following conditions are met:

(A)

The Smoking area is not accessible to minors.

(B)

All employees consent to Smoking in the area, and such consent is not coerced.

(C)

Air from the Smoking area is exhausted directly to the outside and is not recirculated to other parts of the building.

(D)

The employer complies with the ventilation standards described above for breakrooms.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

Notwithstanding any other provision of this chapter, any person, employer, or business with legal control over any property may declare that entire business as a nonsmoking establishment and prohibit smoking on any part of such property, even if smoking is not otherwise prohibited in that area.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

A person or employer that has legal or de facto control of an area where smoking is prohibited by this chapter shall post a clear conspicuous and unambiguous "No Smoking" or "Smokefree" sign outside of each point of ingress to the area, and at 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 wording describing the reasonable distance requirement set forth in Section 6.11.020. For the purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs in regulated facilities or areas leased or owned in whole or part by the City. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

(a)

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

(b)

It is unlawful for any person or employer 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.

(c)

It is unlawful for any person to smoke in any area in which smoking is prohibited by the provisions of this chapter.

(d)

It is unlawful for any person or employer to cause, permit, abet, or conceal a violation of any provision of this chapter. Such violation shall constitute a violation of this chapter.

(e)

Notwithstanding any provision to the contrary, any person or employer that violates any provision of this chapter shall be guilty of an infraction, punishable by:

(1)

A fine of one hundred dollars for a first violation;

(2)

A fine of two hundred dollars for a second violation within one year of a previous violation for which the violator has been convicted;

(3)

A fine of five hundred dollars for each additional violation of this section within one year of a second violation of which the violator has been convicted;

(4)

For purposes of this chapter, each day that a violation is committed, permitted or continued shall constitute a separate offense.

(f)

Any violation of this chapter is hereby declared a public nuisance, as defined in Chapter 6.10, and subject to the penalties and enforcement action described therein.

(g)

In addition to the other remedies provided by this chapter or by any other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(h)

Except as otherwise provided, enforcement of this chapter is at the sole discretion of the City. Nothing in this chapter shall create a right of action in any person against the City or its agents to compel public enforcement of this chapter.

(i)

Any person for the interests of itself, its members, or the general public may bring a civil action to enjoin a violation of this chapter by a property owner, employer, business, or nonprofit entity or to enjoin repeat violations of this chapter by an individual.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

No person shall discharge, refuse to hire, or in any manner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

If any section, subsection, subdivision, paragraph, sentence, clause, phrase or other provision of this chapter, or its application thereof to any Person or circumstances, is for any reason held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, phrase, or other provisions of this chapter which can be given effect without the invalid section, subsection, subdivision, paragraph, sentence, clause, phrase, or provision or application, and to this end the sections, subsections, subdivisions, sentences, clauses, phrases, or other provisions of this chapter are declared to be severable.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

(a)

This chapter is intended to implement and supplement the provisions of California Labor Code Section 6404.5, and all other applicable state and federal laws, and shall not be construed as conflicting with the provisions of California Labor Code Section 6404.5 or any other applicable state and federal laws.

(b)

In the event that California Labor Section 6404.5, or any other applicable state or federal law, is repealed, this chapter shall remain in full force and effect.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

(1)

"Bar, tavern, lounge or nightclub" means a facility primarily devoted to the serving of alcoholic beverages, in which the serving of food is incidental. A bar, tavern, lounge or nightclub can be freestanding, but also includes those facilities located within a hotel or motel or other transient occupancy establishment. When a bar, tavern, lounge or nightclub is located in conjunction with another use, such as a restaurant, the definition of bar or tavern applies only to those areas used primarily for the sale and service of alcoholic beverages. Bar, tavern, lounge or nightclub does not include the dining areas of a restaurant, regardless of whether alcohol is served in them.

(2)

"Business" means any sole proprietorship, partnership, joint venture, corporation, association and includes any commercial or industrial establishment, including, but not limited to, the common areas of a building which leases space to one or more commercial or industrial tenants.

(3)

"Dining area" means any area of a business, which is available to or customarily used by the general public or an employee, and is designed, established, or regularly used for consuming food or drink regardless if located on public or private property or whether enclosed or unenclosed.

(4)

"Electronic smoking device" means an electronic and/or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances. "Electronic smoking device" includes any such electronic smoking devices, 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. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment or prevention of diseases.

(5)

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

(6)

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

(7)

"Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical boundaries of any height whether or not those

boundaries include vents or other openings; or four walls or other vertical boundaries that exceed six feet in height whether or not those boundaries include vents or other openings.

(8)

"Gaming club" means any gaming club as defined in Section 19802 of the Business and Professions Code or bingo facility as defined in Section 326.5 of the Penal Code that restricts access to minors under the age of eighteen.

(9)

"Lobby" means the common public area of a hotel/motel in which registration and other similar activities are conducted and in which the establishment's guests and members of the public congregate.

(10)

"Motion picture theater" means any theater engaged in the business of exhibiting motion pictures.

(11)

"Person" means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or other legal entity including government agencies.

(12)

"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.

(13)

"Place of public assembly" means a room or chamber in which a public entity conducts a public meeting.

(14)

"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, restaurants, retail stores, retail service establishments, retail food establishments and waiting rooms. A private residence is not a "public place."

(15)

"Public recreational area" means any area that is owned or operated by the City of Campbell and 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 the community center, the public area located between city hall and the Campbell library commonly known as the orchard city green, parks, playgrounds, sports fields, walking paths, gardens, hiking trails, bike paths, trails, swimming pools, roller-and ice-skating rinks, and skateboard parks.

(16)

"Reasonable distance area" means a distance of twenty feet in any direction from any doorway, window opening, crack, or vent of any area where smoking is prohibited under Section 6.11.020 of this chapter, except while actively passing on the way to another destination. Nothing in this definition shall limit or reduce the minimum smoking prohibition distance requirements for any publicly owned or utilized building or structure, subject to state or federal regulations.

(17)

"Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, or organization, club, including veterans' club, boardinghouse, or guesthouse which gives or offers for sale food to the public, guests, patrons or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering functions, except that the term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined in subsection (1) of this section.

(18)

"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, information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or cab lines.

(19)

"Smoke" means any gases, vapors and/or particles released into the air by combustion, electrical ignition, or vaporization when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the resulting byproducts, except when the combustible material contains no tobacco, nicotine, or controlled substance as defined in section 802 of Title 21 of the United States Code 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, and vapors from an electronic smoking devise.

(20)

"Smoking" means engaging in any activity that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind; or lighting a pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind, or a heated or activated electronic smoking devise.

(21)

"Theatrical productions" means any movie and television production set (indoor or outdoor) and live theater.

(22)

"Tobacco product" means any substance containing tobacco leaf, 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.

(23)

"Tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

(24)

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

(25)

"Warehouse facility" means a warehouse facility with more than one hundred thousand square feet of total floor space, and twenty or fewer full-time employees working at the facility, but does not include any area within such a facility that is utilized as office space.

(26)

"Workplace" means any enclosed places of employment with walls and a ceiling. Partitioned, individual offices within a larger office space are included, since they are within a larger building. Individual offices with doors within a larger office space are included, since they are within a larger building. Indoor restaurants are also included, since they are considered enclosed places of employment.

A private residence is not a workplace, except for those residences licensed as family day care homes. In those cases, Smoking is prohibited during the hours when the home is used as a family day care home and in the presence of children.

(Ord. No. 2151, § 4(Exh. B), 10-4-2011; Ord. No. 2204, § 1, 6-21-2016; Ord. No. 2218, § 8, 1-17-2017)