Del Mar Municipal Code Ch. 11.08 Smoking and Tobacco Regulations

A. The smoking of tobacco or any other weed or plant has been widely recognized as a public health threat to those who use tobacco products. Secondhand smoke from tobacco, and other plants, has also been recognized as a health hazard and as a cause of annoyance, inconvenience and discomfort to other persons in proximity to the smoking activity. Secondhand smoke has been identified as being particularly harmful to persons with certain respiratory conditions, and has also been determined to cause cancer to nonsmokers exposed to secondhand smoke on a frequent basis.

B. Tobacco products are a major and persistent source of litter, in the City of Del Mar, on its streets and in its parks and beaches, and hence constitute a public nuisance as well as a health hazard. Tobacco litter also presents a threat to wildlife. Cigarette filters have been found in the stomachs of fish, birds, whales and other marine creatures who mistake them for food. Composed of cellulose acetate, a form of plastic, cigarette butts can persist in the environment as long as other forms of plastic. Additionally, Cigarette butts pose a health threat to young children.

C. This chapter of the Municipal Code is intended to protect public health, safety and welfare, to reduce unwanted and unwelcome exposure to secondhand smoke. It is also intended to provide for a cleaner and more hygienic environment for those who live, work and play in Del Mar. This chapter is also intended to create a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including children and persons with existing respiratory conditions. Finally, this Chapter is also intended to decrease the accessibility of tobacco and tobacco-related products to underage minors.

(Ord. No. 835)

A. Bar shall mean any area which is devoted to the serving of alcoholic beverages and in which serving food is only incidental to the consumption of such beverages. Bar shall include those facilities located within a hotel, motel, or other similar transient occupancy establishment. Bar shall include those areas located within eating establishments that are devoted to serving alcoholic beverages and in which serving food is only incidental to the consumption of such beverages. Bar does not include the dining areas of a restaurant, regardless of whether or not alcoholic beverages are served therein.

B. City carpool vehicle shall mean any truck, van, or automobile owned or leased by the City and operated by a City employee.

C. Eating establishment shall mean any coffee shop, cafeteria, short-order cafe, luncheonette, delicatessen, soda fountain, restaurant, or other commercial entity serving food to members of the public for on-site consumption.

D. Employee shall mean any person who works for an employer in consideration of direct or indirect monetary wages or profit.

E. Employer shall mean any person who employs the services of an individual person or persons in consideration of direct or indirect monetary wages or profit.

F. Enclosed area as used in this Chapter, shall mean:

1. Any building space located between a floor and ceiling with perimeter walls on all sides, either permanent or temporary;

2. Any covered or partially covered area of a structure where 50 percent or more of the perimeter of the covered area is, in total, defined by vertical walls or partial walls; and/or

3. Any uncovered area of a structure where 75 percent or more of the perimeter line along the uncovered area is defined, in total, by a vertical wall or partial wall. Atrium and courtyards are examples of this type of enclosed area, as defined in this Section.

G. Enclosed public place as used in this Chapter, shall mean any enclosed area to which the public is invited or in which the public is permitted. Examples of enclosed public places include, but are not limited to: retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theatres, educational facilities, public transportation facilities, stores, banks, eating establishments, hotels, motels, museums, galleries, polling places, health care facilities of any kind (including clinics, dental, chiropractic, or physical therapy facilities), general business offices, nonprofit entity offices and libraries. Enclosed public places further include, but are not limited to, hallways, restrooms, stairways, escalators, elevators, lobbies, waiting rooms, reception areas, waiting rooms, checkout stations, counters and other pay stations, classrooms, meeting or conference rooms, lecture rooms, or other places in which members of the general public congregate for service or otherwise frequent. A private residence shall not be considered an enclosed public place, unless operated as a child day-care or licensed care facility.

H. Place of employment shall mean any area under the legal or de facto control of an employer, business or nonprofit entity, where an employee or member of the general public may enter in the normal course of operations, regardless of the hours of operation. Place of employment shall include, but not be limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, employee lounges, conference and banquet rooms, health care facilities and warehouses. A private residence shall not be considered a place of employment unless it is used as child-care or health-care facility subject to licensing requirements. For purposes of this Chapter, "place of employment" shall mean the same as "workplace."

I. Playground shall mean any public or privately owned park or recreational area, with or without sports equipment, designed to be used by children for play or sports activities.

J. Reasonable distance shall mean a distance of 20 feet or, a greater distance as may be required in this Chapter to ensure that occupants or users of an area in which smoking is prohibited are not exposed to second-hand smoke created by those smoking outside a smoke-free area. With respect to proximity to a designated smoking area, reasonable distance shall also mean the distance, as determined in writing by the City Manager, to be necessary in a given circumstance to ensure that occupants or users of a smoke-free area are not exposed to second-hand smoke.

K. Self-service merchandising shall mean the open display of tobacco products and point-of-sale tobacco-related promotional products in an area to which the public has access but without the intervention of any employee.

L. Smoke-free area shall mean any location in which smoking is prohibited pursuant to this Chapter.

M. Smoking as defined in this Chapter, shall mean the possession of any lighted pipe, lighted cigar, the use of an electronic cigarette as defined in California Health and Safety Code § 119405 or a similar device intended to emulate smoking, which permits a person to inhale vapors or mists that may or may not include nicotine, or lighted cigarette of any kind, or the lighting of a pipe, cigar, or cigarette of any kind, including, but not limited to, any tobacco product, or any other weed or plant.

N. Tobacco product shall mean any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco, and smokeless tobacco.

O. Tobacco retailer shall mean any person or governmental entity that operates a store, stand, concession, or other place at which sales of tobacco products are made to purchasers for consumption or use.

P. Tobacco vending machine shall mean any electronic or mechanical device or appliance that dispenses or releases tobacco products and/or tobacco accessories and which operates upon the insertion of money, token or other item representation of value.

Q. Workplace. see "Place of employment."

(Ord. No. 354; Ord. No. 621; Ord. No. 653; Ord. No. 783; Ord. No. 835; Ord. No. 895)

Except as otherwise allowed by this Chapter, smoking is prohibited at all of the following locations:

A. Enclosed public places;

B. Places of employment and within a reasonable distance of the outside entrances, operable windows, and ventilation systems of places of employment, as reasonable distance is defined in this Chapter. This prohibition shall apply to all portions of the places of employment, including but not limited to: common work areas, meeting rooms, offices, elevators, hallways, food service or storage areas, closets, employee lounges, stairwells, and restrooms;

C. City carpool vehicles;

D. Taxi cabs operating under a valid City of Del Mar Taxicab Operations Permit issued pursuant to Chapter 6.32 of the Del Mar Municipal Code;

E. Child Day-Care facilities;

F. Parks, beaches, and seawalls, and in or on the sidewalks, stairs, and bulbed street-ends adjacent to parks, beaches and seawalls;

G. All sidewalks and those segments of any street lined with a sidewalk. This provision applies to all streets and sidewalks to which the public is provided regular access but does not apply to private residential property;

H. All potions of outdoor seating areas of an eating establishment and within a reasonable distance of all outdoor seating areas of an eating establishment including adjacent sidewalks and/or streets and roads, as reasonable distance is defined in this Chapter. This prohibition bans smoking in any area approved for operation pursuant to a City of Del Mar Sidewalk Cafe Permit;

I. All public plazas and public semi-public spaces identified in a Specific Plan approved by the City of Del Mar;

J. All outdoor arenas, stadiums, and amphitheaters and in any bleachers and grandstands used by spectators of such arenas, stadiums and amphitheaters;

K. All public transportation station facilities such as, train platforms and bus shelters; and within a reasonable distance of such facilities, as reasonable distance is defined in this Chapter;

L. Any property designated on the City's Zoning Map as being within the Public Facilities (PF) Zone and regulated by Chapter 30.31 of the Del Mar Municipal Code; and

M. All portions of private residences licensed by the State of California as a child day-care facility. This prohibition applies to all portions of the child day-care facility, enclosed or unenclosed, where children may be exposed to smoke.

(Ord. No. 783; Ord. No. 835)

Notwithstanding any other provision of this Chapter, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may, at their discretion, declare the entire establishment, facility, or outdoor area, or portion thereof, as a no-smoking area. Smoking shall be prohibited in any location where a declaration of no-smoking has been made in accordance with the provisions of this Section and where a sign declaring the establishment as a no-smoking area has been posted.

A. The owner, operator, manager, or other person in control of a location in which smoking is prohibited pursuant to the provisions of this Chapter shall install signage notifying employees, patrons and/or visitors of the prohibition on smoking.

B. The signage required in this Section shall include the text "No Smoking" in letters not less than one-inch in height displayed against a contrasting background. Signs of similar size containing the international "no-smoking" symbol may be used in addition to, or in lieu of, the required text signs. The symbol shall consist of 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. The signage required herein shall be clearly and conspicuously posted at congregating points in, and at entrance points to, all no-smoking areas.

C. Every vehicle that constitutes a place of employment pursuant to the provisions of this Chapter shall have at least one conspicuous sign, visible from the exterior of the vehicle, clearly stating that smoking is prohibited.

D. No ashtrays shall be placed, installed or retained in an area where smoking is prohibited by this Chapter.

Smoking shall only be permitted in an enclosed public place as authorized by California Labor Code § 6404.5 as that statute may from time-to-time be amended and according to the following additional requirements:

A. Smoking may not be allowed in more than 65 percent of the guests rooms of any hotel, motel or similar transient lodging establishment and all smoke-free guest rooms shall include permanent No-Smoking signage and shall not be equipped with ashtrays.

B. In enclosed public places where smoking is allowed pursuant to this Chapter, signs shall be displayed at each point of entry to and within each allowed smoking area warning parties of the possible existence of smoke and of the dangers of second-hand smoke. The signage required herein shall contain the following message:

"WARNING: THIS FACILITY PERMITS SMOKING, AND TOBACCO SMOKE IS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER."

The signage required in this Subsection shall be composed of text containing all capital letters, not less than one inch in height, displayed on a contrasting background.

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

Tobacco products may only be sold or distributed from a permanent and fixed location and pursuant to all other licenses and permits required by this Code and State and Federal laws.

A. The City Manager, or designee, shall be responsible for compliance with this Chapter for those facilities owned, operated or leased by the City of Del Mar.

B. The owner, operator or manager of any facility, place of employment or enclosed public place shall be responsible for the following at such facility, enclosed public place or place of employment:

1. Compliance with this Chapter;

2. Posting all "No Smoking" signs required by this Chapter; and

3. Denying service to any person who violates this Chapter by smoking in a posted "No Smoking" area.

C. It shall be the responsibility of employers to disseminate information concerning the provisions of this Chapter to their employees.

D. No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products at a place of employment in violation of the provisions of this Chapter.

E. For purposes of this Section, an employer who permits any non-employee access to his or her place of employment on a regular basis has not acted knowingly or intentionally if he or she has taken the following reasonable steps to prevent smoking by a non-employee:

1. Posted clear and prominent signs, as required and described in this Chapter.

2. Has requested that a non-employee who is smoking refrain from smoking in the enclosed workplace.

F. For purposes of this Section, "reasonable steps" shall not include:

1. The physical ejection of a non-employee from the place of employment; or

2. Any requirement or request of a non-employee to refrain from smoking using measures that would cause physical harm to the employer or any employee.

A. Any person who smokes in an area where smoking is prohibited by this Chapter shall be guilty of an infraction, punishable pursuant to Chapter 1.08 of the Del Mar Municipal Code.

B. Any person who owns, manages, operates, or otherwise controls an enclosed public place or place of employment and who fails to comply with the provisions of this Chapter shall be guilty of an infraction, punishable pursuant to Chapter 1.08 of the Del Mar Municipal Code.

C. In addition to the fines established by this Section, violation of this Chapter by a person who owns, manages, operates, or otherwise controls an enclosed public place or place of employment may result in the suspension or revocation of any permit or license issued to the person or business for the premises on which the violation occurred.

D. Violation of this Chapter is hereby declared to be a public nuisance, which may be abated by preliminary and permanent injunction, or other means provided for by law. The City may take action to recover the costs of the nuisance abatement.

E. Each day on which a violation of this Chapter occurs shall be considered a separate and distinct violation.

This Chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

This Chapter shall be liberally construed so as to further its purposes.