Chapter 8 — SMOKING CONTROL

In enacting this chapter, the City Council of the City of Downey hereby finds, determines and declares that:

• A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and

• B. Studies have shown breathing secondhand smoke to be a significant health hazard for several populations, including elderly people, individuals with cardiovascular disease, individuals with impaired respiratory function, asthmatics, and those with obstructive airway disease; and

• C. The Surgeon General of the United States found in his 1986 report that secondhand smoke is a cause of disease, including lung cancer, in health nonsmokers; and

• D. The Surgeon General further found that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to environmental tobacco smoke; and

• E. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of reactions to secondhand smoke; and

• F. Studies have shown some nonsmokers cannot dine in restaurants because of adverse reaction or annoyance from secondhand smoke; and

• G. Studies have shown a majority of travelers prefer nonsmoking sections in airplanes, buses, and trains; and

• H. Smoking in enclosed areas is a cause of annoyance to nonsmokers because of the odor and tobacco residue left on one's hair and clothing by the smoke; and

• I. Smoking in an enclosed area is also a cause of equipment dysfunction because of the tobacco residue left on equipment by the smoke; and

• J. Smoking is a potential cause of fires, and because cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to Downey businesses.

• (Added by Ord. 887, adopted 5-23-89)

The purpose of this chapter is to protect the public health and welfare by regulating smoking in public places and places of employment and 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 shall have priority. (Added by Ord. 887, adopted 5-23-89)

For the purposes of this chapter, the following words and phrases shall have the following meaning:

"Bar" means an area in which the serving of food is only incidental to the consumption of alcoholic beverages. The term "bar" shall not include an adjacent restaurant dining area when meals are being served.

"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 under which professional services are delivered.

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

"Employer" means any person, business, or nonprofit entity which employs the services of one or more persons, and includes the City of Downey.

"Enclosed" means closed in by a roof and four or more connected, floor-to-ceiling walls with appropriate openings for ingress and egress.

"Mall" means any enclosed public walkway or hall area which serves to connect retail or professional establishments.

"Non-Profit 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 not for private financial gain. A public agency is not a "non-profit entity" within the meaning of this chapter.

"Place of Employment" means any enclosed area under the control of an employer which employees normally frequent during the course of employment.

"Private Function" means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining where membership or specific invitation is a prerequisite to entry and where such event is not intended for attendance by the public.

"Public Place" means any enclosed area to which the public is invited or in which the public is permitted.

"Restaurant" means any eating establishment, organization, club, boardinghouse or guest house 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 bar.

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

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

"Smoking" means inhaling, exhaling, burning or carrying any lighted cigarette, cigar, pipe, weed, plant or other combustible substance in any manner or in any form.

"Sports Arena" means an enclosed sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, bowling alley and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition or witness sports events.

"Work Area" or "Workplace" means any area of a place of employment enclosed by floor-toceiling walls in which two or more employees are assigned to perform work for an employer. (Added by Ord. 887, adopted 5-23-89)

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

(Added by Ord. 887, adopted 5-23-89)

Smoking shall be prohibited in the following public places:

• A. All enclosed areas available to and customarily used by the general public and all areas of business establishments generally accessible to the public, including, but not limited to, the public area of retail stores, banks, and other offices; restaurants shall not be subject to this provision.

• B. Elevators.

• C. Public restrooms.

• D. Service lines.

• E. Buses and other means of public transit directly provided by the City of Downey.

• F. All reception and waiting areas unless separate facilities are provided for smokers and nonsmokers.

• G. In public areas of galleries, libraries, and museums when open to the public; provided, however, this prohibition does not prevent the designation of a separate room for smoking.

• H. Within any facility which is primarily used for, or designed for the primary purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production; provided, however, this prohibition does not prevent designating a continuous area containing no more than 25% of any area commonly called a lobby as a smoking area.

• I. Sports arenas and convention halls; provided, however, that this prohibition shall not prevent (i) the establishment of a continuous smoking area which shall not exceed 25% of the seating capacity, and (ii) 25% of any area commonly called a lobby as a smoking area.

• J. Video arcades.

• K. Child day care facilities as defined in the California Health and Safety Code.

• L. Rooms, chambers, or other enclosed areas where a meeting is being held which is or can be attended by the general public.

• M. Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving food and drink. (Added by Ord. 887, adopted 5-23-89)

It shall be the responsibility of employers to provide smoke-free areas for nonsmokers to the maximum extent possible, but employers are not required to incur any expense to make structural or other physical modifications in providing these areas. Any employer who makes reasonable efforts to develop and promulgate a policy regarding smoking and nonsmoking in the work place shall be deemed to be in compliance with this paragraph, provided that policy which designates an entire work place as a smoking area shall not be deemed in compliance with this paragraph. (Added by Ord. 887, adopted 5-23-89)

No later than 120 days from date of adoption of this ordinance, each employer shall adopt, disseminate, and implement a written smoking policy which shall contain at a minimum the requirements below. As a substitute for a written policy, businesses may conspicuously post all applicable requirements of this ordinance.

• A. Smoking will be prohibited, in addition to all applicable portions of Section 3808 of this chapter, at all times in the following areas:

  • (1) Work areas shared by smokers and nonsmokers, except in designated smoking areas. This provision excludes employees whose place of employment is a restaurant, bar, or retail tobacco store;

  • (2) Auditoriums, classrooms, conference rooms, and meeting rooms;

  • (3) Elevators;

  • (4) Hallways and reception areas;

  • (5) Medical facilities;

  • (6) Restrooms (unless separate facilities are provided for smokers).

• B. A separate and continuous nonsmoking area of not less than seventy-five percent of the seating capacity and floor area must be provided in cafeterias, lunchrooms and lounges which are designated for use by employees. Provisions can be made at any time for separate facilities, proportionately sized to accommodate both smokers and nonsmokers. Smoking shall be prohibited in cafeterias, lunchrooms and employee lounges seating less than 10 persons, unless used exclusively by smokers.

• C. In any dispute arising under the smoking policy, the rights of the nonsmoker to clean air shall be precedence.

• D. The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least yearly thereafter.

• E. All employers shall supply a written copy of the smoking policy to all new employees and to any prospective employee who so requests or shall direct the individual to the location where applicable smoking regulations are posted.

• F. An employer's policy may include reference to smoking optional areas as defined by Section 3826.

(Added by Ord. 887, adopted 5-23-89)

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 exercises any rights afforded by this chapter.

Within all restaurants having enclosed seating for more than 50 patrons, there shall be a designated and contiguous nonsmoking area consisting of no less than 50% of the enclosed tables currently in use; whenever possible, smoking sections shall not be adjacent to any service lines, food preparation area, or food serving area. This section shall be implemented incrementally so that its nonsmoking area provision shall apply on to 35% of the enclosed tables currently in use through April 1, 1989.

(Added by Ord. 887, adopted 5-23-89)

Ten percent of the rooms in any hotel or motel shall be maintained as fixed nonsmoking rooms. (Added by Ord. 887, adopted 5-23-89)

"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 pictorial representation of a burning cigarette enclosed in a red circle 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 chapter by the owner, operator, manager or other person having control of such building or other place.

(Added by Ord. 887, adopted 5-23-89)

Every theatre owner, manager or operator shall post signs conspicuously in the lobby stating that smoking is prohibited within the theatre or auditorium, and in the case of motion picture theatres, such information shall be shown upon the screen for at least five seconds prior to the showing of each featured motion picture.

(Added by Ord. 887, adopted 5-23-89)

Every restaurant shall have posted at its entrance a sign clearly stating that a nonsmoking area has been established, and every patron shall be asked as to his or her preference when a host of hostess is present. If no host or hostess is available, the nonsmoking area shall be conspicuously posted.

(Added by Ord. 887, adopted 5-23-89)

Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designated as being nonsmoking shall have signs designating such restriction conspicuously placed within the room.

(Added by Ord. 887, adopted 5-23-89)

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

• A. Bars.

• B. Private residences, except when used as a family day care home.

• C. Retail tobacco stores.

• D. Restaurants, hotel and motel conference/meeting rooms, and public and private assembly rooms while these places are being used for private functions.

• E. Malls.

• F. An enclosed office workplace occupied exclusively by a smoker or smokers, even though such an office workplace may be visited by nonsmokers.

(Added by Ord. 887, adopted 5-23-89)

Any citizen, employee or business patron who desires to register a complaint under this chapter may initiate enforcement with the City Manager or his/her designee. Complaints must be submitted in writing and signed by the complainant. (Added by Ord. 887, adopted 5-23-89)

Complaints received by the City Manager regarding a restaurant's compliance with this chapter shall first be forwarded to an authorized restaurant representative for resolution before any action is taken pursuant to Section 3842. If, after fifteen days of transmittal, a complaint referred to a restaurant's authorized representative has not been adequately resolved, in the judgment of the complainant, the complainant may request the City Manager or his/her designee to initiate additional investigation.

(Added by Ord. 887, adopted 5-23-89)

Any owner, manager, or authorized agent of any establishment regulated by this chapter may inform persons violating this chapter of the appropriate provisions thereof.

(Added by Ord. 887, adopted 5-23-89)

The owner, operator or manager of a business shall not be responsible for violations of this chapter within their premises by patrons or citizens, provided that such patrons or citizens have been adequately informed that their actions may be in violation of the law; this limitation shall not apply to employees of such businesses.

(Added by Ord. 887, adopted 5-23-89)

The owner, operator or manager of a business shall not be responsible if a host of hostess fails to ask the seating preference of patrons as required by Section 3822, provided that such employees have been informed of this requirement.

(Added by Ord. 887, adopted 5-23-89)

Notwithstanding any provision of this chapter, a private citizen may bring legal action to enforce this chapter.

(Added by Ord. 887, adopted 5-23-89)

It shall be unlawful for any person who operates, manages, or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to comply with its provisions. (Added by Ord. 887, adopted 5-23-89)