Duarte Municipal Code Ch. 6.20 Smoking Regulated or Prohibited

The city of Duarte finds and declares that the smoking of tobacco, or any other weed or plant, is a positive danger to health and a material annoyance, inconvenience, discomfort and a health hazard to those who are present in the proximity of or present in confined spaces, and in order to serve public health, safety and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco, or any weed or plant, in public places and places of employment, as stated and required in this chapter.

The city of Duarte recognizes that state law exists which is incorporated in the ordinance codified in this chapter which states, in part, that no employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment. Further, the city of Duarte recognizes that state law does not prevent cities from regulating smoking and tobacco in other areas not covered by the work place regulations (C AB 13—Chapter 310 State 1994).

(Ord. 719 (part), 1995)

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

(a) "Bar" means an area which is devoted to serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.

(b) "City facility" shall apply to all buildings, facilities, yard, parking lot, land and other property that the city owns, leases, or operates for the purpose of conducting city business or providing city services, or that is otherwise under the control and jurisdiction of the city, including but not limited to, City Hall, the Community Center, the Senior Center, the Teen Center, the Public Safety Office, the City Yard, Andres Duarte Plaza and Parking Buildings (collectively, "city facilities" or individually as "city facility").

(c) "Employee" means any person who is employed by any employer for direct or indirect monetary wages or profit.

(d) "Employer" means any person who employs the services of any individual person.

(e) "Enclosed place of employment" means any place of employment with walls and a ceiling.

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

(g) "Office workplace" means any enclosed area of a structure or portion thereof intended for occupancy by business entities which will provide primarily clerical, professional or business services to other business entities or to the public, at that location. Office workplace includes, but is not limited to, office spaces in office buildings, medical office waiting rooms, libraries, museums, hospitals and nursing homes.

(h) "Place of employment" means any place, and the premises appurtenant thereto, where employment is carried on, except a place over which the health and safety jurisdiction is vested by law in, and actively exercised by, any state or federal agency other than the division.

(i) "Private vehicle" means a vehicle that a person, other than the city, owns, rents, leases, or otherwise lawfully possesses or controls, and is not a public transportation vehicle.

(j) "Public park" means a mini-park, pocket park, neighborhood park, community park, regional park, playground, tot lot, sandbox, recreation center or facility, swimming pool, tennis court, basketball court, reservation or reserve area, preserve area, bikeway, trail, greenbelt, developed or undeveloped parkland, open space land, open space parcel, open space area, or other area or facility or land in the city devoted to active or passive recreation, that the city or other public entity owns, controls, operates, occupies, manages, or maintains, and includes, but is not limited to, all buildings, structures, facilities, fields, or equipment located therein or thereon.

(k) "Public property" means any building, parking structure, parking lot, utility lot, right-of-way, park, or open space, owned or maintained by the city, the County of Los Angeles, the State of California, the United States government, or other public entity.

(l) "Smoking" means the combustion of any cigar, cigarette, pipe, or any similar article, using any form of tobacco or other combustible substance in any form.

(m) "Transit station" and "transit stop" means a public transit station or stop the city or other public entity owns, controls, operates, occupies, manages, or maintains, and includes but is not limited to, an enclosed or nonenclosed platform, sidewalk, shelter, bench, or area where people wait for public transportation, such as a train, bus, shuttle, or taxicab, and also includes, but is not limited to, ancillary areas such as a restroom, kiosk area, ticket machine, bicycle parking area, storage locker area, and pedestrian path or walkway.

(Ord. 719 (part), 1995)

(Ord. No. 836, § 1, 7-10-2012; Ord. No. 928, § 8, 12-10-2024)

(a) No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.

(b) For purposes of this section, an employer who permits any nonemployee 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 nonemployee:

(1) Posted clear and prominent signs, as follows:

(A) Where smoking is prohibited throughout the building or structure, a sign stating "No smoking" shall be posted at each entrance to the building or structure.

(B) Where smoking is permitted in designated areas of the building or structure, a sign stating "Smoking is prohibited except in designated areas" shall be posted at each entrance to the building or structure.

(2) Has requested, when appropriate, that a nonemployee who is smoking refrain from smoking in the enclosed work place.

For purposes of this subdivision, "reasonable steps" does not include (A) the physical ejectment of a nonemployee from the place of employment or (B) any requirement for making a request to a nonemployee to refrain from smoking, under circumstances involving a risk of physical harm to the employer or any employee.

(c) For purposes of this section, "place of employment" does not include any of the following:

(1) Sixty-five percent of the guest room accommodations in a hotel, motel, or similar transient lodging establishment;

(2) Areas of the lobby in a hotel, motel, or other similar transient lodging establishment designated for smoking by the establishment. Such an establishment may permit smoking in a designated 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. For purposes of this paragraph, "lobby" means the common public area of such an establishment in which registration and other similar or related transactions, or both, are conducted and in which the establishment's guests and members of the public typically congregate;

(3) Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similar to a hotel or motel, restaurant, or public convention center, except while food or beverage functions are taking place, including setup, service, and cleanup activities, or when the room is being used for exhibit purposes. At times when smoking is not permitted in such a meeting or banquet room pursuant to this paragraph, the establishment may permit smoking in corridors and prefunction areas adjacent to and serving the meeting or banquet room if no employee is stationed in that corridor or area on other than a passing basis;

(4) Retail or wholesale tobacco shops and private smoker's lounges. For purposes of this paragraph:

(A) "Private smoker's lounge" means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes,

(B) "Retail or wholesale tobacco shop" means any business establishment the main purpose of which is the sale of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories;

(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle Code, or truck tractors, as defined in Section 655 of the Vehicle Code, if no nonsmoking employees are present;

(6) Warehouse facilities. For purposes of this paragraph, "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;

(7) Gaming clubs, in which smoking is permitted by subdivision (f) of Labor Code Section 6404.5. For purposes of this paragraph, "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 eighteen years of age;

(8) Bars and taverns, in which smoking is permitted by subdivision (f) of Labor Code Section 6404.5. For purposes of this paragraph, "bar" or "tavern" means a facility primarily devoted to the serving of food is incidental. "Bar or tavern" includes those facilities located within a hotel, motel, or other similar transient occupancy establishment. However, when located within a building in conjunction with another use, including a restaurant, "bar" or "tavern" includes only those areas used primarily for the sale and service of alcoholic beverages. "Bar" or "tavern" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein;

(9) Theatrical production sites, if smoking is an integral part of the story in the theatrical production;

(10) Private residences, except for private residences licensed as family day care homes, during the hours of operation as family day care homes and in those areas where children are present;

(11) Breakrooms designated by employers for smoking, provided that all of the following conditions are met:

(A) Air from smoking room shall be exhausted directly to the outside by an exhaust fan. 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, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board shall be no less stringent than the standards adopted by the federal Environmental Protection Agency,

(C) The smoking room shall be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter. For purposes of this paragraph "work responsibilities" does not include any custodial or maintenance work carried out in the breakroom when it is unoccupied,

(D) There are sufficient nonsmoking breakrooms to accommodate nonsmokers;

(12) Employers with a total of five or fewer employees, either full-time or part-time, may permit smoking where all of the following conditions are met:

(A) The smoking area is not accessible to minors,

(B) All employees who enter the smoking area consent to permit smoking. No one, as part of his or her work responsibilities, shall be required to work in an area where smoking is permitted. An employer who is determined by the division to have used coercion to obtain consent or who has required an employee to work in the smoking area shall be subject to the penalty provisions of Section 6427,

(C) Air from the smoking area shall be exhausted directly to the outside by an exhaust fan. Air from the smoking area shall not be recirculated to other parts of the building,

(D) The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. If both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Health Standards Board shall be no less stringent than the standards adopted by the federal Environmental Protection Agency.

This paragraph shall not be construed to (i) supersede or render inapplicable any condition or limitation on smoking areas made applicable to specific types of business establishments by any other paragraph of this subdivision or (ii) apply in lieu of any otherwise applicable paragraph of this subdivision that has become inoperative.

(Ord. 719 (part), 1995)

Smoking is prohibited and is unlawful within elevators in any workplace and in buildings generally used by and open to the public, including elevators in office, hotel and multifamily buildings.

(Ord. 719 (part), 1995)

Smoking is prohibited in health care facilities and hospitals.

(Ord. 719 (part), 1995)

Smoking is prohibited and is unlawful in hearing rooms, conference rooms, chambers, and places of public assembly in which public business is conducted, when the public assembly in which public business is conducted, when the public business requires or provides direct participation or observation by the general public.

(Ord. 719 (part), 1995)

Smoking is prohibited and is unlawful in public restrooms.

(Ord. 719 (part), 1995)

Smoking is prohibited and is unlawful in indoor service lines in which more than one person is giving or receiving services of any kind.

(Ord. 719 (part), 1995)

No person may sell, consume, smoke, manufacture or distribute tobacco products, flavored tobacco products, electronic cigarettes or any electronic vaping accessory or device in the following places:

(a) On public property within the city.

(b) Within facilities on public property within the city.

(c) In any public park within the city.

(d) Within twenty-five feet of the furthest boundary of any of the above places, except for smoking in a private vehicle that is in motion on a public street or alley, to the extent allowed by state law. A vehicle is in motion if it is moving or if it is temporarily stopped at stop sign or red light.

(e) In any place prohibited by state or federal law.

(Ord. No. 836, § 1, 7-10-2012; Ord. No. 928, § 9, 12-10-2024)

Smoking is prohibited and is unlawful in and at all transit stations and transit stops located in the city. Smoking is prohibited and is unlawful in all public areas, including but not limited to public sidewalks, streets, and alleys, located within twenty-five feet of a transit station or transit stop, except for smoking in a private vehicle that is in motion on a public street or alley, unless smoking in the private vehicle is otherwise prohibited by state law. A vehicle is in motion if it is moving or if it is stopped at stop sign or red light.

(Ord. No. 836, § 1, 7-10-2012)

No person shall dispose of any cigarette, cigar, tobacco, weed, plant, or other substance or product intended to be inhaled and/or exhaled in any place where smoking is prohibited under this article except in a designated waste disposal container.

(Ord. No. 836, § 1, 7-10-2012)

Except where other signs are required, whenever smoking is prohibited, by state law or by this code, conspicuous signs shall be posted so stating, containing all capital lettering not less than one inch in height, on a contrasting background. Where smoking is prohibited throughout a building or structure, a sign stating, "No Smoking" must be posted at each entrance to the building. Where smoking is permitted in designated areas of the building or structure, a sign stating "Smoking is prohibited except in designated areas" must be posted at each entrance to the building or structure. It is the duty of the owner, employer, operator, manager, or other persons having control of such room, building, or other place where smoking is prohibited, to post such signs or to cause such signs to be posted.

(Ord. 719 (part), 1995)

No person shall place or maintain any automated, self-service or coin operated vending machine, stand, booth or other self-service concession of any kind that dispenses any tobacco product within the City of Duarte.

(Ord. 719 (part), 1995)

(Ord. No. 928, § 10, 12-10-2024)

The use of electronic cigarettes is prohibited wherever smoking of tobacco products is prohibited by law.

(Ord. No. 928, § 11, 12-10-2024)

The sale or distribution of electronic cigarettes is prohibited wherever the sale of tobacco products is prohibited by law.

(Ord. No. 928, § 12, 12-10-2024)

Except as exempted under state law, no person, including a tobacco retailer or any of the tobacco retailer's agents or employees, shall sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product, including any flavored cigarette, or tobacco product flavor enhancer.

(a) There shall be a rebuttable presumption that a cigarette is a flavored cigarette if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the cigarette has or produces a characterizing flavor, including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the cigarette has a characterizing flavor.

(b) Pursuant to Health and Safety Code section 104559.5(f)(1), any violation of this section shall be subject to an administrative fine, as follows:

(1) Five hundred dollars for the first violation;

(2) One thousand dollars for the second violation within a five-year period;

(3) One thousand two hundred dollars for a third violation within a five-year period;

(4) Three thousand dollars for a fourth violation within a five-year period;

(5) Five thousand dollars for a fifth or subsequent violation within a five-year period.

(c) These remedies are intended to be cumulative and may be used in addition to, or in lieu of, any other remedy provided by this code.

(Ord. No. 928, § 13, 12-10-2024)

It is prohibited to sell flavored tobacco products through mobile or online sales to any individual within the city, or from any location within the city. Additionally, sales to individuals under twenty-one years of age, or shipments of any tobacco products without strict age verification that the person is at least twenty-one years of age, are strictly prohibited.

(Ord. No. 928, § 14, 12-10-2024)

Distribution of tobacco samples and promotional items is prohibited.

(Ord. 719 (part), 1995)

(a) Remedies Cumulative. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity, and may be used in conjunction with, or in lieu of, each other remedy.

(b) Evidence Provided by Minor. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, including but not limited to a youth decoy, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

(c) Aiding and Abetting. Causing, permitting, allowing, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(d) Violations are a Public Nuisance. Any violation of this chapter is hereby declared to be a public nuisance. Each day a violation of this chapter exists constitutes a separate and distinct violation.

(e) Other Penalties and Remedies. Notwithstanding any other penalty provided by this code or otherwise by law, any person who violates any provision of this chapter shall be guilty of a misdemeanor for each such violation punishable in accordance with Section 1.04.100 of this code. In addition, the city may enforce the provisions of this chapter by any means authorized by law, including but not limited to criminal and/or civil enforcement process including, without limitation, through nuisance abatement proceedings, restraining order, preliminary or permanent injunction, or by any other means available in law or equity.

(f) Administrative Fines. Except as otherwise expressly provided herein, each person who violates any provision of this chapter shall be subject to an administrative fine in an amount up to five hundred dollars for the first violation and up to one thousand dollars for the second and each subsequent violation(s), pursuant to the procedure in Chapter 1.08 of this code.

(g) Costs. In any proceeding or action under this chapter, including any appeal, reasonable attorneys' fees may be recovered by the prevailing party if the city elects, at the initiation of the action or proceeding, to seek its attorney's fees in the event it is the prevailing party; however, the award of attorneys' fees to a prevailing party shall not exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding. In addition, the city may recoup its staff costs for investigating and enforcing violations, and providing notice in accordance with this chapter.

(Ord. 719 (part), 1995)

(Ord. No. 836, § 1, 7-10-2012; Ord. No. 928, § 15, 12-10-2024)

Editor's note— Ord. No. 928, § 16, adopted December 10, 2024, repealed § 6.20.130, which pertained to Violation and derived from Ord. 719(part), 1995; Ord. No. 836, § 1, 7-10-2012.

Editor's note— Ord. No. 928, § 16, adopted December 10, 2024, repealed § 6.20.140, which pertained to Violation also a public nuisance and Ord. No. 836, § 1, 7-10-2012.

Punishment under this chapter does not preclude punishment pursuant to any other law pertaining to smoking or littering. This chapter is in addition to any other prohibition or limitation on smoking under federal, state, or local law. The city council intends this chapter to supplement, and not to duplicate or contradict, other applicable law. This chapter shall not be construed or interpreted to permit smoking when another applicable law prohibits or restricts it. If another applicable law is more restrictive in regulating smoking, that law governs and may be enforced by the city under this code.

(Ord. No. 836, § 1, 7-10-2012)