El Centro Municipal Code Art. V Clean Indoor Air

The city council does hereby find that:

(1) The Surgeon General of the United States has determined that smoking is the leading cause of preventable death in the United States, with more than four hundred thousand (400,000) deaths annually from cigarette smoking, and more than fifty thousand (50,000) deaths annually from second-hand environmental tobacco smoke.

(2) Numerous studies by the U.S. Environmental Protection Agency and others have concluded that tobacco smoke is a major contributor to indoor air pollution, and that breathing second-hand smoke is a cause of disease, including lung cancer, in nonsmokers. At special risk are children of all ages, the elderly, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

(3) There is increasing scientific evidence that health hazards induced by breathing second-hand smoke include lung cancer, heart disease, respiratory infection, decreased respiratory function, bronchoconstriction and broncho-spasm.

(4) The estimated annual economic burden to the State of California resulting from smoke-related health care costs and lost productivity is more than seven billion dollars ($7,000,000,000.00) annually.

(5) It is in the public interest to promote a smokefree environment within the city, and to take public and private actions, including on-going educational efforts, to minimize the exposure of all persons to tobacco smoke as rapidly as practicable.

(6) In order that the public knows where smoking is allowed and where it is not, and to ensure that smokers will voluntarily comply with these requirements, businesses and employers in the city will need to post sufficient and appropriate informational signs.

(7) Section 25946 of the Health and Safety Code of the State of California permits the city to enact local regulations against smoking in specified places.

(8) The purposes of this article are to (1) protect the public health and welfare by regulating smoking in public places and places of employment, (2) to significantly reduce the hazards and nuisance smoking causes to those who are involuntarily exposed; and (3) to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the practice of tobacco addiction.

(Ord. No. 93-1, § 1)

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

Bar means an area devoted to the serving of alcoholic beverages for consumption by patrons or guests on the premises, in which the serving of food is incidental to the consumption of such beverages, and for which the sale or service of these beverages is regulated by California Department of Alcoholic Beverage Control Licenses Type 40, 42, 48, or 61. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

Bowling center concourse means that area separated from the bowling lane, bowlers' settee, and visitors' settee by at least one step or a physical barrier.

Bowling lane means the bowlers' approach, the foul line and the lanes.

Bowlers' settee means the area immediately behind the bowling lane in which score is kept and seating is provided for bowlers waiting for their turn to bowl.

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

Employee means any person who is employed by an employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.

Employer means any person, partnership, corporation, unincorporated association, joint venture, business trust, joint stock company, club, or nonprofit entity, who employs the services of one or more individual persons.

Enclosed area means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) extending from the floor to the ceiling, including all space therein screened by partitions that do not extend to the ceiling or are not solid, "office landscaping" or similar structures.

Place of employment means any enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, restrooms, conference and classrooms, employee cafeterias, and hallways. A private residence is not a "place of employment" unless it is used as a child care or health care facility.

Public means shoppers, customers, patrons, patients, students, clients and other similar invitees of a business or employer. "Public" does not include employees, sales representatives, service repair persons and persons delivering goods, merchandise or services to a business, employer or public entity.

Public entity means any agency of the federal government, the State of California, and any county, city, authority or other political subdivision of the state.

Public event means any event, including but not limited to entertainment, speaking performances, ceremony, pageant or athletic event, that is sponsored or cosponsored by the city, except that "public event" does not include any event where the city, or any officer, agent or employee thereof, acts merely to validly permit or insure the use of city property or permit the use of the public right of way for the purposes of conducting the event.

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 and other financial institutions, educational facilities, health facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, theaters, and waiting rooms. A private residence is not a "public place" except during the time of any use as a child care or health care facility. A hotel or motel room rented for the private use of a guest is not a "public place."

Recreation hall means any area of a church, lodge or other similar facility where the public plays bingo, dances, or engages in recreational, character-building or cultural activities.

Restaurant means any coffee shop, cafeteria, sandwich stand, public cafeteria, and other eating establishment that gives or offers for sale food to the public, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities. The term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined in this section, and shall not include a cafeteria or eating room defined as a place of employment, whether or not members of the public incidentally frequent such facility.

Retail 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.

Service line means any indoor line in which one or more persons wait for or receive service of any kind, whether or not such service involves the exchange of money.

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

Sports arena means the enclosed area of any sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller and ice rinks, bowling alleys and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.

Visitors' settee means seating provided immediately behind the bowlers' settee.

(Ord. No. 93-1, § 1)

All enclosed facilities owned by the City of El Centro, including the El Centro Regional Medical Center, are subject to the provisions of this article, except that city manager may adopt administrative regulations permitting smoking in the El Centro Community Center, or any portion thereof, when used for an exclusively private event.

(Ord. No. 93-1, § 1)

Except as provided in this article, it shall be unlawful for any person to smoke in any of the following public places:

(1) Elevators, escalators and stairways.

(2) Buses, taxicabs and other means of public transit under the authority of the city; within twenty-five (25) foot radius of any bus stop, and within in a twenty-five (25) foot radius of as well as within any ticket, boarding or waiting areas of public transit depots, including, but not limited to, the El Centro Regional Bus Terminal.

(3) Restrooms.

(4) Service lines.

(5) Retail stores, including grocery stores and supermarkets, and enclosed portion of a shopping mall.

(6) All areas available to and customarily used by the public in all businesses and nonprofit entities, including but not limited to hallways, lobbies, reception areas, and waiting rooms of a business or employer.

(7) Classrooms, meeting or conference rooms or lecture halls owned or operated by any public entity or any employer, except as provided in section 13-84.

(8) Recreation halls.

(9) Restaurants, except as provided in section 13-85.

(10) In any restaurant or other eating area within a public place constructed so that smoke can drift into the non-restaurant portion of such place.

(11) Theaters, sports arenas, convention halls, libraries, galleries, and museums, when open to the public, except as provided in section 13-86.

(12) Waiting rooms, hallways, lobbies, wards and semiprivate rooms of health facilities, including, but not limited to hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices, and specifically with regard to El Centro Regional Medical Center (ECRMC), all of any portion of the hospital campus and facilities operated by ECRMC as posted by ECRMC pursuant to its authority under the Clean Indoor Air Act.

(13) A private residence used as a child care or health care facility.

(14) Lobbies, hallways and other common areas in multiple-unit commercial facilities and in apartment buildings, condominiums, retirement facilities, nursing homes and other multiple-unit residential facilities.

(15) Polling places.

(16) Every room, chamber, place of meeting or public assembly, including school buildings, under the control of any board, council, commission or agency or political subdivision of the state or the federal government during such time as a public meeting is in progress, unless the prohibition on smoking enacted by this article is preempted by federal or state law, or any lawfully adopted regulation pursuant thereto.

(17) In any outdoor area used to conduct a public event.

(Ord. No. 93-1, § 1; Ord. No. 17-09, § 2, 6-20-17)

The owner, operator, manager or other person having control of a hotel or motel:

(1) May permit smoking in meeting or conference rooms when used for private functions to which the public is not invited or permitted.

(2) Shall prohibit smoking in meeting or conference rooms if used for events to which the public is invited or permitted.

(Ord. No. 93-1, § 1)

The owner, operator, manager or other person having control of a restaurant of twenty (20) seats or more:

(1) Shall provide that at least fifty (50) percent of the seats in such restaurant be reserved for nonsmokers.

(2) Shall not designate as a smoking area any area through which the public must walk to gain access to nonsmoking areas, unless such arrangement is structurally impossible, and where smoking areas are designated, existing physical barriers and ventilation systems shall be used to minimize the toxic effect of smoke in adjacent nonsmoking areas.

(3) Shall remove all ashtrays from tables located in nonsmoking areas.

(Ord. No. 93-1, § 1)

The owner, operator, manager or other person having control of a sports arena:

(1) May permit smoking in up to forty (40) percent of the outdoor seats of such arena, provided the smoking seats are segregated from nonsmoking seats.

(2) May establish a designated smoking area on a bowling center concourse.

(3) Shall remove all ashtrays from all areas designated as nonsmoking.

(4) Shall post signs indicating the locations where smoking is allowed and where it is prohibited.

(Ord. No. 93-1, § 1)

The city manager, or a designee of the city manager, shall have the sole authority and discretion to grant, or deny, a request for exemption from the requirements of this article. In making the decision on an application for exemption, the city manager or designee shall consider:

(1) Whether the applicant has demonstrated an adequate understanding of the provisions of this article, such that it is clear that the application is not based on a misunderstanding of the minimum requirements of compliance.

(2) The extent of efforts the business has made toward compliance with this article.

(3) The physical structure of the area, and its seating capacity, for which the exemption is sought.

(4) The number of employees in or near the area for which the exemption is sought.

(5) The nature and frequency of contact that the applicant's business has with the public.

(6) Whether physical disabilities of employees would render compliance with this article unreasonably difficult.

The burden of proof shall be upon the applicant to show by substantial evidence that such unique or unusual circumstances exist, in respect to the foregoing considerations, that there is a necessary and compelling reason to grant an exemption.

(Ord. No. 93-1, § 1)

The owner, operator, manager or other person having control of a building or other place regulated by this article shall be responsible for posting signs as follows:

(1) "No Smoking" signs or 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) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is prohibited by this article.

(2) Every other establishment shall have posted at every entrance a conspicuous sign clearly stating the extent to which smoking and nonsmoking is permitted within such establishment, and appropriate designation of smoking and nonsmoking areas.

(Ord. No. 93-1, § 1)

Notwithstanding any other provision of this article, the following areas are not subject to the smoking restrictions of this article:

(1) Bars.

(2) Outdoor seating areas of restaurants.

(3) Private residences, except during the time of their use, if any, as a child care or health care facility.

(4) Retail tobacco stores.

(5) Any conference or meeting room of a restaurant, hotel or motel, or public or private assembly room when such room is being used for an exclusively private function.

(6) Any private room in which smoking is lawfully permitted by the owner of a hotel or motel.

(7) Any smoking area or seats specifically permitted by this article.

(8) Any property owned, leased or controlled by the federal government, the State of California, or any political subdivision thereof, except the City of El Centro, where the regulations against smoking contained in this article are preempted by law, or a regulation validly adopted pursuant thereto.

(Ord. No. 93-1, § 1)

Notwithstanding any other provision of this article, any owner, operator, manager or other person who controls any establishment or facility may declare the entire establishment or facility as a nonsmoking establishment.

(Ord. No. 93-1, § 1)

Each employer shall take all reasonable steps to provide a smoke-free workplace for all employees. Within ninety (90) days of the effective date of this article, each employer having an enclosed space of employment located within the city shall adopt, implement, and make known and maintain a written smoking policy that provides, at a minimum, the following:

(1) Smoking shall be prohibited in all common work areas, auditoriums, classrooms, conference and meeting rooms, restrooms, hallways, elevators, escalators and stairways.

(2) A contiguous nonsmoking area of not less than two-thirds (⅔) of the seating capacity and floor space in each cafeteria, eating room or lounge, except if there is more than one (1) such lounge in any one (1) building, the employer may designate no less than one-half the number of such lounges and not less than one-half the square footage of such lounges as nonsmoking.

(3) Smoking areas of any cafeteria, eating room or lounge constructed or substantially modified after July 1, 1993, shall be physically separated and ventilated.

(4) Any employee in the workplace shall be given the right to designate his or her immediate work area as a nonsmoking area, and to post it with the appropriate sign or signs. The policy adopted by the employer shall include a definition of the term "immediate work area" that gives preferential consideration to nonsmokers.

The employer's written policy shall be communicated to all employees within thirty (30) days of its adoption, and a copy of the policy shall be provided upon request to any existing or prospective employee.

(Ord. No. 93-1, § 1)

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 right to a smokefree environment as afforded by this article.

(Ord. No. 93-1, § 1)

It shall be unlawful for any person:

(1) 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.

(2) To smoke in any area where smoking is prohibited by the provision of this article.

(Ord. No. 93-1, § 1)

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 one year.

(3) A fine not exceeding five hundred dollars ($500.00) for each additional violation of this article within one year.

(Ord. No. 93-1, § 1)

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

(Ord. No. 93-1, § 1)

If any provision, clause, sentence or paragraph of this article or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect the other provisions of this article which can be given effect without the invalid provision or applications, and to this end the provisions of this article are declared to be severable.

(Ord. No. 93-1, § 1)