El Dorado County Municipal Code Ch. 8.60 Clean Indoor Air and Health Protection

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State Law reference— California Indoor Clean Air Act of 1976, Health and Safety Code § 118875.

The Board of Supervisors hereby finds as follows:

A. The U.S. Environmental Protection Agency (EPA) has determined that tobacco smoke is a major source of indoor air pollution, and the Surgeon General's 1986 report on the health consequences of involuntary smoking concludes that exposure to tobacco smoke places healthy nonsmokers at increased risk for developing lung cancer. Other health hazards of involuntary smoking include respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and brochospasm. While all members of the population are truly at increased risk due to exposure to sidestream tobacco smoke, it constitutes a special health hazard for children, the elderly and people with chronic lung disorders.

B. The Surgeon General labels smoking "the largest single preventable cause of death and disability for the U.S. population."

C. A recent scientific study has reported that sidestream smoke from tobacco may cause a significant amount of cardiovascular disease in the United States and that the number of deaths from this cause may exceed the deaths caused by lung disease associated with sidestream smoke. Smoking in any publicly owned buildings open to the general public, any restaurant in a publicly owned building, or any retail food production and marketing establishment during the hours the establishment is open to the public is a major cause of fires and damage to merchandise and equipment as well as costly maintenance and repairs to furniture and fixtures.

D. The health care costs produced by smoking related ailments and diseases constitute a heavy and avoidable financial drain on our community.

E. More than 80 percent of County residents are nonsmokers, and the number of nonsmokers is steadily increasing. Opinion surveys show that a majority of both nonsmokers and smokers favor restrictions on smoking in any publicly owned buildings open to the general public, any restaurant in a publicly owned building, or any retail food production and marketing establishment during the hours the establishment is open to the public.

F. Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results in serious and significant physical discomforts of nonsmokers, and constitutes a public nuisance in public places and workplaces.

G. This chapter attempts to find a compromise that allows smokers to smoke, and others to breathe smoke-free air.

H. This chapter is not to be interpreted as requiring restaurants or bars to provide a smoking area.

(Code 1997, § 8.60.010; Ord. No. 4190, 1991)

This chapter is enacted pursuant to the provisions of section 118910 of the Health and Safety Code for the purpose of restricting and regulating smoking in any publicly owned buildings open to the general public, any restaurant in a publicly owned building, or any retail food production and marketing establishment during the hours the establishment is open to the public in order to reduce the hazards and nuisance which smoking causes to those who are involuntarily exposed.

(Code 1997, § 8.60.020; Ord. No. 4190, 1991)

As used in this chapter, the words and phrases identified in this chapter shall have the following meanings:

Bar means an area which is devoted to the serving of alcoholic beverages for consumption on the premises and in which the serving of food, if any, is incidental to the consumption of alcoholic drinks. When a bar is operated within a building in conjunction with another use, such as a restaurant, only the area utilized primarily for the consumption of alcoholic beverages shall constitute the bar. The dining area of a restaurant utilized primarily for the serving and consumption of food shall not constitute a bar, even though alcoholic beverages may be served therein. An establishment that serves food in the bar, and where there are fewer seats where food is served in the bar than seats at the bar, qualifies as a bar.

Commercial enterprise means any business entity formed for profit-making purposes, including professional corporations and other entities under which legal, medical, dental, engineering, architectural, or other professional services are delivered, and shall also include any person charged with the responsibility of controlling conduct on behalf of the above-described enterprises upon any premises regulated by provisions of this chapter.

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

Lobby/reception area means an area that must be passed through in order to get to another destination.

Members of the general public includes shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise or nonprofit entity, but excludes employees thereof, sales representatives, service repair persons, and persons delivering goods, merchandise or services to a commercial enterprise, nonprofit entity or the County.

Nonprofit entity means a 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 committed to promotion of the objects or purposes of the organization and not to private gain, together with any person charged with the responsibility of controlling conduct on behalf of the above-described entities upon any premises regulated by the provisions of this chapter. A public agency is not a nonprofit entity within the meaning of this section.

Office means an area enclosed by walls containing a desk, table or similar furnishings for clerical, administrative or supervisory work, a complex of such enclosures and a building containing such enclosures, whether or not the building is utilized primarily for other purposes such as retailing, wholesaling or storage, or manufacturing, together with all hallways, stairways, elevators, escalators, restrooms, lobbies, waiting rooms, reception areas, entry areas, and conference rooms within or associated with the complex of such enclosures, including:

1. Legal, medical, dental, engineering, accounting, counseling and other professional offices;

2. Insurance, real estate, ticket, collection agency, and other offices where business services are offered to or goods or services are offered to or may be ordered by or may be paid for by members of the general public.

Person means any natural person, partnership, corporation, unincorporated association, joint venture, business trust, joint stock company, club, or other organization of any kind, except the County or any other public agency.

Restaurant means any coffee shop, cafeteria, luncheonette, soda fountain, "fast food service," and other establishment where cooked or otherwise prepared food is sold to members of the general public for consumption on the premises. The term "restaurant" does not include a cafeteria or lunchroom defined as a "workplace" by this section, whether or not members of the general public incidentally frequent the facility.

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

Tobacco store means a place utilized primarily for the sale to members of the general public at retail of tobacco products or accessories, and in which the sale of any other products is merely incidental.

Notwithstanding the provisions of this definition, a private residence including either an attached or detached garage shall not constitute a workplace, except when the residence serves as a licensed day care facility for children.

(Code 1997, § 8.60.030; Ord. No. 4190, 1991)

A. Generally. Except as specifically provided, it is unlawful for members of the general public or any other person within the unincorporated area of the County or in the incorporated areas if such place is a County-owned or -leased building, including an employee, to smoke in the public places open to the public as named and described in Subsections A.1 through 11 of this section, inclusive, and other enclosed public places that are open to the public and similarly situated, including, but not limited to, the following areas:

1. Common work areas occupied by employees performing clerical, technical, administrative or other business or work functions;

2. Merchandise display areas, checkout stations, and counters and other pay stations;

3. Hallways;

4. Restrooms;

5. Escalators, elevators and stairways;

6. Lobbies (unless a special room and/or outdoor ventilation system is installed);

7. Reception areas;

8. Waiting rooms;

9. Service lines;

10. Classrooms, meeting or conference rooms, or lecture halls; and

11. Other places in which members of the general public congregate for service or otherwise frequent.

B. Stores. The prohibitions contained in Subsection A of this section shall be applicable to:

1. The enclosed common areas of shopping malls;

2. Automobile dealerships, furniture or other showrooms for the display of merchandise offered for sale at retail;

3. Grocery, specialty, department and other stores which sell goods or merchandise at retail; and

4. Service stations, stores or shops for the repair or maintenance of appliances, shoes, or motor vehicles, barbershops, beauty shops, cleaners and laundromats, video game, and other amusement centers, and other similar establishments offering services or products to members of the general public.

C. Banks. The prohibitions of Subsection A shall be applicable to banks, including savings and loan associations, credit unions and other similar institutions which offer financial services to members of the general public.

D. Hotels/motels. The prohibitions of Subsection A of this section shall be applicable to hotels and motels in which guests typically rent lodging for continuous periods less than 30 days. Smoking is permissible in rental rooms and in on-premises restaurants and bars as provided in this section and Section 8.60.060. The availability of all nonsmoking rooms will be prominently posted in the lobby sign-in area. The rooms so designated will be posted as "Smoking Prohibited" and ashtrays removed. Customers seeking accommodations will be routinely advised of the availability of nonsmoking rooms.

E. Terminals. The prohibitions of Subsection A of this section shall be applicable to depots and other terminals utilized by members of the general public for the purpose of being transported upon or departing from airplanes, trains, buses and taxis.

F. Buses and public transit. Smoking by either passengers or operators shall be prohibited within buses, and all public transit conveyances operated by or licensed by the County.

G. Theaters. The prohibitions of Subsection A of this section shall be applicable to theaters, including motion picture theaters, meeting halls and auditoriums where motion pictures or live theatrical musical or dramatic productions are made to an audience consisting of members of the general public assembled for the purpose of witnessing the performance or presentation; provided that neither this section or Subsection A of this section shall be construed to prevent smoking by performers in connection with a stage production or by persons making a presentation concerning addiction to tobacco or other drugs.

H. Recreational facilities.

1. The prohibitions contained in Subsection A of this section shall be applicable to sports pavilions gymnasiums, exercise rooms, health spas, boxing arenas, swimming pools, roller and ice skating rinks, 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.

2. Smoking is prohibited at all times within the seating areas of an enclosed arena and in any surrounding enclosed concourses where food and beverages are dispensed.

I. Recreation halls. The prohibitions of Subsection A of this section shall be applicable to recreation halls and other similar facilities where members of the general public play bingo or cards, dance or engage in recreational, character building or cultural activities.

1. An owner or operator may permit persons to smoke within a portion, not exceeding 50 percent of the main activities area of such facility and not including restrooms, lounges, and kitchens. Signs will be posted in the manner prescribed by Section 8.60.080. It shall not constitute a violation of this chapter to smoke in a location where smoking has been authorized.

2. The provisions of Subsection I of this section shall not be construed to in any manner restrict or otherwise impair the authority of an owner or operator to prohibit smoking in such recreational facility.

J. Restaurants. Within all restaurants, the prohibitions of Subsection A of this section shall be applicable to lobbies, waiting areas, restrooms and such dining seating areas as are allocated for nonsmoking. After adoption of the ordinance from which this chapter is derived, the owner, manager, or operator shall post a notice at the restaurant entrance that a nonsmoking section is available. It shall not constitute a violation of this chapter to smoke in a location where smoking has been authorized.

(a) The provisions of Subsection J of this section shall not be construed to in any manner restrict or otherwise impair the authority of an owner or operator to increase the nonsmoking seating in a restaurant or bar.

(b) Smoking is prohibited and is unlawful in every publicly or privately owned restaurant except under the following circumstances where smoking may be permitted at the option of the establishment:

1. Any area exterior to the building in which the establishment is located.

2. The smoking of tobacco in any bar as defined in Section 8.60.030.

K. County buildings. Smoking is prohibited in all County buildings.

L. County courthouse. The prohibitions contained in Subsection A of this section shall be applicable to the County courthouse including jury lounges and jury deliberations rooms.

M. Places of exhibition. The prohibitions contained in Subsection A of this section shall be applicable to libraries, museums, aquariums, galleries, convention halls and similar facilities where members of the general public assemble for the purpose of viewing the exhibition of art, artifacts, objects of historical or cultural significance, products, merchandise, equipment, appliances or services.

N. Hospitals. The prohibitions contained in Subsection A of this section shall be applicable to hospitals, rest and convalescent homes, medical clinics, physical therapy facilities and other places where medical, dental, psychiatric or counseling services are delivered to members of the general public. Operators of facilities treating psychiatric or chemically dependent patients may permit smoking by patients in designated areas provided the medical director of such facility has determined in writing that the practice is beneficial for the recovery or treatment of such patients and that the practice will not interfere with the recovery and treatment of nonsmoking patients, and provided that adequate nonsmoking areas are made available for nonsmoking patients.

O. Schools.

1. The prohibitions contained in Subsection A of this section shall be applicable to any school or educational institution operated by a commercial enterprise or nonprofit entity for the purpose of providing academic classroom instruction, trade, craft, computer or other technical training, or instruction in dancing, artistic, musical or other cultural skills.

2. The prohibitions contained in Subsection A of this section shall be applicable to public school facilities when school district management authorizes their use by members of the general public other than students.

P. Day care facilities. The prohibitions contained in Subsection A of this section shall be applicable to private residences during the time when such residences are operated as licensed day care facilities for children.

(Code 1997, § 8.60.040; Ord. No. 4190, 1991; Ord. No. 4201, 1992)

1. Smoking may be permitted in all locations where smoking is not prohibited by this chapter, including the following locations:

A. Bars, whether operated as a separate business entity, or physically separated facilities within a restaurant, nightclub or other business.

B. Private clubs during events attended exclusively by members of the organization and their invited guests and from which members of the general public are excluded.

C. Within conference/meeting rooms, public and private assembly rooms, banquet rooms, dining rooms, dining rooms or areas of restaurants, hotels and motels, while these places are occupied for private functions to which only persons specifically invited are entitled to attend and from which members of the general public are excluded.

D. In an enclosed place wherein this chapter specifically permits smoking.

2. It shall not constitute a violation of Section 8.60.040 for a person to smoke in a location where smoking has been authorized in the manner prescribed by this section.

(Code 1997, § 8.60.060; Ord. No. 4190, 1991)

A. Any owner or manager of a business or other establishment subject to this chapter may apply to the Director of the County Department of Environmental Management for an exemption or modification to its provisions. Exemption may only be granted on a showing by the petition of significant financial hardship due to compliance, or the proposed implementation of an alternative approach or technology which would provide equivalent protection from the health hazards of sidestream smoke.

B. An application for exemption will be accompanied by payment of a reasonable fee established by Board of Supervisors resolution which will cover the cost of preparation for the hearing, and the application will include any data required by the Department. The Department will review the application and submit it, with recommendations, for hearing by the Environmental Health Director. The applicant will be entitled to present evidence at the hearing, which will be scheduled within 30 days of the receipt of the application.

C. The Department will, after taking into consideration the testimony received at the hearing, issue its findings and recommendations within ten days of the completion of the hearing. The Department will complete procedural action on the application and notice interested parties within ten days of its receipt from the Director of Environmental Health.

D. The applicant may appeal the Department's decision to the Board of Supervisors within 30 days of receipt of action notification by the Department. Upon appeal, the Board will set a hearing within 60 days, and make a final determination at that hearing.

E. Any establishment holding a currently valid exemption shall not be required to pay additional administrative fees to maintain its exemption.

(Code 1997, § 8.60.070; Ord. No. 4190, 1991; Ord. No. 5051, § 2, 4-18-2017)

A. Each owner, operator, manager or other person having control of an establishment or facility within which smoking is regulated by this chapter shall conspicuously post in every place where smoking is prohibited "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, with letters not less than one inch in height.

B. An owner, operator, or manager of a building wherein, pursuant to these regulations, where smoking is not permitted in any space in the building may limit the "No Smoking" posting to first floor entrances and exits and to the elevator lobby areas of all other floors.

C. Motion picture theaters shall show upon the movie or live action screens for at least five seconds prior to the showing of each feature motion picture, the message that smoking is prohibited within the audience seating and other areas as specified.

D. Restaurants shall post no smoking signs or symbols as described in this section.

E. Motels and hotels will prominently post in the lobby a sign notifying patrons of the availability of nonsmoking accommodations. The rooms so designated will be posted as nonsmoking rooms, and ashtrays removed.

(Code 1997, § 8.60.080; Ord. No. 4190, 1991; Ord. No. 4201, 1992)

It shall be unlawful for a commercial enterprise, nonprofit entity or the County to retaliate against any members of the general public or an employee or applicant for employment of the enterprise, entity or County because such members of the general public, employee or applicant seeks enforcement of the provisions of this chapter.

(Code 1997, § 8.60.090; Ord. No. 4190, 1991)

Any person who violates the prohibitions contained in Section 8.60.040 and any person who violates Section 8.60.080 by failing to post the signs or take the other actions required by this chapter shall be guilty of an infraction, punishable in the manner hereinafter prescribed:

A. A fine not exceeding $100.00 for a first violation;

B. A fine not exceeding $200.00 for a second violation of this chapter within one year; and

C. A fine not exceeding $500.00 for each additional violation of this chapter within one year.

(Code 1997, § 8.60.100; Ord. No. 4190, 1991)

Violation of any of the provisions of Section 8.60.100 or 8.60.090 shall be remedial through civil action filed in a court of competent jurisdiction for injunctive or other appropriate relief.

(Code 1997, § 8.60.110; Ord. No. 4190, 1991)

1. It shall be the responsibility of the Director of the Department of Environmental Management to enforce, on behalf of the County, the provisions of this chapter. The Director shall be authorized to prosecute, in the name of the County, pursuant to the provisions of Government Code § 25132, civil actions for recovery of fines for violations of this chapter made infractions by Section 8.60.110 for violations of Sections 8.60.040 and 8.60.050.

2. In the performance of the enforcement responsibilities assigned by this chapter, the Director of the County Department of Environmental Management shall:

A. Affirmatively seek the support and cooperation of other local public agencies, such as fire protection districts, to provide information, assistance and advice in the enforcement of the provisions of this chapter.

B. Establish a telephone number through which all complaints by citizens relating to violations of this chapter may be directed or referred.

C. Reduce such complaints to writing, and analyze the frequency and volume thereof in relation to alleged violations of this chapter by or at particular establishments or facilities.

D. Conduct an on-site inspection of any establishment or facility with respect to which the nature and volume of complaints suggest long-standing and pronounced violation of any of the provisions of this chapter.

E. Provide to the owner, operator or manager of any such establishment or facility a copy of the provisions of this chapter and such advisory assistance to rectify future violations as may be necessary to achieve compliance with the provisions of this chapter.

F. Follow up such investigation and advice with a written directive explaining in detail the steps required in order to achieve future compliance with the provisions of this chapter.

G. If the violations do not cease following the expiration of a reasonable period of time, commence civil actions for the recovery of infraction fines pursuant to the provisions of Section 8.60.100 or request commencement of a civil proceeding by the County Counsel pursuant to the provisions of Section 8.60.110, as may be appropriate.

3. The provisions of Section 8.60.090 shall not be remedial by either the Director of Environmental Management or any other County official. Any member of the general public, an employee or applicant for employment may, pursuant to the provisions of Section 8.60.110, commence in his or her name a civil action for injunctive relief, monetary damages or other appropriate relief against a person who violates Section 8.60.090 pursuant to the provisions of Section 8.60.110. A member of the general public or employee shall also be authorized to individually commence a civil action pursuant to the provisions of Section 8.60.110 or injunctive relief, monetary damages or other appropriate relief for the purpose of remedying any other violation of the provisions of this chapter.

(Code 1997, § 8.60.120; Ord. No. 4190, 1991; Ord. No. 5051, § 2, 4-18-2017)