El Segundo Municipal Code Ch. 6 Smoking Regulated or Prohibited

The City Council hereby finds that the smoking of tobacco, or any other weed or plant, is a danger to health and a material annoyance, inconvenience, discomfort and a health hazard to those who are 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. (Ord. 1140, 5-16-1989)

For the purposes of this Chapter, the following words and phrases shall when used in this Chapter have the meanings respectively ascribed to them by this Section:

BAR: An establishment which is devoted to serving of alcoholic beverages and which does not serve meals.

EMPLOYEE: Any person who is employed by any employer in consideration for monetary compensation or profit.

EMPLOYER: Any person, partnership, corporation, including municipal corporation, who employs the services of more than five (5) persons.

ENCLOSED: Closed in by a roof and walls with appropriate openings for ingress and egress and is not intended to mean areas commonly described as public lobbies.

PLACE OF EMPLOYMENT OR WORK PLACE: Any enclosed area of a structure or portion thereof under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment.

PUBLIC PLACE: Any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, lobbies, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, waiting rooms, offices, auditoriums, classrooms, conference and meeting rooms. A private residence is not a public place.

SMOKE OR SMOKING: Includes the carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking equipment or the lighting or emitting or exhaling the smoke of a pipe, cigar or cigarette of any kind. (Ord. 1140, 5-16-1989)

It shall be unlawful to smoke in the following places:

A. Any City-owned or City-operated vehicle;

B. Any public place, or in any similar enclosed area in City- owned or private buildings generally used by and open to the public, including, but not limited to, elevators and public restrooms. (Ord. 1140, 5-16-1989)

A. Places Of Employment:

1. Smoke-Free Areas: It shall be the responsibility of employers to provide smoke-free areas for nonsmoking employees within existing facilities 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.

2. Implement Smoking Policy: Within ninety (90) days of the effective date hereof, each employer shall adopt, implement and maintain a written and posted smoking policy which shall contain at a minimum, provisions related to the following:

a. Provision and maintenance of a contiguous no smoking area of not less than one-half (1/2) of the seating capacity and floor space in employee lounges, cafeterias, and lunchrooms with a seating capacity of ten (10) or more. Employee lounges, cafeterias and lunchrooms with a seating capacity of less than ten (10) would be designated as nonsmoking.

b. Any employee in an office or similar workplace of more than five (5) employees shall be given the right to designate his or her individual and immediate work area as a nonsmoking area and to post it with appropriate sign(s).

c. Smoking shall be prohibited in all common workplaces in a place of employment, unless every person who works in that workplace is a smoker.

3. Precedence Of Nonsmoker: In any dispute arising under the smoking policy, the rights of the nonsmoker shall be given precedence.

4. Exceptions: This subsection is not intended to regulate smoking in the following places and under the following conditions:

a. A private home which may serve as an office workplace.

b. Any property owned or operated by other governmental agencies.

5. Compliance Of Employer: An employer who makes reasonable efforts to develop and promulgate a policy regarding smoking and nonsmoking in the workplace shall be deemed to be in compliance with subsection A2 of this Section; provided, that a policy which designates an entire workplace as a smoking area shall not be deemed in compliance with this subsection.

6. Nonsmoking Area Designation: Notwithstanding the above, every employer shall have the authority to designate any work area as a nonsmoking area.

7. Time Limit: The smoking policy shall be communicated to all employees within three (3) weeks of its adoption.

8. Supply Copy Of Policy To Employees: All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.

B. Eating Establishments: Every publicly or privately owned coffee shop, cafeteria, luncheonette, sandwich shop, soda fountain, restaurant, or other eating establishment serving food and/or any alcoholic beverage to the general public whose occupied capacity is more than forty (40) persons shall provide and maintain a nonsmoking area of at least fifty percent (50%) of the seating capacity. Every publicly or privately owned coffee shop, cafeteria, luncheonette, sandwich shop, soda fountain, restaurant, or other eating establishment serving food and/or any alcoholic beverage to the general public whose occupied capacity is less than forty (40) persons shall post a sign in a prominent place near the entrance of such establishment stating either that the establishment allows smoking or prohibits smoking. Excluded from the calculation of occupied capacity herein shall be those portions of such establishments which are located outdoors. (Ord. 1140, 5-16-1989)

The following establishments are hereby exempted from smoking restrictions under this Chapter:

A. Bars;

B. Banquet rooms used for private functions;

C. Buildings owned or leased by County, State, and Federal Government agencies;

D. Private homes which serve as offices. (Ord. 1140, 5-16-1989)

No person or employer shall discharge, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this Chapter. (Ord. 1140, 5-16-1989)

Whenever in this Code smoking is prohibited, conspicuous signs shall be posted so stating with letters of not less than one inch (1") in height on a contrasting background, or an international "no smoking" symbol, a red circle with a diagonal bar across it, shall be clearly and conspicuously posted. It shall be the duty of the owner, 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. 1140, 5-16-1989)

Violation of any provision of this Chapter shall be an infraction, punishable as provided in this Code by: a) a fine not exceeding fifty dollars ($50.00) for a first violation; b) a fine not exceeding one hundred dollars ($100.00) for a second violation of the same Section of this Chapter within one year; c) a fine not exceeding two hundred fifty dollars ($250.00) for each additional violation of the same Section of this Chapter or ordinance within one year. (Ord. 1140, 5-16-1989)

ARTICLE A. REGULATION OF TOBACCO PRODUCT SALES

SECTION:

This article is adopted pursuant to the city's police powers and California Business and Professions Code section 22960(c), including any successor statute, for the purpose of further restricting access to and reducing the availability of cigarette and tobacco products from vending machines or devices. (Ord. 1339, 10-16-2001)

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this article:

BUSINESS: Any sole proprietorship, joint venture, corporation, or other business entity formed for profit, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.

EMPLOYEE: Any person who is employed by any employer in consideration for monetary compensation or profit.

EMPLOYER: Any person, partnership, corporation, including municipal corporation, who employs the services of more than four (4) persons.

MINOR: Any individual who is less than eighteen (18) years old.

PERSON: Any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

SELF-SERVICE MERCHANDISING: Open display of tobacco products and point-of-sale tobacco-related promotional products to which the public has access without the intervention of any employee.

TOBACCO PRODUCT: Any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff, or any other form of tobacco which may be utilized for smoking, chewing, inhaling, or other manner of ingestion.

TOBACCO RETAILER: 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.

TOBACCO VENDING MACHINE: Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product or tobacco accessories.

VENDOR-ASSISTED: Only an employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. (Ord. 1339, 10-16-2001)

A. It is unlawful for a person or business to offer tobacco products for sale without prominently displaying a sign at the point of purchase for tobacco products stating: "SELLING TOBACCO PRODUCTS TO PERSONS YOUNGER THAN EIGHTEEN YEARS OF AGE IS ILLEGAL. PHOTO ID IS REQUIRED TO PURCHASE ANY TOBACCO PRODUCT." The letters of the sign will be at least one-quarter inch (1/4") high.

B. It is unlawful for any person, business, tobacco retailer, or owner, manager, or operator of any establishment to sell, offer to sell, or permit to be sold any tobacco product to an individual without first examining identification that establishes the purchaser's age as at least eighteen (18) years unless the seller has some reasonable basis for determining the buyer's age.

C. It is unlawful for any person, business, tobacco retailer, or other establishment to sell or offer for sale any tobacco product that is not in the manufacturer's original packaging containing all required health warnings.

D. It is unlawful for any person, business, or tobacco retailer to sell, permit to be sold, offer for sale, or display for sale any tobacco product by means of self-service merchandising, tobacco vending machine, or by means other than vendor-assisted sales. (Ord. 1339, 10-16-2001)

ARTICLE B. TOBACCO RETAILER LICENSE

SECTION:

5-6B-1-1: PURPOSE:

This article is adopted pursuant to the city's police powers for the purpose of promoting compliance with federal, state, and local laws that regulate the sale and use of tobacco products and paraphernalia. Nothing in this article is intended to, nor does it, duplicate or conflict with applicable local, state, or federal laws. (Ord. 1358, 4-1-2003)

5-6B-1-2: DEFINITIONS:

Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this article:

CHIEF: The police chief or designee.

DEPARTMENT: The El Segundo police department.

PERSON: Any natural person or legal entity.

PROPRIETOR: A person with an ownership or managerial interest in a business. An ownership interest is deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest is deemed to exist when a person can or does have, or can or does share, ultimate control over the day to day operations of a business.

TOBACCO PARAPHERNALIA: Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for smoking or ingestion of tobacco products.

TOBACCO PRODUCT: Any substance containing tobacco leaf, including, without limitation, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.

TOBACCO RETAILER: Any person that operates a store, stand, concession, or other place at which sales, or other exchanges for value, of tobacco products are made to purchasers for consumption or use. (Ord. 1358, 4-1-2003)

5-6B-1-3: PROHIBITIONS:

A. It is unlawful for any person to act as a tobacco retailer without a valid license issued pursuant to this article for each location at which activity is proposed to occur.

B. It is unlawful for any person to act as a tobacco retailer from other than a fixed location within the city's jurisdiction.

C. It is unlawful for any person to cause, permit, aid, abet, or conceal a violation of any provision of this article. (Ord. 1358, 4-1-2003)

5-6B-1-4: ADMINISTRATION BY DEPARTMENT:

The chief and department are authorized to administer and enforce this article. (Ord. 1358, 4-1-2003)

5-6B-1-5: NOTICES:

A. Where the provisions of this article require that an applicant/licensee be served with notice, such notice is deemed served when personally delivered to such applicant/licensee or when deposited in the first class U.S. mail, addressed to such applicant/licensee at the applicant/licensee's last known address.

B. Unless otherwise provided, written notification to an applicant/licensee of a license decision will state with particularity the basis for such decision. (Ord. 1358, 4-1-2003)

5-6B-2-1: FORM AND CONTENT OF APPLICATION:

A. Permit applications must be filed by a natural person in the name of each proprietor proposing to conduct retail tobacco sales.

B. Every application must be signed by the proprietor, or the proprietor's authorized representative, under penalty of perjury.

C. Permit applications will be in a form prescribed by the chief and contain all of the following information:

1. The name, mailing address, and daytime and evening telephone numbers of the person filing the application;

2. The business name, address, and telephone number of the single fixed location for which a license is sought;

3. The name and mailing address authorized by each proprietor to receive all notices. If such an address is not supplied, notices will be sent to the business address;

4. Whether or not the proprietor was previously issued a license under this article that was suspended or revoked and, if so, the dates of the suspension period or revocation date; and

5. Such other information as the department deems reasonably necessary for administering or enforcing this article. (Ord. 1358, 4-1-2003)

5-6B-2-2: LICENSE ISSUANCE:

A. The chief must issue a license if:

• 1. The application was complete in accordance with this article;
• 2. The applicant pays all applicable license fees;
• 3. There are no grounds for denying the license; and
• 4. The applicant accepts the license approval or conditional approval in writing.

B. Use of any license issued pursuant to this article must conform to this article. (Ord. 1358, 4-1-2003)

5-6B-2-3: LICENSE DENIAL:

A license can be denied for the following reasons:

A. The application is incomplete;

B. The applicant failed to provide reasonable supplemental application information requested by the chief;

C. Information submitted by the applicant is materially false;

D. The application is submitted by a proprietor with a suspended license or whose license was revoked; or

E. The application seeks authorization for tobacco retailing that is prohibited by this chapter or unlawful under any other local, state, or federal law. (Ord. 1358, 4-1-2003)

5-6B-3-1: GENERAL CONDITIONS:

Tobacco retailer licensees must:

A. Comply with all local, state, and federal laws regulating tobacco products and tobacco paraphernalia including, without limitation, this code;

B. Maintain a valid business license issued pursuant to this code;

C. Allow authorized enforcement officers to enter onto licensed premises to ensure compliance with this article during business hours. (Ord. 1358, 4-1-2003)

5-6B-3-2: DISPLAY OF LICENSE:

Each license issued by this article must be prominently displayed in a publicly visible location at the licensed tobacco retailer's location. (Ord. 1358, 4-1-2003)

5-6B-3-3: LICENSE RENEWAL:

Unless suspended or revoked, licenses issued pursuant to this article have a term of one year. Licenses must be renewed not later than thirty (30) days before they expire in order to be maintained. Should a license expire, the proprietor must comply with this article to obtain a new license. (Ord. 1358, 4-1-2003)

5-6B-3-4: NO ADDITIONAL PRIVILEGES GRANTED:

Nothing in this article is intended to, nor does it, grant to a properly licensed tobacco retailer privileges other than permission to operate as a tobacco retailer at the location identified in the license. (Ord. 1358, 4-1-2003)

5-6B-3-5: LICENSES NONTRANSFERABLE:

A license issued to a tobacco retailer pursuant to this article is nontransferable. Any change in business name or location requires a new license issued in accord with this article. (Ord. 1358, 4-1-2003)

5-6B-4-1: ENFORCEMENT:

A. In addition to the remedies set forth in this article, violations of a tobacco retailer's license may be enforced as follows:

1. Prosecution as infractions or misdemeanors at the city attorney's discretion.

2. Abated as a public nuisance.

3. Enjoined as unfair business practices that are presumed to nominally damage each and every resident of the community in which the tobacco retailer operates.

B. Any person acting for the interests of itself, its members, or the general public may bring an action for injunctive relief to prevent future violations or to recover actual damages.

C. The remedies provided by this article are cumulative and in addition to any other criminal or civil remedies. (Ord. 1358, 4-1-2003)

5-6B-4-2: CITY ATTORNEY ENFORCEMENT AUTHORITY:

In addition to any other general functions, powers, and duties given to the city attorney by this code or California law, the city attorney is authorized to:

A. Prosecute on behalf of the people all criminal and civil cases for violations of this article including, without limitation, administrative or judicial nuisance abatement and suits for injunctive relief;

B. Prosecute all actions for the recovery of fines, penalties, forfeitures, and other money accruing to the city under this article. (Ord. 1358, 4-1-2003)

5-6B-4-3: NOTICE OF VIOLATION:

Upon determining that a person is violating this article, the chief must serve a notice of violation on the apparent violator. The notice must state the basis of such violations and provide information regarding appeals rights. (Ord. 1358, 4-1-2003)

5-6B-4-4: VIOLATIONS DEEMED CONCLUSIVE:

The judgment of any court of competent jurisdiction, or the admission of a tobacco retailer licensee in any civil or criminal action against a tobacco retailer licensee, whether the city is a party or not, that the tobacco retailer has violated any tobacco related local, state, or federal law is conclusive of that fact for purposes of enforcing this article. (Ord. 1358, 4-1-2003)

5-6B-4-5: ADMINISTRATIVE FINE:

A. In addition to any other enforcement remedy, the chief may fine a tobacco retailer for violating this article as follows:

1. A fine not exceeding one hundred dollars ($100.00) for a first violation in any twelve (12) month period;

2. A fine not exceeding two hundred dollars ($200.00) for a second violation in any twelve (12) month period; or

3. A fine not exceeding five hundred dollars ($500.00) for a third or subsequent violation in any twelve (12) month period. (Ord. 1358, 4-1-2003)

5-6B-4-6: PAYMENT OF ADMINISTRATIVE FINES:

An administrative fine must be paid to the city within thirty (30) days from the date of the notice of violation or, if an appeal is made, within fifteen (15) days after the date of the city manager's notice of the decision to uphold the imposition of administrative fines, whichever is later. (Ord. 1358, 4-1-2003)

5-6B-4-7: DELINQUENT ADMINISTRATIVE FINES; PENALTIES AND INTEREST:

A. A penalty of ten percent (10%) is added on any delinquent fines on the last day of each month after the due date. The penalty will not exceed fifty percent (50%) of the fine.

B. In addition to penalties provided by this section, delinquent fines accrue interest at the rate of one percent (1%) per month, exclusive of penalties, from the due date. (Ord. 1358, 4-1-2003)

5-6B-4-8: LIABILITY FOR FINES:

All fines, fees, penalties, and interest imposed pursuant to this article are civil debts owed to the city by the person fined. In the event that judicial action is necessary to compel payment of any debt owed to the city, the person or persons subject to the fine are also liable for the costs of suit and attorney fees incurred by the city to collect the fine. (Ord. 1358, 4-1-2003)

5-6B-4-9: LICENSE SUSPENSION AND REVOCATION:

In addition to any other penalty authorized by law, the chief may suspend or revoke a tobacco retailer's license for the following reasons:

A. Upon learning or discovering facts that require license denial under this article that were not previously disclosed or reasonably discoverable; or

B. If the licensee violates the tobacco retailer license conditions. (Ord. 1358, 4-1-2003)

5-6B-4-10: SUSPENSION TIME PERIODS:

A. After serving a notice of violation, the chief may suspend a tobacco retailer's license as follows:

1. Upon finding a first license violation within any sixty (60) month period, a thirty (30) day suspension;

2. Upon finding a second license violation within any sixty (60) month period, a ninety (90) day suspension;

3. Upon finding a third license violation within any sixty (60) month period, a one year suspension;

4. Upon finding a fourth license violation within any sixty (60) month period, revocation.

B. Nothing in this section is intended to limit the chief's ability to impose a different suspension period or to revoke a license as the circumstances of a violation may require. (Ord. 1358, 4-1-2003)

5-6B-4-11: NO NEW LICENSE AFTER REVOCATION:

Should a tobacco retailer's license be revoked, the proprietor is presumptively disqualified to apply for a new license in accordance with this article. This presumption may be overcome upon a showing of good cause as to why a license should be issued following a revocation. Any such showing must be made to the chief's satisfaction or, if the chief denies a license, to the city manager as prescribed by this article. (Ord. 1358, 4-1-2003)

5-6B-5-1: ADMINISTRATIVE APPEALS:

An applicant is entitled to appeal the chief's decisions to the city manager provided:

A. A request for review must be commenced within ten (10) days from the date on which written notice of the chief's decision is served on the applicant/licensee. If request is untimely, the city manager may, nevertheless, extend the time for commencing such review for good cause shown.

B. A request for appeal must be on a form provided by the department and contain the following information:

1. The name, address and telephone number of the person making the request;

2. A description of the decision, determination or order which is the subject of the review, and the date such decision, determination or order was made or issued;

3. A brief description of all grounds for making the request; and

4. Such other information as may be required by the department.

C. Upon receiving an appeal, the city manager will review the request and, within ten (10) days of receiving the appeal, provide the appellant with a written notification that:

• 1. The chief's decision is affirmed;
• 2. The chief's decision is modified;
• 3. The chief's decision is reversed and a license is issued.

D. The city manager may, but is not required to, conduct a hearing at a time, place, and manner determined in the city manager's sole discretion. Should a hearing occur, the city manager may issue a decision orally at the conclusion of the hearing, but also notify the applicant and the chief in writing of the city manager's decision.

E. The city manager's decision is a final determination. There is no right of city council appeal. (Ord. 1358, 4-1-2003)

5-6B-5-2: CONTENT OF NOTICES:

Any notification of action, whether oral or written, must describe with particularity the facts and the reasons for the decision. (Ord. 1358, 4-1-2003)

5-6B-5-3: RIGHT TO JUDICIAL REVIEW:

A. An applicant/licensee may appeal the city manager's decision by filing an appeal with the superior court pursuant to Government Code section 53069.4, or any successor statute, within twenty (20) days from service of the city manager's decision.

B. Should a licensee file a timely appeal with the superior court, any requirement to pay an administrative fine is suspended and the payment of the fine, if any, will be in accordance with the superior court decision. (Ord. 1358, 4-1-2003)