Fillmore Municipal Code Ch. 8.20 Regulation of Smoking

The purpose of this chapter is to impose regulations on smoking of tobacco, tobacco products, cannabis and cannabis products within the city that are supplementary to, and more stringent than, the smoking regulations imposed by state law, in order to protect and promote public health in the city.

(Ord. No. 18-887, § 1, 2-13-2018)

Unless the context otherwise requires, the following terms used in this chapter have the meaning and construction given in this section:

"Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. "Cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.

"Cannabis products" means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.

"City" means the City of Fillmore.

"Designated smoking areas" means such portion of an outdoor common area that has been designated for smoking of tobacco and tobacco products by the person having legal control over the area and that complies with the following requirements:

A. The area is unenclosed;

B. The area is located at least twenty feet from any operable entrance, exit, window or vent leading into an enclosed area;

C. The perimeter of the area is clearly demarcated; and

D. Signs are posted indicating that the area is designated for smoking.

"Enclosed" means closed in by a roof and four walls with appropriate openings for ingress and egress.

"Government Code" means the California Government Code.

"Labor Code" means the California Labor Code.

"Outdoor dining area" means any privately owned or publicly owned area, including streets, sidewalks, and sidewalk cafes, which is available to or customarily used by the general public and which is designed, established, or regularly used for consuming food or drink.

"Passenger vehicle" shall have the definition set forth in California Vehicle Code Section 465, as may be amended from time to time.

"Public building" means a building owned and occupied, or leased and occupied, by the city, the state, the county, or any other public agency.

"Sidewalk cafe" is an unenclosed portion of an eating or retail sales establishment located on a public sidewalk or mall which functions as an extension of the use of the adjacent private property by an eating or retail sales establishment.

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

"Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. "Smoking" includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.

"Tobacco product" means any of the following:

A. A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.

B. An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.

C. Any component, part, or accessory of a tobacco product, whether or not sold separately.

"Tobacco product" does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.

(Ord. No. 18-887, § 1, 2-13-2018)

To the extent the smoking regulations of this chapter overlap with the smoking regulations of Government Code Section 7597, Labor Code Section 6404.5, or other applicable state law, this chapter shall not apply, and violations of such provisions shall be enforced in accordance with applicable state law. Specifically, and without limitation, this chapter shall not apply to smoking of tobacco products:

A. Inside a public building or in an outdoor area within twenty feet of a main exit, entrance or operable window of a public building; or

B. In any enclosed place of employment or owner-operated business pursuant to Labor Code Section 6404.5 as smoking in these areas is addressed by state laws.

(Ord. No. 18-887, § 1, 2-13-2018)

It is unlawful to smoke tobacco, tobacco products, cannabis, or cannabis products in all of the following places within the city:

A. Outdoor areas on real property owned or leased by the city, whether or not such property is improved with buildings or other structures, except in designated smoking areas.

B. Outdoor areas of public buildings, provided that signage describing this prohibition is posted by the applicable public agency in such area.

C. Indoor areas of buildings or enclosed structures which are open to the public for commercial or recreational purposes, including but not limited to all guestroom accommodations in a hotel, motel or similar transient lodging establishment.

D. Outdoor areas located within twenty feet of a main exit, entrance or operable window of any building or enclosed structure which is open to the public for commercial or recreational purposes.

E. Passenger vehicles owned or controlled by the city.

F. Motor vehicles used as common carriers for public transit.

G. Vehicles for hire such as taxi cabs.

H. Motor vehicles used in the course of any employment by more than one person at a time during the time of employment.

I. Outdoor: dining areas, public seating and picnic areas, service lines, and waiting areas.

J. Enclosed parking structures which are open or accessible for public use.

K. Unenclosed areas of apartment and condominium complexes and mobilehome parks which are open to public access or to unrestricted common access by the residents of such places, except in designated smoking areas.

(Ord. No. 18-887, § 1, 2-13-2018)

A. "No Smoking" signs of a reasonable size shall be conspicuously posted in or on every building or structure, or adjacent outdoor area, where smoking is prohibited pursuant to this chapter, by the owner, operator, manager or other person having control of such building, structure or area.

B. On properties where smoking is prohibited except in designated smoking areas, signs of reasonable size shall be conspicuously posted reading "Smoking Prohibited Except in Designated Areas."

C. Signs reading "Smoking Permitted" may be posted in designated smoking areas.

D. Alternative means of notification may be employed in lieu of the signs described in subsections (A) through (C) of this section, provided such means are reasonably calculated to provide actual notice of the smoking prohibitions in effect pursuant to this chapter in the subject building, property or area, and provided that such means are equivalent to the above-referenced signs in substance and effect.

(Ord. No. 18-887, § 1, 2-13-2018)

A. It shall be unlawful for any person who owns or controls a building, structure or property to knowingly or intentionally permit smoking of tobacco, tobacco products, cannabis or cannabis products in violation of this chapter.

B. Persons who own or control buildings, structures or properties will not be deemed to be in violation of Section 8.20.040 of this chapter due to smoking by other persons on their premises if they have:

1. Posted signage in accordance with Section 8.20.050 of this chapter; and

2. Requested, when appropriate, that persons who are smoking on their premises refrain from doing so.

(Ord. No. 18-887, § 1, 2-13-2018)

It is unlawful for any employer or person to take any retaliatory action against any employee or applicant for employment because such employee or applicant has asserted a right to a smoke-free environment pursuant to this chapter.

(Ord. No. 18-887, § 1, 2-13-2018)

Any person who violates any provision of this chapter is guilty of a misdemeanor punishable in accordance with Section 1.08.025 of this code, and is guilty of a separate offense for each and every day or portion thereof during which such violation is committed, continued or permitted, and shall be subject to the same punishment for each such separate offense as for the original offense. Notwithstanding the foregoing, where the prosecuting attorney has determined that such action would be in the best interest of justice, a violation of this section may be charged and prosecuted as an infraction, also punishable in accordance with Section 1.08.025 of this code. The penalties set forth in this section are cumulative and independent of any other remedies or sanctions which are or may be available under any other provision of law.

(Ord. No. 18-887, § 1, 2-13-2018)