Fresno Municipal Code Art. 11 Smoking Pollution Control Ordinance

This article shall be known as the Smoking Pollution Control Ordinance. (Added Ord. 87-152, § 2, eff. 12-4-87).

(a) The Council finds that:

(1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and

(2) Reliable studies have shown that breathing second-hand smoke is a significant health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

(3) Medical studies have shown that health hazards induced by breathing second-hand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

(4) Studies have shown that non-smokers who suffer allergies, respiratory diseases and other ill effects of breathing second-hand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and

(5) Studies have shown that a majority of both non-smokers and smokers desire to have restrictions on smoking in public places and places of employment; and

(6) Smoking is a documented cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures causing economic losses to businesses.

(b) Based on the findings in subsection (a), the Council declares that the purposes of this ordinance are:

(1) To protect the public health and welfare by prohibiting smoking in public places except in designated smoking areas, and by regulating smoking in places of employment; and

(2) To strike a reasonable balance between the needs of smokers and the needs of non-smokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have priority.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 1, eff. 2-19-88).

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

(a) "Bar" means an area or a room utilized primarily for the sale of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages. If a restaurant operates a bar adjacent to a dining area, the term "bar" shall not include the dining area.

(b) "Dining area" or "dining room" means any enclosed area containing a counter or tables upon which meals are served.

(c) "Employee" means any individual who is employed by any employer for the consideration of direct or indirect monetary wages or profit and any individual who volunteers his or her services for a nonprofit entity.

(d) "Employer" means any person who or which employs the service of five or more persons, and includes the city.

(e) "Enclosed area" means an area closed in by a roof and four or more connected walls with appropriate openings for ingress and egress.

(f) "Place of employment" means any enclosed area under the control of an employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, cafeterias and hallways. "Place of employment" shall not include any business establishment where four or fewer persons are employed.

(g) "Public Place" is an enclosed area to which the public is invited or has general access, including retail stores, theaters, lobbies, reception areas, waiting rooms, and entertainment centers.

(h) "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public cafeteria, and any other eating establishment, organization, club, boarding house, food mall or guest house, which offers food for sale to the public, guests, patrons or employees.

(i) "Retail tobacco store" means a retail store, or separate room within a retail store, utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental.

(j) "Semi-private room" means a room in a public or private health care facility containing two or more beds for patients of the facility.

(k) "Service line" means any line or gathering in a public place of one or more persons lined up or gathered to wait for and receive, in the order of the line or the gathering, service or assistance of any kind.

(l) "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.

(m) (1)

"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; or

(c) Any component, part, or accessory of a tobacco product, whether or not sold separately.

(2) "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.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 2, eff. 2-19-88; Am. Ord. 89-26, § 1, eff. 3-17-89; Am. Ord. 2016-50, § 1, eff. 1-16-17).

All enclosed areas owned, operated or leased by the city shall be subject to the provisions of this article.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 3, eff. 2-19-88).

Except where specifically permitted pursuant to Sections 10-1106 and 10-1108, or specifically not regulated pursuant to Section 10-1107, smoking is prohibited in all public places, including but not limited to the following:

(a) Places of business where five or more persons are employed and where goods are sold, including retail stores, grocery stores and supermarkets, and department stores;

(b) Restaurants;

(c) Places of business where five or more persons are employed and where services are sold, including legal, medical, dental, accounting, engineering, or architectural services;

(d) Health care facilities;

(e) Hotels, motels, boarding houses and guest houses;

(f) Libraries, museums, aquariums, zoos;

(g) Theaters, including theaters for the showing of moving pictures, stage productions, operas, ballet and musical performances;

(h) Sports arenas, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice skating rinks, bowling alleys and arcades;

(i) Convention halls;

(j) Elevators;

(k) Restrooms, lounges, lobbies, waiting areas and ticket areas;

(l) Polling places.

(m) Regardless of whether enclosed or not, the following areas of Fresno Yosemite International Airport (FAT) and Fresno Chandler Executive Airport (FCH) are "public places" for the purposes of this Article: all airline terminal roadway pedestrian cross walks, terminal frontage sidewalks, loading and unloading curb area, and areas surrounding all building entrances and exits, as well as all areas within the restricted access airside area. Other areas of FAT and FCH may be designated non-smoking in the interest of protecting health and property, at the Director of Aviation's discretion.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 4, eff. 2-19-88; Am. Ord. 2016-50, § 1, eff. 1-16-17).

(a) Notwithstanding the provisions of Section 9-1605, the operator of a public place may permit smoking in bars, retail tobacco stores, and in convention facilities, conference, meeting or assembly rooms of restaurants, hotels, motels and convention halls when used for private functions.

(b) Smoking may be permitted in a semi-private room of a health care facility if all patients within the room are smokers and request in writing to be placed in a room where smoking is permitted.

(c) Smoking may be permitted in an area which would otherwise be defined as a public place if such area is separated from the remaining public area, adequately ventilated to assure that smoke will not migrate into areas designated as "no smoking" and no goods or services are available for sale other than those provided through automated machines not requiring the ongoing attention or assistance of a person. Such an area where smoking is permitted must be so designated at all entrances and exits to such area.

(d) An operator of a public place, which operator is also a charitable organization, may request an exemption from certain provisions of this ordinance by making application therefor on a form available from the Chief Administrative Officer. Such application shall include the provision(s) from which exemption is sought, the reason for the request for exemption and such other information as is deemed appropriate by the Chief Administrative Officer. In order to qualify for an exemption, the reason for the request must include an overriding public purpose which is separate from, and in addition to, the impact of this ordinance on revenue raised or any other aspect of operations. The operator shall post a copy of the application in a conspicuous area of the public place for which exemption is sought and shall certify in the application the date upon which posting was made. Not sooner than ten days after such posting the Chief Administrative Officer, or his/her designee shall conduct a hearing thereon and shall render a decision within ten days after the hearing. The applicant or other interested party may appeal the decision of the Chief Administrative Officer to the City Council within fifteen days of the Chief Administrative Officers's decision. If no appeal is made within such period, the decision of the Chief Administrative Officer shall be final.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 89-26, §§ 2, 3, eff. 3-17-89; Am. Ord. 93-25, § 1, eff. 6-28-94).

Nothing in this article shall be deemed to regulate smoking:

(a) In a private residence except where used as a licensed business which is open to the public or which constitutes place of employment; or

(b) In hotel, motel or other boarding house rooms rented to guests; or

(c) In a billiard room as defined in section 9-1801(b) of this Code; or

(d) By a performer of a stage production when smoking is a part of such production.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 5, eff. 2-19-88).

Recognizing the diverse nature of the facilities and functions provided by a bowling center, the following provisions shall apply:

(a) The bowlers' area including the approach area, participants' seating area, and scorekeepers' table) shall be designated as a nonsmoking area.

(b) The spectators' area and entryways may be designated as smoking areas.

(c) Other areas of the facility shall comply with the appropriate designations as provided elsewhere in this article.

(Added Ord. 87-152, § 2, eff. 12-4-87).

(a)\Employers shall provide smoke-free areas for non-smoking employees within places of employment 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.

(b)\Within one hundred twenty days of the effective date of this ordinance, each employer shall adopt, implement, make known and maintain a written smoking policy, which shall contain at a minimum the following requirements:

(1) Any employee in a place of employment shall be given the right to designate his or her immediate work area as a non-smoking area. The smoking policy adopted by the employer shall include a reasonable definition of the term "immediate work area";

(2) Prohibition of smoking in enclosed areas of general passage, including hallways and elevators;

(3) Maintenance of a separate and contiguous non-smoking area of not less than sixty percent of the seating capacity and floor space in cafeterias;

(4) A mechanism for resolving disputes between employees in which the health concerns of non-smokers shall take precedence.

(c)\The smoking policy shall be communicated to all employees within three weeks of its adoption and at least annually thereafter.

(d)\Smoking in employee lounges and areas of general assembly including conference rooms and classrooms may be permitted, provided that an employer may, upon request by one or more employees, designate one or more employee lounges as "smoking permitted" only if "no smoking" lounges, conference rooms, or classrooms, of substantially equal size, number, accessibility and amenities (including but not limited to, seating, vending machines and drink dispensers, tables, audio and video equipment) are also provided.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 89-26, §§ 4, 5, eff. 3-17-89).

Notwithstanding any other provisions of this article, any owner or operator of a public place or an employer who controls any place of employment regulated by this article, may adopt policies relating to smoking which are more restrictive than those provided herein.

(Added Ord. 87-152, § 2, eff. 12-4-87).

(a)"Smoking" or "No Smoking" signs, whichever are appropriate, with letters of not less than one inch in height 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 and conspicuously posted in every public place and every place of general assembly by employees in a place of employment, where smoking is regulated by this article, and in sufficient number and location to assure visibility in such places, by the owner, operator, manager or other person having control of such place. For purposes of this article, the Chief Administrative Officer or his designee shall be responsible for the posting of signs in regulated facilities of the city.

(b)\Every theater or auditorium owner, manager or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theater or auditorium, including the lobby, and in the case of motion picture theaters, such information shall be shown upon the screen for at least five seconds prior to the showing of each feature motion picture.

(c)\Every restaurant shall inform its patrons, verbally or by posting at every entrance a conspicuous sign, with letters of not less than one inch in height, that a non-smoking section is available. Every patron shall be asked as to his or her preference whenever a host or hostess is available to make an inquiry. The terms "host" and "hostess" shall include persons taking reservations by telephone.

(d)\Whenever any city department conducts an authorized building, fire and/or safety inspection of premises which are required to post signs pursuant to this section, such city department shall also inspect to see that the signing requirements of this section have been complied with and shall issue a certificate of compliance if compliance is found.

(e)\Ashtrays shall not be permitted in any public place or place of employment in an area where smoking is prohibited.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 6, eff. 2-19-88; Am. Ord. 89-26, § 6, eff. 3-17-89).

(a)\Enforcement of this article shall be implemented by the Chief Administrative Officer or his designee and shall be undertaken solely at the discretion of the Chief Administrative Officer. Any citizen who desires to register a complaint under this article may initiate enforcement with the Chief Administrative Officer or his designees.

(b)\Any person violating the provisions of this article shall reimburse the city for the cost of the police or other enforcement agent of the city responding to the complaint and/or the violation pursuant to fees set forth in the Master Fee Resolution. A conviction or punishment of any person for violation of the provisions of this article shall not release such person from the obligation to make such reimbursement.

(c)\Any violation of the provisions of this article shall be punishable as an infraction.

During the first twelve months following the effective date of this article, persons committing first and second violations of any provision or provisions of this article shall be issued warnings. Each subsequent violation during this initial twelve month period, shall be subject to a fine of up to one hundred dollars.

Following the initial twelve-month period from the effective date of this article, a first violation shall be subject to a penalty of up to one hundred dollars. An additional penalty of up to two hundred dollars may be imposed for a second violation if such second violation is committed within twelve months of the first violation and whether or not such second violation is identical to the first violation.

(d)\In addition to the penalties described in subsection (c), the penalties set forth in section 1-106 of this Code shall be imposed for "subsequent violations" as that term is used in subsection (c), if such subsequent violations are committed within twelve months of the third violation and whether or not such subsequent violations are identical to the previous violations.

(e)\If any business subject to the provisions of this article has complied with such provisions but persons on the business premises smoke in violation of the provisions of this article, the penalties set forth in this section shall be incurred by the persons smoking and not the business.

(f)\In undertaking the enforcement of this article, the city is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(g)\When the provisions of this article are not remedied by city officials, civil action against the city is denied and the city is absolved of any responsibility to enforce and/or any liability for failure to enforce.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 7, eff. 2-19-88; Am. Ord. 89-26, § 7, eff. 3-17-89).

No person shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this article.

(Added Ord. 87-152, § 2, eff. 12-4-87).

The Chief Administrative Officer shall engage in a continuing program to explain and clarify the purposes of this article to citizens affected by it, and to guide operators and employees in their compliance with it.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 8, eff. 2-19-88).

The terms and effect of this ordinance shall not apply to any other governmental entity. The Chief Administrative Officer shall annually request other governmental and educational agencies having facilities within the city to establish local operating procedures in cooperation and compliance with this article. The Chief Administrative Officer shall urge Federal, State, County, and special school district agencies to enforce their existing no smoking regulations and to comply voluntarily with this article.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 9, eff. 2-19-88).

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

(Added Ord. 87-152, § 2, eff. 12-4-87).

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

(Added Ord. 87-152, § 2, eff. 12-4-87).

The Chief Administrative Officer shall review the operation of this article within twelve months of its effective date and report his/her findings and recommendations to Council.

(Added Ord. 87-152, § 2, eff. 12-4-87; Am. Ord. 88-12, § 10, eff. 2-19-88).