Livingston Municipal Code Ch. 6 Smoking Regulated or Prohibited

The City Council finds that the smoking of tobacco, or any other weed or plant, is a positive 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. 439, passed 1-17-1995)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BAR. Any area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a BAR, the term BAR shall not include the restaurant dining area.

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

CITY OF LIVINGSTON. Includes all entities of which the City Council of the City of Livingston is the governing body.

DINING AREA. Any enclosed area containing a counter or tables upon which meals are served.

EMPLOYEE. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.

EMPLOYER. Any person who employs the services of an individual person.

NONPROFIT ENTITY. Any 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 the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a NONPROFIT ENTITY within the meaning of this definition.

PERSON. Any natural person, partnership, corporation, unincorporated association, joint venture, business trust, joint stock company, club or other organization of any kind except the City of Livingston or any other public agency.

PLACE OF EMPLOYMENT. Any enclosed area under the control of an employer which employees normally frequent during the course of employment, including, but not limited to:

• 1. Work areas;
• 2. Conference rooms and classrooms;
• 3. Employee cafeterias;
• 4. Employee lounges and restrooms; and
• 5. Hallways.

PUBLIC PLACE. Any enclosed area, not a private residence, to which the public is invited or in which the public is permitted, including, but not limited to:

• 1. Banks;
• 2. Childcare facilities;
• 3. Educational facilities;
• 4. Healthcare facilities;
• 5. Public transportation facilities;
• 6. Recreation areas;
• 7. Restaurants;
• 8. Retail stores;
• 9. Retail service establishments;
• 10. Retail food production and marketing establishments; and
• 11. Waiting rooms.

RESTAURANT. Any restaurant, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private school cafeteria, public school cafeteria when used for nonschool functions, dining area, service line or eating establishment, any other eating establishment, organization, club, including veterans’ club, boarding house or guesthouse, which gives or offers for sale food to the public, guests, patrons or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere including catering functions except that 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.

SERVICE LINE. Any indoor line at which one or more persons are waiting for or receiving service of any kind whether or not such service involves the exchange of money.

SMOKING. 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. Any retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

WORK AREA or WORKPLACE. Any area of a place of employment enclosed by floor to ceiling walls in which two or more employees are assigned to perform work for an employer.

(Ord. 439, passed 1-17-1995)

Smoking is hereby prohibited in buildings or portions of buildings owned or leased and occupied by the city.

(Ord. 439, passed 1-17-1995)

Signs designating smoking or no smoking areas shall be conspicuously posted in every room, building or other place covered by this section. The manner of such posting, including the wording, size, color, design and place of posting, whether on the walls, doors, tables, counter stands or elsewhere shall be determined by the City Manager in consultation with the affected department head.

(Ord. 439, passed 1-17-1995)

A violation of this section by any city employee or officer by smoking in a posted no smoking area, or by failing to post or cause to be posted a no smoking sign required by this section or by otherwise violating any provision of this section shall, in addition to the penalties described in section 8-6-5 of this chapter, also be a cause for disciplining of such employee.

(Ord. 439, passed 1-17-1995)

Smoking is prohibited in the following public areas within the incorporated area of the city or which are otherwise subject to the jurisdiction or control of the city:

(A) Elevators open to and in use by the public;

(B) Public restrooms;

(C) Waiting rooms, public hallways and patient’s rooms of every private or public healthcare facility including, but not limited to, hospitals except rooms limited to a single patient and not open to the general public;

(D) Within every room, chamber, place of meeting or public assembly during such time as a meeting required by law to be open to the general public is in progress;

(E) Within any building or room not open to the sky when that building or room is open to the public for the purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance except for members of the cast when smoking is a part of the stage production;

(F) In any restaurant as the term is defined in § 8-6-1-2 of this chapter, where food is being served to the general public;

(G) Within any retail food sales establishments including grocery stores and supermarkets;

(H) In public areas such as reading rooms, museums and libraries, when open to the public; and

(I) Within retail stores doing business with the general public.

(Ord. 439, passed 1-17-1995)

“No smoking”, must be posted at each entrance to the building. Where smoking is permitted in designated areas of the building or structure, a sign stating “Smoking is prohibited except in designated areas” must be posted at each entrance to the building or structure. Ashtrays, receptacles or other devices used for extinguishing or discarding smoking materials shall be removed from all nonsmoking areas.

(Ord. 439, passed 1-17-1995)

It shall be the responsibility of employers in the incorporated area of the city to provide smoke free areas for nonsmokers within existing facilities to the maximum extent possible. Such employers are not required to incur any expense to make structural or other physical modifications in providing these areas.

(Ord. 439, passed 1-17-1995)

Each employer shall adopt, implement and maintain a written no smoking policy which shall contain at a minimum the following:

(A) Prohibition of smoking in employer conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways and elevators;

(B) In any dispute arising under the no smoking policy, the right to not involuntarily smoke shall be given precedence;

(C) Whenever smoking is prohibited, conspicuous signs shall be posted by the employer so stating; and

(D) The smoking policy shall be communicated to all employees by the employer within one month of its adoption and thereafter upon employment.

(Ord. 439, passed 1-17-1995)

Every employer shall have the right to designate any workplace as a nonsmoking area.

(Ord. 439, passed 1-17-1995)

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 this section provided that a policy which knowingly omits the minimum requirements of § 8-6-4-2 of this chapter shall not be deemed in compliance.

(Ord. 439, passed 1-17-1995)

No person or employer shall discharge or in any manner retaliate against any employee because such employee exercises any rights afforded by this section.

(Ord. 439, passed 1-17-1995)

Compliance with this section concerning adoption, implementation and maintenance of a no smoking policy is mandatory. Willful failure to comply shall be unlawful.

(Ord. 439, passed 1-17-1995)

Signs which designate smoking or no smoking areas established by this section shall be clearly, sufficiently and conspicuously posted in rooms, buildings or other places so covered by this section as reasonably deemed necessary by the department head, operator, manager or other person having control of such room, building or other place. Ashtrays, receptacles or other devices used for extinguishing or discarding smoking materials shall be removed from all nonsmoking areas.

(Ord. 439, passed 1-17-1995)

Notwithstanding any provision of this chapter to the contrary, no regulation or prohibition of smoking is required in the following areas:

(A) Bars and taverns.

1. Generally. Smoking is permitted in bars and taverns if they meet the ventilation standards described below. For the purposes of state law, a BAR or TAVERN means a facility primarily devoted to the serving of alcoholic beverages, in which the serving of food is incidental. A bar or tavern can be freestanding, but also includes those facilities located within a hotel or motel or other transient occupancy establishment. When a bar or tavern is located in conjunction with another use, such as a restaurant, the definition of bar or tavern applies only to those areas used primarily for the sale and service of alcoholic beverages. Bar or tavern does not include the dining areas of a restaurant, regardless of whether alcohol is served in them.

2. Ventilation standards for gaming clubs and bars.

(a) State law permits smoking in gaming clubs and bars/taverns until the earlier of the following:

(1) January 1, 1997; or

(2) The date of adoption of regulations by the occupational safety and health standards board (Cal-OSHA) or the Federal EPA reducing the permissible employee exposure level to environmental tobacco smoke to a level that will prevent anything other than insignificantly harmful effects to exposed employees.

(b) If such a regulation is adopted on or before January 1, 1997, smoking is permitted in gaming clubs and bars, if they fully comply with the regulations within two years of the adoption of the regulations. If the two agencies adopt inconsistent regulations, the stricter regulation prevails.

(c) If a ventilation standard is not adopted by January 1, 1997, state law prohibits smoking in gaming clubs and bars. This prohibition remains until a regulation is adopted. If a regulation is adopted after January 1, 1997, an establishment has two years in which to come into full compliance with the ventilation regulation. During that time, smoking would be permitted If the establishment fails to come into full compliance during that two-year period, then smoking would be prohibited.

(B) Private residences. Private residences, except when used as a business in which more than two people are employed or when used as a childcare or healthcare facility;

(C) Hotel/motel guestrooms. Sixty five percent of guestrooms in a hotel, motel or similar transient lodging establishment may be set aside for smokers. This means that at least 35% of hotel/motel sleeping rooms must be nonsmoking rooms;

(D) Retail tobacco stores. Retail tobacco stores;

(E) Meeting and banquet rooms.

1. Smoking is permitted in meeting and banquet rooms only during private functions in a hotel, motel or other transient lodging establishment similar to a hotel, motel, restaurant or public convention center. However, smoking is not permitted when food or beverage functions are taking place, including setup, service and cleanup activities, or when the room is used for exhibit purposes. At a time when smoking is not permitted, the establishment may permit smoking in corridors and prefunction areas adjacent to and serving the meeting or banquet room if no employee is stationed in that corridor or area, other than on a passing basis.

2. Thus, if a hotel, motel, restaurant or convention center has meeting or banquet rooms, smoking is permitted except during food or beverage service, which includes setup and cleanup.

(F) Healthcare facilities. Semiprivate rooms of healthcare facilities occupied by one or more patients all of whom are smokers who have requested in writing on the healthcare facility’s admission forms to be placed in a room where smoking is permitted provided such healthcare facility allows smoking at said facility.

(Ord. 439, passed 1-17-1995)

Only those exemptions provided for in Cal. Labor Code § 6404.5(d) are permittable.

(Ord. 439, passed 1-17-1995)

All public officers of the city shall require, while an establishment which is subject to the provisions of this chapter is undergoing otherwise mandated inspections, a self-certification from the owner, manager, operator or other person having control of such establishment that all requirements of this chapter have been complied with.

(Ord. 439, passed 1-17-1995)

(A) Any person who desires to register a complaint under this chapter may do so by filing it with the City Manager. Any person may bring legal action to enforce any provision of this chapter after written notification to the City Manager.

(B) After three violations have been issued within one year, the Division of Occupational Safety and Health (Cal-OSHA) will respond to a complaint filed by an employee of the place of employment. Cal-OSHA enforcement is limited to investigation of employee complaints against employers, not citizen complaints. Therefore, Cal-OSHA will not investigate a complaint from a restaurant or hotel customer. That type of investigation is subject to local enforcement.

(Ord. 439, passed 1-17-1995)

Enforcement of this chapter shall be by the public safety officer of the city.

(Ord. 439, passed 1-17-1995)

Per the Cal. Penal Code § 6405.5(d), violations of this chapter are punishable by a fine not to exceed $100 for the first violation, $200 for a second violation within one year and $500 for a third or each subsequent violation within one year.

(Ord. 439, passed 1-17-1995)

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

(Ord. 439, passed 1-17-1995)