Chapter 9.11 — SMOKING POLLUTION CONTROL

This chapter shall be known as the "Smoking Pollution Control Ordinance."

(Ord. 550 § 1(part), 1993).

The board of supervisors of the county of Madera find 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, bronchoconstriction and bronchospasm. While all members of the population are truly at increased risk due to exposure to second-hand tobacco smoke, it constitutes a special health hazard for children, the elderly and people with chronic lung disorders, including asthmatics and those with obstructive airway disease and cardiovascular disease.

B.

The U.S. 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 second-hand 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 second-hand smoke.

D.

Smoking in public places and workplaces is a major cause of fires and damage to merchandise and equipment as well as costly maintenance and repairs to furniture and fixtures.

E.

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

F.

Opinion surveys show that a majority of the residents of Madera favor restriction on smoking in areas accessible to the general public.

G.

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

H.

Research concludes that exposure to second-hand smoke is the third leading cause of preventable death, after smoking and alcohol.

I.

Second-hand smoke has been found by E.P.A. to be a known carcinogen.

J.

The U.S. Surgeon General has concluded that children exposed to second-hand smoke have more respiratory infections and lung problems than children who are not exposed to secondary smoke.

K.

Numerous government and privately sponsored scientific studies have concluded that approximately forty thousand deaths per year occur from lung cancer, other cancer and heart disease due solely to exposure to second-hand smoke. Accordingly, the board of supervisors declares that the purpose of this chapter is to protect the health, safety and general welfare of the residents of, persons employed in, and persons who frequent the county who would benefit by the regulation of smoking, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.

(Ord. 550 § 1(part), 1993).

Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter. If any of the definitions in this section conflict with definitions in other chapters of the county code, these definitions shall prevail for the purpose of interpreting and enforcing this section. If a term is not defined in this section, or other sections of the county code as may inform the construction of such a term with respect to this chapter, the most common dictionary definition is assumed to be correct:

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. 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.

"Business" means any sole proprietorship, partnership, joint venture, corporation, or other business entity formed for profit-making purposes, 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.

"Cannabis" has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

"County facilities" means all enclosed buildings or other structures owned or occupied by the county or any service area or special district which is under the control of the board of supervisors including, but not limited to:

All restrooms in county facilities;

All private offices in county facilities;

All county vehicles.

"Department head" means that person, whether elected or appointed, who is in charge of and/or responsible for the administration of a department of the county.

"Dining area" means any enclosed area containing a counter or tables upon which meals are served.

"Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or plant product intended for inhalation. An "electronic smoking device" includes a device that is manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vape pen, or a vapor pen.

"Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit.

"Employer" means any person or nonprofit entity that retains the service of one or more employees.

"Enclosed" shall be applicable to buildings and structures only. A building or structure shall be deemed enclosed unless the interior of the building or structure or portion thereof is, temporarily or permanently, directly exposed to the outside air by reason of either temporary removal of a substantial portion of an exterior wall (e.g., roll-up doors on shops and garages) or by reason of nonexistence of a substantial portion of at least one of the exterior walls of the building or structure (e.g., three sided buildings). Provided, however, "enclosed" shall include the outside area within ten feet of the main entrance of any enclosed county facility. For the purposes of this definition, "substantial portion" shall be interpreted to refer to and

require the temporary removal or permanent nonexistence of at least seventy-five percent of any one exterior wall of the building or structure.

"General public" means shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise, nonprofit entity, or public agency, and excluding employees thereof, sales representatives, service repair persons, and persons delivering goods, merchandise, or services to a commercial enterprise, nonprofit entity, or county.

"Multiunit housing" means property containing two or more units, including, but not limited to, apartment buildings, common interest developments, senior and assisted living facilities, and long-term health care facilities.

"Nonprofit entity" means any corporation, unincorporated association, or other entity created for charitable, educational, 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 section.

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

"Place of employment" means any enclosed area 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;

Conference and classrooms;

Employee cafeterias;

Employee lounges and restrooms; and

Hallways.

"Private function" means any function to which the general public is not invited.

"Public place" means 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:

Banks;

Child care facilities;

Educational facilities;

Health care facilities;

Public transportation facilities;

Recreation areas;

Restaurants;

Retail stores;

Retail service establishments;

Retail food production, and marketing establishments; and

Waiting rooms.

"Recreational area" means any areas that are public or privately owned, open to the general public for recreational purposes, regardless of any fee or age requirement. "Recreational area" includes but is not limited to facilities, parks, picnic areas, playgrounds, sports fields, restrooms, spectator and concession areas, walking paths, gardens, bike paths, hiking trails, riding trails, swimming pools, and skateboard parks. "Recreational area" does not include any streets and/or sidewalks located within or upon any abutting right-of-way.

"Recreational facilities" means sports pavilions, gymnasiums, health spas, boxing areas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the public assemble to

engage in physical exercise, participate in athletic competition, or witness sports events.

"Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering, facilities, except that the term restaurant shall not include a cocktail lounge or tavern if the cocktail lounge or tavern is a bar as defined in this chapter.

"Service line" means 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.

"To smoke" or "smoking" means lighting, inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product (e.g. cannabis) intended for inhalation, whether natural or synthetic, in any manner or in any form. "To smoke" or "smoking" are interchangeable with the terms "vape" or "vaping" for the purposes of Chapter 9.11. "To smoke" or "smoking" also 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 products" means a product containing, made from, 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. An electronic device that delivers nicotine or other vaporized liquid to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. Any component, part, or accessory of a tobacco product, whether or not sold separately.

"Tobacco product waste" means any component, part, or remnant of any tobacco product. Tobacco product waste includes any waste that is produced from the use of a tobacco product, including all tobacco product packaging and incidental waste such as lighters or matches, whether or not it contains tobacco or nicotine.

"Tobacco store" means any retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. Establishments engaged primarily in the retail sale of tobacco products, wherein the sale of other products is merely incidental. This definition includes humidors, smoking rooms, head shops, vape lounges and hookah bars.

"Unenclosed area" means any area that is not an enclosed area.

"Work area" means 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. No. 705, § 1, 4-18-23; Ord. 550 § 1(part), 1993).

A.

Smoking is prohibited in all enclosed public places within the county, including, but not necessarily limited to, the following places:

Bars;

2

Bowling alleys;

Buses, taxicabs, and other means of public transit operated by or licensed by the county. Smoking may be allowed in waiting areas of public transit terminals in designated areas. In such facilities seventy-five percent of the facility will be designated as smoke-free. The prohibitions contained in 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 airlines, trains, buses, and taxis;

Day care facilities, including private residences during the time when such residences are operated as licensed or unlicensed day care facilities for children or the elderly, doctors' offices, dentists' offices, waiting rooms, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinic, and physical therapy facilities. In bed-space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted;

Doctors' offices, dentists' offices, waiting rooms, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, and physical therapy facilities. In bed-space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted;

Elevators and restrooms;

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 impaired 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 non-smoking patients, and provided that adequate non-smoking areas are made available for non-smoking patients. This section shall not be construed to prevent smoking in locations or

otherwise under conditions in which smoking is expressly authorized by, or under statutes or administrative regulations applicable to, such licensed facilities;

Polling places;

Recreational facilities;

Recreational areas;

Restaurants;

Restrooms;

Retail stores, including tobacco stores;

Retail food marketing establishments, including grocery stores and supermarket;

Schools or educational institutions operated by a commercial enterprise, public agency, 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;

Service lines;

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, however, this section shall not be construed to prevent smoking by performers in connection with a stage production or by persons making a presentation concerning addiction to tobacco and other drugs;

All areas available to, and customarily used by, the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, business offices, banks, hotels, and motels;

Any building not open to the sky which is used primarily as a museum or for exhibiting any motion picture, stage drama, lecture, musical recital, or other similar performance, except when smoking is part of any such production; and

Every room, chamber, and place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, or agencies of the city of any political subdivision of the state during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the city.

B.

Smoking, tobacco, and nicotine use is prohibited in all unenclosed public places within the county, including, but not necessarily limited to, the following places:

Outdoor dining areas;

Recreational areas.

Service areas;

Places of employment;

Public event areas; and

Other public places.

C.

Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare that entire establishment as a non- smoking establishment.

D.

It is not a violation of this chapter to use tobacco as part of a Native American spiritual or cultural ceremony. Approval from county administration must be requested and received prior to the ceremony, and the ceremony must be conducted in compliance with pertinent laws and regulations.

E.

Smoking in all unenclosed areas shall be prohibited within twenty-five feet from any area in which smoking is prohibited under this chapter or by any other law. This prohibition shall not apply to unenclosed areas of private residential properties that are not otherwise multiunit housing residences and/or used for certain licensed or unlicensed purposes such day care facilities for children or the elderly.

(Ord. No. 705, § 2, 4-18-23; Ord. 550 § 1(part), 1993).

A.

It is 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.

B.

Notwithstanding any other provisions of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area.

(Ord. 550 § 1(part), 1993).

A.

Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

A private single-family, stand-alone residence unattached to any other structure (other than a garage), and not used for any commercial purposes (e.g. day care facility for children or the elderly), whether licensed or unlicensed.

Designated hotel and motel rooms rented to guests.

Tobacco stores, whether operated as a separate business entity or as a physically separated facility within a department store or other business entity. Note: Tobacco stores, like all businesses, are obligated to

provide a safe work environment protecting their employees for exposure to secondhand smoke.

Private clubs during events attended exclusively by members of the organization and their invited guests, all of whom are twenty-one years of age or older, and from which members of the general public are excluded; provided the event organizer provides advance notice that smoking/vaping will be permitted and will provide one or more designated smoking areas which are sufficiently removed from the main event to reduce secondhand smoke risk.

Streets and sidewalks, except as otherwise prohibited by state law.

B.

In addition to those areas identified in subsection A above, the provisions of this chapter shall not be applicable to the following:

Golf courses;

Other county-owned property.

C.

Notwithstanding any other provisions of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare that entire establishment, or any portion thereof, as a non-smoking establishment.

(Ord. No. 705, § 3, 4-18-23; Ord. 550 § 1(part), 1993).

A.

"No smoking" signs, 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 and electronic smoking device enclosed in a red circle with a red bar across it) shall be clearly, sufficiently, and conspicuously posted in every location where smoking is prohibited by this chapter or by the owner, operator, manager, or other person having control of such location. These signs shall be provided by the county. Each location where smoking is prohibited shall have a sign posted at each entrance to the location and at least in one conspicuous location within the location if enclosed.

B.

Every theater owner, manager, or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theater or auditorium, 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.

Where smoking is otherwise authorized pursuant to Section 9.11.060, the owner, operator, manager, or other person who controls any establishment wherein smoking is permitted shall post clear and conspicuous signs at the entrance to any designated location where smoking is permitting, and at least in one conspicuous location within such area, that the area is a designated smoking area.

(Ord. No. 705, § 4, 4-18-23; Ord. 550 § 1(part), 1993).

A.

No person or employer shall permit smoking ash receptacles within an area under their control and in which smoking, tobacco, or nicotine use is prohibited by law, including within twenty-five feet from any area in which smoking, tobacco, or nicotine use is prohibited. The presence of smoking ash receptacles in violation of this subsection shall not be a defense to a charge of smoking, tobacco, or nicotine use in violation of any provision of this chapter.

B.

No person shall dispose of tobacco product waste within the boundaries of an area in which smoking, tobacco, or nicotine use is prohibited.

(Ord. No. 705, § 5, 4-18-23)

Editor's note— Ord. No. 705, § 5, added a new § 9.11.080 and §§ 6—10 of Ord. No. 705 renumbered the former §§ 9.11.080—9.11.120 as §§ 9.11.090—9.11.130.

A.

Enforcement of this chapter shall be implemented by the director of environmental health or his or her designee.

B.

Any citizen who desires to register a complaint hereunder may initiate enforcement with the director of environmental health or his or her designee.

C.

Any owner, manager, operator, or employer of any establishment controlled by this chapter shall have the right to inform persons violating this chapter of the appropriate provisions thereof.

D.

Notwithstanding any other provisions of this chapter, a private citizen may bring legal action to enforce this chapter or any of its provisions.

(Ord. No. 705, § 6, 4-18-23; Ord. 550 § 1(part), 1993).

Editor's note— See editor's note at § 9.11.080.

A.

It is unlawful for any person who owns, manages, operates, or otherwise controls the use of any premises subject to the regulation under this chapter to fail to comply with its provisions.

B.

It is unlawful for any person to smoke in any area restricted by the provisions of this chapter.

C.

Having first been warned, any person who knowingly violates any provision of this chapter in a properly posted area shall be guilty of an infraction, punishable by:

A fine, not exceeding one hundred dollars, for first violation of this chapter;

A fine, not exceeding two hundred dollars, for a second violation of this chapter within one year; and

A fine, not exceeding five hundred dollars, for each additional violation of this chapter within one year.

(Ord. No. 705, § 7, 4-18-23; Ord. 550 § 1(part), 1993).

Editor's note— See editor's note at § 9.11.080.

No person or employer 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 chapter.

(Ord. No. 705, § 8, 4-18-23; Ord. 550 § 1(part), 1993).

Editor's note— See editor's note at § 9.11.080.

The director of environmental health shall annually request other governmental and educational agencies having facilities within the county to establish local operating procedures in cooperation and compliance with this chapter. The director of environmental health shall urge federal, state, county, special district and school district agencies to enforce their existing smoking control regulations and to comply voluntarily with this chapter.

(Ord. No. 705, § 9, 4-18-23; Ord. 550 § 1(part), 1993).

Editor's note— See editor's note at § 9.11.080.

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

(Ord. No. 705, § 10, 4-18-23; Ord. 550 § 1(part), 1993).

Editor's note— See editor's note at § 9.11.080.

III. - OFFENSES AGAINST PUBLIC SAFETY