Mendocino County Municipal Code Ch. 9.32 Smoking Pollution Control and Health Protection Ordinance

This Chapter shall be known as the "Smoking Pollution Control and Health Protection Ordinance."

(Ord. No. 3864 (part), adopted 1993.)

(A) The Mendocino County Board of Supervisors does hereby find that:

(1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing environmental tobacco smoke is a cause of disease, including lung cancer in nonsmokers. At special risk are children, elderly people, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

(2) Health hazards induced by breathing environmental tobacco smoke include lung cancer, heart disease, respiratory infection, decreased respiratory function, bronchoconstriction and bronchospasm.

(3) The American Medical Association, former U.S. Surgeon Generals C. Everett Koop, M.D. and Antonia Novello, M.D. and former Secretary of the U.S. Department of Health and Human Services, Dr. Louis Sullivan, have publicly denounced the tobacco industry for targeting children, teens, women and members of racial and ethnic minority groups in its advertising and promotions and have called for local, State and Federal action to prevent the tobacco industry from targeting these individuals, especially youth.

(4) Based on weight of available scientific evidence, the U.S. Environmental Protection Agency (EPA) has concluded that the widespread exposure to environmental tobacco smoke in the United States presents a serious and substantial public health impact.

(B) Accordingly, the Mendocino County Board of Supervisors finds and declares that the purposes of this Chapter are (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; (2) to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke, and (3) to reduce addiction to tobacco products by children and teenagers.

(Ord. No. 3864 (part), adopted 1993.)

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

(1) "Bar" means an area which is devoted to the serving of alcohol 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. A "bar" for the purpose of this definition does not include any establishment where tobacco smoke can filter into a restaurant through a passageway, ventilation system or any other means.

(2) "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit making purposes, including retail establishments, service and professional offices.

(3) "Employee" means any person who is employed by any employer for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity or business.

(4) "Employer" means any person, partnership, corporation, including a municipal corporation, special district, local public agency or nonprofit entity, employing the services of one or more individual persons or utilizing the services of volunteers.

(5) "Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures.

(6) "Place of employment" means any enclosed area under the control of an employer frequented by employees during the course of employment or providing volunteer services, including, but not limited to, work areas, employee lounges and restrooms, conference and class rooms, employee cafeteria and hallways. A private residence is not a "place of employment unless it is used as a child care or health care facility or institution as those terms are defined by State law.

(7) "Public place" means 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, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a "public place."

(8) "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 said cocktail lounge or tavern is a "bar" as defined above.

(9) "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

(10) "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.

(11) "Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed or plant in any manner or in any form.

(12) "Sports arena" means sports pavilions, gymnasiums, health clubs and spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events.

(13) "Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or release a tobacco product.

(14) "Tobacco product" means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion.

(15) "Self-service merchandising" means open promotional displays of tobacco products and point-of-purchase tobacco promotional products that the public has access to without the intervention of an employee.

(16) "Vendor-assisted" means only a store 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. No. 3864 (part), adopted 1993.)

This Chapter shall apply to the unincorporated area of the County of Mendocino and to structures owned or leased by the County of Mendocino, wherever located.

(Ord. No. 3864 (part), adopted 1993.)

(A) Smoking shall be prohibited in all enclosed public places within the County or Mendocino, including but not limited to, the following places:

(1) Elevators;

(2) Buses, taxicabs and other means of public transit and in the ticket, boarding and waiting areas of public transit depots, provided the County is not interfering with the regulatory authority of another local, State or Federal agency;

(3) Public restrooms;

(4) Service lines;

(5) Retail stores;

(6) All areas available to and customarily used by the general public in all businesses and nonprofit entities or organizations patronized by the public;

(7) Restaurants;

(8) Public areas of galleries, libraries and museums;

(9) Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production;

(10) Sports arenas and convention halls;

(11) Every room, chamber, place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, including join committees, or agencies of the County or any political agency or subdivision of the State during such time as a public meeting is in progress;

(12) Waiting rooms, hallways, wards and rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices;

(13) Lobbies, hallways and other common areas in buildings, condominiums, retirement facilities, nursing homes, apartment and other multiple-unit residential facilities;

(14) Lobbies, hallways and other common areas in multiple-unit commercial facilities;

(15) Polling places.

(B) Notwithstanding any other provision of this Section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment.

(Ord. No. 3864 (part), adopted 1993.)

(A) It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or other physical modifications except for signs required to be posted by this Chapter.

(B) Within ninety (90) days of the effective date of this Chapter, each employer having an enclosed place of employment located within the County shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements:

Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes, but is not limited to, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, and cafeterias, employee lounges, stairs, restrooms, and in company owned or leased vehicles.

(C) The smoking policy shall be communicated to all employees within three (3) weeks of its adoption.

(D) All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employees.

(Ord. No. 3864 (part), adopted 1993.)

(A) Any person, business, tobacco retailer or other establishment subject to this Chapter shall post plainly visible signs at the point of purchase of tobacco products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO ID IS REQUIRED." The letters of said signs should be at least one-quarter (¼) inch high.

(B) No person, business, tobacco retailer or owner, manager or operator of any establishment subject to this Chapter shall sell, offer to sell or permit to be sold any tobacco product to an individual without requesting and examining identification establishing the purchaser's age as eighteen (18) years or greater unless the seller has some reasonable basis for determining the buyer's age.

(C) It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, offer for sale or display for sale tobacco products by means of self-service merchandising or any means other than vendor-assisted sales. Cartons of cigarettes, multicontainer packages of smokeless tobacco, cigars and pipe tobacco are exempt from this regulation.

(D) No person, business or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product. Cigarette vending machines located in areas from which children under eighteen (18) years of age are prohibited shall be exempt from this restriction. Any cigarette vending machine located in such an area must be placed thirty (30) feet or greater from the entrance to such an establishment. Any tobacco vending machine in use on the effective date of this Chapter shall be removed within thirty (30) days after the effective date of this Chapter.

(Ord. No. 3864 (part), adopted 1993.)

(A) Notwithstanding any other provision of this Chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this Chapter:

(1) Bars. Bars attached to restaurants shall not be subject to smoking restrictions, provided the following:

(a) The bar area is not the principal waiting area for the restaurant, and

(b) Restaurant patrons do not have to walk through the bar to gain access into the restaurant, and

(c) The bar and the restaurant have separate ventilation systems, and

(d) Persons under twenty-one (21) years of age are prohibited from this bar area;

(2) Private residences, except during those hours of operation when used as a child care or health care facility. Sole proprietor businesses conducted from private residences shall not be subject to smoking restrictions;

(3) Retail tobacco stores;

(4) Restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while these places are being used for private functions and closed to the general public.

(B) 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 nonsmoking establishment.

(Ord. No. 3864 (part), adopted 1993.)

(A) "No Smoking" signs 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, sufficiently and conspicuously posted in every building or other place where smoking is regulated by this Chapter, by the owner, operator, manager or other person having control of such building or place.

(B) Every restaurant shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

(Ord. No. 3864 (part), adopted 1993.)

(A) Enforcement of this Chapter shall be implemented by the Mendocino County Department of Public Health, through its Director and designees as noted below.

(B) Any citizen who desires to register a complaint under this Chapter may initiate enforcement with the Mendocino County Department of Public Health.

(C) The Public Health Department shall require, while a facility, establishment, business or employer 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.

(D) Any owner, manager, operator or employee of any facility, establishment, business or employer regulated by this Chapter may inform persons violating this Chapter of the appropriate provisions thereof.

(E) Notwithstanding any other provision of this Chapter, and if not otherwise prohibited by law, a private citizen may bring a legal action to enforce this Chapter.

(F) Pursuant to Ordinance No. 1415 adopted in 1975, any person holding a position in the Mendocino County Department of Public Health, who is also an environmental health specialist, is authorized to issue citations in the name of the County for violations of this Chapter.

(Ord. No. 3864 (part), adopted 1993.)

(A) It shall be unlawful for any person who owns, managers, operates or otherwise controls the use of any premises or establishments subject to regulation under this Chapter to fail to comply with any of its provisions.

(B) It shall be unlawful for any person to smoke in any area where smoking is prohibited by this Chapter.

(C) Any person who violates any provision of this Chapter shall be guilty of an infraction, punishable by:

(1) A fine not exceeding one hundred dollars ($100) for a first violation;

(2) A fine not exceeding two hundred dollars ($200) for a second violation of this chapter within one (1) year,

(3) A fine not exceeding five hundred dollars ($500) for each additional violation of this chapter within one (1) year.

(D) This section shall be self amending as Government Code Section 25132 is amended.

(Ord. No. 3864 (part), adopted 1993.)

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 right to a smoke-free environment afforded by this Chapter.

(Ord. No. 3864 (part), adopted 1993.)

The Mendocino County Department of Public Health shall engage in a continuing program to explain and clarify the purposes and requirements of this Chapter to citizens affected by it, and to guide owners, operators and managers in their compliance with it. Such programs may include publication of a brochure for businesses and individuals explaining the provisions of this Chapter.

(Ord. No. 3864 (part), adopted 1993.)

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

(Ord. No. 3864 (part), adopted 1993.)

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

(Ord. No. 3864 (part), adopted 1993.)

This Chapter shall be effective thirty (30) days from and after the date of its adoption, and shall be reviewed within one (1) year of its effective date by the Board of Supervisors.

(Ord. No. 3864 (part), adopted 1993.)