Merced Municipal Code Ch. 8.26 Regulation of Smoking in Public and Private Places

The following words and phrases whenever used in this chapter, unless the content indicates otherwise, shall be construed as defined in this section:

A. "Bar" means 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.

B. "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 under which legal, medical, dental, engineering, architectural, or other professional services are delivered.

C. "City of Merced" includes all entities within the geographic boundaries of the city, except government facilities, other than city government, over which the city council has no jurisdiction.

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

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

F. "Employer" means any person who employs the services of an individual person.

G. "Nonprofit entity" means 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 section.

H. "Person" means 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 Merced or any public agency.

I. "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:

1. Work areas;

2. Conference and classrooms;

3. Employee cafeterias;

4. Employee lounges and restrooms;

5. Hallways; and

6. Medical facilities.

J. "Public place" means any enclosed area, to which the public is invited or in which the public is permitted, including, but not limited to:

1. Banks;

2. Educational facilities;

3. Health facilities;

4. Public transportation facilities;

5. Recreation areas;

6. Restaurants;

7. Retail stores;

8. Retail service establishments;

9. Retail food production, and marketing establishments;

10. Waiting rooms;

11. Restaurants.

K. "Restaurant" means any restaurant, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria, dining area, service line, or eating establishment and any other eating establishment, organization, club, including veterans club, boardinghouse, 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 the term "restaurant" shall not include a cocktail lounge or tavern if the cocktail lounge or tavern is a bar as defined in this section.

L. "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.

M. "Smoking" means lighting, inhaling, exhaling, or burning any pipe, cigar, cigarette, weed, or plant, or carrying any lighted weed, lighted plant, or other ignited combustible substance in any manner or in any form.

N. "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.

O. "Work area" and "work place" means any area of a place of employment enclosed by floor to ceiling walls in which one or more employees are assigned to perform work for an employer.

(Ord. 1868 § 1 (part), 1994: Ord. 1667 § 2 (part), 1987).

Smoking is prohibited in buildings owned or leased by the city or the city's redevelopment agency.

(Ord. 1868 § 1 (part), 1994: Ord. 1667 § 2 (part), 1987).

Signs designating smoking or no smoking areas shall be clearly, sufficiently, and conspicuously posted in every room, building, or other place covered by this chapter. The manner of such posting including the wording, size, color, design, and place of posting, whether on the walls, doors, tables, counterstands, or elsewhere shall be determined by the city manager.

(Ord. 1868 § 1 (part), 1994: Ord. 1667 § 2 (part), 1987).

Any person who violates any provision of this chapter by smoking in a posted no smoking area or otherwise violates any provision of this chapter is guilty of an infraction.

(Ord. 1868 §1 (part), 1994: Ord. 1667 § 2 (part), 1987).

Smoking is prohibited in every place in the city, provided, however, that this prohibition against smoking shall not apply within a restaurant wherein a "no smoking" area of not less than seventy-five (75) percent of the seating capacity in which customers are served is maintained, nor shall this prohibition apply between the hours of ten p.m. and six a.m. The owner, manager, or operator of a restaurant shall post "no smoking" signs in the designated no smoking sections and a sign in at least three-fourths-inch letters conspicuously displayed at the main entrance of the restaurant which states as follows: "_______% seating reserved for non-smokers." In lieu of the above language, any similar wording which conveys to the patrons the percentage of seating capacity where smoking or no smoking is permitted shall satisfy the requirements of this section.

(Ord. 1868 § 1 (part) 1994: Ord. 1678 § 1 (part), 1987: Ord. 1667 § 2 (part), 1987).

Smoking is prohibited in buses, taxis, and all other modes of transportation of passengers for hire over the public streets of the city.

(Ord. 1868 § 1 (part), 1994).

Smoking is prohibited in all places of employment in the city.

(Ord. 1868 § 1 (part), 1994: Ord. 1667 § 2 (part), 1987).

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

(Ord. 1868 § 1 (part), 1994).

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

A. Bars;

B. Private residences, except when used as a business in which more than two people are employed;

C. Hotel and motel rooms rented to guests;

D. Retail tobacco stores;

E. Licensed card rooms and establishments conducting bingo games provided that at least fifty (50%) percent of the seating of card rooms and at bingo games is maintained as a "no smoking" area.

(Ord. 1868 § 1 (part), 1994: Ord. 1667 § 2 (part), 1987).

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

(Ord. 1868 § 1 (part), 1994)

A. Each and every operator of a vending machine shall be charged with the duty and responsibility of compliance with the following:

1. Except as hereafter set forth in Sections 2 and 3, those persons in direct management, supervision, or control of the vending machine in the place of operation shall exercise such observation, direction and restraint over the machine necessary to prevent a person under the age of eighteen (18) years procuring or purchasing the product thereof.

2. These machines shall be located or placed in operation within a clear and unobstructed line of sight, but in no event more than fifteen (15) feet from the position of an adult employee responsible for supervision of the machine. Where a machine cannot be supervised, as required in this section, it may be operated if equipped with a remote control device which enables a responsible adult to permit single item individual purchases by persons over eighteen (18) years of age upon request.

3. The requirements of this section shall not apply to lunchrooms or rest areas of private places of employment which are not accessible to the public and which do not employ persons under eighteen (18) years of age.

(Ord. 1879 § 1, 1994: Ord. 1868 § 1 (part), 1994).

A. The purpose of this section is to regulate self-service displays of tobacco products, thereby restricting the availability of these products to those persons under the age of eighteen (18) years.

B. The city council of the city of Merced finds that the use of tobacco products is detrimental to human health, that a large majority of persons who use tobacco start that use as minors, and that restricting the availability of tobacco products to minors is a goal of the city.

C. Self-service display—defined. For the purpose of this section, a "self-service display" shall mean: Any display of tobacco product merchandise that does not require assistance of the seller, for the buyer to acquire or possess that product.

D. Self-service display—Prohibited. It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, display, or offer for sale any tobacco product by means of a self-service display.

E. Exemption. The following self-service displays are exempt from this section:

1. Cigarette or tobacco product vending machines or self-service displays that are located in facilities where the person, business, or tobacco retailer ensures that no person younger than eighteen (18) years of age is present, or permitted to enter the premises, at any time.

2. Retail/commercial uses of over 50,000 square feet and which only sell cigarettes by the carton.

(Ord. 2022 § 1, 1999).