Modesto Municipal Code Art. 1 Findings, Purposes and Definitions

The Council of the City of Modesto does hereby find that:

(a) Numerous scientific studies have found that tobacco smoke is a major contributor to indoor air pollution.

(b) Reliable scientific studies, including studies by the Surgeon General of the United States and studies commissioned and assessed by the U.S. Environmental Protection Agency, have shown that breathing sidestream or secondhand smoke is a significant health hazard to non-smokers; particularly to children and teens, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease.

(c) Health hazards induced by exposure to environmental tobacco smoke include lung and other forms of cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, broncho-constriction and broncho-spasm, and that the most common cause of premature death from environmental tobacco smoke is heart disease.

(d) Reliable scientific studies assessed by the U.S. Environmental Protection Agency have found that sidestream and secondhand tobacco smoke is a leading cause of premature death and disability among nonsmokers.

(e) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand tobacco smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same.

(f) Smoking in public places and work places is a major cause of fires and damage to merchandise and equipment as well as costly maintenance and repairs to furniture and fixtures. Studies have shown higher cost to the employer are associated with smoking in the work place due to increases in absenteeism, accidents, costs of medical care, loss of productivity, and cleaning and maintenance requirements.

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

(h) Substantial scientific evidence exists that the direct use of tobacco products causes cancer, heart disease, and various other medical diseases. The Surgeon General of the U.S. has found that tobacco-caused diseases are the leading cause of premature, preventable death and disability in the U.S.

(i) The Surgeon General of the U.S. and U.S. Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents before the age of legal consent.

(j) The National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identifies nicotine addiction as the most widespread example of drug dependence in the U.S.

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

(l) The U.S. Food and Drug Administration conducted laboratory analysis of electronic cigarette samples and found them to contain carcinogens and toxic chemicals to which users and bystanders could potentially be exposed, suggesting that the same health and public nuisance concerns present with conventional cigarettes exist with electronic cigarettes.

The City Council further finds it is within its basic police power to implement and enforce the provisions of this chapter.

(Ord. 2842-C.S., § 1)

(Amended by Ord. 3639-C.S., § 1, effective 12-24-15)

Accordingly, the City Council finds and declares that the purposes of this chapter are:

• to protect public health, safety and general welfare of the citizens of the City of Modesto by prohibiting smoking in public places and places of employment;

• to guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke.

(Ord. 2842-C.S., § 1)

(Amended by Ord. 3639-C.S., § 1, effective 12-24-15)

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

(a) "Bar" means a business which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises. The serving of food, if any, shall be limited to appetizers.

(b) "Business" means any sole proprietorship, 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.

(c) "City of Modesto" includes all entities of which the Council of the City of Modesto is the governing body.

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

(e) "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, who employs the services of one (1) or more individual persons.

(f) "Enclosed area" means any area closed in by a ceiling and three (3) or more connected, floor-to-ceiling walls with appropriate openings for ingress and egress in said walls.

(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 objectives or purposes of the entity and not to private gain. A public agency is not a "nonprofit entity" within the meaning of this section.

(h) "Person" shall mean any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(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, work areas, employee lounges and rest rooms, conference and class rooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a child care or health care facility.

(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, banks, educational facilities, health facilities, shopping malls, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, hotels and motels, theaters and waiting rooms. A private residence is not a "public place" unless it is used as a child care or health care facility.

(k) "Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, 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 in subsection (a) of this section. A "restaurant" for the purposes of this definition includes a bar area, if any, within a restaurant.

(l) "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.

(m) "Service line" means any indoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

(n) "Smoke" means the gases, particles or vapors released into the air by combustion, electronic ignition or vaporization when the apparent or usual purpose of the combustion, electronic ignition or vaporization is human inhalation of the resulting combustion products, including but not limited to tobacco smoke, cigarette smoke, marijuana smoke, and gases, aerosol or vapor released by the ignition of e-cigarettes or electronic smoking devices. "Smoke" does not include the product of combustion of incense or similar products when used solely for olfactory purposes and not containing tobacco, marijuana, or nicotine.

(o) "Smoking" means engaging in an act that generates smoke, as defined in Section 5-8.103(n) of this Code, including but not limited to the lighting or possession of a lighted pipe, cigar, cigarette, or hookah water pipe, an operating e-cigarette or electronic smoking device, or a lighted smoke inhalation device of any kind that generates smoke of any kind, from tobacco, marijuana, any liquid cartridge, or any other weed or plant. Smoking does not mean the operation of any device or product specifically approved by the United States Food and Drug Administration for the use in mitigation, treatment, or prevention of disease.

(p) "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, 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.

(q) "Unenclosed" means any area that is not an enclosed area.

(r) "E-cigarette" or "electronic cigarette" or "electronic smoking device" means any electronic or battery-operated device, the use of which resembles smoking, that can be used to deliver an inhalable dose of nicotine or other substances by delivering a vaporized solution. "E-cigarette," "electronic cigarette," or "electronic smoking device" includes any such electronic smoking device, whether manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. "E-cigarette," "electronic cigarette," or "electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

(Ord. 2842-C.S., § 1, amended by Ord. 2883-C.S., § 1)

(Amended by Ord. 3639-C.S., § 1, effective 12-24-15)