Moraga Municipal Code Ch. 7.20 Smoking

A. The town council finds that:

1. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution;

2. Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease;

3. Health hazards induced by breathing sidestream or secondhand smoke lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction and broncospasm;

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

5. The smoking of tobacco, or any other weed or plant, is a danger to health.

B. Accordingly, it is determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this town would be benefited by the regulation of smoking in enclosed places, including places of employment.

(Prior code § 7-201)

In this chapter, unless the context otherwise requires:

"Bar" means an establishment or separate room which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.

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

"Employer" means a person, partnership, corporation, including municipal corporation or public entity, who employs the services of more than three persons.

"Enclosed" means closed in by roof and four walls with appropriate openings for ingress and egress.

"Place of employment" means an enclosed area under the control of a public or private employer which employees normally frequent during the course of employment including but limited to work areas, employee lounges, conference rooms and employee cafeterias. A private residence is not a place of employment.

"Smoking" means the carrying or holding of a lighted pipe, cigar or cigarette of any kind, or any other lighted smoking equipment or the lighting or emitting or exhaling the smoke of a pipe, cigar, cigarette or smoking material of any kind.

(Prior code § 7-202)

All enclosed facilities owned by the town are subject to the provisions of this chapter.

(Prior code § 7-203)

Smoking is prohibited in the following places within the town:

A. Enclosed areas and businesses: an enclosed area or business available to and customarily used by the general public, and a business patronized by the public, including, but limited to, a retail store, hotel, motel, pharmacy, bank or office, except as specified otherwise in this chapter.

B. Restaurants: within a restaurant having a seating capacity of fifty (50) or more persons, as determined by the fire code; provided, however, that this prohibition does not prevent: (1) the designating of a contiguous area within the restaurant that contains no more than sixty (60) percent of the seating capacity of the restaurant as a smoking area; or (2) the providing of separate rooms designated as smoking rooms, so long as those rooms do not contain more than sixty (60) percent of the seating capacity of the restaurant.

C. Health facilities: waiting room, hallway, ward, or semi-private room of a health facility, including but not limited to a hospital, clinic, physical therapy facility, doctor's office or dentist's office. A health facility is also subject to the provisions of Section 7.20.050 regulating smoking in places of employment.

D. Transportation and restroom facilities: an elevator, public restroom, indoor service line, bus, taxicab or other means or public transit under the authority of a public entity, and in ticket, boarding and waiting areas of public transit depots; provided, however, that this prohibition does not prevent: (1) the establishment of separate waiting areas for smokers and nonsmokers; or (2) the establishment of at least forty (40) percent of a given waiting area as a nonsmoking area.

E. Museums and galleries: in public areas of museums and galleries.

F. Theaters, auditoriums and halls: an enclosed theater, auditorium or hall which is used for action pictures, stage dramas and musical performances, ballets or other exhibitions, except when smoking is part of any such production.

G. Retail food facilities: a retail food marketing establishment, including a grocery store or supermarket, except those areas of such establishments set aside for the serving of food and drink, restrooms and offices, and areas thereof not open to the public, which may be otherwise regulated by other sections of this chapter.

H. Public facilities and schools: a public school or other public facility under the control of another public agency, which is available to and customarily used by the general public, to the extent that the school or facility is subject to the jurisdiction of the town.

I. Nonsmoking Establishments. Notwithstanding any other provisions of this section, an owner, operator, manager or other person who controls an establishment described in this section may declare that entire establishment as a nonsmoking establishment.

(Prior code § 7-204)

A. It is the responsibility of an employer to provide smoke-free areas for nonsmokers within existing facilities to the maximum extent possible, but an employer is not required to incur any expense to make structural or other physical modifications in providing these areas.

B. Within ninety (90) days of the effective date of this chapter, each employer and each place of employment located within the town shall adopt, implement, make known and maintain a written smoking policy, which shall contain at a minimum the following requirements:

1. Prohibition of smoking in conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways and elevators;

2. An employee in a place of employment may designate his or her immediate work area as a nonsmoking area and post that area with an appropriate sign or signs, to be provided by the employer. The policy adopted by the employer shall include a reasonable definition of the term "immediate work area";

3. In any dispute arising under a smoking policy, the rights of the nonsmoker shall be given precedence;

4. Provision and maintenance of a separate and contiguous nonsmoking area of not less than forty (40) percent of the seating capacity and floor space in cafeterias, lunchrooms and employee lounges.

C. The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter.

D. Notwithstanding the provisions of subsection A of this section, an employer may designate any place of employment or portion thereof as a nonsmoking area.

(Prior code § 7-205)

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

A. A private residence;

B. A bar, as defined in Section 7.20.020;

C. A hotel or motel room rented to guests;

D. A retail store that deals exclusively in the sale of tobacco and smoking paraphernalia;

E. A restaurant, hotel or motel conference or meeting room, and public and private assembly room while these places are being used for private functions;

F. A private residence which may serve as a place of employment;

G. A private enclosed place occupied exclusively by smokers, even though such a place may be visited by nonsmokers, and a private enclosed office (excepting places in which smoking is prohibited by the fire department or by any other law, ordinance or regulation) unless designated as a nonsmoking area by the occupant or the employer.

(Prior code § 7-206)

"Smoking" or "No Smoking" signs, whichever are appropriate, 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 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 controlled by this chapter, or by the owner, operator, manager or other person having control of such building or other place.

Each restaurant regulated by this chapter shall have posted inside the entrance, but clearly visible from such entrance, a sign clearly stating that a nonsmoking section is available.

(Prior code § 7-207)

A. Administration and enforcement of this chapter shall be by the town manager or his or her designee.

B. A citizen who desires to register a complaint under this chapter may initiate enforcement with the town manager or his or her designee.

C. An owner, manager, operator or employer of an establishment regulated by this chapter may inform persons violating this chapter of the appropriate provisions.

(Prior code § 7-208)

No person or employer may discharge, refuse to hire, or in any manner retaliate against an employee or applicant for employment because the employee or applicant exercises any rights afforded by this chapter.

(Prior code § 7-210)

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

(Prior code § 7-211)

A. It is unlawful for a person who owns, manager, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to properly post signs required hereunder; provide signs for the use of employees in designating their areas; properly set aside no smoking areas; adopt a smoking restriction policy; or comply with any other requirement of this chapter.

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

C. A person or business who violates this chapter is guilty or an infraction punishable by: (1) a written warning for the first violation; (2) a fine, not exceeding one hundred dollars ($100.00), for a second violation; (3) a fine, not exceeding two hundred dollars ($200.00), for a third violation of this chapter within one year; (4) a fine, not exceeding five hundred dollars ($500.00), for each additional violation of this chapter within one year.

(Prior code § 7-209)