Nevada City Municipal Code Ch. 8.24 Smoking Regulated or Prohibited

The ordinance codified in this chapter shall be known as the smoking ordinance of the city of Nevada City.

(Ord. 93-01 § 1 (part), 1993)

The city council of the city of Nevada City finds that:

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

B. Reliable studies have shown that breathing second-hand 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; and

C. Health hazards induced by breathing second-hand smoke include lung cancer, heart disease, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

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

E. Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places of employment;

F. Studies have shown that levels of secondhand smoke exposure outdoors under certain conditions can reach the significant levels attained indoors with the same negative health impacts; and

G. Smoking in parks and on trails poses a significant and avoidable fire danger; and

H. Cigarette butts and filters when not properly disposed of are a major and persistent source of litter that is unsightly, unhealthy, takes a long time to decompose and frequently ends up in storm drains and contaminating waterways; and

I. Accordingly, the city council finds that the health, safety, and general welfare of the residents of, persons employed in, and persons who frequent this city would be benefitted by the regulation of smoking provided herein.

(Ord. 93-01 § 1 (part), 1993; Ord. No. 2010-01, § I, 1-27-2010)

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

"Bar" means an area 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.

"Bingo facility" means any enclosed place in which and during such time as any bingo game is being conducted.

"City properties" means all facilities and areas owned, leased, or licensed by the city. The term "city properties" includes, but is not limited to, open space areas such as the Old Airport, Beryl P. Robinson Plaza, Deer Creek Environs, Penzance Park, Nevada Mine, the Sugarloaf Mountain property, city parking lots, and such other properties as may be subsequently acquired or developed.

"Employee" means any individual 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 nonprofit entity.

"Employer" means any person that employs the services of one (1) or more individuals.

"Enclosed" means closed in by roof and four (4) walls with appropriate openings for ingress and egress.

"Offstreet parking facility" has the meaning given to it in California Vehicle Code § 14605(c).

"Place of employment" means any enclosed area under the control of an employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, restrooms, conference rooms, class rooms, cafeterias, and hallways. Notwithstanding the preceding sentence, none of the following is a place of employment:

1. A private residence is not a place of employment unless it is used as a child care or a health care facility;

2. A bingo facility.

"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, public transportation facilities, reception areas, retail food production and marketing establishments, retail service establishments, retail stores, theaters, and waiting rooms, unless such place is subject to another definition set forth in this section.

"Recreational area" means any area that is owned or operated by the City of Nevada City and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational area" includes but is not limited to parks, picnic areas, playgrounds, sports fields, walking paths, trails, bike paths, and parklets, such as the proposed Commercial Street Boardwalk Pilot Project. The term "recreational area" includes, but is not limited to, parks such as Pioneer Park, Calanan Park, and Hirschman's Pond, and trails such as Indian Trails to Hirschman's Pond and Deer Creek Tribute Trail to Little Deer Creek and Miners Trail, together with such other areas, parks and trails as may be subsequently acquired or developed.

"Restaurant" means any coffee shop, cafeteria, tavern, private or public school cafeteria, and any other eating establishment, which gives or offers food for sale to the public, guests, patrons, or employees, 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 this section.

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

"Smoking" means inhaling, exhaling, burning, carrying or holding of any lighted or heated pipe, cigar, or cigarette of any kind or any other lighted smoking equipment utilizing lighted or heated tobacco or plant product, whether natural or synthetic, intended for inhalation in any manner or in any form, including hookahs and marijuana. "Smoking" also includes the use of an electronic smoking device which creates an aerosol or vapor for inhalation, in any manner or in any form, or the use of any oral smoking device.

"Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, 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.

"Unenclosed" means any area that is not enclosed.

(Ord. 93-01 § 1 (part), 1993; Ord. No. 2010-01, § II, 1-27-2010; Ord. No. 2011-09, § I, 7-13-2011; Ord. No. 2012-03, § I, 5-23-2012; Ord. No. 2015-07, § I, 5-27-2015)

A. Smoking is prohibited in all buildings, vehicles, or other enclosed areas occupied by city staff, owned or leased by the city, or otherwise operated by the city except in areas where the city manager may designate as smoking areas. The city manager may designate a smoking area only if the area involved:

1. Is not regularly open to the public; and

2. Does not require major room or building modification; and

3. Is not regularly occupied by nonsmokers.

B. In any dispute arising out of the smoking designations made by the city manager under this chapter, the rights of the nonsmoker shall be given precedence.

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and is unlawful within elevators and buildings generally used by and open to the public, including elevators in office, hotel, and multifamily buildings.

(Ord. 93-01 § 1 (part), 1993)

A. Smoking is prohibited and is unlawful in public areas of health care facilities and hospitals, as defined in Section 1250 of the California Health and Safety Code, including waiting rooms, public hallways and lobbies, except in specially designated smoking areas, which may be all or part of a public area.

B. Every publicly or privately owned health care facility, including hospitals, shall make a reasonable effort to determine preference and to assign patients place in bed space utilized for two (2) or more patients according to the patient's individual nonsmoking or smoking preference.

C. In bed space areas utilized for two (2) or more patients, smoking shall be prohibited for hospital staff, visitors, and the general public. "STAFF AND VISITOR SMOKING PROHIBITED" signs shall be conspicuously posted in such bed space areas.

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and is unlawful in hearing rooms, conference rooms, chambers, places of public assembly in which public business is conducted, which requires or provides direct participation or observation by the general public.

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and is unlawful in every publicly or privately owned building or enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, stage drama, musical recital, athletic event, or any other performance or event in all areas except either in that area commonly known as the lobby, or in areas not open to the public.

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

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and is unlawful in public restrooms.

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and is unlawful in indoor service lines in which more than one (1) person is giving or receiving services of any kind.

(Ord. 93-01 § 1 (part), 1993)

All restaurants shall provide a nonsmoking area for at least eighty (80) percent of the restaurant's total seating capacity by the effective date of the ordinance codified in this chapter. Smoking may be permitted in any room(s) used for private functions but only while any such room is used for such private functions.

(Ord. 93-01 § 1 (part), 1993)

A. Within ninety (90) days of the effective date of the ordinance codified in this chapter, each employer shall adopt, implement, and maintain a written smoking policy which shall contain at a minimum the following:

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

2. Provision and maintenance of an exclusive no smoking area in cafeterias, lunchrooms, and employee lounges of less than six hundred fifty (650) square feet in area. Provision and maintenance of a contiguous no smoking area of not less than two thirds (2/3) of the seating capacity and floor space in employee cafeterias, lunchrooms, and lounges of six hundred fifty (650) or more square feet in area. Fifty (50) percent of outdoor eating area seating shall be reserved and designated a nonsmoking area; and provided that with respect to employee lounges where there is more than one (1) such lounge in any building, an employer may comply with this section by designating not less than half (1/2) the number of such lounges and not less than half (1/2) the square footage of such lounges as no smoking. The employer shall define the term "lounge" in its smoking policy;

3. Any employee in the office workplace shall be given the right to designate his or her immediate area as a nonsmoking area and to post it with appropriate signs or sign. The policy adopted by the employer shall include a definition of the term "immediate work area" which gives preferential consideration to nonsmokers;

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

5. Except where other signs are required, whenever smoking is prohibited, conspicuous signs shall be posted so stating, containing all capital lettering not less than one (1) inch in height, on a contrasting background; signs of similar size containing 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) may be used in addition to or in lieu of any signs required hereunder.

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

C. Notwithstanding the provisions of subsection A of this section, every employer shall have the right to designate any office workplace as a nonsmoking area.

D. This section is not intended to regulate smoking in the following places and under the following conditions:

1. A private home which may serve as office workplace;

2. Any property owned or leased by other governmental agencies;

3. A private enclosed office workplace occupied exclusively by smokers, even though such an office workplace may be visited by nonsmokers, excepting places in which smoking is prohibited by the fire marshal or by other law, ordinance, or regulation.

(Ord. 93-01 § 1 (part), 1993)

Smoking is prohibited and unlawful in all areas of the following establishments which are available and customarily open to the general public:

A. All enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including, but not limited to, retail stores, hotels and motels, pharmacies, banks, attorneys' offices and other offices;

B. In public areas of museums and galleries;

C. Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the serving of food and drink, restrooms, offices, and areas thereof not open to the public, which may be otherwise regulated by this chapter;

D. Public schools and other public facilities under the control of a public agency other than the city are available to and customarily used by the general public;

E. Sports arenas, except in any area designated as a smoking area by the owner, operator, manager, or other person who controls the facility;

F. Within any bingo facility provided, however, that this prohibition does not prevent (1) the designating of a contiguous area within the bingo facility that contains no more than fifty (50) percent of the seating capacity of the bingo facility as a smoking area, or (2) the providing of separate rooms designated as smoking rooms so long as said rooms do not contain more than fifty (50) percent of the seating capacity of the bingo facility;

G. Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare the entire establishment as a nonsmoking establishment.

(Ord. 93-01 § 1 (part), 1993)

Smoking is also prohibited in the Unenclosed areas of the following places within the City of Nevada City, in addition to places where Smoking is already prohibited by state or federal law, in which case those laws apply:

A. City Properties, including, without limitation, all municipal parking lots wherever located and all off-street parking facilities, sidewalks, and streets in the Historical District as established pursuant to Title 17 of the Municipal Code, except for such areas as may be expressly excluded by subsequent resolution duly adopted by the City Council.

B. Recreational Areas, including, without limitation, all parking lots, sidewalks, and streets in or immediately adjacent thereto.

C. Any area within twenty (20) feet of commercial building entryways.

(Ord. No. 2010-01, § III, 1-27-2010; Ord. No. 2011-09, § II, 7-13-2011; Ord. No. 2012-03, § II, 5-23-2012; Ord. No. 2015-07, § II, 5-27-2015)

Notwithstanding any other provision of this chapter, smoking may be permitted in cardrooms licensed pursuant to this code.

(Ord. 93-01 § 1 (part), 1993)

Except where other signs are required, whenever in this code smoking is prohibited, conspicuous signs shall be posted so stating, containing all capital lettering not less than one (1) inch in height, on a contrasting background; said signs shall be placed by the owner, operator, manager, or other persons having control of such room, building, or other place where smoking is prohibited.

(Ord. 93-01 § 1 (part), 1993)

A. Immediately at the boundaries of areas where smoking is prohibited by Section 8.24.135, the city shall place suitable receptacles for extinguishing and disposing of cigarette butts and filters in sufficient numbers and locations so as to discourage littering.

B. No person shall dispose of used smoking or tobacco product waste, including, but not limited to cigarette butts and filters, other than in suitable receptacles such as those provided pursuant to subsection A. above.

C. "No Smoking" signs shall be posted in at least one conspicuous point within the area where smoking is prohibited. The signs shall have letters of no less than one inch in height and shall include 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). For purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the city.

D. The presence of smoking waste receptacles in violation of subsection A. above or the absence of such authorized receptacles and the absence of signs required by subsection C. above shall not be a defense to a violation of any provision of this chapter.

(Ord. No. 2010-01, § IV, 1-27-2010)

A. The city manager or his designated representative shall be responsible for compliance with this chapter as to facilities which are owned, operated or leased by the city.

B. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply with the provisions of this chapter. Such owner, operator or manager shall post or cause to be posted all no smoking signs required by this chapter and shall not allow service to any person who violates this chapter by smoking in a posted no smoking area.

C. Any place of employment conducted or operated without compliance with the provisions of Section 8.24.120 of this chapter applicable thereto shall be and the same is declared to be a public nuisance. Whenever there is reason to believe such public nuisance exists, any affected employee or any resident of the city, in his or her own name, may maintain an action in equity to abate and prevent such nuisance and to perpetually enjoin the employer from maintaining or permitting it. Upon the granting of equitable relief, in whole or in part, by a court of competent jurisdiction, an employer determined to be in violation of Section 8.24.120 of this chapter shall be liable for the attorney's fees as may be determined by the court, incurred by the party bringing the action.

D. The city manager or his designee may enforce Section 8.24.120 of this chapter by either of the following actions:

1. Serving notice requiring the correction of any violation of that section; or

2. Requesting the city attorney to maintain an action for injunction to enforce the provisions of Section 8.24.120 of this chapter, to cause the correction of any such violation, and for assessment and recovery of a civil penalty of such violation, including attorney's fees.

E. Any employer who violates Section 8.24.120 of this chapter may be liable for a civil penalty, not to exceed one thousand dollars ($1,000.00), which penalty shall be assessed and recovered in a civil action brought in the name of the people of the city. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this subsection shall be paid to the treasurer of the city.

F. In undertaking the enforcement of Section 8.24.120 of this chapter, the city is assuming an undertaking only to promote the general welfare. It is not assuming any duty or obligation, nor is it imposing any duty or obligation on its officers and employees, nor is it liable in money damages or otherwise to any person who claims that (1) the city or one (1) of its officers or employees breached any such obligation, and (2) the breach proximately caused injury.

(Ord. 93-01 § 1 (part), 1993)

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

A. Private residences, except when used as a child care or health care facility;

B. Hotel and motel rooms rented to guests, unless posted otherwise;

C. Retail tobacco stores;

D. A private enclosed office workplace occupied exclusively by smokers, even though such an office workplace may be visited by nonsmokers;

E. Any area exterior to the building in which the establishment or facility is located, except as specifically prohibited in this chapter; and

F. Any enclosed rooms in an establishment or facility which are being used entirely for private functions.

(Ord. 93-01 § 1 (part), 1993; Ord. No. 2010-01, § V, 1-27-2010)

Whenever any act is prohibited by this chapter, or is made or declared to be unlawful, or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful, the violation shall be deemed an infraction as defined by Section 19C of the California Penal Code and punishable by a fine not to exceed the amounts specified by Government Code Section 36900 as then in effect. Every day any violation of any provision of this chapter continues constitutes a separate offense.

(Ord. 93-01 § 1 (part), 1993)

A. 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.

B. No person shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter.

(Ord. 93-01 § 1 (part), 1993; Ord. No. 2010-01, § VI, 1-27-2010)