Newark Municipal Code Ch. 8.32 Smoking in Public and Work Places

The city council finds and declares that tobacco smoke is a hazard to the health of the general public.

(Ord. 354 § 1 (part), 1999)

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning.

"Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which any food served is incidental. "Bar" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein.

"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 corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

"Distribute" means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell deliver, dispense or issue, as part of an advertising plan or program.

"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/her service for a nonprofit entity.

"Employer" means any person, partnership or corporation, which employs the services of one or more individual persons.

"Enclosed" means closed in by roof and four walls with appropriate openings for ingress and egress, including all spaces therein screened by partitions that do not extend to the ceiling or are not solid.

"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 restrooms, conference rooms, and employee cafeterias and hallways.

"Private smoker's lounge" means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories, or any other smoking equipment of any kind.

"Public place" means any 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, indoor shopping malls, theaters and waiting rooms.

"Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers near the area. This distance shall be a minimum of twenty feet in any direction from an area in which smoking is prohibited. Except as provided below, this distance shall be a minimum of twenty feet unless the application of the twenty-foot minimum would place the smoker in a potentially unsafe location, in which case a "reasonable distance" shall be a location closer than twenty feet which does not place the smoker in a potentially unsafe location. A "reasonable distance" shall be a minimum of twenty-five feet from a playground or a tot lot sandbox area. The twenty-five foot minimum distance from a playground or tot lot sand box does not apply to private property.

"Restaurant" means any indoor and outdoor 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 such cocktail lounge or tavern is a "bar" as defined in this section.

"Retail tobacco store" means a retail store dedicated to the sale of tobacco or smoking products and accessories and in which the sale of other products is merely incidental.

"Sample" means a distribution to a member or members of the general public at no cost or at a nominal cost for the purpose, in whole or in part, of promoting a tobacco product.

"Seller" means any natural person, company, corporation, firm, partnership, organization or other legal entity, who sells, dispenses, distributes or issues tobacco products for commercial purposes.

"Service line" means any place where people are using or waiting for a service, entry, or a transaction whether or not such service includes the exchange of money, including, but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops, and cab stands.

"Smoking" means the carrying or holding of a lighted pipe, lighted hookah 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, lighted hookah pipe, cigar, cigarette or any other smoking equipment of any kind.

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

"Tobacco accessories" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed primarily for the smoking or ingestion or chewing of tobacco products.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco and smokeless tobacco.

"Vending machine" means any electronic or mechanical device or appliance, the operation of which depends upon insertion of money, whether in coin or in paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.

(Ord. 425 §§ 1—4, 2007; Ord. 354 § 1 (part), 1999)

All enclosed facilities in which the city is conducting its business are subject to the provisions of this chapter.

(Ord. 354 § 1 (part), 1999)

Smoking is prohibited in the following public places:

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, the public areas of retail stores, hotels and motels, pharmacies, attorney's office and other offices, laundromats, banks and other offices, retail or wholesale tobacco shops, any private smokers' lounge, hookah lounge, including lounges that are owner-operated and would fall under either the Retail Tobacco Shop Exemption of California Labor Code Section 6404.5(d)(4)(b) or Small Business Exemption Section 6404.5 and such successors as may follow except as provided in Section 8.32.035(A);

B. Health and residential and day care facilities, including, but not limited to, nursing homes, adult care facilities, child care facilities, including family day care homes, hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices;

C. Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, board and care facilities, and other multiple-unit residential facilities;

D. Lobbies, hallways, and other common areas in multiple-unit commercial facilities;

E. Public schools and other public facilities under the control of another public agency, which are available to and are customarily used by the general public, to the extent that the same are subject to the jurisdiction of the city;

F. Elevators, public restrooms, indoor and outdoor services lines, and in ticket, boarding, and waiting areas of public transit depots;

G. Public areas of museums, libraries, aquariums, galleries, and other exhibits open to the public;

H. Enclosed theaters, auditoriums and halls, which are used for motion pictures, stage dramas, and musical performances, ballets, or other exhibitions, except when smoking is a part of any such production;

I. Retail stores, including retail food marketing establishments, including grocery stores and supermarkets;

J. Buses, taxicabs and other means of public transit licensed by or under the authority of the City of Newark, and ticket, boarding, and waiting areas of public transit depots;

K. Restaurants, including but not limited to, indoor and outdoor dining areas, bars, and banquet rooms;

L. Sports arenas and convention halls;

M. Polling places;

N. Billiard halls, amusement arcades, and similar places of amusement and recreation;

O. Bingo games;

P. Private residences when used as family day care homes or health facilities;

Q. Service Lines. Any place where people are using or waiting for a service, entry, or a transaction whether or not such service includes the exchange of money, including, but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops, and cab stands;

R. Stadiums, amphitheaters and similar places of assemblage which are open to the sky;

S. Every room, chamber, and place of meeting or public assembly, including school buildings, under the control of any board, council, commission, committee, or agency of the city or any political subdivision of the state during such time as a public meeting is in progress to the extent such place is subject to the jurisdiction of the city;

T. Private hotel and motel rooms rented to guests, except that up to twenty-four percent of such rooms may be designated for smoking guests;

U. Bars;

V. Notwithstanding any other provision of this chapter, any owner, operator, manager, or employer or other person who controls any establishment or place of employment regulated by this chapter, may adopt regulations relating to smoking which are more restrictive than those provided in this chapter.

(Ord. 425 § 5, 2007: Ord. 354 § 1 (part), 1999)

A. It shall be the responsibility of employers to provide smoke-free areas for all employees.

B. Within ninety days of the effective date of the ordinance codified in this chapter, each employer and each place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy, which shall contain a minimum of the following requirements:

1. All enclosed places of employment including private offices, cubicles, open office areas, warehouses and restaurants;

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

3. In any dispute arising under this smoking policy, the employer shall formulate restrictions or prohibitions upon smoking which accommodate the reasonable preferences and needs of the nonsmoking employees in relation to the nuisance and health impacts of the smoking upon such nonsmokers;

C. The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter. A written copy of the policy shall be provided to any existing or prospective employee upon request.

D. Employers shall post "No smoking" or "smoke free" signs in accordance with Section 8.32.040(A) of this article.

(Ord. 354 § 1 (part), 1999)

Smoking that is less than a reasonable distance from areas designated nonsmoking under this chapter shall be prohibited. Smoking shall be considered to be less than a reasonable distance from such an area under any of the following circumstances if:

A. The smoking takes place in the same building, except a residence or private hotel or motel guest room, in an area open to, directly accessible from, or sharing a heating, ventilating, and air conditioning (HVAC) system with, any nonsmoking area. Areas in the same building shall be presumed to share an HVAC system unless a licensed mechanical contractor or engineer files written verification with the city that the HVAC system has been designed to meet, and has been tested and actually does meet, the following requirements:

1. None of the air from the smoking area is recirculated into other areas of the building.

2. The smoking area is completely separated from the remainder of the building by solid partitions or glazing without openings other than doorways. Any doorways are equipped with self-closing doors with a gasket so installed as to provide a seal where the door meets the stop, on both sides and across the top.

3. The area maintains a negative pressure relative to adjacent areas.

B. The smoking takes place outside a building containing one or more nonsmoking areas, or any air intake duct of a heating, ventilating, and air conditioning (HVAC) system through which air is recirculated into a nonsmoking area.

C. Persons going to or from a nonsmoking area must travel through the area where smoking is taking place.

D. No person shall provide or place receptacles such as, ashtrays, within the perimeter of any prohibited reasonable distance requirement as defined by this chapter.

(Ord. 425 § 6, 2007: Ord. 354 § 1 (part), 1999)

Notwithstanding any other provisions 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, including but not limited to, a small family day care home, a large family day care home, an administrative social services facility, a convalescent or nursing facility, a day care facility, or a residential care facility.

B. Notwithstanding any other provision of this chapter, any owner, operator, manager, or employer or other person who controls any establishment or place of employment regulated by this chapter, may adopt regulations relating to smoking which are more restrictive than those provided in this chapter.

(Ord. 425 § 7, 2007: Ord. 354 § 1 (part), 1999)

"No Smoking" or "Smoke free" signs 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 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 other place, and for regulated facilities of the city.

(Ord. 354 § 1 (part), 1999)

No person shall knowingly distribute, furnish without charge or cause to be furnished without charge, for a commercial purpose, cigarettes or other tobacco products, or coupons for cigarettes or other tobacco products, at any event open to the public or in any public place, including but not limited to any public way, any mall or shopping center, park, playground or any property owned by the City or any other public agency, except in a retail tobacco store.

(Ord. 354 § 1 (part), 1999)

A. No person shall place or maintain any coin-operated vending machines which dispenses any tobacco product in any place. Any such coin-operated vending machine in existence on the operative date of this section shall be removed no later than June 30, 1991.

B. No person shall place, allow to be place, or maintain any self-service arrangement whereby patrons of any retail or wholesale establishment will have direct access to tobacco products whether singly, single packaged, or in any other package prior to the wholesale or retail transaction. The purpose of this section is to restrict the access to tobacco products so as to require the assistance of sales personnel of the retail or wholesale establishment.

(Ord. 354 § 1 (part), 1999)

The city manager or his/her designee shall enforce and administer this chapter.

(Ord. 354 § 1 (part), 1999)

A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to: properly post signs required in this chapter; 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 requirements of this chapter.

B. It is unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.

C. Any person, firm or organization violating any provision of this chapter shall be guilty of an infraction, and upon conviction thereof shall be punishable in accordance with the provisions set forth in Chapter 1.16 of this code.

(Ord. 354 § 1 (part), 1999)

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.

(Ord. 354 § 1 (part), 1999)

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

(Ord. 354 § 1 (part), 1999)

If any provision or clause of this chapter or the application thereof to any person or circumstance is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses of this chapter or applications thereof which can be implemented without the invalid provision or clause or application, and to this end the provisions and clauses of this chapter are declared to be severable.

(Ord. 354 § 1 (part), 1999)