4.19 — SMOKING

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

• b. 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; and

• c. Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, 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 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

• e. The smoking of tobacco, or any other weed or plant, is a danger to health. Accordingly, it is determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City would be benefited by the regulation of smoking in enclosed places, including places of employment.

• f. The United States Environmental Protection Agency has determined that secondhand smoke is a Class A carcinogen for which there is no safe exposure level.

• g. The United States Surgeon General has declared that nicotine is as addictive as cocaine or heroin; no other addictive product or drug is sold through vending machines.

As used in this section:

• a. "Bar" shall mean an establishment 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. That area of a restaurant which is primarily devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages shall also be considered a bar.

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

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

• d. "Enclosed" shall mean closed in by roof and four (4) walls with appropriate openings for ingress and egress.

• e. "Place of employment" shall mean an enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including

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City of Oakley, CA

PUBLIC HEALTH, SAFETY, AND WELFARE

§ 4.19.004

§ 4.19.008

but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment unless it is used as a child care or health care facility. A dining area of a restaurant is not a place of employment.

• f. "Smoke" and "smoking" shall be defined as follows: "Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except for smoke from incense. The term "smoke" includes, but is not limited to, tobacco smoke, marijuana smoke and gases, particles, and vapors from electronic cigarettes. "Smoking" means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette as defined in Section 4.19.011, a lighted cigar, or a lighted cigarette of any kind and a lighted marijuana joint, pipe, or other implement, and includes smoking marijuana for medical or recreational purposes; or lighting or igniting a pipe, a hookah pipe, a cigar or a cigarette.

• g. "Sports arena" shall mean a sports pavilion, gymnasium, health spa, boxing area, swimming pool, roller or ice rink, bowling center, or other similar place where members of the public assemble to engage in physical exercise, participate in athletic competition or witness sports events.

• h. "Vending machine" shall mean any electronic or mechanical device or appliance the operation of which requires the insertion of money, whether in coin or paper bill, or other thing representative of value, which in return dispenses or releases a tobacco product.

• (Ord. 07-14, 7/8/2014)

All enclosed facilities owned by the City of Oakley are subject to the provisions of this chapter. Pursuant to Government Code Section7597, facilities owned by the City of Oakley are also subject to the provisions of this chapter.

Smoking is prohibited in the following places within the City:

• a. Enclosed Areas and Businesses. An enclosed area or business available to and customarily used by the general public including, but not limited to, a retail store, hotel, motel, pharmacy, bank, or office.

• b. Restaurants. Within a restaurant, provided, however, that this prohibition does not apply to the bar area and outdoor seating areas of such restaurants.

• c. Health Facilities. A waiting room, hallway, ward, or semi-private room of a health facility, including but not limited to a hospital, clinic or physical therapy facility, doctor’s office or dentist’s office, except that a health facility is also subject to the provisions of Section 4.19.010 regulating smoking in places of employment.

• d. Transportation and Restroom Facilities. An elevator, public restroom, indoor service line, bus, taxicab or other means of 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

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City of Oakley, CA

OAKLEY CODE

§ 4.19.008

§ 4.19.012

and nonsmokers, or (2) the establishment of at least 40% 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 sore 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 same is subject to the jurisdiction of the City.

• 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.

• j.

  • Sports Arenas. Sports arenas and convention halls, except in designated smoking areas.

• k. Child Care Facilities. Commercial child care facilities, whether conducted in a private residence or commercial structure.

• a. Unless expressly exempted by this section, it is the responsibility of every employer within the City to provide a smoke-free workplace for all their employees. Employers shall prohibit smoking by anyone in any enclosed area of their business or workplace.

• b. Within 60 days of the effective date of this section, each employer having an enclosed workplace within the City shall adopt, implement, maintain and post in at least one conspicuous location in such workplace a written smoking policy which shall contain the following minimum requirements: Smoking is prohibited in all enclosed spaces in this facility, without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, cafeterias, lounges and restrooms.

The use and/or possession of any electronic cigarette or electronic cigarette paraphernalia by a minor is prohibited except when not used or possessed in a public area and with the prior written consent of a parent or legal guardian. "Electronic cigarette" means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution, irrespective of whether liquid nicotine is actually being vaporized. "Electronic cigarette paraphernalia" means any part of an electronic cigarette, or any cartridge or other liquid used for the purpose of vaporizing the liquid in an electronic cigarette. The legislative findings supporting this provision and portions of Section 4.19.004 are contained in a separate resolution adopted by the City Council. (Ord. 07-14, 7/8/2014)

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City of Oakley, CA

PUBLIC HEALTH, SAFETY, AND WELFARE

§ 4.19.012

§ 4.19.020

Tobacco product vending machines may only be located in or on those premises constituting a bar as defined in this section. Tobacco product vending machines must be located at least 25 feet from any entry onto the premises.

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

• a. A private residence;

• b. A bar;

• c. A hotel or motel room rented to guests;

• d. A retail store that deals exclusively in the sale of tobacco and smoking paraphernalia.

"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, by the owner, operator, manager or other person having control of such building or other place. Each restaurant regulated by this section shall have posted at its entrance a sign clearly stating that a nonsmoking section is available, and every patron shall be asked as to his or her preference where a host or hostess is available.

• a. Administration and enforcement of this section shall be by the City Manager or his/her designee.

• b. A citizen who desires to register a complaint under this section may initiate enforcement with the City Manager or his/her designee.

• c. An owner, manager, operator or employer of an establishment regulated by this section may inform persons violating this section of the appropriate provision.

• a. It is unlawful for a person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this section 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 section.

• b. It shall be unlawful for any person to smoke in an area restricted by the provisions of this section.

• c. A person who violates this section shall be guilty of an infraction punishable by:

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City of Oakley, CA

OAKLEY CODE

§ 4.19.020

§ 4.19.024

• 1. A fine, not exceeding $100 for first violation;
• 2. A fine, not exceeding $200 for a second violation of this section within one year;
• 3. A fine, not exceeding $500 for each additional violation of this section within one year.

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 section.

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

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City of Oakley, CA

PUBLIC HEALTH, SAFETY, AND WELFARE

§ 4.19.102

§ 4.19.104