Chapter 8.46 — PROTECTION OF AN INDIVIDUAL'S RIGHT TO BREATHE FRESH AIR THROUGH

REGULATION OF SMOKING IN DESIGNATED ENCLOSED PUBLIC PLACES AND WORKPLACES

The town council finds and declares as follows:

A.

Tobacco smoke is a major contributor to indoor air pollution; and

B.

Breathing second-hand smoke is a cause of disease, including lung cancer, in nonsmokers; and

C.

At special risk are elderly people, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics, and those with obstructive airway disease; and

D.

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

E.

The smoking of tobacco or any other weed or plant is a hazard to the health of the general public.

This chapter is enacted pursuant to the provisions of Section 25946 of the Health and Safety Code for the purpose of restricting and prohibiting smoking in all enclosed areas open to the public in order to reduce the hazards which smoking causes to those involuntarily exposed thereto, and to restrict and otherwise

prohibit smoking within workplaces for the protection of employees who are involuntarily exposed to second-hand smoke.

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section unless it shall be apparent from the context that they have a different meaning:

"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 and which is enclosed and separated from areas dedicated primarily to dining and the service of food. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

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

"Characterizing flavor" means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcohol beverage, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

"Dining area" means any enclosed area containing a counter or tables upon which meals are served.

"Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profits, and any person who volunteers his or her time or service for a nonprofit entity.

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

"Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors or passageways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures.

"Flavored tobacco product" means any tobacco product that imparts a characterizing flavor.

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

"Place of employment" means any enclosed area under the operation or control of a public or private employer which employees normally frequent during the course of employment including, but not limited to, work areas, individual and group offices, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. For purposes of this chapter, "place of employment" shall not include those places "where smoking is not regulated" as set forth in Section 8.46.060.

"Public place" means any enclosed or unenclosed 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, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting room, including the area within twenty (20) feet of the entrance, exit or operable windows of a building. A private residence is not a "public place."

"Restaurant" means any 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.

"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.

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

"Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, hookah pipe, pipe or a functioning electronic-operated device creating vapors or smoke from tobacco, nicotine, marijuana, any weed or plant or other substance in any manner or any form.

"Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, pool halls 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.

"Tobacco product flavor enhancer" means a product designed, manufactured, marketed or sold to produce a characterizing flavor when added to a tobacco product.

(Ord. No. 596, § 1, 7-14-2020, eff. 8-14-2020; Ord. No. 554, § 1, 2-10-2015; Ord. 205 §1(part), 1991: Ord. 150, §1(part), 1986)

(a)

The sale or offer for sale, by any person, business or entity of any flavored tobacco product or a tobacco product flavor enhancer is prohibited and no person, business or entity shall sell, or offer for sale, any flavored tobacco product.

(b)

There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or

employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

(Ord. No. 596, § 2, 7-14-2020, eff. 8-14-2020)

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

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

A.

Smoking shall be prohibited in all public places within the town, including but not limited to the following places, and with the following exceptions:

All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including but not limited to attorneys' offices and other offices, banks, hotels and motels;

Any facility which is primarily used for exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production and in this event the only smoking permitted in such a facility will be that smoking that is part of and incident to the performance;

Bars;

Buses, shuttle buses, taxi cabs and other means of public transit sponsored by or subject to the authority of the town, and ticket, boarding and waiting areas of public transit depots;

Common areas in apartment buildings, condominiums, retirement facilities, nursing homes and adult day care facilities;

Elevators;

Every room, chamber, place of meeting or public assembly, including school buildings, under the control of any board, council, commission, committee, including joint committees, or agencies of the town or any political subdivision of the state of California during such time as a public meeting is in progress, to the extent the same is subject to the jurisdiction of the town;

Polling places;

Public areas of galleries, libraries, and museums when open to the public;

Public parks;

Restaurants;

Restrooms;

Retail stores;

Service lines;

Sports arenas and convention halls;

Waiting rooms, hallways, wards and semi-private rooms of health facilities, including but not limited to hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices.

B.

Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment or facility.

(Ord. No. 554, § 1, 2-10-2015; Ord. 150 §1(part), 1986)

A.

It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or other physical modifications.

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 town shall adopt, implement, make known and maintain a written smoking policy which shall contain at a minimum the following requirements:

"Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities."

C.

The smoking policy as set forth above shall be communicated to all employees within three weeks of its adoption. All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employees.

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

A.

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

Private residences, unless such residence is used as a child care or health care facility;

Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia;

Restaurants, hotel and motel conference meeting rooms and private assembly rooms while these places are being used for private functions.

B.

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

(Ord. No. 554, § 1, 2-10-2015; Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

"No Smoking" signs or the international "No Smoking" symbol (consisting of the 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 over the place. Every restaurant regulated by this chapter shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited in said establishment.

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

A.

Administration of this chapter shall be by the Butte County health department and/or the town manager or their designees. Any citizen who desires to register a complaint under this chapter may request the Butte County health department and/or the town manager or their designees to consider enforcement by either of the following actions:

Serving notice on the health department or the town manager requiring the correction of any violation of this chapter;

Calling upon the district attorney and/or the town attorney to maintain an action for injunction to enforce the provisions of this chapter, to cause the correction of any such violation, and for assessment and recovery of the penalty of such violation.

B.

Any owner, manager, operator or employer of any establishment controlled by this chapter shall have the right to inform persons violating this chapter of the appropriate provisions thereof.

C.

The fire department or the health department shall require, while an establishment is undergoing otherwise mandated inspections, a "self-certification" from the owner, manager, operator or other person having control of such establishment that all requirements of this section have been complied with. For purposes of this chapter, said "self-certification" shall be sworn under penalty of perjury.

D.

No Liability for Nonenforcement. In undertaking the enforcement of this chapter, the town is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

E.

When the provisions of this chapter are not remedied by county officials, town officials or any other public employee with authority to remedy any violations of this chapter, civil action against Butte County and/or the town is denied and the county and town are absolved of any responsibility to enforce and/or of any liability for failure to enforce any provision of this chapter.

F.

Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter.

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

A.

It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with any of its provisions.

B.

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

C.

Any person/business who violates any provision of this chapter shall be guilty of an infraction punishable by:

A fine, not exceeding one hundred dollars, for a first violation;

A fine, not exceeding two hundred dollars, for a second violation of this chapter within any consecutive twelve-month period;

A fine, not exceeding five hundred dollars, for each additional violation of this chapter within any consecutive twelve-month period. (Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)

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. 150 §1(part), 1986)

A.

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

B.

If any provision or clause of this chapter or the application thereof to any person or circumstances held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other ordinance provisions or clauses 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.

C.

Other Agency Cooperation. Federal, state, county, school and all district officials are urged to enact and enforce provisions similar to the provisions contained in this chapter.

(Ord. 205 §1(part), 1991: Ord. 150 §1(part), 1986)