Pinole Municipal Code Ch. 9.28 Tobacco and Tobacco Products

The City Council finds that:

A. The U.S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution; and

B. Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard, in particular for elder 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 heart disease, 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 same; and

E. The smoking of tobacco is a danger to health; and

F. The health care costs and lost productivity incurred by smoking related disease and death represent a heavy and avoidable financial drain on our community by increasing public health and medical costs;

G. Exposure to secondhand smoke anywhere has negative health impacts, exposure to secondhand smoke does occur at significant levels outdoors, and to be completely free from exposure to secondhand smoke a person may need to move up to 20 feet away from the source of the smoke; and

H. 1. The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products and tempts those who had quit smoking to begin smoking again, and

2. Free distribution of cigarettes and other tobacco products promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets; and also causes pedestrian traffic congestion. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2 (part), 1994).

The compelling purpose and intent of this chapter includes, but is not limited to, generally promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products and the dangers of secondhand smoke. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2 (part), 1994).

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

A. BUSINESS. Any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making or non-profit making purposes.

B. DINING AREA. Any Unenclosed Area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or beverages.

C. DISTRIBUTE. 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.

D. EMPLOYEE. Any person who is employed or retained as an independent contractor by any Employer in consideration for direct or indirect monetary wages or profit or any person who volunteers his or her services for an Employer.

E. EMPLOYER. Any person, partnership, corporation, nonprofit entity, including municipal corporation or public entities, who employs the services of two or more persons or two (2) or more people conduct business within the establishment.

F. ENCLOSED. An area in which outside air cannot circulate freely to all parts of the area, an area that is closed in by a roof and walls with appropriate openings for ingress and egress.

G. GENERAL PUBLIC. Shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise or nonprofit entity.

H. MULTI-UNIT RESIDENCE. A property containing two (2) or more Units, including but not limited to apartments, condominiums, senior citizen housing, nursing homes, and single room occupancy hotels. The following types of housing are specifically excluded:

• 1. Hotel or motel that meets requirements of California Civil Code Section 1940(b)(2);
• 2. Mobile home park;
• 3. Campground;
• 4. Marina or port;
• 5. Single-family home; and

6. Single-family home with a detached or attached in-law or second Unit when permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.1 or an ordinance adopted by the City pursuant to those sections.

I. MULTI-UNIT RESIDENCE COMMON AREA. Areas of a Multi-Unit Residence that residents of more than one Unit of that Multi-Unit Residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

J. PLACE OF EMPLOYMENT. Any Enclosed area under the control of a Employer which Employees normally frequent during the course of employment, including 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.

K. PUBLIC AREA. Any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.

L. SERVICE AREA. Any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "Service Area" includes but is not limited to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or cab stands.

M. SMOKE. The gases and particulates 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 Tobacco Products. The term “smoke” includes, but is not limited to, tobacco smoke and electronic cigarette vapors. The term “smoke” also includes vapor generated through the use of an electronic cigarette in any manner or in any form.

N. SMOKING. The engaging in an act that generates Smoke, such as, for example: carrying, possessing 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, or cigarette of any kind.

O. TOBACCO PRODUCTS. Any substance containing tobacco leaf, in any product formulation of matter or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. This includes electronic cigarettes or e-cigarettes.

P. UNENCLOSED. Any area that is not an Enclosed area.

Q. UNIT. A personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use Enclosed area or Unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit.

(Ord. 2019-06 (part), 2019; Ord. 2017-04 § 2 (part), 2017; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2 (part), 1994).

Smoking shall be prohibited within twenty (20) feet from any doorway, window, opening, crack, or vent into any Multi-Unit Residence or any Enclosed area in which Smoking is prohibited, except while actively passing on the way to another destination and provided Smoke does not enter any Multi-Unit Residence or any Enclosed area in which Smoking is prohibited.

(Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 2009-05 § 1, 2009; Ord. 562 § 2(part), 1994).

A. Smoking is prohibited in the Unenclosed areas of the following places within the City, except places where Smoking is already prohibited by state or federal law, in which case those laws apply:

1. City property, whether owned, leased or operated by the City, including parking lots, public parks, trails, open spaces, nature areas or park facilities;

2. Public events on public property, including open-air markets, parades, festivals, and other events open to the public. No person may Smoke during an outside public event that occurs on property on which the City is owner, lessee, or otherwise holds a property interest;

3. Service Areas;

4. Outdoor Dining Areas;

5. Outdoor, Unenclosed Multi-Unit Residence Common Areas, except for those exempt pursuant to Section 9.28.080. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010)

Smoking is prohibited in the following Enclosed places within the City except such places in which Smoking is already prohibited by state or federal law in which case those laws apply:

A. City facilities. Smoking is prohibited in all buildings, vehicles, parking lots, or other Enclosed areas occupied by City Employees, owned or leased by the City, or otherwise operated by the City;

B. Enclosed public spaces. 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, the common areas of hotels and motels, pharmacies, banks, shopping malls, indoor service areas, theaters, bowling alleys, public schools, health facilities and other offices;

C. All restaurants and bars. The owner, manager or operator of the restaurant or bar shall post signs as prescribed by Section 9.28.100(A) and remove all ashtrays from tables;

D. Private residences when used as child care or health care facilities shall be smokefree at all times. Board and care facilities shall provide smokefree living quarters for nonsmoking boarders;

E. Enclosed Multi-Unit Residence Common Areas, unless that area is exempt in accordance with Section 9.28.080;

F. All Multi-Unit Residences such that 100% of the Units and private outdoor spaces such as balconies, patios and decks shall be smoke-free, except for certain designated outdoor areas as provided in Section 9.28.080.

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. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

A. Smoking is prohibited in any Place of Employment, including, but not limited to, open office areas, shared offices and private offices occupied by Employees performing clerical, technical, administrative or other business or work functions; and, conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators, except such places in which Smoking is already prohibited by state or federal law in which case those laws apply.

B. Smoking is prohibited in any outdoor lounge area at Places of Employment, unless that area is exempt pursuant to Section 9.28.080.

C. The provisions of this section shall be communicated to all Employees within three (3) weeks of its adoption, and at least annually thereafter. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter except such places in which Smoking is prohibited by state or federal law in which case those laws apply:

A. A private residence, including one which may serve as a Place of Employment, except when covered by Section 9.28.060(D) and excluding Multi-Unit Residences;

B. Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than fifty percent (50%) of their guest rooms as nonsmoking rooms and removes ashtrays from these rooms;

C. Outdoor, Unenclosed Multi-Unit Residence Common Areas. A person with legal control over such Multi-Unit Residence may designate a portion of that area for Smoking if the area meets the following criteria:

1. The designated area does not overlap with any area where Smoking is otherwise prohibited by local, state, or federal law;

2. The designated area must be located at least twenty-five (25) feet in all directions from areas where Smoking is prohibited;

3. The designated area must not be used primarily by children;

4. The designated area must be no more than twenty-five percent (25%) of the total outdoor, Unenclosed Multi-Unit Residence Common Area;

5. The designated area must have a clearly marked perimeter;

6. The designated area must be identified by conspicuous signs, pursuant to Section 9.28.100.

7. The designated area must be located at least twenty-five (25) feet in all directions from the lot line of any private residence.

D. In Places of employment, Employers may provide specific Enclosed smoking areas for Employees provided all of the following conditions are met:

1. The smoking area shall be provided with a heating, ventilating and air conditioning (HVAC) system designed so that none of the air from the smoking area will be recirculated into the other areas of the building.

2. The smoking area shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors, and all doors leading to the smoking area shall be self-closing. The doors shall be provided 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 smoking areas shall maintain a minimum native pressure of 0.005-inch water column relative to nonsmoking areas.

4. The Employer shall submit written verification and test results to the City Manager or his/her designees prepared by a licensed mechanical contractor or engineer that the HVAC system has been designed and tested and meets the requirements set forth in subsections (D) (1) through (3) above.

5. If the HVAC system is part of a smoke removal system or pressurization system, any modifications to these systems to provide smoking areas will require approval from the Pinole fire department. Written verification of this approval shall be provided to the city manager.

6. If the specific smoking area is an employee break room, lunch room or other area which may be used by nonsmoking employees, then a separate nonsmoking break room, lunch room or other area shall be provided of equal or larger size and include at least equal facilities.

E. In outdoor, Unenclosed Areas of Places of Employment, the Employer may designate a portion of such area for Smoking if the area meets the following criteria:

1. The designated area does not overlap with any area where Smoking is otherwise prohibited by local, state, or federal law;

2. The designated area must be located at least twenty-five (25) feet in all directions from areas where Smoking is prohibited;

3. The designated area must not be used primarily by children;

4. The designated area must be no more than twenty-five percent (25%) of the total outdoor, Unenclosed common area;

5. The designated area must have a clearly marked perimeter;

6. The designated area must be identified by conspicuous signs, pursuant to Section 9.28.100. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

A. “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 at each point of ingress and egress and at least one other conspicuous place within the buildings, 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.

B. Every hotel or motel regulated by this chapter will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his or her preference.

C. Notwithstanding this section, the presence or absence of signs shall not be a defense to a charge of Smoking in violation of any provision of this Chapter. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

No person shall sell or offer for sale cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer. (Ord. 2019-06 (part), 2019; Ord. 562 § 2(part), 1994).

A. Administration of this chapter shall be by the City Manager or his/her designees.

B. Any person who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his/her designees.

C. No person, owner, manager, operator or Employer of any establishment controlled by this chapter shall knowingly permit Smoking in an area which is under the legal or defacto control of that person, owner, manager, operator or Employer and in which Smoking is prohibited by law, unless otherwise required by state or federal law. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2 (part), 1994).

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 section to fail to properly post signs required hereunder.

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

C. Any person or Business who violates subsection (A) or (B) of this section, or any other provision of this chapter, shall be guilty of an infraction, punishable by:

1. A fine, not exceeding one hundred dollars ($100) for the first violation;

2. A fine, not exceeding two hundred dollars ($200) for a second violation of this chapter within one (1) year;

3. A fine, not exceeding five hundred dollars ($500), for each additional violation of this chapter within one (1) year.

D. Each instance of Smoking in violation of this Chapter shall constitute a separate violation.

E. The remedies provided in this Chapter are cumulative and in addition to any other remedies available at law or in equity. (Ord. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

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. 2019-06 (part), 2019; Ord. 2010-01 § 1(part), 2010; Ord. 562 § 2(part), 1994).

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 2019-06 (part), 2019; Ord. 562 § 2 (part), 1994).