Port Hueneme Municipal Code Ch. 7 Smoking Regulations

The Council does hereby find:

(a) Numerous studies have found that tobacco smoke and the smoke of any other weed or plant is a major contributor to indoor air pollution; and

(b) Reliable studies have shown that breathing secondhand smoke is a significant health hazard for several population groups, including elderly persons, 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, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

(d) Nonsmokers who suffer allergies, respiratory diseases, and 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 such reactions; and

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

(f) Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to the businesses; and

(g) Smoking is a danger to health and a cause of material annoyance, inconvenience, discomfort, and health hazards to those who are present in areas exposed to secondhand and/or side-stream smoke; and

(h) Accordingly, the Council finds and declares that the purposes of this ordinance are:

(1) To protect the public health and welfare prohibiting smoking in public places except in designated smoking areas, and by regulating smoking in places of employment; and

(2) To strike a reasonable balance between the needs of persons who smoke and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have priority.

(Ord. No. 779, § 2, 5-17-21)

The following words and phrases, whenever used in this Article, shall be used as defined in this section.

(a) "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

(b) "Bingo Game Establishments" means the facilities used by organizations operating bingo games pursuant to Sec. 326.5 of the California Penal Code.

(c) "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.

(d) "Dining Area" means any area containing a counter or tables upon which meals are served.

(e) "Employee" means any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.

(f) "Employer" means any person, partnership, corporation, including a public agency or nonprofit entity, who employs more than one (1) employee.

(g) "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door 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 not solid, "office landscaping" or similar structures.

(h) "Motion Picture Theatre" means any theatre engaged in the business of exhibiting motion pictures.

(i) "Non-Profit Entity" means any corporation, unincorporated association or other entity created from 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 "non-profit entity" within the meaning of this section.

(j) "Open Space" means a natural, undeveloped, and unenclosed area of land owned, used, or maintained by the City, and devoted to habitat, agriculture, or passive recreation and not designated a park by the City.

(k) "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 and classrooms, employee cafeterias and hallways.

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

(2) The dining area of a restaurant is not a "place of employment."

(l) "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, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theatres and waiting rooms. A private residence is not a "public place."

(m) "Public Park" means any park, reservation, playground, swimming pool, recreation center or any other area in the City, owned or used by the City and devoted to active or passive recreation.

(n) "Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club, including veterans' club, boardinghouse, or guesthouse, which gives or offers for sale food to the public, guests, patrons 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 said cocktail lounge or tavern is a "bar" as defined in Section 3402(a).

(o) "Retail Tobacco Store" means a retail store utilized exclusively or the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

(p) "Service Line" means any indoor or outdoor line at which one (1) or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

(q) "Smoke" or "Smoking" means the carrying, inhaling, or emitting the fumes or vapors of a lighted or activated pipe, cigar, cigarette, electronic smoking device, or any other lighted or activated smoking product or equipment used to burn any tobacco product, weed, plant, or other combustible substance in any manner or in any form. Smoke does not mean the combustion of material solely for olfactory purposes such as, for example, smoke from incense, that does not contain any tobacco or nicotine, or the emissions from a product specifically approved by the United States Food and Drug Administration for use in mitigating or preventing disease.

(r) "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 general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events.

(Ord. No. 779, § 2, 5-17-21)

All enclosed facilities owned, leased, or controlled by the City of Port Hueneme shall be subject to the provisions of this Article.

(Ord. No. 779, § 2, 5-17-21)

(a) Smoking shall be prohibited in public places within the City, including, but not limited to, the following places, and with the following exceptions:

(1) Elevators.

(2) Buses, taxicabs, and other means of public transit under the authority of the City of Port Hueneme, and ticket, boarding, and waiting areas of public transit depots. This prohibition does not prevent a business or other entity from establishing separate waiting areas for smokers and nonsmokers in compliance with this Chapter.

(3) Restrooms.

(4) Service lines.

(5) Retail stores, except areas in said stores not open to the public and all areas within retail tobacco stores.

(6) All areas available to and customarily used by the general public in all businesses and non-profit entities patronized by the public, including but not limited to, professional offices and other offices and banks.

(7) Restaurants, including outdoor seating areas, whether or not in private clubs.

(8) Galleries, libraries, and museums.

(9) Any building, open to the sky, which is primarily used for, or designed for the primary purpose of exhibiting any motion picture, stage, drama, lecture, musical recital, or other similar performance, except when smoking is a part of the stage production.

(10) Indoor and outdoor sports arenas and health and fitness clubs, auditoriums, and entertainment centers.

(11) 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 or 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.

(12) All indoor and outdoor reception and/or waiting areas.

(13) Polling places.

(14) Retail food marketing establishments, including, but not limited to, grocery stores, supermarkets, and farmer's markets.

(15) Beauty and personal care salons and barber shops.

(16) Laundromats.

(17) Common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and dormitories.

(18) Not less than eighty (80) percent of units and all common areas of hotel and motel facilities.

(19) Any public park, public garden or open space owned by the City.

(20) Inside all facilities owned, leased, or controlled by the City.

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

(Ord. No. 779, § 2, 5-17-21)

All employers shall comply with State law regarding smoking or vaping in enclosed spaces in places of employment, which explicitly preempt local regulation on the subject.

(Ord. No. 779, § 2, 5-17-21)

(a) Notwithstanding any other provision of this Article to the contrary, the following areas shall not be subject to the smoking restrictions in this Article:

(1) Private residences, except when used as a childcare or health care facility.

(2) Retail and wholesale tobacco shops in conformity with State law.

(Ord. No. 779, § 2, 5-17-21)

(a) "Smoking" or "No Smoking" signs, whichever are appropriate shall be clearly and conspicuously posted in every building or other place where smoking is regulated by this Article, by the owner, operator-manager, or other person having control of such building or other places. Such signs shall have letters of not less than one (1) 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).

(b) Every theatre owner, manager, or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theatre or auditorium, and in the case of motion picture theatres, such information shall be shown upon the screen for at least five (5) seconds prior to the showing of each feature motion picture.

(c) Every restaurant shall have posted at every public entrance a conspicuous sign clearly stating that smoking prohibited.

(Ord. No. 779, § 2, 5-17-21)

Enforcement of this Article shall be in accordance with the policies and procedures of Article I of the Municipal Code of the City of Port Hueneme.

(Ord. No. 779, § 2, 5-17-21)

(a) It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this Article.

(b) Any person who violates any provision of this Article shall be subject to a criminal prosecution or administrative citation in accordance with Article I of this Code.

(c) Penalties for violations of this Article shall be consistent with Section 1102 of Article I of this Code.

(Ord. No. 779, § 2, 5-17-21)

(a) Any person, owner, or manager of a property or other establishment that is subject to this Article may apply to the City Manager or his or her designee for an exemption or modification to any of the provisions of this Article due to unusual circumstances or conditions. A person, owner, or manager must make an affirmative showing in writing that any exemption would not be injurious to public health, welfare, or safety and would further legitimate business or personal interests by clear and convincing evidence.

(b) If such application for exemption from any provision of this Article is denied by the City Manager or his or her designee, the applicant may appeal the City Manager's decision to the City Council in writing within ten (10) days of the issuance of decision. The burden of proof will be on the applicant that the City Manager's decisions was not based upon substantial evidence, was arbitrary or capricious, and not in accordance with this Code.

(c) The applicant for an exemption shall be required to pay a reasonable fee to cover costs and expenses of any hearing, as set forth in the City's most current fee schedule set by City Council resolution.

(Ord. No. 779, § 2, 5-17-21)

This Article shall not be interpreted or construed to permit smoking or vaping where it is otherwise restricted by any other applicable law or regulation.

(Ord. No. 779, § 2, 5-17-21)