Sacramento Municipal Code Ch. 8.80 Smoking

The city council finds as follows: The U.S. Environmental Protection Agency (EPA) has determined that tobacco smoke is a major source of indoor air pollution, and the Surgeon General's 1986 report on the health consequences of involuntary smoking concludes that exposure to tobacco smoke places healthy nonsmokers at increased risk for developing lung cancer. Other health hazards of involuntary smoking include respiratory infection, bronchoconstriction, and bronchospasm. While all members of the population are truly at increased risk due to exposure to sidestream tobacco smoke, it constitutes a special health hazard for children, the elderly and people with chronic lung disorders.

The Surgeon General labels smoking "the largest single preventable cause of death and disability for the U.S. population."

Employees subject to prolonged exposure to sidestream smoke in the workplace have been found in scientifically conducted studies to experience a loss of job productivity and some have been forced to take periodic sick leave because of reactions to secondhand smoke. Furthermore, studies have shown higher costs to the employer are associated with smoking in the workplace due to increases in absenteeism, accidents, costs of medical care, loss of productivity, and cleaning and maintenance requirements. A recent scientific study has reported that sidestream smoke from tobacco may cause a significant amount of cardiovascular disease in the United States and that the number of deaths from this cause may exceed the deaths caused by lung disease associated with sidestream smoke. Smoking in public places and workplaces is a major cause of fires and damage to merchandise and equipment as well as costly maintenance and repairs to furniture and fixtures.

The health care costs produced by smoking-related ailments and diseases constitute a heavy and avoidable financial drain on our community.

More than three-quarters of Sacramento residents are nonsmokers and the number of nonsmokers is steadily increasing. Opinion surveys show that a majority of both nonsmokers and smokers favor restrictions on smoking in public places and places of employment.

Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results in serious and significant physical discomfort of nonsmokers and constitutes a public nuisance in public places and workplaces. (Prior code § 37.01.001)

This chapter is enacted pursuant to the provisions of Section 25946 of the Health and Safety Code for the purpose of restricting and regulating smoking in public places and in places of work in order to reduce the hazards and nuisance which smoking causes to those who are involuntarily exposed. (Prior code § 37.01.002)

As used in this chapter, those terms identified in this section shall, unless the context indicates otherwise, be ascribed the meanings contained herein.

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption on the premises, in which the serving of food, if any, is incidental to the consumption of alcoholic drinks. The dining area of a restaurant utilized primarily for the serving and consumption of food shall not constitute a bar, even though alcoholic beverages may be served therein.

Commercial Enterprise-Nonprofit Entity-Person (Operators of Public Places).

1. "Commercial enterprise" means any business entity formed for profit-making purposes, including professional corporations and other entities under which legal, medical, dental, engineering, architectural or other professional services are delivered, and also any person charged with the responsibility of controlling conduct in behalf of the enterprise upon any premises regulated by this chapter.

2. "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 operations of which are committed to promotion of the objects or purposes of the organization and not to private gain, together with any person charged with the responsibility of controlling conduct in behalf of the entity upon any premises regulated by the provisions of this chapter.

3. A public agency is not a "nonprofit entity" within the meaning of this section.

4. "Person" means any natural person, partnership, corporation, unincorporated association, joint venture, business trust, joint stock company, club, or other organization of any kind, except the city of Sacramento or any other public agency.

"Enclosed area" means all space between a floor and ceiling which is served by a common heating, ventilating and air conditioning system and 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 are not solid, "office landscaping," or similar structures.

"Members of the general public" means shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise or nonprofit entity; and excludes employees thereof, sales representatives, service repair persons and persons delivering goods, merchandise or services to a commercial enterprise, nonprofit entity or the city of Sacramento.

"Office" means an area enclosed by walls containing a desk, table or similar furnishings for clerical, administrative or supervisory work, a complex of such enclosures and a building containing such enclosures, whether or not the building is utilized primarily for other purposes such as retailing, wholesaling or storage, or manufacturing, together with all hallways, stairways, elevators, escalators, restrooms, lobbies, waiting rooms, reception areas, entry areas, and conference rooms within or associated with the complex of such enclosures, including: (i) legal, medical, dental, engineering, accounting, counseling and other professional offices; (ii) insurance, real estate, ticket, collection agency, and other offices where business services are offered to or goods or services are offered to or may be ordered by or may be paid for by members of general public; and (iii) offices to which members of the general public are admitted in order to promote the objects or purposes of the non-profit entities.

"Restaurant" means any coffee shop, cafeteria, luncheonette, soda fountain, fast food service, and other establishment where cooked or otherwise prepared food is sold to members of the general public for consumption on the premises. The term does not include a cafeteria or lunchroom defined as a "workplace" by subsection (3) of the definition of "workplace" in this section, whether or not members of the general public incidentally frequent the facility.

"Smoking" means lighting, inhaling, exhaling or burning any pipe, cigar, cigarette, weed or plant, or carrying any lighted pipe, lighted cigar, lighted cigarette, lighted weed, lighted plant or ignited combustible substance in any manner or in any form.

"Tobacco store" means a place utilized primarily for the sale to members of the general public at retail of tobacco products or accessories, and in which the sale of other products is merely incidental.

"Workplace" means any enclosed area which is occupied by two or more employees of a commercial enterprise, nonprofit entity or the city of Sacramento including, but not limited to, places:

1. Utilized for: (i) the manufacturing, processing, assembly, maintenance or repair of any products, goods, equipment, tools, appliances, furnishings or other object; or (ii) the physical storage for purposes of wholesaling, future utilization for operational purposes, or future transfer preceding consumption or other utilization of any products, goods, merchandise, materials, supplies, equipment, tools, appliances or furnishings;

2. Utilized or operated for a purpose described by Section 8.80.050 through 8.80.190 of this chapter and from which members of the general public are excluded;

3. Utilized as a union hall, cafeteria, lounge, lunchroom, restroom, conference room, training room, lecture room or classroom primarily for the use or benefit of employees.

Notwithstanding the provisions of this definition, a private residence including either an attached or detached garage shall not constitute a workplace, except when the residence serves as a licensed day care facility for children. (Prior code § 37.01.003)

Except as otherwise provided in this chapter, it is unlawful for any member of the general public or any other person including an employee to smoke in the public places named and described in Sections 8.80.050 through 8.80.190 of this chapter and other public places similarly situated, including, but not limited to, the following enclosed areas:

A. Common work areas occupied by employees performing clerical, technical, administrative or other business or work functions;

B. Merchandise display areas, checkout stations, and counters and other pay stations;

C. Hallways;

D. Restrooms;

E. Escalators, elevators and stairways;

F. Lobbies;

G. Reception areas;

H. Waiting rooms;

I. Service lines;

J. Classrooms, meeting or conference rooms, or lecture halls; and

K. Other places in which members of the general public congregate for service or otherwise frequent. (Prior code § 37.01.004)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to: (i) the enclosed common areas of shopping malls; (ii) automobile dealerships, furniture or other showrooms for the display of merchandise offered for sale at retail; (iii) grocery, specialty, department and other stores which sell goods or merchandise at retail; and (iv) service stations, stores or shops for the repair or maintenance of appliances, shoes, or motor vehicles, barbershops, beauty shops, cleaners and laundromats, video game, pool hall and other amusement centers, and other similar establishments offering services or products to members of the general public. (Prior code § 37.01.005)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to banks, including savings and loan associations, credit unions and other similar institutions which offer financial services to members of the general public. (Prior code § 37.01.006)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to hotels and motels in which guests typically rent lodging for continuous periods less than thirty (30) days. Smoking is permissible in rental rooms and in on-premises restaurants, bars and other areas as provided in Sections 8.80.130, 8.80.210(B) and (E) of this chapter. The availability of nonsmoking rooms will be prominently posted in the lobby sign-in area. The rooms so designated will be posted as smoking prohibited and ash trays removed. Customers seeking accommodations will be routinely advised of the availability of nonsmoking rooms. (Prior code § 37.01.007)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to depots and other terminals utilized by members of the general public for the purpose of being transported upon or departing from airplanes, trains, buses and taxis. (Prior code § 37.01.008)

Smoking by either passengers or operators shall be prohibited within buses, taxicabs and all public transit conveyances operated by or licensed by the city. (Prior code § 37.01.009)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to theaters, including motion picture theaters, meeting halls and auditoriums where motion picture or live theatrical musical or dramatic productions, are made to an audience consisting of members of the general public assembled for the purpose of witnessing the performance or presentation; provided, that neither this section nor Section 8.80.040 of this chapter shall be construed to prevent smoking by performers in connection with a stage production or by persons making a presentation concerning addiction to tobacco or other drugs. (Prior code § 37.01.010)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to enclosed areas of sports pavilions, gymnasiums, exercise rooms, health spas, boxing arenas, swimming pools, roller and ice skating rinks, bowling alleys and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition or witness sports events.

Smoking is prohibited at all times within the seating areas of an enclosed arena and in the surrounding open concourses where food and beverages are dispensed.

Smoking may be allowed in enclosed on-site restaurants, subject to the provisions of Section 8.80.130 of this chapter, and in enclosed on-site bars. (Prior code § 37.01.011)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to those areas of recreation halls and other similar facilities where members of the general public play bingo or cards, dance or engage in other recreational, character building or cultural activities which are designated as nonsmoking.

An owner, manager or operator of a recreation hall shall designate not less than fifty (50) percent of the main activities area of such facility not including restrooms, lounges and kitchens as nonsmoking. Commencing August 9, 1991, an owner, manager or operator of a recreation hall shall designate not less than seventy-five (75) percent of the main activities area of such facility not including restrooms, lounges and kitchens as nonsmoking. Commencing May 9, 1992, the owner, manager or operator of a recreation hall shall designate the entire premises of such facility including restrooms, lounges and kitchens as nonsmoking. Signs shall be posted in the manner prescribed by Section 8.80.230 of this chapter. It shall not constitute a violation of this chapter to smoke in a location where smoking has been authorized by this chapter.

The provisions of this section shall not be construed to in any manner restrict or otherwise impair the authority of an owner, manager or operator to increase the nonsmoking area of a recreation hall. (Prior code § 37.01.012)

Within all restaurants, the prohibitions contained in Section 8.80.040 of this chapter shall be applicable to lobbies, waiting areas, restrooms and those dining seating areas which are designated as nonsmoking.

The owner, manager or operator of a restaurant shall designate not less than fifty (50) percent of the available customer seating as nonsmoking. Commencing August 9, 1991, the owner, manager or operator of a restaurant shall designate not less than seventy-five (75) percent of the available customer seating as nonsmoking. Commencing May 9, 1992, the owner, manager or operator of a restaurant shall designate all available customer seating as nonsmoking. The owner, manager or operator of the restaurant shall post signs as prescribed by Section 8.80.230 of this chapter and remove all ashtrays from tables located in the nonsmoking areas. Where a bar shares the same enclosed area with the restaurant, the bar seats must be counted with the restaurant seats in determining the total number of nonsmoking restaurant seats. The owner, manager or operator shall post a notice at the restaurant entrance that a nonsmoking section is available. It shall not constitute a violation of this chapter to smoke in a location where smoking has been authorized by this chapter.

The provisions of this section shall not be construed to in any manner restrict or otherwise impair the authority of an owner, manager or operator to increase the nonsmoking seating in a restaurant or bar. (Prior code § 37.01.013)

A. Smoking is prohibited in all city buildings.

B. No person, except while passing on the way to another destination, shall smoke within twenty (20) feet of any opening to a city building during its usual hours of operation. For purposes of this section, "opening" means an entrance, exit, open window, ventilation intake system or covered entryway into a building from a contiguous street, sidewalk, walkway or parking area. "No Smoking" signs shall be posted at or near each first floor entrance and exit to all city buildings covered under this subsection, in the manner prescribed by Section 8.80.230 of this chapter.

C. Except with respect to the primary entrance, the city manager shall have the authority to grant an exemption from subsection B at ticketed or controlled access events.

D. For the purpose of this section, "city building shall mean any building, or portion thereof, that is a work-place primarily occupied by city employees.

E. Should any portion of this section be determined unlawful or unenforceable by a court of competent jurisdiction, the remaining portion(s) of this section shall be considered severable and shall remain in full force and effect. (Ord. 2002-027 § 1; prior code § 37.01.014)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to the county courthouse including jury lounges and jury deliberation rooms. The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to all other buildings owned or managed by the county which are located within the city. (Prior code § 37.01.015)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to libraries, museums, aquariums, galleries, convention halls and similar facilities where members of the general public assemble for the purpose of viewing the exhibition of art, artifacts, objects of historical or cultural significance, products, merchandise, equipment, appliances or services. (Prior code § 37.01.016)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to hospitals, rest and convalescent homes, medical clinics, physical therapy facilities and other places where medical, dental, psychiatric or counseling services are delivered to members of the general public. Operators of facilities treating psychiatric or chemically impaired patients may permit smoking by patients in designated areas provided the medical director of such facility has determined in writing that the practice is beneficial for the recovery or treatment of such patients and that the practice will not interfere with the recovery and treatment of nonsmoking patients, and provided that adequate nonsmoking areas are made available for nonsmoking patients. Neither this section nor Section 8.80.040 of this chapter shall be construed to prevent smoking in locations or otherwise under conditions in which smoking is expressly authorized by or under statutes or administrative regulations applicable to such licensed facilities. (Prior code § 37.01.017)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to any school or educational institution operated by a commercial enterprise or nonprofit entity for the purpose of providing academic classroom instruction, trade, craft, computer or other technical training, or instruction in dancing, artistic, musical or other cultural skills.

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to public school facilities when school district management authorizes their use by members of the general public other than students. (Prior code § 37.01.018)

The prohibitions contained in Section 8.80.040 of this chapter shall be applicable to private residences during the time when such residences are operated as licensed day care facilities for children. (Prior code § 37.01.019)

Smoking is prohibited in enclosed workplaces of commercial enterprises, nonprofit entities and all city owned and managed buildings including, but not limited to, open office areas, shared offices, private offices, hallways, restrooms, escalators, elevators, stairways, lobbies, reception areas, and waiting rooms, classrooms, meeting or conference rooms, and auditoriums.

On-site cafeterias, lunchrooms and lounges shall be deemed workplaces and smoking prohibited therein, whether or not such facilities are open to members of the general public.

Each commercial enterprise, nonprofit entity and the city shall comply with these smoking prohibitions and be responsible for their implementation in the workplace, and "no smoking" signs shall be posted in the manner prescribed by Section 8.80.230 of this chapter. (Prior code § 37.01.020)

Smoking may be permitted in all locations where smoking is not prohibited by this chapter, including the following locations:

A. A private residence, including an attached or detached garage, whether or not the residence is utilized for office or other business purposes, except when such residence is operated as a licensed day care facility for children;

B. Bars;

C. Tobacco stores, whether operated as a separate business entity or as a physically separated facility within a department store or other business entity;

D. Private clubs during events attended exclusively by members of the organization and their invited guests and from which members of the general public are excluded;

E. Within conference/meeting rooms, public and private assembly rooms, banquet rooms, dining rooms or areas of restaurants, hotels and motels, while these places are occupied for private functions to which only persons specially invited are entitled to attend and from which members of the general public are excluded;

F. In any enclosed place wherein this chapter specifically permits smoking, notwithstanding the fact that such location is a workplace.

It shall not constitute a violation of Section 8.80.040 of this chapter for a person to smoke in a location where smoking has been authorized in the manner prescribed by this section.

The foregoing places are not considered workplaces subject to the provisions of Section 8.80.200 of this chapter. Employers will, however, attempt to find a reasonable alternative accommodation where feasible for nonsmoking employees who do not wish to be assigned to work in a smoking permissible area.

Notwithstanding any provision in this chapter which permits smoking in a place of employment, any nonsmoking employee may object to his or her employer about smoke in his or her workplace. The employer shall attempt to reach a reasonable accommodation, insofar as possible. If an accommodation which is satisfactory to all affected nonsmoking employees cannot be reached within a particular workplace, the commercial enterprise, nonprofit entity or city who employs the nonsmoking employees shall formulate, promulgate and implement restrictions or prohibitions upon smoking in a manner which accommodates the reasonable preferences and needs of the nonsmoking employees in relation to the nuisance and health impacts of the smoking upon the nonsmokers. The area in which smoking is prohibited shall be posted by "no smoking" signs in the manner prescribed by the provisions of Section 8.80.230 of this chapter. (Prior code § 37.01.021)

Any owner or manager of a business or other establishment subject to this chapter may apply to the chief of the environmental health division for an exemption or modification to its provisions. Exemptions may only be granted on (1) a showing by the petitioner of significant financial hardship due to compliance, or (2) the proposed implementation of an alternative approach or technology which would provide equivalent protection from the health hazards of sidestream smoke.

An application for exemption will be accompanied by a reasonable fee to cover the cost of preparation for the hearing, and the application will include any data required by the division. The division will review the application and submit it, with recommendations, for hearing by the Sacramento environmental commission. The applicant will be entitled to present evidence at the hearing which will be scheduled within sixty (60) days of the receipt of the application.

The commission will, after taking into consideration the testimony received at the hearing, issue its findings and recommendations within twenty (20) days of the completion of the hearing. The division will complete procedural action on the application and notify interested parties within twenty (20) days of its receipt from the commission.

The applicant may appeal the commission's decision to the city council within thirty (30) days of receipt of the action notification by the division. Upon appeal, the city council will set a hearing within sixty (60) days and make a final determination at that hearing. (Prior code § 37.01.022)

Each owner, operator, manager or other person having control of an establishment or facility within which smoking is regulated by this chapter shall conspicuously post in every place where smoking is prohibited "no smoking" signs with letters 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).

An owner, operator, or manager of a building wherein, pursuant to these regulations, there is no smoking permitted in any space in the building may limit the "no smoking" postings to first floor entrances and exits and to the elevator lobby areas of all other floors.

Motion picture theaters shall show upon the movie or live action screens for at least five seconds prior to the showing of each feature motion picture the message that smoking is prohibited within the audience seating and other areas as specified.

Hotels and motels will prominently post in the lobby a sign notifying patrons of the availability of nonsmoking accommodations. The rooms so designated will be posted as nonsmoking rooms and ashtrays removed. (Prior code § 37.01.023)

It is unlawful for a commercial enterprise, nonprofit entity, or city to retaliate against any member of the general public or an employee or applicant for employment of the enterprise, entity or city because such member of the general public, employee or applicant seeks enforcement of the provisions of this chapter or otherwise protests smoking by others. (Prior code § 37.01.024)

Any person who violates the prohibition contained in Sections 8.80.050 through 8.80.190 of this chapter and any person who violates Section 8.80.230 of this chapter by failing to post the signs or take the other actions required by this section shall be guilty of an infraction, punishable in the manner hereinafter prescribed.

Fines for the crimes made infractions by this section shall be levied in the amounts prescribed by Section 36900 (b) of the Government Code, as that section may hereafter be amended or renumbered. (Prior code § 37.01.025)

Violation of any of the provisions of Section 8.80.240 through 8.80.260 of this chapter shall be remedied through civil action filed in a court of competent jurisdiction for injunctive or other appropriate relief. (Prior code § 37.01.026)

It is the responsibility of the chief of the environmental health division, Sacramento County department of environmental management to enforce, in behalf of the city, the provisions of this chapter. The chief shall be authorized to prosecute, in the name of the city, pursuant to the provisions of Sections 25132 and 36900 of the Government Code, civil actions for the recovery of fines for violations of this chapter made infractions by Section 8.80.250 of this chapter for violations of Sections 8.80.050 through 8.80.230 of this chapter.

In the performance of the enforcement responsibilities assigned by this chapter, the chief of the environmental health division shall:

A. Establish a telephone number through which all complaints by citizens relating to violations of this chapter may be directed or referred;

B. Reduce such complaints to writing, and analyze the frequency and volume thereof in relation to alleged violations of this chapter by or at particular establishments or facilities;

C. Conduct an on-site inspection of any establishment or facility with respect to which the nature and volume of complaints suggests long-standing and pronounced violations of any of the provisions of this chapter;

D. Provide to the owner, operator or manager of any such establishment or facility a copy of the provisions of this chapter and such advisory assistance to rectify future violations as may be necessary to achieve compliance with the provisions of this chapter;

E. Follow up such investigation and advice with a written directive explaining in detail the steps required in order to achieve future compliance with the provisions of this chapter; and

F. If the violations do not cease following the expiration of a reasonable period of time, commence civil actions for the recovery of infraction fines pursuant to the provisions of Section 8.80.250 of this chapter or request commencement of a civil proceeding by the county counsel pursuant to the provisions of Section 8.80.260 of this chapter, as may be appropriate.

The environmental health division shall affirmatively seek the support and cooperation of other local public agencies, such as fire protection districts, to provide information, assistance and advice in the enforcement of the provisions of this chapter, during the conduct by any of such agencies of on-site inspections of establishments or facilities.

The provisions of Section 8.80.240 of this chapter shall not be remedied by either the chief of environmental health or any other county or city official. Any member of the general public, an employee or applicant for employment may pursuant to the provisions of Section 8.80.260 of this chapter commence in his or her name a civil action for injunctive relief, monetary damages or other appropriate relief against a person who violates Section 8.80.240 of this chapter pursuant to the provisions of Section 8.80.260 of this chapter. A member of the general public or employee shall also be authorized to individually commence a civil action pursuant to the provisions of Section 8.80.260 for injunctive relief, monetary damages or other appropriate relief for the purpose of remedying any other violation of the provisions of this chapter. (Prior code § 37.01.027)