Salinas Municipal Code Art. XI Smoking Pollution Control

Footnotes:

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Editor's note— Ord. No. 2645(NCS), § 2, adopted June 8, 2021, amended Article XI in its entirety to read as herein set out. Former Article XI, §§ 19-90—16-99, 16-100—16-107, 16-109—16-112, 16-114—16-117, pertained to similar provisions, and derived from Ord. No. 2041 (NCS), § 1; Ord. No. 2048 (NCS), § 1; Ord. No. 2214 (NCS), §§ 1—34; Ord. No. 2220 (NCS), §§ 1—3; Ord. No. 2246 (NCS), §§ 2, 3, 5, 6; Ord. No. 2249, (NCS), §§ 1, 2.

The city council hereby finds as follows: The Environmental Protection Agency has designated secondhand smoke a Class A carcinogen. Tobacco smoke is a major contributor to indoor air pollution. The smoke generated by smokers is a significant health hazard for several populations who are subjected to the smoke, including pregnant women and their unborn children, infants, elderly persons, individuals with cardiovascular disease, individuals with impaired respiratory function including asthmatics, those with obstructive airway disease, and those who are allergic to smoke. The health hazards induced by involuntary smoking include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronco-constriction, and bronchospasm. The health care costs produced by the ailments and diseases resulting from smoking are enormous, and redound to the detriment of both innocent individuals and the public. The air pollution caused by smoking is an offensive annoyance and irritant to, and results in serious and significant physical discomfort of non-smokers, and constitutes a public nuisance in public places and workplaces. Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to businesses.

This article is enacted pursuant to California law for the purpose of restricting smoking and regulating in public places in order to reduce the hazards which smoking cause to those who involuntarily exposed thereto, to restrict and otherwise regulate smoking within work places for the protection of employees who are involuntarily exposed thereto.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

For the purpose of this article, the following definitions shall apply:

(a) "Bar" means an alcohol sales establishment where the primary use if the same and on-site consumption of alcoholic beverages and where secondary uses may include food service. The premises may contain a counter upon and over which alcoholic beverages, such as beer, wine, and distilled spirits are served.

(b) "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit making purposes or for non-profit purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities under which professional services are delivered.

(c) "Dining area" means any area, including streets and sidewalks, which is available to or which is customarily used by the general public or an employee and which is designed, established, or regularly used for consuming food or drink.

(d) "Electronic smoking device" means an electronic and/or battery-operated device which can be used to deliver an inhaled dose of nicotine or other substance, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic smoking device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar or cigarillo, electronic pipe, electronic hookah, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

(e) "Employee" means any person who is employed or retained as an independent contractor 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 nonprofit entity.

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

(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 passage ways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or similar structures.

(h) "Members of the general public" means shoppers, customers, patrons, patients, students, clients and other similar invitees of a business, nonprofit entity, or the city.

(i) "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 financial gain. A public agency is not a "nonprofit entity" with the meaning of this section.

(j) "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 or any other public agency.

(k) "Place of employment" means an area enclosed by four walls under the control of a public or private employer, 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, including but not limited to all hallways, stairways, elevators, employee cafeterias, escalators, restrooms, lobbies, waiting rooms, reception areas, entry areas, conference and classrooms within or associated with the complex of such enclosures. A private residence is not a "place of employment" unless used as a child care or health care facility.

(l) "Public place" means any area to which the public is invited or in which the public is admitted, including but not limited to banks, educational facilities, health facilities, public transportation facilities, recreation areas, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms. A private residence is not a "public place," unless it is used as a health care facility or is a child care facility that is not required to be licensed by the state or is subject to state smoking regulations because it is used as a state licensed child care facility.

(m) "Restaurant" means a commercial establishment, with kitchen facilities, which is regularly, and in a bona fide manner, used principally for the preparation, cooking, or serving of food to customers or compensation and where seating or other physical accommodation (whether indoors or outdoors) is provided for on-site dining.

(n) "Service area" means any outdoor area where one or more persons are waiting for or receiving service of any kind, including, but not limited to, automatic teller machines (ATMs), ticket lines, bus stops, and boarding and waiting areas of public transit depots.

(o) "Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited "tobacco product" or "electronic smoking device" or any plant intended for human inhalation. "Smoking" includes smoking marijuana for medical purposes or recreational purposes.

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

(q) "Motion picture theater" means any theater engaged in the business of exhibiting motion pictures.

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

(s) "Sports arena" means enclosed or open 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 to either engage in physical exercise, participate in athletic competition, or witness sports events.

(t) "Tobacco product" means:

(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including but not limited to cigarettes, cigars, cigarillos, chewing tobacco, pipe, or hookah tobacco, or snuff;

(2) Any "electronic smoking device" that delivers nicotine to the person inhaling from the device, including but not limited to an electronic cigarette, cigar, pipe, or hookah; and

(3) Any component, part, or accessory of a "tobacco product" whether or not sold separately.

(4) "Tobacco product" does not include any cessation product approved by the United States Food and Drug Administration for use as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(u) "Tobacco vending machine" means any machine or device designated for use for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coins, bills, trade checks, or slugs.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

Except as provided in this article, smoking is prohibited in the following places located in the City of Salinas:

(a) Buildings. All enclosed areas of buildings which are open to the public.

(b) Covered public parking lots and parking areas, including stairwells.

(c) Buses, taxicabs, shuttles, or other means of transportation operating in the City of Salinas.

(d) Service areas.

(e) City-owned vehicles.

(f) Where any person or entity that either owns or exercises management and control over the property and has declared the area, where smoking would otherwise be allowed, to be a non-smoking area and posts "No Smoking" signs as described in this article.

(g) Enclosed places of employment.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

Notwithstanding what is otherwise provided in this article, breakrooms designated by employers for smoking, provided that all of the following conditions are met:

(a) Air from the smoking room shall be exhausted directly to the outside by an exhaust fan. Air from the smoking room shall not be recirculated to other parts of the building, and meet all applicable state and federal ventilation standards.

(b) The smoking room shall be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter. For purposes of this section, "work responsibilities" does not include any custodial or maintenance work carried out in the breakroom when it is unoccupied.

(c) There are sufficient nonsmoking breakrooms to accommodate nonsmokers.

This section shall not be construed to require employers to provide reasonable accommodation to smokers or to provide breakrooms for smokers or nonsmokers.

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

(Ord. No. 2645(NCS), § 2, 6-8-2021)

The prohibitions set forth in this article shall not be applicable to or be deemed to prohibit smoking in any of the following places:

(a) A private residence, including an attached or detached garage except when used as a childcare facility that does not require a state license, health care, board and care or community foster care facility;

(b) Within any facility described in this article which is operated by the United States of America, the State of California, any municipal corporation other than the city, any political subdivision of the State of California, or any special district formed under the laws of the State of California for the local performance of governmental or other functions;

(c) Bars to the extent excepted by Labor Code Section 6404.5(f);

(d) Gaming clubs as defined in Business and Professions Code Section 19802 or bingo facilities as defined in Penal Code Section 326.5, if all of the following conditions are met:

(1) The facility is excepted by Labor Code Section 6404.5,

(2) The facility permits only adults eighteen years of age or older to enter, and

(3) Signs are posted in the manner prescribed by this article authorizing smoking in any room which is fully enclosed by walls from floor to ceiling made available for the use and convenience of smokers, provided that such rooms shall not include an area greater than twenty-five percent of the total floor space committed to the primary activity, purpose or function of the facility and that the smoking permitted and smoking prohibited rooms are separately ventilated;

(e) Patient smoking areas in long-term health care facilities, as defined in Health and Safety Code Section 1418, provided that:

(1) Signs are posted in the manner prescribed by this article authorizing smoking in the patient smoking areas,

(2) The patient smoking areas are fully enclosed by walls from floor to ceiling,

(3) The smoking permitted and smoking prohibited rooms are separately ventilated, and

(4) The patient smoking rooms shall not include an area greater than twenty-five percent of the total floor space committed to the primary activity, purpose or function of the facility.

(f) Twenty percent of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment per California Labor Code section 6404.5(e)(1).

(g) It shall not constitute a violation of this article for a person to smoke in a location where smoking has been authorized in the manner prescribed by this section.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

(a) Each owner, operator, manager or other persons having control of an establishment or facility within which smoking is regulated by this article shall conspicuously post clear and prominent signs in every building or structure, as follows:

(1) Where smoking is prohibited throughout the building, structure or premises, a sign stating "No smoking" shall be posted at each entrance to the building, structure or premises;

(2) Where smoking is permitted in designated areas of a building or structure, a sign stating "Smoking is prohibited except in designated areas" shall be posted at each entrance to the building, structure or premises.

(b) Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designed as being nonsmoking shall have signs designating such restriction conspicuously placed within the room.

(c) The rule of this article is that smoking within areas described in this article is prohibited unless expressly authorized by "Smoking Permitted" signs. All persons are presumed to know the law in general, and to be aware of the prohibitions contained in this article respecting smoking, in particular. Therefore, the absence of any "No Smoking" sign required by this article shall not excuse a violation of this article perpetrated by smoking or otherwise constitute a defense to any criminal or other proceeding commenced for the purpose of enforcing the provisions of this article against prohibited smoking.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

(a) Any person, business, tobacco retailer or other establishment subject to this article shall post at the point of purchase of tobacco products plainly visible signs which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN (18) YEARS OF AGE IS PROHIBITED BY LAW." The letters of said signs shall be at least one-quarter inch high.

(b) It shall be unlawful for any person, business, tobacco retailer or other establishment subject to this article to sell, permit to be sold, or offer for sale any tobacco product by any means other than vendor-assisted sales.

(c) Vending machines prohibited. No tobacco product shall be sold or distributed from a vending machine or appliance, or any other coin or token-operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking devices.

(d) Any person, business, tobacco retailer, or owner, manager or operator of any establishment subject to this article who violates any provision of this section shall be deemed guilty of a misdemeanor.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

(a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the regulations of this article to fail to comply with its provisions.

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

(c) Any violation of this article is punishable as an infraction unless specifically designated as a misdemeanor. For any violation punishable as an infraction, penalties shall be imposed as follows:

(1) A fine not exceeding one hundred dollars for the first violation;

(2) A fine not exceeding two hundred dollars for a second violation within twelve months; and

(3) A fine not exceeding five hundred dollars for a third violation within twelve months.

(d) Any violation of the provisions of this article is also subject to administrative fines are provided in Article V of Chapter 1 of this Code.

(e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article.

(f) Any person smoking where smoking is prohibited by this article shall constitute a public nuisance.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

All exemptions from the prohibitions of this article granted by the health officer under previously enacted ordinances shall have no further force and effect upon the effective date of the ordinance codified in this article.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

(a) The county health officer or his/her designee shall enforce and implement this article.

(b) Any citizen who desires to register a complaint under this chapter may initiate enforcement with the health officer, or his or her designee.

(c) The fire department or the health department may require, while an establishment is undergoing otherwise mandated inspections, permits or other approvals, a certification from the owner, manager, operator or other person having control of such establishment that all requirements of this chapter have been complied with.

(d) Any owner, operator or employee of any establishment regulated by this article may inform persons violating this article of the appropriate provisions thereof.

The health officer shall affirmatively seek the support and cooperation of other local public agencies to provide information, assistance and advice in the enforcement of the provisions of this article, during the conduct by any of such agencies of on-site inspections of establishments or facilities the smoking upon which is regulated by the provisions of this article.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

Notwithstanding any other provision of this article to the contrary, any owner, operator, manager or other person who controls any establishment described in this article may declare that entire establishment as a nonsmoking establishment. Violation of such voluntary nonsmoking policy or enforceable only by the owner, operator, manager, or other person who controls the establishment.

(Ord. No. 2645(NCS), § 2, 6-8-2021)

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

(Ord. No. 2645(NCS), § 2, 6-8-2021)