San Diego Municipal Code Div. 10 Regulations on Smoking and Use of Electronic Cigarettes

(“Smoking Regulations” added 3–8–1994 by O–18047 N.S.) (Retitled to “Regulations on Smoking and Use of Electronic Cigarettes” on 10-2-2014 by O-20408 N.S.; effective 11-1-2014.)

For purposes of this Division, the following definitions apply:

Boardwalk means the public walkway on Ocean Front Walk in Mission Beach,
beginning at the South Mission Beach Jetty northward to the terminus of the public
walkway at Ocean Boulevard and Law Street in Pacific Beach. Also, the public
walkway at Ocean Beach Park and the public walkway (the La Vereda and Calle
Opima rights-of-way) at Kellogg Park at La Jolla Shores Beach.

Child care facility has the same meaning as in San Diego Municipal Code section
113.0103.

City-owned fishing pier includes, without limitation, the Ocean Beach Municipal Pier
and the City-owned portions of Crystal Pier, including that area subject to leasehold.

Electronic cigarette means an electronic device that delivers vapor for inhalation,
including hookah pens, vape pipes, and electronic hookahs. Electronic cigarette does
not include any product approved by the United States Food and Drug Administration
for sale as a drug or medical device.

Electronic cigarette paraphernalia has the same meaning as in San Diego Municipal
Code section 33.4502.

Electronic cigarette shop means any business establishment the main purpose of
which is the sale of electronic cigarettes, electronic cigarette paraphernalia, or
vaping juice.

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. It
includes work areas, private offices, employee lounges, conference rooms, and
employee cafeterias.

Police permit has the same meaning as in San Diego Municipal Code section
33.0201.

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Public beach has the same meaning as coastal beach, as defined in San Diego Municipal Code [Code] section 113.0103, provided that the coastal beach is owned or controlled by the City of San Diego.”

Public park has the same meaning as in Code section 113.0103.

Public place means any enclosed area where the public is routinely permitted without special invitation. It includes retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities, health facilities, and public transportation facilities.

Seawall has the same meaning as in Code section 56.54(a).

Smoke or smoking includes the carrying of a lighted pipe, lighted cigar, or lighted cigarette of any kind, or the lighting of a pipe, cigar, or cigarette of any kind.

Tot lot means a play area designed for use by children that is located in a public park. The boundary of a tot lot is typically defined with concrete or wood, but may be defined by other material.

Vape or Vaping means the use of an electronic cigarette in any of the following ways: (1) through inhalation or exhalation of vapor from an electronic cigarette; or, (2) by holding or otherwise activating an electronic cigarette such that any vapor is being emitted from it.

Vaping juice has the same meaning as in San Diego Municipal Code section 33.4502.

Vaping lounge means any enclosed area in or attached to an electronic cigarette shop that is dedicated to the use of electronic cigarette products, including vaping juice. (Amended 11–27–2000 by O–18892 N.S.) (Amended 7-18-2006 by O-19508 N.S.; effective 8-17-2006) (Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.) (Renumbered from former Section 43.1002 and amended 10-2-2014 by O-20408 N.S.; effective 11-1-2014.)

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(a) It is unlawful to smoke or vape in an enclosed public place or an enclosed place of employment except in a designated outdoor smoking or vaping area lawfully established in accordance with this Division or the law of the State of California.

(b) It is unlawful to smoke or vape in a tot lot or within fifty feet of a tot lot. This
prohibition does not apply to private property.

(c) It is unlawful for an owner, operator, or manager of any facility, business, or
agency to designate or maintain a smoking or vaping area in a public place or
place of employment which does not comply with the requirements of San
Diego Municipal Code sections 43.1003 and 43.1004.

(d) It is unlawful for an owner, operator, or manager of any facility, business, or
agency to knowingly permit ashtrays or other ash receptacles to be located in
areas where smoking or vaping is prohibited by this Division.

(e) It is unlawful to intimidate, threaten any reprisal, or effect any reprisal, for the
purpose of retaliating against another person who seeks to attain compliance
with the provisions of this Division.

(f) It is unlawful to tamper with, remove, deface, destroy or otherwise vandalize
any sign designating either:

(1) the prohibition of smoking or vaping, or

(2) a demarcated area for smoking or vaping as described in Code section
43.1002(g).

(g) It is unlawful to smoke or vape in a public park or public beach, on a
boardwalk, seawall, City-owned fishing pier, or on the Cabrillo Bridge in
Balboa Park, except in a temporary or permanent area authorized by the City
of San Diego that is clearly demarcated by signs in conformity with this
Division.

(h) It is unlawful to smoke, vape, and ingest cannabis or cannabis products at
Special Events.

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(i) It is unlawful to vape cannabis or cannabis products in a vaping lounge.

(Amended 11–27–2000 by O–18892 N.S.) (Amended 7-18-2006 by O-19508 N.S.; effective 8-17-2006) (Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.) (Renumbered from former Section 43.1003 and amended 10-2-2014 by O-20408 N.S.; effective 11-1-2014.) (Amended 2-22-2017 by O-20794 N.S.; effective 3-24-2017.) (Amended 1-8-2020 by O-21163 N.S.; effective 2-9-2020.)

(a) Designated areas for smoking and vaping may be established in a temporary or permanent manner, by the City Manager, or the City Manager’s designee, pursuant to the provisions of San Diego Municipal Code section 43.1005, or by the owner or operator of a private facility pursuant to the provisions of this Division and California state law.

(b) Any designated area for smoking or vaping shall be clearly marked and shall
conform with all provisions of this Division and with any applicable
California state law.

(c) Notwithstanding any other provisions of this Division, any facility or area
may be designated in its entirety as a no–smoking area or no-vaping area by
its owner or manager.
(Renumbered from Sec. 45.0104 and amended 3–8–1994 by O–18047 N.S.)
(Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.)
(Renumbered from former Section 43.1004, retitled from “Designation of Smoking
Areas” to “Designation of Areas for Smoking and the Use of Electronic Cigarettes”
and amended 10-2-2014 by O-20408 N.S.; effective 11-1-2014.)

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(a) The owner, operator or manager of any public place or place of employment shall ensure that signs are posted in accordance with this section 43.1004 to designate smoking and no–smoking areas as well as vaping and no-vaping areas.

(b) Signs which designate smoking or no–smoking areas as well as vaping and no-
vaping areas established by this Division shall be clearly, sufficiently, and
conspicuously posted in every building and place covered by this Division.

(c) No–smoking and no-vaping signs shall be specifically placed in retail food
production and marketing establishments, including but not limited to grocery
stores and supermarkets open to the public, so that they are clearly visible to
persons entering the establishment, and clearly visible to persons at meat and
produce counters.

(d) Signs shall be placed at all entrances to public places and places of
employment, including restaurants, which read substantially as follows: NO
SMOKING AND NO USE OF ELECTRONIC CIGARETTES EXCEPT IN
DESIGNATED AREAS.

(e) Smoking and vaping shall be permitted in public places and places of
employment, only in areas where smoking may be authorized under state law
and provided that signage is conspicuously posted that provides notice that
smoking, vaping or both is specifically allowed and reads substantially as
follows: DESIGNATED AREA FOR SMOKING AND THE USE OF
ELECTRONIC CIGARETTES.

(f) A sign may demarcate a designated area for the use of vaping and disallow
smoking as well as vice versa.

(Renumbered from Sec. 45.0105 and amended 3–8–1994 by O–18047 N.S.)
(Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.)
(Renumbered from former Section 43.1005 and amended 10-2-2014 by O-20408
N.S.; effective 11-1-2014.)

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(a) Prohibitions on smoking in places of employment do not apply to areas exempt under California Labor Code section 6404.5(e).

(b) Nothing in this Division shall be construed to prohibit smoking or vaping by
any theatrical or musical artist while the artist is performing on stage,
provided that smoking or vaping is a bona fide part of the act and that no other
laws, ordinances, or regulations are violated.

(c) The owner or manager of a business or other establishment subject to this
Division may apply to the City Manager for an exemption or modification of
the provisions of this Division due to unique or unusual circumstances or
conditions, provided the request may be granted by the City Manager under
California state law.

(d) The City Manager, or a designee of the City Manager, shall have the sole
authority and discretion to grant or deny requests for exemptions submitted
under San Diego Municipal Code section 43.1005. The City Manager, or
designee, shall take due account of the following considerations, as they
reasonably apply to each application:

(1) Whether the applicant for an exemption under this section has
demonstrated an adequate understanding of the requirements of this
Division, such that it is clear that the application is not based on a
misunderstanding of the minimum requirements of compliance with
this Division.

(2) The efforts that the applicant for an exemption under this section has
made to comply with the requirements of this Division.

(3) The physical structure of the area for which the exemption is sought.

(4) The number of employees in or near the area for which the exemption
is sought.

(5) The nature and frequency of contact that the applicant’s business has
with the public.

(6) Whether physical disabilities of employees would render compliance
with the requirements of this Division unreasonably difficult.

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The applicant shall provide substantial evidence that the claimed unique or unusual circumstances exist, and that there is a necessary and compelling reason to grant an exemption.

(e) Except as prohibited by Section 43.1002(i), prohibitions on vaping do not apply to a vaping lounge or an electronic cigarette shop provided that such a business establishment obtains a police permit to operate as an electronic cigarette retailer as required in San Diego Municipal Code section 33.4503 and that the area for vaping is not accessible to anyone under 21 years of age, except active duty military personnel with a valid United States Armed Forces identification card.

(f) Prohibitions on smoking and vaping do not apply to a private residence,
including one which may serve as a place of employment or public place,
except for a private residence licensed as a child care facility, during the hours
of operation of the child care facility and in those areas of the child care
facility where any minor is present.

(Renumbered from Sec. 45.0107, retitled to “Exemptions” and amended 3–8–1994 by
O–18047 N.S.)
(Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.)
(Renumbered from former Section 43.1007 and amended 10-2-2014 by
O-20408 N.S.; effective 11-1-2014.)
(Amended 2-22-2017 by O-20794 N.S.; effective 3-24-2017.)

(a) The City Manager is responsible for ensuring compliance with this Division in facilities owned, operated or leased by the City of San Diego.

(b) The owner, operator or manager of any facility, business or agency shall post
or cause to be posted all signs required by San Diego Municipal Code section
43.1004. Owners, operators, managers or employees of a facility, business, or
agency are required to orally inform persons violating this Division of its
provisions. The duty to inform a violator shall arise when the owner, operator,
manager or employee becomes aware of such violation.

(c) Employers shall provide information concerning the provisions of this
Division to their employees.

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(d) Any owner, operator, manager, or employee of any facility, business, or
agency who after having informed a violator of this Division of the Division’s
provisions continues to witness the violation, has the express right to refuse
business or service to the violator.
(Renumbered from Sec. 45.0108, retitled to “Duty to Enforce” and amended 3–8–
1994 by O–18047 N.S.)
(Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.)
(Renumbered from former Section 43.1008 and amended 10-2-2014 by O-20408
N.S.; effective 11-1-2014.)

(a) Any person who violates any provision of this Division by smoking in a posted “No Smoking” area or by vaping in a posted “No electronic cigarette” area is guilty of an infraction and, upon conviction, shall be punished by a fine of not less than ten dollars ($10) nor more than one hundred dollars ($100).

(b) An owner, operator or manager of any facility, business, or agency who
knowingly permits patrons to violate San Diego Municipal Code section
43.1002, or who knowingly fails to discharge any duty arising from the
provisions of this Division, is guilty of a misdemeanor and subject to any
enforcement option or penalty provision set forth in Chapter One of the San
Diego Municipal Code to address violations of law.

(Renumbered from Sec. 45.0109 and amended 3–8–1994 by O–18047 N.S.)
(Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.)
(Renumbered from former Section 43.1009 and amended 10-2-2014 by O-20408
N.S.; effective 11-1-2014.)

The City Manager or his designee may engage in a continuing program to inform City employees, citizens, visitors, business owners, and operators of their responsibility to comply with the prohibitions on smoking and vaping provided in this Division. (Renumbered from Sec. 45.0110 and amended 3–8–1994 by O–18047 N.S.) (Amended 5-21-2007 by O-19620 N.S.; effective 6-20-2007.) (Renumbered from former Section 43.1010, retitled from “Education for No–Smoking Program” to “Education for No–Smoking and No-Electronic Cigarette Program” and amended 10-2-2014 by O-20408 N.S.; effective 11-1-2014.)

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Article 3: Environmental Health Quality Controls

(Retitled from “Water Quality Controls” on 3-8-1994 by O-18047 N.S.)