San Joaquin County Municipal Code Ch. 3 Smoking Pollution Control

This chapter shall be known as the Smoking Pollution Control Ordinance.

(Ord. 3456)

The Board hereby finds that:

Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and

Reliable studies have shown that breathing secondhand smoke is a significant health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

Nonsmokers who suffer allergies, respiratory diseases, and other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and

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

Smoking is a documented cause of fires, cigarette and cigar burns, and ash stains on merchandise and fixtures resulting in economic losses to businesses.

Accordingly, the Board finds and declares that the purposes of this chapter are (1) to protect the public health and welfare by 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 smokers 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. 3456)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

(a) "Bar" means an enclosed area which is devoted to the serving of alcoholic beverages and in which the serving of food, if any, is merely incidental to the consumption of such beverages.

(b) "Billiard parlor" or "pool hall" or "pool room" means an enclosed area which is primarily devoted to the playing of billiards, pool, or similar games played on a table by striking small balls with a cue stick and in which the serving of food or alcoholic beverages, if any, is merely incidental to the playing of such games.

(c) "Bingo parlor" or "bingo hall" means any enclosed area in which the game of bingo is conducted.

(d) "Bowling alley" means an enclosed area where the game of bowling is performed, consisting of one or more bowling lanes along which a ball is propelled with the object of knocking down pins arranged at the at the opposite end and in which the service and/or consumption of food and/or alcoholic beverages, if any, are merely incidental.

(e) "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.

(f) "Card room" means any enclosed area primarily used for playing cards.

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

(h) "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who performs volunteer services for a nonprofit entity.

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

(j) "Enclosed" means closed in by a roof and walls with appropriate openings for ingress and egress.

(k) "Hallway" means an enclosed corridor or passageway which connects two or more rooms, areas, or spaces.

(l) "Lobby" means an enclosed common area generally larger than a hallway which connects exterior entrances with one or more rooms or areas or which connects exterior entrances with one or more rooms or areas or which connects two or more rooms, including, without limitation, any area commonly known as a foyer, vestibule or anteroom.

(m) "Mall" means those areas of enclosed shopping centers or retail areas that are external to the retail stores and are used by customers as a route of travel from store to store and consist primarily of walkways and seating arrangements.

(n) "Nonprofit entity" means any corporation, unincorporated association, or other entity created for charitable, educational, political, social, or other similar purposes, the net operational proceeds of which are committed to the promotion of the objectives or purposes of the organization and not to private financial gain. A public agency is not a "nonprofit entity" within the meaning of this section.

(o) "Place of employment" means any enclosed area under the control of a public or private employer normally frequented by employees during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, libraries, cafeterias, and hallways, except:

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

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

(p) "Public place" means any enclosed 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, theaters, waiting rooms, and restrooms.

(q) "Restaurant" means any enclosed coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boarding house, or guest house which gives or offers food for sale to the public, guests, patrons, or employees, 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 subsection (a) of this section.

(r) "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories.

(s) "Service line" means any indoor 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.

(t) "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, or other combustible substance.

(u) "Sports arena" means enclosed sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller, and ice rinks, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.

(v) "Tractor trailer rig" means a vehicle consisting of a truck tractor and at least one trailer as those terms are defined in the California Vehicle Code.

(w) "Truck stop" means a restaurant adjacent to a freeway or truck route with parking facilities designed for and capable of accommodating at least five tractor trailer rigs simultaneously.

(x) "Work area" or "work place" means any specific portion of a place of employment to which one or more persons are assigned or which is customarily used by an individual to perform work for an employer, including, without limitation, desks, work tables, work stations, and similar physically definable areas.

(Ord. 3456)

No smoking shall be permitted in County vehicles or enclosed facilities owned, operated or controlled by the County except:

(a) In patient rooms under doctor's orders when consistent with accreditation or licensing requirements.

(b) In the inmate living units of the Main Jail and the Women's Jail until such time as the Jail Complex under construction is occupied.

(c) In the Airport Terminal Restaurant and Lounge area with the ratio seventy-five (75) percent no smoking and twenty-five (25) percent smoking.

(d) In leased buildings to private parties which shall comply with the other provisions of this chapter.

(e) In Sheriff's vehicles when the nonsmoking Sheriff's personnel consent.

(Ord. 3456; 3623)

(a) Smoking shall be prohibited in all enclosed public places, buildings open to the general public, and vehicles used for public transportation within the County, unless excepted herein, including, but not limited to:

(1) Elevators;

(2) Buses and other means of public transit under the authority of the County and ticket, boarding, and waiting areas of public transit depots; provided, however, that this prohibition does not prevent the establishment of a maximum of twenty-five percent (25%) of a given waiting room as a smoking area or a separate room, not to exceed twenty-five percent (25%) of the total seating capacity, where smoking is permitted. Smoking by persons waiting in line to purchase tickets, tokens, or other evidences that a fare has been paid is prohibited;

(3) Service lines;

(4) Retail stores except areas in said stores not open to the public and all areas within retail tobacco stores;

(5) Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving food and drink, restrooms and offices, and areas thereof not open to the public which are otherwise regulated by this division;

(6) All enclosed areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, common areas within hotels, motels, banks, and other financial institutions, and offices, except in properly designated lawful smoking areas; provided, however, that this prohibition does not prevent designation of a separate room or the establishment of specific areas where smoking is permitted not to exceed fifty percent (50%) of such areas;

(7) Restaurants may designate the facility as totally nonsmoking or shall provide and designate nonsmoking areas of not less than seventy percent (70%) of the total seating capacity;

(8) Public areas of aquariums, libraries and museums when open to the public; provided, however, that this prohibition does not prevent the designation of a separate room for smoking in such areas;

(9) Any building not open to the sky which is used primarily for exhibiting any motion picture, stage, drama, lecture, musical recital, or other similar performance, except when smoking is part of a stage production; provided, however, that this prohibition does not prevent the designation of a contiguous area containing a maximum of fifty percent (50%) of a lobby as a smoking area;

(10) Sports arenas and convention halls, except in a separate room or designated smoking areas of the lobby, not to exceed fifty percent (50%) of such area; provided, however, that when a sports arena is being used for a spectator event, smoking may be permitted in designated areas throughout the facility up to a maximum of fifty percent (50%) of the total seating capacity;

(11) Every room, chamber, and place of meeting or public assembly, including school buildings under the control of any board, council, commission, committee, or agencies of the County 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 County, except in work areas designated for smoking or in a lobby area designated as a smoking area which does not exceed fifty percent (50%) of such lobby area;

(12) Waiting rooms, hallways, wards, and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, pharmacies, doctors' offices, and dentists' offices, except that separate, enclosed waiting rooms where smoking is permitted may be designated, not to exceed thirty percent (30%) of the total waiting room capacity of any floor or wing or level of the facility. In bed space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the rooms are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted.

(13) Polling places;

(14) Restrooms;

(15) Enclosed malls or shopping centers, except in areas within such malls or shopping centers not open to the public; provided, however, that this prohibition does not prevent establishment of areas where smoking is permitted not to exceed thirty percent (30%) of the total seating capacity or area of any wing, level, or floor of such mall or shopping center;

(16) Bowling alleys, pool halls, billiard parlors, and card rooms, except in a designated area where smoking is permitted not to exceed fifty percent (50%) of the total area of any such facility;

(17) Any other area designated as a "No Smoking" area and posted with "No Smoking" signs by the owner or manager thereof.

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

(Ord. 3456)

(a) It shall be the responsibility of employers to provide smokefree areas for nonsmoking employees within existing facilities to the maximum extent possible, but employers are not required to incur any expense to make structural or other physical modifications in providing these areas.

(b) Within ninety (90) days of the effective date of the ordinance codified in this Chapter, each employer and each place of employment located within the County shall adopt, implement, make known, and maintain a written smoking policy which shall contain at a minimum the following requirements:

(1) Any employee in a place of employment other than in a properly designated smoking area shall have the right to designate the work area as a nonsmoking area and to post the same with an appropriate sign or signs, to be provided by the employer. Smoking shall not be permitted in any such properly posted nonsmoking area, nor shall anyone in a smoking area cause smoke to enter into such nonsmoking areas.

(2) Prohibition of smoking in auditoriums, classrooms, libraries, conference and meeting rooms, elevators, hallways, medical facilities, restrooms, areas or rooms with photocopy or other equipment used in common with other employees, and any other areas where smoking is prohibited by this Chapter;

(3) Provision for and maintenance of separate and contiguous nonsmoking areas of not less than fifty percent (50%) of the seating capacity and floor space in cafeterias, lunchrooms, and employee lounges, or provision for and maintenance of separate and equal sized cafeterias, lunchrooms, and employee lounges for smokers and nonsmokers;

(4) Work areas shared by both smokers and nonsmokers must be nonsmoking unless every member in the work area voluntarily and willingly agrees otherwise, or unless the work area is a properly designated smoking area;

(5) A procedure to resolve employee disputes and objections arising under the smoking policy;

(6) A statement providing for protection from retaliatory personnel action to employees exercising rights granted under the smoking policy.

(c) The smoking policy shall be communicated to all employees within three (3) weeks of its adoption. A copy shall be posted in a conspicuous, accessible place in a form readily readable by employees.

(d) All employers shall supply a written copy of the smoking policy to any prospective employee and shall supply a copy to each newly hired employee within three (3) days of hiring.

(e) Notwithstanding any other provision of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area.

(f) Notwithstanding any provision to the contrary, the provisions of this Section shall not be construed to abrogate the provisions of any labor agreement, safety rules, or procedures of any employer or existing policies which provide stricter regulations of smoking in the place of employment.

(Ord. 3456)

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

(1) Bars;

(2) Private residences, except when used as a child care or health care facility;

(3) Hotel and motel rooms rented to guests;

(4) Retail tobacco stores;

(5) Restaurant, hotel and motel conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions;

(6) A private, enclosed office or work area occupied exclusively by smokers may be declared a smoking area, unless otherwise prohibited herein, even though such office or work area may be visited by nonsmoking employees;

(7) Truck stops, except reasonable efforts shall be made to accommodate nonsmoking customers;

(8) Bingo parlors, except reasonable efforts shall be made to accommodate nonsmoking customers.

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

(Ord. 3456)

(a) "Smoking" or "No Smoking" signs, whichever are appropriate, with letters of not less than one inch (1″) 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 or other place where smoking is regulated by this chapter, by the owner, operator, manager, or other person having control of such building or other place.

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

(c) If a restaurant meets an exception and has a smoking section, patrons shall be asked their preference by the host or hostess, if one is on duty. A person taking reservations for a restaurant shall inquire if there is a nonsmoking or smoking preference.

(Ord. 3456)

(a) Any regulatory agency shall, while an establishment is undergoing otherwise mandated inspections, inquire of the owner, manager, operator, or other person having control of such establishment if said establishment is in compliance with the requirements of this chapter. If not, said inspector shall take appropriate enforcement action.

(b) Any owner, manager, operator, or employee of any establishment regulated by this chapter may inform persons violating this division of the appropriate provisions thereof.

(Ord. 3456)

(a) It shall be unlawful for any person who owns, manages, operates, or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with its provisions. The owner, manager, or operator of a restaurant shall not be deemed in violation of Section 5-1307(c) if the host or hostess of the restaurant fails to ask the seating preference of patrons, but shall be deemed in violation thereof if the restaurant has no stated policy requiring that patrons be asked their preference.

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

(c) Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:

(1) A fine not exceeding one hundred dollars ($100.00) for a first violation;

(2) A fine not exceeding two hundred dollars ($200.00) for a second violation of this chapter within one (1) year;

(3) A fine not exceeding five hundred dollars ($500.00) for each additional violation of this chapter within one (1) year.

(d) Violation of this chapter is hereby declared to be a public nuisance which may be abated by the County by restraining order, preliminary and permanent injunction, or other means provided for by law and the County may take action to recover the cost of such nuisance abatement.

(Ord. 3456)

It is hereby declared to be a violation of public policy for any person or employer to 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. 3456)

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

(Ord. 3456)

If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

(Ord. 3456)