Chapter 9.44

REGULATION OF SMOKING

Sections:

• 9.44.022 Smoke or smoking.

• 9.44.023 Smoke free area.

• 9.44.030 General prohibition.

• 9.44.040 Exceptions.

• 9.44.045 Airport smoking regulations.

• 9.44.050 Retaliation prohibited.

• 9.44.055 Enforcement.

• 9.44.060 Posting of signs.

• A. No person shall smoke where smoking is prohibited by this chapter.

• B. It shall be unlawful for any person who owns or controls a building or structure to permit, suffer, or allow smoking in violation of this chapter.

• C. Owners, operators, property managers and officers of homeowners' associations for residential properties will be deemed to not be in violation of the requirements of subsection B. by posting notices in accordance with the provisions of this chapter and by notifying violators that their actions are in violation of the law.

(Ord. 24514.)

The definitions set forth in this section shall govern the application and interpretation of this chapter.

(Ord. 24759.)

"Employment" shall have the same meaning as in California Labor Code Section 6303(b). (Ord. 24759.)

• 9.44.011 Definitions.

• 9.44.017 Employment.

• 9.44.018 Enclosed.

• 9.44.019 Outdoor dining area.

• 9.44.020 Service line.

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

(Ord. 24759.)

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§ 9.44.019

"Outdoor dining area" means any privately owned or publicly owned area, including streets, sidewalks, and sidewalk cafes as defined in Section 20.200.1120 of the San José Municipal Code, and sidewalk seating permitted by an encroachment permit issued pursuant to Chapter 13.37 of the Code, which is available or customarily used by the general public and which is designed, established, or regularly used for consuming food or drink. (Ords. 29053, 30321.)

"Service line" means any outdoor line or queue 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. (Ord. 29053.)

"Designated smoking area" means such portion of an outdoor common area that has been designated for smoking by the person with legal control over the common area and which complies with all of the following:

• A. The area is unenclosed.

• B. The area is located at least thirty feet from any operable doorway, window opening or other vent into an enclosed area.

• C. The perimeter of the area is clearly demarcated.

• D. Signs indicate that the area is designated for smoking.

• (Ord. 29053.)

"Smoke" or "smoking" means and includes the combustion or subsequent disposal of any lighted pipe, or lighted cigar or lighted cigarette of any kind or the lighting of a pipe, cigar or a cigarette of any kind, or any similar article or any other similar combustible substance in any manner or in any form.

(Ords. 24759, 28159.)

"Smoke free area" means any location in which smoking is prohibited by this chapter. (Ord. 24759.)

Smoking is prohibited in the following places located within the City of San José except as provided in Section 9.44.040:

• A. Buildings: All enclosed areas of buildings which are open to the public or which are places of employment.

• B. Public and common areas of multifamily residential areas: All enclosed areas of apartments, condominiums and mobilehome parks which are open to public access or to unrestricted common access by the residents of such places.

• C. Motor vehicles used in work: In motor vehicles which meet one of the following conditions:

  1. Common carriers for public transit;

  2. Vehicles for hire, such as taxicabs;

  3. Vehicles which are operated in the course of employment for the use of more than one person at a time during the time of employment.

• D. Hotel and motel guest rooms: The enclosed areas of at least fifty percent of the guest rooms located in a hotel or motel. To the greatest extent feasible the smoke free rooms shall be grouped together to each other and separated from rooms where smoking is permitted.

• E. Stadium and sports arenas: The seating and eating areas of any outdoor stadium or sports arena. Smoking may be permitted only in specifically designated areas which are not located in close proximity to seating or eating areas.

• F. City parks: "Park" is defined in Chapter 13.44 of Title 13 of the San José Municipal Code, as it may be amended. Without limitation of any other provision of this Code, the definition of "park" for

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§ 9.44.055

purposes of this section includes sidewalks, trails and pathways in or around park facilities, park strips and other grounds of any park.

• G. In the following outdoor areas:

  1. Areas within twenty-five feet horizontally or vertically of any entrances, exits, operable windows, or air intake openings of any community center or library owned, leased or occupied by the city;

  2. All unenclosed common areas of apartments, condominiums and mobilehome parks which are open to public access or to unrestricted common access by the residents of such places, except for areas that have been designated as a designated smoking area by the owner of the property;

  3. Outdoor dining areas;

  4. Service lines.

• (Ords. 24514, 28159, 29053.)

Smoking may be permitted in the following locations:

• A. Private residences, except where state law prohibits smoking.

• B. Retail tobacco stores which sell primarily tobacco products.

• C. Meeting and banquet rooms which meet the standards set forth in Section 6404.5(d)(3) of the California Labor Code.

• D. At such areas of the San José International Airport as provided for in Section 9.44.045 of this chapter.

• E. On a stage in a theater during a theatrical performance where a performer is smoking when smoking is part of the performance.

• F. Any property owned or leased by other governmental agencies and used for governmental purposes.

  • G. Upon any outdoor area of any golf course owned or operated by the city that is more than twenty-five feet from any entrance, exit, operable window or air intake opening of any building.

• (Ords. 24514, 24759, 25685, 28159, 29053.)

No person shall smoke at the Norman Y. Mineta San José International Airport except:

• A. The director of aviation may, at his or her discretion, designate rooms for smoking, if such rooms meet the standards set forth in Section 6404.5(d)(13) of the California Labor Code.

• B. Smoking is permitted in rooms within an air terminal building which have been designated by the director of aviation as a "smoking allowed employee breakroom."

• C. The director of aviation may, at his or her discretion, designate specific locations for smoking and non-smoking areas at all outdoor areas at the airport.

(Ords. 24514, 24759, 25685, 28016.)

It shall be unlawful for any person to take any retaliatory action against any person who has asserted a right to a smoke free environment pursuant to this chapter.

(Ord. 24514.)

• A. To the extent that these provisions are duplicative of Labor Code Section 6040.5, any enforcement shall be pursuant to the Labor Code.

• B. The following provisions of this chapter shall be enforced directly:

  1. Subsection A. of Section 9.44.030 in those areas where there is no exception under this chapter corresponding to an exception to the definition of "place of employment" as set forth in Labor Code Section 6404.5.

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§ 9.44.055

2. Subsections B., C., D., E., F. and G. of Section 9.44.030.

• C. The provisions of this Code which are duplicative or less stringent than Labor Code 6405.5 are hereby suspended and should Labor Code 6404.5 ever be repealed or modified, those suspended sections of this chapter shall then be enforced.

(Ords. 24759, 29053.)

• A. "No Smoking" signs shall be conspicuously posted at every building, where smoking is prohibited pursuant to this chapter, by the owner, operator, manager or other person having control of such room, building, or other place.

• B. In any building where smoking is partially permitted "No Smoking" signs shall be placed in the lobby or in conspicuous places near each entrance to the building stating that smoking is prohibited in the building except in the areas designated as smoking areas.

• C. "Smoking Permitted" signs shall be posted at the entrance to and in any room in an air terminal building in which smoking is expressly permitted under Section 9.44.045. All such signs shall conform to the standards for appearance of signs established by the director of aviation.

• D. Movie theaters shall indicate on the movie screen prior to each feature motion picture that smoking is prohibited.

• E. "Smoking Permitted" shall be posted in any designated smoking area as permitted pursuant to Section 9.44.021 of this chapter.

• (Ords. 24514, 29053.)