San Marcos Municipal Code Ch. 8.80 Smoking in Certain Public Places

Because the smoking of tobacco or any other weed or plant, or inhaling e-liquids, smoke juices or cartomizers, is a positive danger to health and a cause of material annoyance, inconvenience, and discomfort, and represents a health hazard, in order to serve public health, safety, and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco, or any other weed or plant, or inhaling e-liquids, smoke juices or cartomizers, in public places, outdoor dining areas, and places of employment, except in designated smoking areas.

(Ord. No. 2016-1426, 6-28-2016; Ord. No. 2021-1503, § 2(Exh. A), 9-28-2021)

(a)

Smoke or Smoking as defined in this chapter shall mean the gases, particles, or vapors released into the air as a result of combustion, heating, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting, heating, igniting, or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory; and shall include the inhaling, exhaling, heating, burning, carrying or holding of a lighted or heated pipe, or lighted cigar, or lighted cigarette of any kind, or the lighting or heating of a pipe, cigar, or cigarette of any kind or the carrying or use, carrying or holding of an activated or functioning Electronic Smoking Device, as defined in this section, or other electronic and/or battery-operated device, the use of which may resemble Smoking (commonly known as "vaping") that can be used to deliver an inhaled dose of nicotine or other substances by delivering a vaporized or heated solution. Electronic Smoking Device includes any such device, whether manufactured, distributed marketed or sold as an electronic cigarette, an e-cigarette, an electronic cigar, electronic cigarillo, an electronic pipe, an electronic hookah vaporizer, vape pen, or any product name or descriptor, including any component, part, or accessory of such a device, whether or not sold separately. Electronic Smoking Device does not include any product specifically approved by the United States Food and Drug Administration for therapeutic purposes or for use in the mitigation, treatment, or prevention of disease, where such product is marketed and sold solely for such an approved purpose.

(b)

Public Place shall mean any area to which the public is invited or in which the public is permitted, including but not limited to, retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities, and public transportation facilities. Public Place shall also include all City buildings owned, leased, or occupied by the City, and all City facilities, grounds, trails, and/or parks and recreational areas, whether or not enclosed. A private residence is not a Public Place.

(c)

Outdoor/Patio Dining Area shall mean any area, including streets and sidewalks, available to and/or customarily used by the general public, employee(s), or any invitee(s), which is designed, established, and/or used for consuming food and/or beverages, which is not enclosed by a roof and walls. Outdoor/Patio Dining Area includes any covered area used for consuming food and/or beverages.

(d)

Place of Employment shall mean any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a Place of Employment.

(Ord. No. 2016-1426, 6-28-2016; Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019; Ord. No. 2021-1503, § 2(Exh. A), 9-28-2021)

(a)

No person shall Smoke in a Public Place or Place of Employment, except in designated areas.

(b)

No person shall Smoke in and/or on an Outdoor/Patio Dining Area, or within 20 feet from the perimeter of such Areas.

(Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019; Ord. No. 2021-1503, § 2(Exh. A), 9-28-2021)

Smoking areas may be designated in Public Places and Places of Employment by proprietors or other persons in charge except in retail stores, retail service establishments, retail food production and marketing establishments, food markets, public conveyances, restaurants, theaters, auditoriums, public assembly rooms, meeting rooms, waiting rooms, reception areas, lounges, lobbies, rest rooms, elevators, stairwells, pharmacies, libraries, museums, galleries, or Outdoor/Patio Dining Areas which are open to the public, or any other place where Smoking is prohibited by local, State and/or Federal law, ordinance, or regulation. Where Smoking areas are designated, existing physical barriers and ventilation systems shall be used to minimize the toxic effect of Smoke in adjacent non- Smoking areas. It shall be the responsibility of employers to provide Smoke-free areas for non-Smokers to the maximum extent possible within existing facilities. Designated Smoking areas permitted by this chapter do not permit the Smoking, ingestion, inhaling, exhaling, vaporizing or otherwise using or introducing cannabis or cannabis products into the human body in those Smoking areas, which is expressly prohibited under Chapter 5.54 of this Municipal Code.

(Ord. No. 2016-1426, 6-28-2016; Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019; Ord. No. 2021-1503, § 2(Exh. A), 9-28-2021)

All managers and owners of any establishments serving or doing business with the public may at their discretion post no-Smoking signs within various areas of their businesses and utilize the full right of the provisions of this chapter.

(Ord. No. 2016-1426, 6-28-2016; Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019)

(a)

Signs which designate Smoking or no-Smoking areas established by this chapter shall be clearly, sufficiently, and conspicuously posted in every room, building, or other place so covered in this chapter. No-Smoking signs shall be specifically placed in retail food production and marketing establishments, including grocery stores and supermarkets open to the public, so they are clearly visible to persons upon entering the store, clearly visible to persons in checkout lines, and clearly visible to persons at meat and produce counters. The manner of such posting including the wording, size, color, design, and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere shall be at the discretion of the owner, operator, manager, or other person having control of such room, building or other place so long as clarity, sufficiency, and conspicuousness are apparent in communicating the intent of this chapter.

(b)

For Outdoor/Patio Dining Areas, a "No Smoking" sign shall be posted at each point of ingress to the Outdoor/Patio Dining Area.

(Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019; Ord. No. 2021-1503, § 2(Exh. A), 9-28-2021)

Exceptions to the requirements of this chapter shall be as follows:

(a)

Certain areas designated for Smoking by the business establishment in compliance with state and federal law, including individual private offices, hotel and motel meeting and assembly rooms rented to guests, areas and rooms while in use for private social functions, bars, and stores that deal exclusively in tobacco products and accessories.

(b)

Any owner or manager of a business or other establishment subject to this chapter may apply to the City Manager for an exemption or modification of the provisions of this chapter due to unique or unusual circumstances or conditions.

(Ord. No. 2016-1426, 6-28-2016; Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019)

(a)

The City Manager shall be responsible for compliance with this chapter when facilities which are owned, operated or leased by the City of San Marcos are involved.

(b)

The owner, operator, or manager of any facility, business, or agency within the purview of this chapter shall comply herewith. Such owner, operator, or manager shall post or cause to be posted all no-Smoking signs required by this chapter. Such owner, operator, or manager shall not allow service to any person who violates this chapter by Smoking in a posted no-Smoking area.

(c)

It shall be the responsibility of employers to disseminate information concerning the provisions in this chapter to employees.

(d)

The provisions of this chapter shall be effective May 1, 1983, excepting that those provisions pertaining to Places of Employment shall apply only to Places of Employment of the City of San Marcos, until July 1, 1984, at which time this chapter becomes applicable to all Places of Employment as well.

(Ord. No. 2019-1471, § 3(Exh. B), 2-12-2019)