Santa Clara County Municipal Code Ch. V General Restrictions on the Use of Tobacco Products and Electronic Smoking…

Footnotes:

--- (3) ---

Editor's note— Ord. No. NS-625.7, adopted June 24, 2014, amended Ch. V in its entirety to read as herein set out. Former Ch. V pertained to smoking pollution control, and derived from Ord. No. NS-625.4, adopted Jan. 4, 1994; and Ord. No. NS-625.5, adopted Nov. 9, 2010.

This chapter is adopted to protect the public health and welfare by:

(1) Protecting users of tobacco products and electronic smoking devices, as well as non-users, from such products and exposure to emissions therefrom;

(2) Preventing youth from accessing such products, becoming addicted to nicotine and becoming users of such products; and

(3) Preventing the normalization of smoking behavior generally.

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) No person shall smoke or use an electronic smoking device where smoking or the use of electronic smoking devices 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 or use of electronic smoking devices 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. No. NS-625.7, § 1, 6-24-14)

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

(a) Bar means an area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.

(b) Bingo is as defined in Section B3-76 of Division B3 of this Code.

(c) Electronic smoking device means an electronic and/or battery-operated device that can deliver an inhalable dose of nicotine to the user. "Electronic smoking device" includes any product meeting this definition, regardless of whether it is manufactured, distributed, marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or descriptor.

(c.5)

Employee means any person who is employed by any employer in consideration for direct or indirect monetary wages or profits, including, but not limited to, temporary, permanent, part-time, and full-time employees and independent or dependent contractors.

(d) Employer means any person, as defined in this section, who employs the services of one or more persons.

(e) Enclosed means closed in by a roof and four or more walls with appropriate openings for ingress and egress.

(f) Hotel means hotel, motel, motor inn, bed and breakfast, boarding house, and other similar establishments in which the operator has the status of an "innkeeper."

(g) Person means any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, municipal corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group, entity or combination acting as a unit.

(h) Place of employment means any area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, offices, work areas, hallways, lobbies, employee lounges, conference rooms, employee cafeterias, locker rooms, dressing areas, or eating places. A private residence is not a place of employment for purposes of this chapter, unless it is used as a child care facility, health care facility, or community care facility.

(i) Service area means any public area designed to be or regularly used by one or more persons to receive or wait to receive goods or services, enter a public place, or make a transaction, whether or not such service includes the exchange of money. Service areas include, but are not limited to, bars, restaurants, information kiosks, bus stops, taxi stands, and lines for automated teller machines, public telephones, and ticket purchase.

(j) Smoke means the gases or particles released into the air as a result of combustion or electrical ignition, when the apparent or usual purpose of the combustion or electrical ignition is human inhalation of the byproducts, except when the combusting material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense.

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

(l) Smoking means engaging in an act that generates smoke, including, but not limited to, possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.

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

(n) Vapor means aerosol produced from use of an electronic smoking device.

(p) Vapor free area means any location in which use of electronic smoking devices is prohibited by this chapter.

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) Smoking and the use of electronic smoking devices shall be prohibited within any enclosed structure owned or leased by the County, wherever located, and in all enclosed public places within the unincorporated areas of the County, including, but not limited to:

(1) Elevators.

(2) Restrooms.

(3) Service areas.

(4) Laundromats.

(5) Retail stores and all areas in shopping malls—inside and outside of retail stores, restaurants, bars, restrooms, and offices.

(6) Areas available to or open to and customarily used by the general public in all business and nonprofit entities, including, but not limited to, offices (such as the offices of attorneys, doctors, accountants, other professionals, and service providers), banks, and churches.

(7) Restaurants.

(8) Bars.

(9) Hotels.

(10) Aquariums, amusement parks, galleries, libraries, arcades, or museums when open to the public.

(11) Facilities primarily used as theaters, auditoriums, or halls; or which are used for exhibiting motion pictures, stage dramas, musical performances, ballets, lectures, debates or other similar performances.

(12) Waiting rooms, hallways, wards, and rooms and offices of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices.

(13) Sports arenas, convention halls, halls used to host bingo, banquet rooms, and meeting rooms.

(14) Retail food marketing establishments, including grocery stores, convenience stores, warehouse stores, and supermarkets.

(15) Rooms, chambers, places of meeting or public assembly, including, but not limited to, school buildings under the control of any board, council, commission, committee including joint committees, or agencies of the County during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the County.

(16) Polling places.

(17) Private clubs.

(b) Smoking and the use of electronic smoking devices shall be prohibited at all unenclosed public places within the unincorporated areas of the County, including but not limited to:

(1) In, or within 30 feet of, service areas.

(2) County Fairgrounds.

(3) Any public or private area located within 30 feet, in any direction, of any operable doorway, window, opening, or other vent into an enclosed area where smoking or the use of electronic smoking devices is prohibited, provided, however, that this prohibition shall not apply to any person who is smoking or using an electronic smoking device in the restricted area while actively traveling to another destination.

(4) Hotels.

(5) Shopping malls.

(c) Smoking and the use of electronic smoking devices shall be prohibited at all parkland and trails owned, maintained or leased by or from the County, wherever located. This prohibition, however, shall not apply during the current term of any commercial lease, in existence as of the effective date of the amendment of this chapter, for any County-owned parkland.

(d) Except as otherwise provided in Section B13-84, smoking and the use of electronic smoking devices shall be prohibited in all enclosed places of employment within the unincorporated areas of the County.

(Ord. No. NS-625.7, § 1, 6-24-14)

Smoking and the use of electronic smoking devices is prohibited in motor vehicles for hire (such as taxi cabs) or which are operated in the course of employment for the use of more than one person at a time during the time of employment. Smoking and the use of electronic smoking devices is prohibited in:

(a) All County-owned and -operated vehicles wherever located within the County; and

(b) Any form of public transit located or operating within the unincorporated areas of the County.

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking and electronic smoking device restrictions of this chapter, unless smoking or the use of electronic smoking devices or combustible materials is otherwise regulated by any other provision of law or regulation.

(1) Any private property with a detached, single-family residence that is not used as a child care facility, health care facility, or community care facility.

(2) An enclosed, detached place of employment that is not accessible to the public, which employs only the owner and no other employee, provided that the enclosed place of employment does not share a ventilation system with any other enclosed place of employment or public place.

(3) Property owned by the state or federal government.

(b) Any owner, operator, manager or other person who controls any property may prohibit smoking or the use of electronic smoking devices within the entire property or any portion of the property not otherwise subject to the prohibitions of this chapter.

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) Within 90 days of the effective date of the amendment of this chapter, each employer having a place of employment located within the unincorporated areas of the County shall adopt, implement, make known and maintain a written policy that smoking and the use of electronic smoking devices shall be prohibited in all enclosed facilities within the place of employment, as well as any outdoor areas of the place of employment in which this chapter or any other law prohibits smoking or use of an electronic smoking device.

(b) Within one week of the policy's adoption, all employees shall receive a written copy of the policy.

(c) All employers shall comply with these provisions of the policy and shall be responsible for implementation in their place(s) of employment.

(d) "No smoking" signs shall be conspicuously posted at building entrances and in employee lounges, restrooms, locker rooms, dressing areas, cafeterias, and lunchrooms. Such signs shall:

(1) Make clear that the smoking prohibition includes use of an electronic smoking device; and

(2) Be subject to the approval of the County's Public Health Department.

(e) Places of employment identified in Section B13-84 of this chapter as exempt from the prohibition on smoking and use of electronic smoking devices shall also be exempt from this section.

(Ord. No. NS-625.7, § 1, 6-24-14)

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

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) "No smoking" signs 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 at every enclosed building and unenclosed area, 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. Such signs shall:

(1) Make clear that the smoking prohibition includes use of an electronic smoking device; and

(2) Be subject to the approval of the County's Public Health Department.

(b) Every enclosed restaurant and bar shall have posted at every entrance a conspicuous sign clearly stating that smoking and the use of electronic smoking devices is prohibited.

(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 this section, and of their obligation to enforce the prohibition in Section B13-82, if they have posted signs in accordance with the provisions of this section and have given written notice to any violator of this chapter that the violator's actions are in violation of this Code.

(d) If an employer owns, manages, operates or otherwise controls a contiguous campus or property that (i) has more than 25 buildings and (ii) is located, in whole or in part, in an unincorporated area of the County, that employer may comply with the signage requirements of this chapter for that campus or property if the employer meets the following requirements:

(1) The employer has a written policy that prohibits smoking and use of electronic smoking devices in all places where such activity is prohibited by this chapter or any other law;

(2) The employer provides a copy of the policy to all employees;

(3) The employer posts "no smoking" signs at all major entrances to the campus or property, all unenclosed areas of the campus or property where smoking is prohibited, and all areas of the campus or property where an individual has violated the employer's non-smoking policy in the past year. Such signs shall (1) make clear that the smoking prohibition includes use of an electronic smoking device; and (2) be subject to the approval of the County's Public Health Department.

(Ord. No. NS-625.7, § 1, 6-24-14)

(a) Enforcement of this Chapter shall be implemented by the County Executive or designees. The Fire Marshal or designee, or the Public Health Officer or designee, shall have the right, in connection with any regular annual inspection of a business located in the unincorporated area of the County, to require that the owner, manager, operator, or other person having control of such establishment certify that all applicable requirements of this Chapter have been complied with.

(b) Any citizen may initiate enforcement of this Chapter by notifying the County Executive or designee of an alleged violation.

(c) Any owner, manager, operator, or employee of any establishment controlled by this Chapter shall have the right to inform persons violating this Chapter of the requirements of the provisions being violated and the consequences of such violation.

(Ord. No. NS-625.7, § 1, 6-24-14; Ord. No. NS-300.1002, § 64, 10-21-25)

(a) Any violation of this chapter is declared to be a public nuisance.

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

(c) It shall be unlawful for any person to smoke or use an electronic smoking device in any area restricted by the provisions of this chapter.

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

(1) A fine not exceeding $100.00 for a first violation.

(2) A fine not exceeding $200.00 for a second violation.

(3) A fine not exceeding $500.00 for each additional violation within one year.

(e) Misdemeanor(s). Any person, or owner, operator, employer or manager of any establishment, subject to this chapter, who violates any provision of this chapter, in excess of three violations within one year, shall be deemed guilty of a misdemeanor.

(f) Each day that a violation of Section B13-85 and B13-87 continues shall constitute a separate violation of this chapter.

(g) The County Executive or designee is authorized to institute and pursue, in the name of the County, pursuant to the provisions of Government Code Section 25132, civil actions for the recovery of fines for violations of this chapter.

(h) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the County, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. No. NS-625.7, § 1, 6-24-14)

If any provision, clause, section, 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 section are declared to be severable.

(Ord. No. NS-625.7, § 1, 6-24-14)

The County Executive or his/her designee shall leave responsibility of conducting a public education campaign, regarding the health consequences of smoking and use of electronic smoking devices to other governmental and health agencies, including any County health agency, equipped with the needed expertise to conduct such campaigns.

(Ord. No. NS-625.7, § 1, 6-24-14)

The County Executive or his/her designee shall annually request such governmental and educational agencies having offices within the unincorporated areas of the County to establish local operating procedures to cooperate and comply with this chapter. In federal, state and special school districts within the County, the County Executive shall urge enforcement of any of their existing prohibitions on smoking and use of electronic smoking devices and request cooperation with this chapter.

(Ord. No. NS-625.7, § 1, 6-24-14)

This chapter shall not be interpreted or construed to permit smoking or use of electronic smoking devices where it is otherwise restricted by other applicable health, safety or fire codes.

(Ord. No. NS-625.7, § 1, 6-24-14)