Shafter Municipal Code Ch. 8.05 Smoking

The City Council of the City of Shafter hereby finds as follows:

A. Reliable scientific studies, including studies by the Surgeon General of the United States, studies commissioned and assessed by the U.S. Environmental Protection Agency (EPA), and the Surgeon General's 1986 report on the Health Consequences of Involuntary Smoking, conclude that exposure to tobacco smoke places healthy nonsmokers at increased risk for developing lung cancer. Other health hazards of involuntary smoking include respiratory infection, bronchoconstriction and bronchospasm. While all members of the population are truly at increased risk due to exposure to second-hand tobacco smoke, it constitutes a special health hazard for children, teens, the elderly and people with chronic lung disorders, including asthmatics and those with obstructive airway disease and cardiovascular disease.

B. Substantial scientific evidence exists that the direct use of tobacco products causes cancer, heart disease and various other medical diseases. The Surgeon General of the United States labels smoking "the largest single preventable cause of premature death and disability for the U.S. population."

C. The National Centers for Disease Control have found that at least four hundred thirty-four thousand Americans die each year from tobacco-caused diseases. The Surgeon General of the U.S. and the U.S. Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases became addicted to nicotine in tobacco products as adolescents before the age of legal consent.

D. Reliable scientific studies assessed by the EPA have found that sidestream or second-hand tobacco smoke caused the death of at least fifty-three thousand American nonsmokers annually and is a leading cause of premature death and disability among nonsmokers.

E. Employees, subjected to prolonged exposure to second-hand smoke in the workplace, have been found in scientifically conducted studies to experience a loss of job productivity and some have been forced to take periodic sick leave because of reactions to said second-hand smoke. Furthermore, studies have shown higher costs to the employer are associated with smoking in the workplace due to increases in absenteeism, accidents, cost of medical care, loss of productivity and cleaning and maintenance repairs. A recent scientific study has reported that second-hand smoke from tobacco may cause a significant amount of cardiovascular disease in the United States and that the number of deaths from this cause may exceed the deaths caused by lung disease associated with second-hand smoke.

F. Smoking in public places and workplaces is a major cause of fires and damage to merchandise and equipment as well as costly maintenance and repairs to furniture and fixtures.

G. The National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identifies nicotine addiction as the most widespread example of drug dependence in the United States. The Surgeon General of the U.S. has found that nicotine in tobacco products is as addictive as cocaine and heroin.

H. The health care costs produced by smoking-related ailments and diseases constitute a heavy and avoidable financial drain on our community.

I. Opinion surveys show that a majority of the citizens of Kern County favor restriction on smoking in areas accessible to the general public.

J. Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results in serious and significant physical discomfort to many nonsmokers and in those instances constitutes a public nuisance.

K. Second-hand smoke has been found by the Environmental Protection Agency to be a known carcinogen.

L. The U.S. Surgeon General has concluded that children exposed to second-hand smoke have more respiratory infections and lung problems than children who are not exposed to secondary smoke.

M. The city council declares that the purpose of this chapter is to protect the health, safety and general welfare of the residents of persons employed in, and persons who frequent, the city, who would benefit by the regulation of smoking, and to recognize that the need to breath smoke-free air shall have priority over the desire to smoke.

(Ord. 457 § 1 (part), 1994)

This chapter is enacted pursuant to provisions of Sections 1.01.010 through 1.01.100 for the purpose of restricting and regulating smoking in order to reduce the hazards and nuisance which smoking causes to those who are involuntarily exposed.

(Ord. 457 § 1 (part), 1994)

As used in this chapter, those terms identified in this section shall, unless the context indicates otherwise, be ascribed the meaning contained herein.

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption on the premises, in which the serving of food, if any, is incidental to the consumption of alcoholic drinks. The dining area of a restaurant utilized primarily for the serving and consumption of food shall not constitute a bar, even though alcoholic beverages may be served therein.

"Commercial Enterprise" means any business entity formed for profit-making purposes, including, but not limited to, professional corporations and other entities under which legal, medical, dental, engineering, architectural or other professional services are delivered, and also any person charged with the responsibility of controlling conduct on behalf of the enterprise upon any premises regulated by this chapter.

"Employee" means any person who is employed by an employer in the consideration for direct or indirect monetary wages or profit and any person who volunteers his or her services for a nonprofit entity.

"Employer" means any person, partnership, corporation, including any public entity, or nonprofit entity, who employs the services of one or more individuals.

"Enclosed area" means all space between a floor and ceiling which is served by a common heating, ventilating and air conditioning system and is enclosed on all sides by solid walls or windows (exclusive of doors or passageways) including all space therein screened by partitions which do not extend to the ceiling or are not solid.

"Members of the general public" includes shoppers, customers, patrons, patients, students, clients and other similar invitees of a commercial enterprise, public agency or nonprofit entity, and excludes employees thereof, sales representatives, service repair persons and persons delivering goods, merchandise or services to a commercial enterprise, nonprofit entity or public agency.

"Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from operations of which are committed to promotion of the objects or purposes of the organization and not to private gain, together with any person charged with the responsibility of controlling conduct on behalf of the entity upon any premises regulated by the provisions of this chapter.

"Office" means an area enclosed by walls containing a desk, table or similar furnishings for clerical, administrative or supervisory work, a complex of such enclosures and a building containing such enclosures, whether or not the building is utilized primarily for other purposes such as retailing, wholesaling, storage or manufacturing, together with all hallways, stairways, elevators, escalators, restrooms, lobbies, waiting rooms, reception areas, entry areas and conference rooms within or associated with the complex of such enclosures, including:

1. Legal, medical, dental, engineering, accounting, counseling and other professional offices;

2. Insurance, real estate, ticket, collection agency and other offices where business services are offered to or goods or services are offered to or may be ordered by or may be paid for by members of the general public; and

3. Offices to which members of the general public are admitted in order to promote the objects or purposes of the public agency or nonprofit entities.

"Organized outdoor event" means a scheduled concert, performance, sporting event, public demonstration or other similar occurrence, open to members of the general public taking place outside an enclosed area.

"Person" means any individual, partnership, corporation, unincorporated association, joint venture, business trust, joint stock company, club or other organization of any kind.

"Proprietor" means each owner, operator, manager or other person having control of an establishment or facility within which smoking is regulated by this chapter.

"Restaurant" means any dinner house, coffee shop, cafeteria, luncheonette, soda fountain, fast food service and other establishment where cooked or otherwise prepared food is sold to members of the general public for consumption on the premises. The term does not include a cafeteria or lunchroom defined as a "workplace" by this section, whether or not members of the general public incidentally frequent the facility.

"Self-service displays" means open display of tobacco products and point-of-sale tobacco promotional products that the public has access to without the intervention of an employee.

"Smoking" means lighting, inhaling, exhaling or burning any pipe, cigar, cigarette, weed or plant, or carrying any lighted pipe, lighted cigar, lighted cigarette, lighted weed, lighted plant or other ignited combustible substance in any manner or in any form.

"Tobacco product" means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion.

"Tobacco store" means a place utilized primarily for the retail sale to members of the general public of tobacco products or accessories and in which the sale of any other products is merely incidental.

"Tobacco vending machine" means any electronic or mechanical device or appliance, the operation of which depends upon the insertion of money, whether in coin, paper currency or other things representative of value, which dispenses or releases a tobacco product.

"Workplace" means any enclosed area which is occupied by two or more employees of a commercial enterprise, nonprofit entity or public agency including but not limited to the following:

1. A place utilized for: the manufacturing, processing, assembly, maintenance or repair of any products, goods, equipment, tools, appliances, furnishings or other object; or the physical storage for purposes of wholesaling, future utilization for operational purposes, or future transfer preceding consumption or other utilization of any products, goods, merchandise, materials, supplies, equipment, tools, appliances or furnishings;

2. A place utilized or operated for a purpose described by Section 8.05.030(H) and from which members of the general public are excluded;

3. A place utilized as a union hall, cafeteria, lounge, lunchroom, restroom, conference room, training room, lecture room or classroom primarily for the use or benefit of employees.

Notwithstanding the provisions of the definition, a private residence including either an attached or detached garage shall not constitute a workplace, except when the residence serves as a licensed or unlicensed day care facility for children or the elderly.

(Ord. 457 § 1 (part), 1994)

Except as otherwise provided in this chapter, it is unlawful for any member of the general public or any other person, including an employee, to smoke in places which include, but are not limited to, the following enclosed areas:

A. Public Places. Public places shall include:

1. Merchandise display areas, checkout stations, counters and other pay stations;

2. Hallways;

3. Restrooms;

4. Escalators, elevators and stairways;

5. Lobbies;

6. Reception areas;

7. Waiting rooms;

8. Service lines;

9. Classrooms, meeting or conference rooms, or lecture halls;

10. Other places in which members of the general public congregate for service or otherwise frequent.

B. Stores. Stores shall include:

1. The enclosed common areas of shopping malls;

2. Automobile dealerships, furniture or other showrooms for the display of merchandise offered for sale at retail;

3. Grocery, specialty, department and other stores which sell goods or merchandise at retail;

4. Service stations, stores or shops for the repair or maintenance of appliances, shoes, or motor vehicles, barber shops, beauty shops, cleaners and laundromats, video game, pool hall and other amusement centers, and other similar establishments offering services or products to members of the general public.

C. Banks. Banks include savings and loan associations, credit unions and other similar institutions which offer financial services to members of the general public.

D. Hotels and Motels. Hotels and motels in which guests typically rent lodging for continuous periods less than thirty days. Smoking is permissible in rental rooms and other areas as provided in Section 8.05.050. The availability of nonsmoking rooms will be prominently posted as "Smoking Prohibited," and ash trays will be removed. Customers seeking accommodations should be routinely advised of the availability of nonsmoking rooms.

E. Terminals and Depots. Terminals, depots, and other facilities utilized by members of the general public for the purpose of being transported upon or departing from airplanes, trains, buses and taxis.

F. Taxis and Buses. Buses, taxicabs and all public transit conveyances operated by or licensed by the city, which are utilized by passengers and operators.

G. Theaters. Theaters include motion picture theaters, meeting halls and auditoriums where motion pictures or live theatrical musical or dramatic productions are made to an audience consisting of members of the general public assembled for the purpose of witnessing the performance or presentation. This section shall not be construed to prevent smoking by performers in connection with a stage production or by persons making a presentation concerning addiction to tobacco or other drugs.

H. Recreational Facilities. Areas of sports pavilions, gymnasiums, exercise rooms, health spas, arenas, swimming pools, skating rinks, bowling alleys and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition or witness sports events.

I. Recreation Halls. Areas of recreation halls and other similar facilities where members of the general public play bingo or cards, dance or engage in recreational, character-building or cultural activities.

J. Restaurants. Any coffee shop, cafeteria, sandwich stand, soda fountain, fast food service, private and public school cafeteria and any other eating establishment which gives or offers for sale food to members of the general public, guests or employees, as well as kitchens in which food is prepared on the premises for service elsewhere, including catering facilities.

Commencing upon adoption of the ordinance codified in this chapter, the owner, manager or operator of a restaurant shall designate not less than fifty percent of available customer seating as nonsmoking. Commencing three months after adoption of said ordinance codified in this chapter, the owner, manager or operator of a restaurant shall designate not less than seventy-five percent of the available customer seating as nonsmoking. Commencing six months after the adoption of said ordinance codified in this chapter, the owner, manager or operator of a restaurant shall designate all available customer seating as nonsmoking. The owner, manager or operator of the restaurant shall post signs as prescribed by Section 8.05.060 and remove all ashtrays from tables located in the nonsmoking areas. Where a bar shares the same enclosed area with a restaurant, the bar seats are to be counted with the restaurant seats in determining the total number of nonsmoking restaurant seats. The owner, manager or operator shall post a notice at the restaurant entrance that a nonsmoking section is available. It shall not constitute a violation of this chapter to smoke in a location where smoking has been authorized by this chapter.

The provisions of this section shall not be construed in any manner to restrict or otherwise impair the authority of an owner, manager or operator to increase the nonsmoking seating in a restaurant or bar.

K. Bars. Any bar or tavern as defined in Labor Code Section 6404.5, subdivision (d)(8).

L. Places of Exhibition. Libraries, museums, galleries, convention halls and similar facilities where members of the general public assemble for the purpose of viewing the exhibition of art, artifacts, objects of historical or cultural significance, products, merchandise, equipment and provision of services.

M. Hospitals. Hospitals, rest and convalescent homes, medical clinics, physical therapy facilities and other places where medical, dental, psychiatric or counseling services are delivered to members of the general public. Operators of facilities treating psychiatric or chemically impaired patients may permit smoking by patients in designated areas, provided the medical director of such facility has determined in writing that such practice is beneficial for the recovery or treatment of such patients and that the practice will not interfere with the recovery and treatment of nonsmoking patients, and provided that adequate nonsmoking areas are made available for nonsmoking patients. This section shall not be construed to prevent smoking in locations or otherwise under conditions in which smoking is expressly authorized by or under statutes or administrative regulations applicable to such licensed facilities.

N. Schools. Any school or educational institution operated by a commercial enterprise, public agency or nonprofit entity for the purpose of providing academic classroom instruction, trade, craft, computer or other technical training, or instruction in dancing, artistic, musical or other cultural skills.

O. Day Care Facilities. Day care facilities shall include private residences during the time when such residences are operated as day care facilities for children or the elderly.

P. Workplace. Smoking is prohibited in enclosed workplaces under the control of a public or private employer in which members of the general public have access in the course of conducting business, including but not limited to the following: open office areas, shared offices, private offices, hallways, restrooms, escalators, elevators, stairways, lobbies, reception areas, waiting rooms, classrooms, meeting or conference rooms, and auditoriums.

On-site cafeterias, lunchrooms and lounges shall be deemed workplaces and smoking prohibited therein, whether or not such facilities are open to members of the general public.

Each commercial enterprise, nonprofit entity and public agency shall comply with these smoking prohibitions and be responsible for their implementation in the workplace, and "No Smoking" signs shall be posted in the manner prescribed by Section 8.05.070.

(Ord. 622 § 2, 2008: Ord. 457 § 1 (part), 1994)

Smoking may be permitted in all locations where smoking is not prohibited by this chapter, including the following locations:

A. A private residence, including an attached or detached garage, whether or not the residence is utilized for office or other business purposes, except when such residence is operated as a day care facility for children or the elderly;

B. Tobacco stores, whether operated as a separate business entity or as a physically separated facility within a department store or other business entity;

C. Private clubs during events attended exclusively by members of the organization and their invited guests and from which members of the general public are excluded;

D. Conference/meeting rooms, public and private assembly rooms, banquet rooms, dining rooms or areas of restaurants, hotels and motels while these places are occupied for private functions to which only persons specially invited are entitled to attend and from which members of the general public are excluded;

E. In any enclosed place wherein this chapter specifically permits smoking, notwithstanding the fact that such location is a workplace accessible to members of the general public;

F. The foregoing places where smoking is permitted are not considered workplaces, subject to the provisions of Section 8.05.030. Employers will, however, attempt to find a reasonable alternative accommodation which is feasible for nonsmoking employees who do not wish to be assigned to work in a smoking permissible area;

G. Notwithstanding any provision in this chapter which permits smoking in a place of employment, any nonsmoking employee may object to his or her employer about smoke in his or her workplace. The employer shall attempt to reach a reasonable accommodation, insofar as possible.

(Ord. 622 § 3, 2008: Ord. 457 § 1 (part), 1994)

No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a tobacco smoke-free environment afforded by this chapter.

(Ord. 457 § 1 (part), 1994)

A. Each owner, operator, manager or other person having control of an establishment or facility within which smoking is regulated by this chapter shall conspicuously post in every place where smoking is prohibited either "No Smoking" signs with letters not less than one inch in height and/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.

B. An owner, operator or manager of a building wherein, pursuant to these regulations, there is no smoking permitted in any space in the building may limit the "No Smoking" postings to first floor entrances and exits and to the elevator lobby areas of all other floors.

C. Motion picture theaters shall show upon the movie or live action screens for at least five seconds prior to the showing of each feature motion picture the message that smoking is prohibited within the audience seating area and other areas as specified.

D. Hotels and motels will prominently post in the lobby a sign notifying patrons of the availability of nonsmoking accommodations. The rooms so designated will be posted as nonsmoking rooms and ashtrays will be removed.

(Ord. 457 § 1 (part), 1994)

A. Any person who violates any provision of this chapter is guilty of an infraction and, upon conviction thereof, shall be punished in a manner prescribed in subsection B of this section.

B. Fines for the crimes made infractions by this chapter shall be levied in the amounts prescribed. Any person who violates any provision of this chapter by smoking in a designated nonsmoking area shall be guilty of an infraction, punishable by a fine of fifty dollars for the first violation, and one hundred dollars for each subsequent violation. Any employer or proprietor who violates any provision of this chapter by failure to post required signs, and/or by failure to request violating smokers to extinguish the lit object may be guilty of an infraction punishable by a fine of one hundred dollars for the first violation, and two hundred fifty dollars for each subsequent violation and/or may have his/her business license revoked. Subsequent violations may be prosecuted as misdemeanors with fines up to one thousand dollars and/or jail time up to six months.

(Ord. 457 § 1 (part), 1994)

A. Voluntary enforcement and mandatory compliance of this chapter shall lie with the employer/proprietor of the establishment. An individual violating this chapter shall be requested by the employer/proprietor not to smoke and shall be made aware of the posted "No Smoking" signs. If the individual continues to violate this chapter, the employer/proprietor shall inform the individual they are guilty of an infraction of a city ordinance punishable by a fifty dollar fine for the first violation and a one-hundred-dollar fine for each subsequent violation.

B. It shall be the responsibility of the city manager of the city of Shafter, or his designee, to enforce, on behalf of the city, the provisions of this chapter. The city manager, or his designee, shall be authorized to prosecute, in the name of the city, criminal actions for the recovery of fines for violations of the prohibitions of this chapter in the amount described in Section 8.05.080.

C. In the performance of the enforcement responsibilities assigned by this chapter, the city manager, or his designee, shall do the following:

1. Establish a telephone number through which all complaints by citizens relating to violations of this chapter may be directed or referred;

2. Reduce such complaints to writing, and analyze the frequency and volume thereof in relation to alleged violations of this chapter by or at particular establishments or facilities;

3. Conduct an on-site inspection of any establishment or facility with respect to which the nature and volume of complaints suggests longstanding and pronounced violations of any of the provisions of this chapter;

4. Provide to the owner, operator or manager of any such establishment or facility a copy of the provisions of this chapter and such advisory assistance to rectify future violations as may be necessary to achieve compliance with the provisions of this chapter;

5. Follow up such investigation and advice with a written directive explaining in detail the steps required in order to achieve future compliance with the provisions of this chapter;

6. If the violations do not cease following expiration of a reasonable period of time, request commencement of a criminal or civil proceeding by the District Attorney pursuant to the provisions of Section 8.05.090 or civil remedies listed below as may be appropriate to do one, some or all of the following civil remedies:

a. Public Nuisance. Any continuing violation of the provisions of this chapter may be declared a public nuisance hereunder and the District Attorney may proceed to abate the same by filing a civil action in a court of competent jurisdiction.

b. Licensed Revocation. Any continuing violation of the provisions of this chapter by a proprietor may result in the revocation of owner's business license by the city of Shafter.

c. Injunctive Relief. A temporary restraining order, preliminary and/or permanent injunction may be issued against a proprietor for any continuing violation of the provisions of this chapter.

(Ord. 457 § 1 (part), 1994)

A. Any person, business, tobacco retailer or other establishment subject to this chapter shall post, at the point of purchase of tobacco products, plainly visible signs which state, "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW; PHOTO ID REQUIRED." The letters of said signs shall be at least one-quarter inch high.

B. No person, business, tobacco retailer or owner, manager or operator of any establishment subject to this chapter shall sell, offer to sell or permit to be sold any tobacco product to any individual without requesting and examining identification establishing the purchaser's age as eighteen years or greater unless the seller has some reasonable basis for determining the buyer's age.

C. It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, or offer for sale any tobacco product by means of self-service displays or by any other means other than vendor-assisted sales.

D. No person, business, tobacco retailer or other establishment subject to this chapter shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product. Any tobacco vending machine in use on the effective date of the ordinance codified in this chapter shall be removed within thirty days after the effective date of said ordinance.

E. Any person, business, tobacco retailer, owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine as provided in Section 8.05.080 of this chapter.

(Ord. 457 § 1 (part), 1994)

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

(Ord. 457 § 1 (part), 1994)