Sutter County Municipal Code Ch. 731 Regulating Smoking in Designated Public Places

Footnotes:

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Editor's note— Ord. No. 1646, § 1, adopted May 8, 2018, amended Chapter 731 in its entirety to read as herein set out. Former Chapter 731, §§ 731-010—731-080, pertained to similar material, and derived from Ord. 987, Sec. 1; July 1, 1986.

Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code section 104495, and Government Code sections 53069.4, the Board of Supervisors does enact this Chapter.

(Ord. No. 1646, § 1, 5-8-2018)

The Board of Supervisors of the County of Sutter hereby finds and declares the following:

(a) Tobacco use causes death and disease and continues to be an urgent public health challenge, as evidenced by the fact that 480,000 people die prematurely in the United States from smoking-related diseases every year, making tobacco use the nation's leading cause of preventable death; and tobacco use can cause disease in nearly all organ systems and is responsible for 87% of lung cancer deaths, 79% of all chronic obstructive pulmonary disease deaths, and 32% of coronary heart disease deaths.

(b) Second-hand smoke has been repeatedly identified as a health hazard, as evidenced by the fact that the U.S. Surgeon General concluded that there is no risk-free level of exposure to second-hand smoke; the California Air Resources Board placed second-hand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure; and, the California Environmental Protection Agency (EPA) included second-hand smoke on the Proposition 65 list of chemicals known to the state of California to cause cancer, birth defects, and other reproductive harm.

(c) Exposure to second-hand smoke anywhere has negative health impacts, and exposure to second-hand smoke occurs at significant levels outdoors, as evidenced by the fact that levels of second-hand smoke exposure outdoors can reach levels attained indoors depending on direction and amount of wind and number and proximity of smokers; and smoking cigarettes near building entryways can increase air pollution levels by more than two times background levels, with maximum levels reaching the "hazardous" range on the United States EPA's Air Quality Index; and, to be completely free from exposure to second-hand smoke in outdoor places, a person may have to move nearly 23 feet away from the source of the smoke, about the width of a two-lane road.

(d) Exposure to second-hand smoke causes death and disease, as evidenced by the fact that since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to second-hand smoke; second-hand smoke is responsible for an estimated 41,300 heart disease-related and lung cancer-related deaths among adult nonsmokers each year in the United States; and, exposure to second-hand smoke increases the risk of coronary heart disease by about 25% to 30% and increases the risk of stroke by 20% to 30%.

(e) Tobacco use and exposure to second-hand smoke impose great social and economic costs, as evidenced by the fact that between 2009 and 2012, the total annual economic burden of smoking in the United States was between $289 billion and $332.5 billion; from 2005 to 2009, the average annual health care expenditures attributable to smoking were approximately $132.5 billion to $175.9 billion in direct medical care costs for adults and $151 billion in lost productivity; the total annual cost of smoking in California was estimated at five hundred forty-eight dollars ($548.00) per resident or between two thousand two hundred sixty-two dollars ($2,262.00) and two thousand nine hundred four dollars ($2,904.00) per smoker per year; and, California's Tobacco Control Program saved the state and its residents $134 billion in health care expenditures between the year of its inception, 1989, and 2008, with savings growing yearly.

(f) Laws restricting the use of tobacco products have recognizable benefits to public health and medical costs with a review of over 80 peer-reviewed research studies showing that smoke-free policies effectively reduce tobacco use; reduce exposure to second-hand smoke; increase the number of tobacco users who quit by a median of 3.8%; reduce initiation of tobacco use among young people; and, reduce tobacco-related illnesses and death.

(g) Laws restricting electronic smoking devices use also have benefits to the public as evidenced by the fact that research has found at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene; more than one study has concluded that exposure to vapor from electronic smoking devices may cause passive or second-hand vaping; the use of electronic smoking devices in smoke-free locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment; and, the State of California's Tobacco Education and Research Oversight Committee (TEROC) "opposes the use of e-cigarettes in all areas where other tobacco products are banned.

(h) Cigarette butts are a major and persistent source of litter, as evidenced by the fact that in 2007, it was estimated that Americans consume 360 billion cigarettes each year; 55.7% of smokers admit to littering cigarettes in the last month; in an observational study of nearly 10,000 individuals, after cigarettes were smoked, 45% of cigarettes ended up as litter; in 2011, 22.6% of all debris collected from beaches and coastal areas are smoking related products; and, cigarette butts are often cast onto sidewalks and streets, and frequently end up in storm drains that flow into streams, rivers, bays, lagoons, and ultimately the ocean.

(i) Cigarette butts pose a health threat to young children, as evidenced by the fact that in 2012, American poison control centers received nearly 8,648 reports of poisoning by the ingestion of cigarettes, cigarette butts, and other tobacco products and 84.5% of these poisonings were in children ages five and younger; and, children who ingest cigarette butts can experience vomiting, nausea, lethargy, and gagging.

(j) California cities and counties have the legal authority to adopt local laws that make all indoor places of employment nonsmoking and there is no Constitutional right to smoke.

(k) The purpose of this Chapter is to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around non-tobacco users, especially children, by protecting the public from exposure to second-hand smoke where they live, work, and play; by reducing the potential for children to wrongly associate smoking with a healthy lifestyle; and, by affirming and promoting a healthy environment in the County of Sutter.

(Ord. No. 1646, § 1, 5-8-2018)

The following words and phrases, whenever used in this Ordinance, shall have the meaning defined in this section unless the context clearly requires otherwise.

Business means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes.

Dining Area means any area, including streets and sidewalks, that is available to, or customarily used by, the general public or an Employee, and that is designed, established, or regularly used, for consuming food or drink.

Electronic Smoking Device means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic Smoking Device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

Employee means any Person who is employed or retained as an independent contractor by an Employer in consideration for direct or indirect monetary wages or profit, or any Person who volunteers his or her services for an Employer.

Employer means any Business or Nonprofit Entity that retains the service of one or more Employees.

Enclosed Area means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or four walls or other vertical constraints to airflow including, but not limited to, vegetation that exceed six feet in height, whether or not those boundaries include vents or other openings.

Nonprofit Entity means any entity that meets the requirements of California Corporations Code section 5003 as well as any corporation, unincorporated association, or other entity created for charitable, religious, philanthropic, educational, political, social, or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is not a Nonprofit Entity within the meaning of this Chapter.

Owner-operated Business means a business having no Employees, independent contractors, or volunteers, in which the owner-operator of the business is the only worker.

Place of Employment means any area under the legal or de facto control of an Employer that an Employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation.

Public Place means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.

Reasonable Distance means distance of 25 feet in any direction from an area in which Smoking is prohibited.

Recreational Area means any area that is publicly or privately owned that is open to the general public for recreational purposes, regardless of any fee or age requirement. The term "Recreational Area" includes, but is not limited to, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, roller-and ice-skating rinks, skateboard parks, amusement parks, beaches, and boat ramps.

Service Area means any publicly or privately-owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more Persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "Service Area" includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATM's), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.

Smoke means gases, particles, or vapors released into the air because of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "Smoke" includes but is not limited to, tobacco smoke, Electronic Smoking Device vapors, marijuana smoke, and crack cocaine smoke.

Smoking means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, Electronic Smoking Device, or any plant product intended for human inhalation.

Tobacco Product means:

(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether Smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and

(2) Any Electronic Smoking Device.

Notwithstanding any provisions of subsections (1) and (2) to the contrary, "Tobacco Product" includes any component, part, or accessory of a Tobacco Product, whether or not sold separately. "Tobacco Product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such and approved purpose.

Tobacco Shop means any tobacco retailer that derives more than 75% of gross sales receipts from the sale or exchange of Tobacco Products and tobacco paraphernalia.

Unenclosed Area means any area that is not an Enclosed Area.

(Ord. No. 1646, § 1, 5-8-2018)

(a) Smoking shall be prohibited in the Enclosed Areas of the following places within the unincorporated areas of Sutter County and all properties owned, leased, or operated by Sutter County:

(1) Places of Employment;

(2) Owner-Operated Businesses; and

(3) Public Places.

(b) Smoking is prohibited by this Chapter in all Enclosed Areas exempted by the California smoke-free workplace law (Labor Code section 6404.5(d), as that section may be amended from time to time) except as provided below.

(1) Smoking is not restricted by this subsection in up to 20% of guestroom accommodations in a hotel, motel, or similar transient lodging establishment that meets the requirements of California Civil Code section 1940(b)(2) if the hotel or motel permanently designates particular guestrooms as nonsmoking rooms such that 80% or more of the guestrooms are permanently nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "No Smoking" signage shall be placed in nonsmoking guestrooms.

(2) Smoking inside a Tobacco Shop is not prohibited by this subsection if:

(a) The Tobacco Shop does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the premises;

(b) The Tobacco Shop prohibits minors from entering the store at all times; and

(c) The premises of the Tobacco Shop is an independent freestanding building unattached to any other building, establishment, or use.

(3) Smoking in a theatrical production by the actors is not prohibited by this subsection if Smoking is an integral part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of Smoking in an effective way to a reasonable member of the anticipated audience.

(Ord. No. 1646, § 1, 5-8-2018)

(a) Smoking is prohibited in the Unenclosed Areas of the following places within the unincorporated areas of Sutter County and all properties owned, leased, or operated by Sutter County:

(1) Recreational Areas;

(2) Service Areas;

(3) Dining Areas; and

(4) Other Public Places, when being used for a public event, including but not limited to a farmers' market, parade, craft fair, festival, or any other event open to the general public, provided that Smoking is permitted on streets and sidewalks used only as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this Chapter or other law.

(b) Nothing in this Chapter prohibits any Person, Employer, or Nonprofit Entity with legal control over any property from prohibiting Smoking on any part of such property, even if Smoking is not otherwise prohibited in that area.

(Ord. No. 1646, § 1, 5-8-2018)

(a) Smoking in all Unenclosed Areas shall be prohibited within a Reasonable Distance from any doorway, window, opening, crack, or vent into an Enclosed Area in which Smoking is prohibited, except while the Person Smoking is actively passing on the way to another destination.

(b) Smoking in Unenclosed Areas shall be prohibited within a Reasonable Distance from any Unenclosed Areas in which Smoking is prohibited under section 731-050 of this Chapter, except while the Person Smoking is actively passing on the way to another destination and provided Smoke does not enter any Unenclosed Area in which Smoking is prohibited.

(c) The prohibitions in subdivisions (a) and (b) shall not apply to Unenclosed Areas of private residential properties.

(Ord. No. 1646, § 1, 5-8-2018)

(a) No Person, Employer, or Nonprofit Entity shall knowingly permit Smoking in an area which is under the legal or de facto control of that Person, Employer, or Nonprofit Entity and in which Smoking is prohibited by law.

(b) No Person shall dispose of used Smoking or Tobacco Product waste within the boundaries of an area in which Smoking is prohibited, including within any Reasonable Distance required by this Chapter.

(c) A person, Employer, or Nonprofit Entity that has legal or de facto control of an area in which Smoking is prohibited by this Chapter shall post a clear, conspicuous and unambiguous "No Smoking" or "Smoke-free" sign at each point of ingress to the area. The signs shall have letters of no less than 1" in height and shall include 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 and may include additional symbol(s) representing restriction against electronic devices or other forms of inhaled substances. For purposes of this section, the County Administrative Officer or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or part by Sutter County. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of Smoking in violation of any other provisions of this Chapter.

(d) No Person, Employer, or Nonprofit Entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another Person who seeks to attain compliance with the Chapter.

(e) Each instance of Smoking in violation of this Chapter shall constitute a separate violation. For violations other than for Smoking, each day of a continuing violation of this Chapter shall constitute a separate violation.

(Ord. No. 1646, § 1, 5-8-2018)

(a) Enforcement of this Chapter shall be implemented by the Sutter County Health and Human Services Department at no charge to any establishment herein regulated. This Chapter may also be enforced by any peace officer or the code enforcement officer.

(b) Any Person, Employer, or Nonprofit Entity who desires to register a complaint hereunder may initiate enforcement with the Sutter County Health Officer or his/her designees.

(c) Any person, Employer, or Nonprofit Entity that has legal or de facto control of an area in which Smoking is prohibited by this Chapter shall have the right to inform persons violating this Chapter of the appropriate provisions thereof.

(Ord. No. 1646, § 1, 5-8-2018)

Any person, firm, corporation, or partnership which willfully violates any of the provisions or fails to comply with any of the mandatory requirements of this Chapter is guilty of a misdemeanor or infraction, except that nothing herein shall be deemed to bar any legal, equitable, or summary remedy to which the County of Sutter or other political subdivision or any person, corporation, or partnership may have including, but not limited to, the assessment of administrative penalties under the provisions of Chapter 87 of the Sutter County Ordinance Code.

(Ord. No. 1646, § 1, 5-8-2018)

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

(Ord. No. 1646, § 1, 5-8-2018)