Tracy Municipal Code Art. 1 General Provisions

The Council hereby finds that:

(a) The Environmental Protection Agency (EPA) has designated environmental tobacco smoke (ETS) as a Group-A carcinogen known to cause cancer in humans and for which no safe level of exposure has been established; and

(b) Common law requires employers to provide a safe and healthy work environment, which includes the elimination of Group-A carcinogens; and

(c) Recent studies have found restaurant/bar workers to be at increased risk of lung cancer as a result of ETS exposure; and

(d) The Americans with Disabilities Act (ADA), which requires access of handicapped persons in public places workplaces, deems impaired respiratory function a disability; and

(e) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and

(f) Reliable studies have shown that breathing secondhand smoke is a significant health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

(g) Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction and bronchospasm; and

(h) Nonsmokers who suffer allergies, respiratory diseases, and other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and

(i) The elimination of ETS in public places and workplaces will facilitate access of respiratory disabled individuals to said places in accordance with the ADA; and

(j) Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places and places of employment; and

(k) Smoking is a documented cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause economic losses to businesses. Accordingly, the Council finds and declares that the purposes of this chapter are:

(1) To protect the public health and welfare by prohibiting smoking in public places by regulating smoking in places of employment; and

(2) To strike a reasonable balance between the needs of smokers and the needs of nonsmokers to breathe smoke-free air and to recognize that, where these needs conflict, the need to breathe smokefree air shall have priority; and

(l) The vending of tobacco products from vending machines increases the likelihood that minors will be able to purchase tobacco products, even though the purchase of tobacco products by minors and the sale of tobacco products to minors is prohibited by state law.

(Prior code § 5-9.101)

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

"Bar" shall mean an area or a room utilized primarily for the sale of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages. The term "bar" shall not include an adjacent restaurant dining area where meals are being served. There must be adequate physical barrier between the bar and the adjacent restaurant dining area to prevent smoke from filtering to the food service area. If there is not adequate separation, then the bar is considered part of the restaurant seating for the purposes of this chapter.

"Business" shall mean any sole proprietorship, partnership, joint venture, corporation, or other business entity formed for profitmaking purposes.

"Employee" shall mean any person who is employed by any employer, as defined in this section, in consideration for direct or indirect monetary wages or profit and any person who volunteers his/her services for a nonprofit entity.

"Employer" shall mean any person, partnership, corporation, or nonprofit entity which employs the service of one or more persons and includes the City.

"Enclosed" shall mean closed in by a roof and four (4) or more connected walls with appropriate openings for ingress and egress.

"Mall" means any enclosed public walkway or hall area which serves to connect retail or professional establishments.

"Place of employment" shall mean any enclosed area under the control of an employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and rest rooms, conference and classrooms, cafeterias, and hallways. A private residence is not a place of employment unless and during such times that it is used as a licensed health care or a licensed child care facility.

"Private function" means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining where membership or specific invitation is prerequisite to entry and where such event is not intended for attendance by the public.

"Public place" means any enclosed area to which the public is invited or in which the public is permitted.

"Restaurant" shall mean any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, or any other eating establishment, organization, club, boardinghouse, or guesthouse which offers food for sale to the public, guests, patrons, or employees. "Restaurant" shall not include a tavern or a cocktail lounge if the tavern or cocktail lounge is a bar as defined in this section.

"Retail tobacco store" shall mean a retail store utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental.

"Service line" shall mean any indoor line at which one or more persons are waiting for or receiving services of any kind, whether or not such service involves the exchange of money.

"Smoking" shall mean the carrying or holding of a lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment or the lighting or emitting or exhaling the smoke of a pipe, cigar, or cigarette of any kind.

"Sports arena" shall mean sports pavilions, gymnasiums, health spas, boxing areas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.

"Tobacco product" shall mean 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 vending machine" shall mean any electronic or mechanical device the operation of which depends upon the insertion of money, whether in coin or paper bill, or other thing representative of value, which dispenses or vends a tobacco product.

(Prior code § 5-9.102)

All enclosed facilities owned by the City shall be subject to the provisions of this chapter.

(Prior code § 5-9.103)

(a) On or before April 20, 1987, "Smoking" or "No Smoking" signs, whichever are appropriate, with letters of not less than one inch in height, 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 in every building or other place where smoking is regulated by this chapter by the owner, operator, manager, or other person having control of such building or other place. For the purposes of this chapter, the City Manager or his/her designee shall be responsible for the posting of signs in regulated facilities of the City.

(b) Every theater or auditorium owner, manager, or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theater or auditorium, and, in the case of motion picture theaters, such information shall be shown upon the screen for at least five (5) seconds prior to the showing of each feature motion picture.

(Prior code § 5-9.104)

(a) The enforcement of this chapter shall be implemented by the City Manager or his/her designee.

(b) Any citizen who desires to register a complaint under this chapter may initiate enforcement with the City Manager or his/her designee.

(c) Any owner, manager, operator, or employer of any establishment regulated by this chapter shall have the right to inform persons violating this chapter of the appropriate provisions thereof.

(d) Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter.

(Prior code § 5-9.105)

It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.

(Ord. 1040 § 5 Exh. E (part), 2002; prior code § 5-9.106)

No person shall discharge, refuse to hire, or in manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right afforded by this chapter.

(Prior code § 5-9.107)

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

(Prior code § 5-9.108)

If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstance 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 chapter are declared to be severable.

(Prior code § 5-9.109)