Ventura Municipal Code Ch. 8.350 Smoking Regulations 9

9 Editor’s note(s): Ord. No. 2015-004, adopted May 11, 2015, amended Chapter 8.350 in its entirety to read as herein set out. Former Chapter 8.350 pertained to the same subject matter, and derived from the 1971 Code.

Cross reference(s) – Fire regulations, Chapter 14.10.

A. The city council of the city of San Buenaventura finds that:

1. Numerous studies have found that tobacco smoke or the smoke of any other weed or plant is a major contributor to indoor air pollution.

2. Reliable studies have shown that breathing secondhand smoke is a significant health hazard for all population groups.

3. Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm.

4. Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restriction on smoking in public places and places of employment.

5. Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to businesses.

6. Smoking is a positive danger to health and a cause of material annoyance, inconvenience, discomfort, and health hazard to those who are present in areas exposed to secondhand smoke.

7. State law prohibits the sale or furnishing of cigarettes, tobacco products, and smoking paraphernalia to persons under 21 years of age except active duty military personnel who are 18 years of age or older (California Penal Code Section 308).

8. Although the manufacture and distribution of flavored cigarettes (excluding menthol) are banned by federal law, neither federal law nor California law restricts the sale of menthol cigarettes or flavored noncigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, electronic smoking devices, and the solutions used in these devices.

9. It is very common to find flavored tobacco products in California tobacco retailers as evidenced by the following:

a. 97.4 percent of stores that sell cigarettes sell menthol cigarettes;

b. 94.5 percent of stores that sell cigarillos sell them in flavored varieties;

c. 84.2 percent of stores that sell electronic smoking devices sell flavored varieties; and

d. 83.8 percent of stores that sell chew or snus sell flavored varieties.

10. More than one in four stores located within 1,000 feet of California schools sell tobacco, and more than three out of four of these tobacco retailers sell flavored tobacco products (not including mentholated cigarettes).

11. Mentholated and flavored products have been shown to be starter products for youth who begin using tobacco, and these products help establish tobacco habits that can lead to long-term addiction.

12. At least one study has found that the majority of smokeless tobacco users reported that the first smokeless product they used was mint-flavored (such as ice, mint, spearmint, or wintergreen flavors), and almost two-thirds who transitioned to daily use of smokeless tobacco products first used a mint-flavored product.

13. Young people are much more likely than adults to use menthol-, candy-, and fruit-flavored tobacco products, including cigarettes, cigars, cigarillos, and hookah tobacco.

14. Seventy percent of middle school and high school students who currently use tobacco report using flavored products that taste like menthol, alcohol, candy, fruit, chocolate, or other sweets.

15. Data from the National Youth Tobacco Survey indicate that more than two-fifths of U.S. middle school and high school smokers report using cigarillos or flavored cigarettes.

16. Much of the growing popularity of cigarillos and smokeless tobacco is among young adults and appears to be linked to the use of flavored products.

17. The Centers for Disease Control and Prevention has reported a more than 800 percent increase in electronic cigarette use among middle school and high school students between 2011 and 2015.

B. The purposes of this chapter are:

1. To protect the public health, safety, and welfare by prohibiting smoking in public places and places of employment.

2. To strike a reasonable balance between the needs of persons who smoke and the guarantee to nonsmokers of the right to breathe smoke-free air, and to recognize that, where these conflict, the need to breathe smoke-free air shall have priority.

3. To treat electronic smoking devices in the same manner as conventional cigarettes and tobacco products.

4. To discourage the illegal purchase of tobacco products by persons under the age of 21.

5. To protect youth from the harms of tobacco use. (Ord. No. 2015-004, § 1, 5-11-15; Ord. No. 2019-026, § 1, 12-9-19; Ord. No. 2020-002, § 1, 1-13-20)

The following words, phrases and terms, as used in this chapter, shall be defined as follows:

“Bar” means an area which is primarily devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term “bar” shall not include the restaurant dining area.

“Business” means any sole proprietorship, joint venture, corporation, or any other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.

“Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.

“City” means the city of San Buenaventura, California.

“Electronic smoking device” means an electronic or battery-operated device that delivers vapors of nicotine and/or other substances for inhalation. This term includes every variation and type of such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, a vapor cigarette, an electronic hookah, a heated tobacco unit, or any other similar product. This term does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of diseases.

“Employee” means any person who is employed or retained by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers their services for a nonprofit entity, business, or employer.

“Employer” means any person or business, including a public entity or nonprofit entity, who retains the services of one or more individual persons.

“Enclosed area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of doors or passageways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, such as office landscaping or similar structures.

“Flavored tobacco product” means any tobacco product that imparts a characterizing flavor.

“Home occupation” means any nonresidential use within a dwelling which is permitted by the city’s regulations.

“Incidental food sales/service” means the sale or service of food products in a bar if such sale/service constitutes 25 percent or less of the annual gross income of the bar.

“Labeling” means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.

“Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product, or imports a finished tobacco product for sale or distribution into the United States.

“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 the operations of which are committed to the promotion of the objectives of the entity and not to private gain. A public entity is not a nonprofit entity within the meaning of this section.

“Open space” means a natural, open space area owned, used, or maintained by the city, and devoted to habitat, agriculture, or passive recreation and not designated a park by the city.

“Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

“Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

“Place of employment” means 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 and rest rooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a place of employment unless it is used as a child care or health care facility.

“Public entity” means any county, municipality, school or special district or political subdivision of the state, to the extent such public entity is subject to the jurisdiction of the city.

“Public park” means any park, reservation, playground, swimming pool, recreation center or any other area in the city, owned or used by the city and devoted to active or passive recreation.

“Public place” means any area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, shopping malls, laundromats, public transportation facilities, reception areas, restaurants, retail food production, and marketing establishments, retail service establishments, retail stores, hotels and motels, theaters, and waiting rooms. A private residence is not a public place.

“Restaurant” means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering functions, except that the term “restaurant” shall not include a bar.

“Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and tobacco paraphernalia and in which the sale of other products is merely incidental.

“Service line” means any indoor or outdoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

“Smoke” or “smoking” means the carrying, inhaling, or emitting the fumes or vapors of a lighted or activated pipe, cigar, cigarette, electronic smoking device, or any other lighted or activated smoking product or equipment used to burn any tobacco product, weed, plant, or other combustible substance in any manner or in any form. “Smoke” does not mean the combustion of material solely for olfactory purposes such as, for example, smoke from incense, that does not contain any tobacco or nicotine, or the emissions from a product specifically approved by the United State Food and Drug Administration for use in mitigating or preventing disease.

“Sports arena” means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys, and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

“Tobacco licensing administrator” means the city employee so designated by the city manager.

“Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of tobacco products, including, but not limited to, cigarette papers or wrappers, pipes, cigarette rolling machines, and any accessories used with electronic smoking devices, such as, but not limited to, cartridges, cartomizers, atomizers, e-liquid, smoke juice, tips, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.

“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, cigarillos, chewing tobacco, pipe tobacco, snuff;

2. Any electronic smoking device;

3. Notwithstanding any provision of subsections (1) and (2) of this definition to the contrary, “tobacco product” includes tobacco paraphernalia and any component, part, product, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products or tobacco paraphernalia. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

“Tobacco vending machine” means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product. (Ord. No. 2015-004, § 1, 5-11-15; Ord. No. 2019-026, § 2, 12-9-19; Ord. No. 2020-002, § 2, 1-13-20)

A. Prohibition of Smoking in Public Places. Except as otherwise provided, smoking shall be prohibited in all public places within the city, including, but not limited to, the following areas, which are specified for purposes of example and not limitation:

1. All areas available to and customarily used by the general public while at all public entities, businesses, and nonprofit entities, including, but not limited to, offices (such as attorneys, doctors, and other professionals), banks, retail stores, and shopping centers and malls.

2. Buses, trolleys, taxicabs and other means of public transit provided by or under the authority of the city, and in ticket, boarding and waiting areas of public transit depots.

3. Elevators, escalators, and stairways.

4. Public restrooms.

5. Service lines.

6. Libraries, museums, and galleries.

7. All indoor and outdoor reception and waiting areas.

8. Waiting rooms, dining rooms, recreation rooms, lounges, hallways, wards and semiprivate rooms of private and public health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, senior care facilities, drug and alcohol treatment facilities, and doctors’ and dentists’ offices.

9. Child day care facilities as defined in the California Health and Safety Code and private residences while used as a family day care home.

10. Within any facility which is primarily used for, or designed for the primary purpose of, exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production.

11. Video arcades, bingo parlors, game rooms, pool halls, dance halls, and other amusement and entertainment centers.

12. Indoor and outdoor areas of sports arenas, health and fitness clubs, auditoriums, and other facilities used for sports, recreation and fitness purposes.

13. Bowling centers, including, but not limited to, bowling lanes, bowlers’ settees, visitors’ settees and concourses.

14. Rooms, chambers, halls, or other places used for public meetings or public assembly, during such time as a public meeting is in progress.

15. Restaurants, including outdoor seating areas, whether or not in private clubs.

16. Restaurant-bar combinations, including those in private clubs.

17. Bars, including those in private clubs.

18. Retail food marketing establishments, including, but not limited to, grocery stores, supermarkets, and farmers’ markets.

19. Beauty and personal care salons and barber shops.

20. Laundromats.

21. Common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and dormitories.

22. Hotel and motel facilities, except as provided in subsection C of this section.

23. Educational facilities.

24. Polling places.

25. Any public park, including the Ventura Pier and Promenade, except that smoking shall be permitted on golf courses where not otherwise prohibited by law.

26. Public beaches.

27. Public gardens.

28. Any open space.

29. Inside all facilities owned, leased or controlled by the city.

Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment or facility may declare that entire establishment or facility as a nonsmoking establishment, whether enclosed or not.

B. Regulation of Smoking in Places of Employment.

1. Smoking is prohibited in all enclosed areas within places of employment. Each employer associated with each such place of employment shall make reasonable efforts, as necessary, to ensure that all enclosed areas in the place of employment controlled by such employer are free from tobacco smoke or other smoke emanating from smoking products.

2. All employers shall comply with these nonsmoking provisions and shall be responsible for their implementation in their places of employment.

3. Employers shall post “No Smoking” signs in accordance with Section 8.350.060.

4. Places of employment exempt from the prohibition on smoking in other sections of this chapter shall be exempt from this section.

C. Smoking Optional Areas. Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

1. Private residences, except when used as a child care or health care facility.

2. Retail and wholesale tobacco shops, in conformance with state law.

3. Dwellings used for home occupations employing one or more employees other than residents, during the hours the residence is used for business.

4. Hotel and motel rooms rented to guests provided each hotel and motel designates not less than 50 percent of its guest rooms as nonsmoking rooms.

5. Lobbies, meeting and banquet rooms in hotels and motels, in conformance with state law.

6. Employee breakrooms designated for smoking, in conformance with state law.

7. An enclosed place of employment which is solely owner-operated and employs no other employees. (Ord. No. 2015-004, § 1, 5-11-15)

A. Regulation of Tobacco Products.

1. Signage. Any person in the business of selling or otherwise distributing or marketing cigarettes, electronic smoking devices, or other tobacco products or tobacco paraphernalia for commercial purposes shall conspicuously post at each point of sale signs that meet the following specifications:

a. Contain the following words with initial letters capitalized in the following manner:

The Sale Of Tobacco Products To Persons Under 21 Years Of Age Is Prohibited By Law. Valid Identification May Be Required. To Report An Unlawful Tobacco Sale, Call 1-800-5ASK-4-ID. Business and Professions Code Section 22952.

b. Be square in shape and no smaller than five and one-half inches high by five and one-half inches wide (30.25 square inches) or be rectangular in shape and no smaller than three and two-thirds inches high by eight and one-half inches wide (31.11 square inches). A sign may be larger; however, the sign shall be proportionate to one set of the dimensions set forth in this subsection. The sign must be printed in ink that is of high contrast from the color of the background material. The size, typeface, and weight of the lettering must be in conformance with California Code of Regulations, Title 17, Section 6902. Signs may be available from the Tobacco Education Clearing House of California at www.tobaccofreecatalog.org.

2. Identification. No person or employee shall sell, offer to sell or permit to be sold any tobacco products and tobacco paraphernalia or electronic smoking device to any purchaser who appears to be under 27 years of age, without first verifying by means of photographic identification containing the bearer’s date of birth that the purchaser is not under 21 years of age.

3. Promotion of Products Regulated. No person in the business of selling or otherwise distributing or marketing tobacco products or tobacco paraphernalia for commercial purposes shall, in the course of such business, distribute any tobacco product or tobacco paraphernalia, or coupon, certificate, or other written material which may be redeemed for such without charge, to any person on a public street or sidewalk or in a public park or on other public grounds.

4. Tobacco Vending Machine Prohibited. No tobacco product or tobacco paraphernalia or electronic smoking device may be sold, offered for sale or distributed by or from a vending machine or appliance, or any other device designed or used for vending purposes.

5. Self-Service Display. No person or employee shall sell, offer for sale, or display for sale any tobacco product or tobacco paraphernalia, or electronic smoking device, by means of a self-service display or by any means other than vendor or employee-assisted sales.

6. Vendor or Employee Assistance Required. All electronic smoking devices, and tobacco products or tobacco paraphernalia, shall be displayed and offered for sale exclusively by means of vendor or employee assistance, and placement of such products shall be in a location which requires retrieval by vendor or employee assistance.

B. Out of Package Sales. No person shall sell or offer for sale electronic smoking devices, tobacco products or tobacco paraphernalia not in the original packaging provided by the manufacturer and with all required health warnings.

C. Disposal of Smoking Waste. No person shall dispose of any tobacco product or tobacco paraphernalia, or any part of any tobacco product or tobacco paraphernalia, in any place where smoking is prohibited under this chapter, except in a designated waste disposal container.

D. Sale of Flavored Tobacco Products Prohibited. It shall be a violation of this chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to sell or deliver or offer for sale or delivery, or to possess with intent to sell or offer for sale, any flavored tobacco product to a person in the city.

1. There shall be a rebuttable presumption that a tobacco retailer in possession of four or more flavored tobacco products, including, but not limited to, individual flavored tobacco products, packages of flavored tobacco products, or any combination thereof, possesses such flavored tobacco products with intent to sell or offer for sale.

2. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:

a. Made a public statement or claim that the tobacco product imparts a characterizing flavor;

b. Used text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a characterizing flavor; or

c. Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a characterizing flavor.

E. Exemption. A tobacco retailer lawfully operating in the city as of December 9, 2019, is exempt from subsection D of this section for a period of up to six months from December 9, 2019; provided, that all of the following requirements are met:

1. Within 30 days of the effective date of this section, the tobacco retailer submits to the tobacco licensing administrator written notice that it seeks temporary exemption from subsection D of this section and documentation that demonstrates: (a) the tobacco retailer was lawfully operating as of the date this section was adopted; and (b) sold one or more tobacco product or tobacco paraphernalia, in the three months preceding the effective date of this section. The submission shall include a copy of the tobacco retailer’s active city business license and proof of the sale of a tobacco product or tobacco paraphernalia and all other information the tobacco licensing administrator may request to determine the tobacco retailer’s qualifications for this exemption.

2. The tobacco licensing administrator determines the tobacco retailer meets the qualifications set forth in subsection (E)(1) of this section.

3. The tobacco licensing administrator shall render a written decision to the tobacco retailer within 30 days of submission of the tobacco retailer’s written notice.

F. Hookah Exemption. Notwithstanding subsection D of this section, tobacco retailers shall be permitted to sell flavored hookah tobacco for on-site use and consumption, subject to all state and federal regulations. Sale of flavored hookah tobacco products for off-site use or consumption shall be prohibited pursuant to subsection D of this section. (Ord. No. 2015-004, § 1, 5-11-15; Ord. No. 2019-026, § 3, 12-9-19; Ord. No. 2020-002, § 3, 1-13-20)

A. Except in facilities owned or leased by county, state or federal governmental entities, “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 in every building or other place where smoking is prohibited by this chapter by the owner, operator, manager, employer or other person having control of such building or other place. Signs of equivalent size and character reading “Smoking is prohibited except in designated areas” shall be posted at each entrance to a building or structure where smoking is permitted in designated areas. Signs of equivalent size and character reading “Smoking Permitted” may be posted where legally applicable. Alternative means of notification (individual place cards, film clips, etc.) may be employed, provided they are equivalent to the aforementioned signs in their effect. In all motion picture theaters, illuminated “No Smoking” signs shall be installed so as to be readily visible from all seats.

B. Every restaurant shall have posted within every entrance a conspicuous sign clearly stating that smoking is prohibited.

C. Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designated as being nonsmoking shall have signs designating such restriction conspicuously placed within the room.

D. The city manager may adopt such regulations as are reasonably necessary to carry out the purpose and intent of this section. (Ord. No. 2015-004, § 1, 5-11-15)

A. Enforcement.

1. Notice of the provisions set forth within this chapter may be given to all applicants for a business license.

2. Enforcement of this chapter shall be implemented by the city manager, or their designee.

3. Any citizen who desires to register a complaint under this chapter may initiate such a complaint with the city manager or their designee.

4. Notwithstanding any other provisions of this chapter, a private citizen may bring legal action to enforce this chapter.

B. Violations.

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

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

C. Remedies and Nonexclusive Penalties.

1. Infraction. A violation of this chapter is an infraction and shall be punished as such according to the provisions of Chapter 1.150.

2. Punishment under this section shall not preclude punishment pursuant to Business and Professions Code Section 22958 related to tobacco sales to minors, or pursuant to Health and Safety Code Section 13002, Penal Code Section 374.4, or any other law proscribing the act of littering. Nothing in this section shall preclude any person from seeking any other remedies, penalties or procedures provided by law. (Ord. No. 2015-004, § 1, 5-11-15)

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 smoke-free environment afforded by this chapter. (Ord. No. 2015-004, § 1, 5-11-15)

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

The provisions of this chapter do not apply to playgrounds or tot lot sandbox areas, in and around which smoking is prohibited by California Health and Safety Code Section 104495. (Ord. No. 2015-004, § 1, 5-11-15)