7.08 — SMOKING IN PUBLIC PLACES AND OUTDOOR DINING AREAS

The smoking of tobacco, or any other weed or plant, is a positive danger to health and a material annoyance, inconvenience, discomfort and a health hazard to those who are exposed to the resulting smoke. State law prohibits smoking in enclosed places of employment. In order to serve public health, safety and welfare, the purpose of this chapter is to also prohibit the smoking of tobacco, or any weed or plant, in public places and places designated for outdoor dining and congregation, except in designated smoking areas. This chapter shall be interpreted in a manner supplementary to and consistent with California Labor Code Section 6404.5 and California Health and Safety Code Sections104495 and 118875, et seq., as amended, and in all cases of conflict between this chapter and any state law, the applicable state law provision shall prevail. (Ord. 11-863 § 2, 2011)

As used in this chapter:

"Bar" shall mean an establishment: (A) that sells or offers for sale alcoholic beverages pursuant to a license from the Department of Alcoholic Beverage Control; (B) that limits entry to persons of a certain age during some or all operating hours; and (C) where food service, if any, is subordinate to the sale of alcoholic beverages. This does not include a bar area that is an integrated part of a restaurant.

"Employee" shall mean any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.

"Employer" shall mean any person who employs the services of an individual person.

"Enclosed" shall mean closed in by a roof and walls with appropriate openings for ingress and egress.

"Hookah café" shall mean any facility or location whose business operation, whether as its primary use or as an accessory use, is denoted by the smoking of tobacco or other substances through one or more pipes (commonly known as a hookah, waterpipe, shisha or narghile) designed with a tube passing through an urn of water that cools the smoke as it is drawn through it, including but not limited to establishments known variously as hookah bars, hookah lounges or hookah cafés.

"Minor" means a person who is under eighteen years of age.

"Nightclub" means a bar or similar establishment that provides live entertainment (music and/or dancing, comedy, etc.) in conjunction with alcoholic beverage sales.

"Open air dining area" means any unenclosed area located on private or public property made available to or customarily used by the general public that is designed, established or regularly used for consuming food and/or beverages, or where food or beverages are served whether or not for compensation. This includes, without limitation, restaurants, restaurants at hotels and private

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City of West Hollywood, CA § 7.08.020

WEST HOLLYWOOD CODE

§ 7.08.030

clubs, cafés, and coffee shops.

"Outdoor service area" means any unenclosed area where one or more persons wait for, receive or exchange goods or services of any kind; including without limitation lines or waiting areas for: (A) ATM machines; (B) information kiosks; (C) banks; (D) restaurants and other food service; (E) tickets and admission to a theater or other venue event; (F) car washes and vehicle service establishments; and (G) valet parking pick-up areas.

"Place of employment" shall have the same meaning as the term is used in California Labor Code Section 6404.5, as amended.

"Private membership club" shall mean a facility where: (A) entry into and use of the facility is restricted to members and guests of members; (B) membership is subject to approval by club members or club management; (C) the members are required to pay dues for use and/or maintenance of the facilities.

"Public place" shall mean any enclosed public place within an establishment where smoking is prohibited by law, in which the public is permitted, including, without limitation, public restrooms, elevators, stairwells and parking facilities, to the extent not otherwise governed by or exempted from California Labor Code Section 6404.5 and California Health and Safety Code Section 118875, et seq. A private residence is not a "public place"; however, an elevator in a residential building shall constitute a public place.

"Restaurant" means an establishment that: (A) sells, or offers for sale, food and beverages during all hours it is open for business; (B) prepares food on-site in a kitchen capable of preparing food from its component ingredients and otherwise meets the definition of a "bona fide public eating place" contained in California Business and Professions Code Section 23038; and (C) where service of alcoholic beverages is secondary to service of food except that the term "restaurant" shall not include a "bar" or "nightclub" as defined above.

"Smoke" or "smoking" shall mean and include the carrying of a lighted pipe, or lighted cigar, or lighted cigarette of any kind, or the lighting, burning, inhaling or exhaling of the smoke of a pipe, cigar, or cigarette of any kind.

"Unenclosed" means a predominantly outdoor area that does not meet the definition of "enclosed."

(Ord. 11-863 § 2, 2011)

• a. In addition to all places where smoking is prohibited under state or federal law, in which case those laws apply, no person shall smoke in, and smoking areas shall not be established or designated in:

  1. Open air dining areas and cannabis businesses, except as provided in subsection (e) of this section;

  2. Outdoor service areas;

  3. Enclosed public places;

  4. Any area where the owner, operator, manager or other person exercising management and control over the property has declared the area, where smoking would otherwise be allowed, to be a non-smoking area and posted the appropriate signage as set forth in this chapter; and

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City of West Hollywood, CA

HEALTH

§ 7.08.030

§ 7.08.040

5. Within five feet of the entrance, divider, opening or doorway to a smoke-free open air dining area, or outdoor service area, where smoking is prohibited by this chapter, except while actively passing by on the way to another destination.

• b. No employer and no owner, operator, manager, employee or other person having control of a place of employment or a public place shall make ashtrays available in any area where smoking is prohibited.

• c. No owner, operator, manager, employee or other person having control of a restaurant shall place matchbooks on tables or otherwise make matchbooks or matches available to patrons; provided, however, that upon request a promotional matchbook may be provided to a patron only when departing the restaurant.

• d. No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area where smoking is prohibited by this chapter or other law, or within a distance of five feet from an area where smoking is prohibited.

• e. Notwithstanding subsection (a), smoking may be permitted and smoking areas may be designated in the following places:

  1. An open air dining area of a bar or nightclub;

  2. An unenclosed congregation area of a restaurant, provided that food is not served to patrons in this area, the area is completely separate and segregated from any outdoor dining area where smoking is not permitted, and smoke cannot be detected or smelled in the nonsmoking area;

  3. Areas excluded from the definition of "place of employment" in California Labor Code Section 6404.5(d), as may be amended from time to time;

  4. At the specific hookah cafés that are open and in continuous operation at the same location on or prior to February 1, 2011, provided that the operators have submitted a smoking operations plan for review and approval in compliance with Section 7.08.050;

  5. At the specific private membership clubs that are open and in continuous operation at the same location on or prior to February 1, 2011, provided that the operators have submitted a smoking operations plan for review and approval in compliance with Section 7.08.050; and

6. Indoors and outdoors within a licensed cannabis consumption area provided that the operators have submitted a smoking operations plan for review and approval in compliance with Section 7.08.050 Smoking Operations Plan and have obtained a business license for the activity in accordance with Chapter 5.70.

7. A designated location for a temporary cannabis event during city-approved temporary cannabis events which occur with a city issued temporary cannabis event license.

(Ord. 11-863 § 2, 2011; Ord. 17-1016 § 9, 2017; Ord. 18-1029 § 11, 2018; Ord. 23-08 § 4, 2023)

Signs not less than eight inches by ten inches in size stating "No Smoking" with letters not less

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City of West Hollywood, CA

WEST HOLLYWOOD CODE

§ 7.08.040

§ 7.08.060

than one inch in height and including the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a diagonal red bar) shall be clearly, sufficiently and conspicuously posted by the owner, operator, manager or other person having control of every room, building or other place where smoking is regulated by this chapter either: (a) on a wall not less than eight feet nor more than ten feet above floor level; or (b) on moveable freestanding signs between three feet and five feet in height. In rooms containing tables for patrons or customers, an additional sign not less than four inches by six inches in size containing the same message in the same size lettering shall be placed on each table. Each of the foregoing signs shall, in addition, include a reference to "Chapter 7.08 of the West Hollywood Municipal Code," and include a telephone number designated by the city to which complaints of violations of this chapter may be reported.

(Ord. 11-863 § 2, 2011)

• a. The owner or operator of any establishment where outdoor smoking is permitted under Section 7.08.030(e), shall be required to submit a smoking operations plan to the Director of Community Development for review and approval before on-site smoking will be permitted. The plan shall include information required by the Director as needed for a complete understanding of the proposed smoking operations and to establish compliance with this chapter. Examples of the information that may be required include the location of any areas where smoking will be permitted on-site, where smoking will be prohibited, any applicable buffer zones, and other information necessary to establish compliance with this chapter. The owner or operator shall maintain a current smoking operations plan on file with the Director.

• b. The owner or operator shall maintain a copy of its smoking operations plan on-site and shall produce and exhibit the same whenever requested to do so by any person authorized to enforce the provisions of this chapter or the West Hollywood Municipal Code.

• c. An approved smoking operations plan shall be automatically suspended if the smoking operations shown in the approved plan are modified for any reason, there is a change in business operation that affects the smoking operations shown in the plan, there is a change in business ownership, or the physical layout of the establishment is reconfigured or redesigned. A new smoking operation plan shall be submitted for review and approval before smoking shall be allowed on the premises.

• d. Where the placement of adjacent buildings where smoking is permitted, or similar practical problems prevent compliance with the five-foot buffer zone required under Section 7.08.030(a)(5), smoking may be permitted in the buffer zone provided that the business owner or operator submits a smoking operations plan in compliance with this section.

• e. The Community Development Director shall have the authority to promulgate rules, regulations and procedures as may be necessary to effectuate the purpose of this section.

• (Ord. 11-863 § 2, 2011)

• a. Duty to Inform. Owners, operators, managers or employees of same shall be required to orally inform persons violating this chapter of the provisions thereof. The duty to inform such violator shall arise when such owner, operator, manager or employee of same

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City of West Hollywood, CA

HEALTH

§ 7.08.060

§ 7.08.070

becomes aware of such violation.

• b. Civil Action. Any aggrieved person may enforce the provisions of this chapter by means of a civil action.

• c. Injunction. Any person who commits, or proposes to commit, an act in violation of this chapter may be enjoined therefrom by any court of competent jurisdiction. An action for injunction under this subsection may be brought by any aggrieved person, by the City Attorney, or by any person or entity which will fairly and adequately represent the interests of the protected class.

• d. Costs and Fees. In any action under this section by an employee alleging retaliation or discrimination by an employer for exercising rights under this chapter, the prevailing party shall be awarded costs and reasonable attorneys' fees.

• (Ord. 11-863 § 2, 2011)

• a. A violation of this chapter shall be subject to the administrative penalty provisions of Sections 1.08.030 through 1.08.070.

• b. The City Manager shall have primary responsibility, with the assistance of the Sheriff's Department as may be necessary or desirable, for the enforcement of the regulations contained herein. Nothing in this section shall preclude the City Manager from seeking to obtain voluntary compliance by way of a warning, notice, or informational material.

• c. Any person violating Labor Code Section 6404.5, as amended, shall be guilty of an infraction, which as set forth in such Section 6404.5(j) requires local law enforcement agencies to enforce those provisions.

• (Ord. 11-863 § 2, 2011)

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City of West Hollywood, CA

HEALTH

§ 7.10.010

§ 7.10.020