HomeMy WebLinkAboutOrdinance 1653 (Public Smoking & Regulations of Tobacco Sale)CLERK'S CERTIFICATE
I, JEA14NE M. LEONCINI, Clerk of the City of San Rafael, and
Ex -officio Clerk of the Council of said City, do hereby certify that
the foregoing Charter Ordinance No. 1653 entitled:
"AN ORDINANCE OF THE CITY OF SAN RAFAEL REPEALING CHAPTER 8.14
OF TITLE 8 IN ITS ENTIRETY, AND REENACTING CHAPTER 8.14 OF
TITLE 8 PROHIBITING TOBACCO SMOKING IN PUBLIC PLACES AND PLACES
OF EMPLOYMENT AND REGULATING THE SALE OF TOBACCO PRODUCTS"
is a true and correct copy of an ordinance of said City and was
introduced at a REGULAR meeting of the City Council
of the City of San Rafael, held on the 18th day of
OCTOBER , 19 93, published as required by City Charter in the
MARIN INDEPENDENT JOURNAL
, a newspaper published in the City
of San Rafael and passed and adopted as an ordinance of said City at
a REGULAR meeting of the City Council of said City
held on the 1st day of NOVEMBER , 1993, by the following
vote, to wit:
AYES: COUNCILMEMBERS: Brei ner, Cohen, Shippey, Thayer & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
WITNESS my hand and the official seal
of the City of San Rafael this
2nd day of November
19 91� '
JEAN M. LEONC Y, City Clerk
ORDINANCE NO. 1653
AN ORDINANCE OF THE CITY OF SAN RAFAEL
REPEALING CHAPTER 8.14 OF TITLE 8 IN ITS
ENTIRETY, AND REENACTING CHAPTER 8.14 OF TITLE
8 PROHIBITING TOBACCO SMOKING IN PUBLIC PLACES
AND PLACES OF EMPLOYMENT AND REGULATING THE
SALE OF TOBACCO PRODUCTS
SECTION 8.14.000 Title.
This article shall be known as the City of San Rafael Clean
Indoor Air and Health Protection Ordinance.
SECTION 8.14.010 Findinqs and Purpose.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES HEREBY FIND THAT:
1. The U.S. Environmental Protection Agency has classified
environmental tobacco smoke as one of only twelve Class -A
carcinogens to which there is no safe level of exposure.
2. Numerous scientific studies have found that tobacco smoke
is a major contributor to indoor air pollution;
3. Reliable scientific studies, including studies by the
Surgeon General of the United States and studies commissioned and
assessed by the U.S. Environmental Protection Agency, have shown
that breathing sidestream or secondhand smoke is a significant
health hazard to nonsmokers; particularly to children and teens,
elderly people, individuals with cardiovascular disease, and
individuals with impaired respiratory function, including
asthmatics and those with obstructive airway disease;
4. Within minutes short term exposure to sidestream smoke
may cause the human body to experience over contraction of the
heart, thickening of the blood and arteries, increased chance of
heart attack or stroke, depression of the immune system, and cell
mutations from the mutagens and carcinogens in smoke.
5. Health hazards induced by exposure to environmental
tobacco smoke include lung and other forms of cancer, respiratory
infection, decreased respiratory function, decreased exercise
tolerance, broncho -constriction and broncho -spasm, and that the
most common cause of premature death from environmental tobacco
smoke is heart disease;
6. Reliable scientific studies assessed by the U.S.
Environmental Protection Agency have found that sidestream and
secondhand tobacco smoke causes the death of at least 53,000 non-
smokers annually and is a leading cause of premature death and
disability among non-smokers;
7. Non-smokers with allergies, respiratory diseases and
those who suffer other ill effects of breathing sidestream or
secondhand tobacco smoke may experience a loss of job productivity
or may be forced to take periodic sick leave because of adverse
reactions to same;
8. Persons, particularly employees, have a right to a smoke-
free environment if they desire;
9. Tobacco smoking is a leading cause of fires, and
cigarette and cigar burns and ash stains on merchandise and
fixtures cause economic losses to businesses;
10. 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 U.S. has found
that tobacco -caused diseases are the leading cause of premature,
preventable death and disability in the U.S.;
11. The National Centers for Disease Control have found that
at least four -hundred -thirty-four thousand (434,000) 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;
12. 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 U.S.;
13. The Surgeon General of the U.S. has found that nicotine
in tobacco products is as addictive as cocaine and heroin;
Accordingly, the City Council of the City of San Rafael finds
and declares that the purposes of this ordinance are:
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-- to protect public health, safety and general welfare;
-- to guarantee the right of nonsmokers to breathe tobacco
smoke-free air, and to recognize that the need to breathe
tobacco smoke-free air has priority over the desire to
smoke;
-- to reduce addiction to tobacco products by minors.
The City Council of the City of San Rafael further finds it is
within its basic police power to implement and enforce the
provisions of this ordinance.
SECTION 8.14.020 Definitions.
The following words and phrases, whenever used in this
article, shall be construed as defined in this section:
1. "Bar" means an area which is 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. A "bar"
for the purpose of this definition does not include any bar where
smoke can filter into a restaurant through a passageway,
ventilation system, or any other means.
2. "Business" means any sole proprietorship, joint venture,
corporation or 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.
3. "Cocktail Lounge" means a bar, within a restaurant, which
is not the sole means of public access to the dining areas, is not
the sole waiting area for dining patrons, prohibits minors unless
passing through, in which the service of food is only incidental to
the consumption of beverages, has a separate ventilation system,
and is enclosed. In this connection a written determination by the
enforcement officer designated pursuant to Section 8.14.090(B)
hereof that a cocktail lounge is enclosed shall be presumptive
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evidence of compliance with the enclosure requirement of this
section in the absence of fraud or mistake.
4. "Employee" means any person who is employed by any
employer in consideration for direct or indirect monetary wages or
profit, and any person who volunteers his or her services for a
non-profit entity.
5. "Employer" means any person, partnership, corporation,
including a municipal corporation, or non-profit entity, who
employs the services of one or more individual persons.
6. "Enclosed" means surrounded by a ceiling, floor, and
solid walls which, except for doors, passageways and/or windows,
extend from floor to ceiling on all sides. If an enclosed area is
divided by internal partial walls or other "office landscaping", it
is still, in its entirety, enclosed. A retractable roof, whether
open or closed, shall be considered a ceiling for the purpose of
this definition.
7. "Minor" shall mean any individual who is less than
eighteen years old.
8. "Non-profit Entity" means any corporation, unincorporated
association or other entity created for charitable, religious,
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 or purposes
of the entity and not to private gain. A public agency is not a
"non-profit entity" within the meaning of this section.
9. "Person" shall mean any individual, partnership,
cooperative association, private corporation, personal
representative, receiver, trustee, assignee, or any other legal
entity.
10. "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 restrooms, conference
and class rooms, employee cafeterias and hallways. A private
residence is not a "place of employment" unless it is used as a
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child care or health care facility.
11. "Public Place" means any enclosed 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".
12. "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 facilities,
except that the term "restaurant" shall not include a cocktail
lounge or tavern if said cocktail lounge or tavern is a "bar" as
defined in Section 8.14.020
13. "Retail Tobacco Store" means a retail store utilized
primarily for the sale of tobacco products and accessories and in
which the sale of other products is merely incidental.
14. "Self-service Merchandising" means open display of
tobacco products and point-of-sale tobacco promotional products to
which the public has access without the intervention of an
employee.
15. "Separate Ventilation System" means a system which is
exhausted to the outside and negatively pressurized.
16. "Service Line" means any indoor line at which one (1) or
more persons are waiting for or receiving service of any kind,
whether or not such service involves the exchange of money.
17. "Smoking" means inhaling, exhaling, burning or carrying
any lighted cigar, cigarette, weed or plant or other combustible
substance whose smoke is intended to be inhaled.
18. "Sports Arena" means enclosed or unenclosed sports
pavilions, gymnasiums, health spas, boxing arenas, swimming pools,
k
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.
19. "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.
20. "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.
21. "Vendor -assisted" means only a store employee has access
to the tobacco product and assists the customer by supplying the
product. The customer does not take possession of the product
until it is purchased.
SECTION 8.14.030 Application of Article to City -Owned Vehicles
and Facilities.
All city -owned vehicles, including jitneys and buses and other
means of public transit under the authority of the city, and all
enclosed facilities owned and controlled by the city, including
jails, and any board, council, commission and agency of the city
shall be subject to the provisions of this ordinance.
SECTION 8.14.040 Prohibition of Smokinq in Public Places.
A. Except as otherwise provided, smoking shall be prohibited
in all enclosed public places within the City of San Rafael,
including, but not limited to, the following places:
1. Elevators.
2. Buses, taxicabs, and other means of public transit
under the authority of the City of San Rafael and ticket, boarding,
and waiting areas of public transit depots.
3. Restrooms.
4. Service lines.
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5. Retail stores.
6. All areas available to and customarily used by the
general public in all business and non-profit entities patronized
by the public, including but not limited to, attorneys' offices and
other offices, banks, laundromats, malls, hotels and motels.
7. Restaurants, provided: Coctail lounge areas within
restaurants that sell alcoholic beverages shall be exempted.
Within one year of the operative date of this Section, such areas
shall meet the standards of "Cocktail Lounge" as defined herein.
8. Public areas of aquariums, galleries, libraries,
museums when open to the public.
9. Any facility which is primarily used for exhibiting
motion pictures, stage productions, lectures, musical recitals or
other similar performances, except for smoking which is part of
such production.
10. Sports arenas and convention halls.
11. Every room, chamber, place of meeting or public
assembly, including school buildings under the control of any
board, council, commission, committee including joint committees,
or agencies of the City or any political subdivision of the State
during such time as a public meeting is in progress, to the extent
such place is subject to the jurisdiction of the city.
12. Waiting rooms, hallways, wards and rooms of health
facilities, including, but not limited to, hospitals, clinics,
physical therapy, mental health, and drug and alcohol treatment
facilities, doctors' and dentists' offices.
13. Hotel/motel rooms. A minimum of 50% of rooms must
be permanently designated nonsmoking.
14. Lobbies, hallways, and other common areas in
apartment buildings, condominiums, senior citizen residences,
nursing homes, and other multiple -unit residential facilities.
15. Lobbies, hallways, and other common areas in
multiple -unit commercial facilities.
16. Polling places.
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B. Smoking shall be prohibited in outdoor areas immediately
adjacent to any entrance or exit of any building within which
smoking is prohibited. For purposes of this section, entrance or
exit shall mean an opening into a building from a contiguous
street, sidewalk, walkway or parking area.
SECTION 8.14.050 Reaulation of Smokina in Places of Emplovment.
A. No person shall smoke in an enclosed place of employment.
B. Within 90 days of the effective date of this article,
each employer having an enclosed place of employment located within
the city shall adopt, implement, make known and maintain a written
smoking policy which shall contain the following requirements:
Smoking shall be prohibited in all enclosed facilities
within a place of employment without exception. This includes
common work areas, auditoriums, classrooms, conference and meeting
rooms, private offices, elevators, hallways, medical facilities,
cafeterias, employee lounges, stairs, restrooms, vehicles and all
other enclosed facilities.
C. The smoking policy shall be communicated to all employees
within three weeks of its adoption, and at least annually
thereafter.
D. All employers shall comply with these non-smoking
provisions and shall be responsible for their implementation in
their places of employment.
E. "No Smoking" signs shall be conspicuously posted at
building entrances and in employee lounges, cafeterias and
lunchrooms.
F. All employers shall supply a written copy of the smoking
policy to any existing or prospective employee.
G. Places of employment exempt from the prohibition on
smoking in other sections of this ordinance shall also be exempt
from this section.
SECTION 8.14.060 Smokina Optional Areas.
A. Not withstanding any other provision of this article to
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the contrary, the following areas shall not be subject to the
smoking restrictions of this article:
1. Private residences, except when used as a child care
or health care facility.
2. Retail tobacco stores.
3. Enclosed restaurant, hotel and motel conference or
meeting rooms and public and private assembly rooms, which are
equipped with a ventilation system which conducts air to the
outside, while these places are being used for private functions,
provided that 50% of these areas are designated nonsmoking.
4. An enclosed place of employment which employs only
the owner and no other employee, provided that:
(a) The place of employment is not a public place,
and
(b) The place of employment does not share a
ventilation system with any other enclosed place of employment or
public place.
5. Bars and cocktail lounges as defined herein.
B. Not withstanding any other provision of this section, any
owner, operator, manager or other person who controls any
establishment described in this section may declare that entire
establishment as a nonsmoking establishment by posting signs as
required by Section 8.14.070.
SECTION 8.14.070 Posting of Siqns.
A. "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, as well as on entrances at eye level, or other place
where smoking is regulated by this article, by the owner, operator,
manager or other person having control of such building or other
place.
B. Every restaurant and mall shall have posted at every
entrance a conspicuous sign clearly stating that smoking is
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prohibited.
SECTION 8.14.080 Reaulatina the Sale of Tobacco Products.
A. Any person, business, tobacco retailer or other
establishment subject to this ordinance shall post plainly visible
signs at the point of purchase of tobacco products 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
should be at least one quarter inch (1/411) high.
B. No person, business, tobacco retailer, or owner, manager
or operator of any establishment subject to this ordinance shall
sell, offer to sell or permit to be sold any tobacco product to an
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 merchandising, or by any means
other than vendor -assisted sales.
D. No person, business, or tobacco retailer 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 this ordinance shall be removed within
thirty (30) days after the effective date of this ordinance.
SECTION 8.14.090 Enforcement.
A. Notice of these regulations shall be given to all
applicants for a business license.
B. Enforcement of this Section shall be the responsibility
of the City Manager, who shall have the powers enumerated in this
Section as well as the powers to issue citations for violation of
the Section in accordance with Section 853.6 of the California
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Penal Code. The City Manager may designate other persons to issue
citations; provided however, that for violations of Section
8.14.100(A) hereof, such citations shall not be issued until the
person cited has been given one warning and/or an education session
with a staff person designated by the Director of Health and Human
Services.
C. The Fire Department or the Health Department shall
require, while an establishment is undergoing otherwise mandated
inspections, certification from the owner, manager, operator or
other person having control of such establishment that all
requirements of this ordinance have been complied with.
D. County Health Inspectors, on their regular restaurant
inspections, shall check for compliance with sign posting
requirements. Restaurants shall be notified in writing of any
violations on the standard health inspection report. Further, such
violations shall be reported in writing by the County Health
Department, on a quarterly basis, to the administrative authority
in the jurisdiction where such violations occur.
E. Notwithstanding any other provision of this ordinance, a
private citizen may bring legal action to enforce this ordinance.
SECTION 8.14.100 Violations and Penalties.
A. It shall be unlawful for any person who owns, manages,
operates or otherwise controls the use of any premises subject to
regulation under Sections 8.14.040, 8.14.050 and 8.14.080 of this
ordinance to fail to comply with any of its provisions.
B. It shall be unlawful for any person to smoke in any area
where smoking is prohibited under Sections 8.14.040, 8.14.050 and
8.14.060 B. of this ordinance.
C. Any person, business, tobacco retailer, or owner, manager
or operator of any establishment subject to this ordinance who
violates any provision of this ordinance shall be deemed guilty of
an infraction, punishable by:
1. A fine, not exceeding one hundred dollars ($100)
and/or five (5) days of community service, for the first violation.
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2. A fine, not exceeding two hundred dollars ($200)
and/or ten (10) days of community service, for a second violation
of this ordinance within one (1) year.
3. A fine not exceeding five hundred dollars ($500)
and/or fifteen (15) days of community service, for a third
violation of this ordinance within one (1) year.
SECTION 8.14.110 Non -retaliation.
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 smokefree environment afforded by this article.
SECTION 8.14.120 Public Education.
The County Department of Health (or City Manager) shall engage
in a continuing program to explain and clarify the purposes and
requirements of this ordinance to citizens affected by it, and to
guide owners, operators and managers in their compliance with it.
Such program may include publication of a brochure for affected
business and individuals explaining the provisions of this
ordinance.
SECTION 8.14.130 Governmental Aqencv Cooperation.
The County Department of Health (or City Manager) shall
annually request other governmental and educational agencies having
facilities within the City to establish local operating procedures
in cooperation and compliance with this ordinance. This includes
urging all Federal, State, County and school district agencies to
update their existing smoking control regulations to be consistent
with current health findings regarding environmental tobacco smoke.
SECTION 8.14.140 Other Applicable laws.
This article shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable laws.
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SECTION 8.14.150 Severabilitv.
If any provision, clause, sentence or paragraph of this
ordinance or the application thereof to any person or circumstances
shall be held invalid, such invalidity shall not affect the other
provisions of this ordinance which can be given effect without the
invalid provision or application, and to this end the provisions of
this ordinance are declared to be severable.
SECTION 8.14.160 Validitv.
If any section, subsection, sentence, clause of phrase of this
ordinance is for any reason held to be invalid, such decision shall
not affect the validity of the remaining portion of this ordinance.
The City Council of the City of San Rafael hereby declares that it
would have adopted the ordinance and each section, subsection,
sentence, clause of phrase thereof, irrespective of the fact that
any one or more sections, subsections, sentences, clauses or
phrases shall be declared invalid.
SECTION 8.14.170 Publication.
This ordinance shall be published once in full before its
final passage in a newspaper of general circulation, published and
circulated in the City of San Rafael, and shall be in full force
and effect thirty (30) days after its final passage.
SECTION 8.14.180 Effective Date.
The effective date of this ordinance shall be January 1, 1994.
4LBFMAT J. ORO, Mayor��
Attest:
JE�/lj .
,M.EONCI iI, City C erk
The foregoing Ordinance No. 1653 was read and introduced
at a regular meeting of the City Council of the City of San Rafael,
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held on the 18th day of October , 1993, and ordered
passed to print by the following vote, to wit:
AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
and will come up for adoption as an Ordinance of the City of San
Rafael at a regular meeting of the Council to be held on the
lst day of November , 1993.
LqINJEAN LEO, Ci y Clerk
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