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HomeMy WebLinkAbout25-Council Office HEALTH PROMOTION AND EDUCATIONAL SERVICES (HPES) 351 North Mt. View Avenue, Second Floor . San Bernardino, CA 92415-0010 . (909) 387-6280 Fax (909) 387-0102 or 387-6430 . TOD (909) 387-6359 . Toll Free 1-800-782-4264 COUNTY OF SAN BERNARDINO HUMAN SERVICES SYSTEM DEPARTMENT OF PUBLIC HEALTH THOMAS J. PRENDERGAST, JR., MD, MPH Director of Public Health January 25, 2002 Mayor Judith Valles San Bernardino City Hall 300 N. "0" Street San Bernardino, CA 92418 Honorable Judith Valles: Tobacco Use Reduction Now (TURN) is a program of the San Bernardino County Department of Public Health. One of the services is to work with cities in updating and/or strengthening their existing tobacco ordinances. With our assistance, the City of Rancho Cucamonga updated, strengthened, and adopted their tobacco ordinance in March 2001. Last year, the City of Redlands incorporated a "no smoking" policy at the <lutdoor "Red lands Bowl" and we are now making recommendations for the update/strengthening of their tobacco ordinance. Most recently, our assistance was requested in developing a comprehensive tobacco ordinance for the City of Colton. The tobacco ordinance for the City of San Bernardino was adopted on June 6, 1994 and currently reflects outdated law. In 1998, the State passed Labor Code Section 6404.5, that requires smoke-free workplaces, restaurants, bars and taverns. Since then, the State of California has responded to evidence from the Environmental Protection Agency and reputable studies by enacting seven new tobacco laws effective January 2002. San Bernardino residents deserve the same protection provided by the State and more. One of the proposed ordinance provisions is AB 188, that prohibits the smoking of tobacco products within a playground or tot lot sandbox area. This law also prohibits the disposal of tobacco related waste, such as a cigar and cigarette butts in these areas. The proposed San Bernardino tobacco ordinance further defines the perimeter of protection to be 25 feet from the tot lot. In the eight years since the adoption of your ordinance, many changes have occurred in the social norms surrounding tobacco use in the city. Only 18% of California adults smoke and you now have the opportunity to support the ordinance in areas shown to be of interest to your residents through opinion surveys conducted by the Behavioral Health Institute at California State University, San Bernardino. TURN has reviewed and suggests that the City amend, strengthen, and adopt its ordinance to include the following: . Amendments to Section 8.72.020 - Definitions: 1. (A) "Bar" now includes those facilities located within a hotel, motel, or similar occupancy establishment. 2. (F) "Athletic recreation area" replaces "Enclosed athletic recreation area". Smoking is prohibited in all athletic areas whether enclosed or not (except where designated). 3. (J) "Public Place" now includes recreation and sports facilities. JjJ.S- 3/r}b-:r 4. (K) "Restaurant" removes language excluding cocktail lounge or tavern. Mayor Judith Valles January 25, 2002 Page 2 . Additions to 8.72.030 - Prohibition against smoking in City owned facilities: 1. (A) The use of tobacco products is prohibited in all City vehicles. 2. (B) Personnel will not use tobacco products while engaged in any contact or conversation with any member of the public. 3. (C) Personnel who wish to smoke outside the enclosed facilities shall make every effort to insure that persons who may be sensitive to tobacco smoke are not adversely affected. 4. (D) Available ashtrays or trash receptacles shall be utilized for the disposal of tobacco related products. . Amendments to Section 8.72.040 - Prohibition against smoking in public places: 1. (7) Removes "when open to public" language. 2. (8) Removes "not open to the sky" language so smoking is prohibited in stage, lecture, symphony or musical recital, andlor other similar public performances whether open to the sky or not. 3. (12) Adds language that prohibits smoking within twenty feet from all entrances and exits of City facilities. 4. (13) Adds language that prohibits tobacco-related activities within twenty-five feet of playground and tot lots in accordance with Section 1044.95 of the Health and Safety Code. . Addition of Section 8.72.055 - Smoking in bars and freestanding bars: California Labor Code, Section 6405.5 states that smoking is prohibited and unlawful in bars and freestanding bars. Section 8.72.80 - Vending Machines: 1. Adds "Self Service Displays" to the title. 2. Removes "except in freestanding bars" from places where tobacco may be sold from vending machines. 3. In accordance with California Business and Professions Code 22962, adds language prohibiting cigarette sales from self-service displays. Mayor Judith Valles January 25, 2002 Page 3 . Section 8.72.90 - Where Smoking is not regulated: Removes (A) Bars and freestanding bars. (All recommended changes are denoted by Italics and by Strikethrough in the attached ordinance.) It has been a pleasure working with city staff during the past year to create a customized tobacco ordinance for San Bernardino. In May 2001, the Department of Public Health was pleased to present two awards to the City of San Bernardino Police Department for their excellent work in enforcing the California Smoke-free Workplace Law (Labor Code Section 6404.5). The enactment of this revised tobacco ordinance communicates compliance with state and federal law and provides continuity of the Municipal Code. It symbolizes the City's commitment to promoting the health of children and families. If you or your staff has questions about the ordinance changes being proposed, they can be directed to Esther Jimenez (388-5777). You can contact me at 387-6219. Sincerely, Th~~:MPH Health Officer Proposed Ordinance 01/25/02 ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 8.72 of the San Bernardino Municipal Code is hereby amended in its entirety to now read as follows: Sections 8.72.010 Legislative findings 8.72.020 Definitions. 8.72.030 Prohibition against smoking in city owned facilities. 8.72.040 Prohibition against smoking in public places. 8.72.050 Smoking in restaurants. 8.72.055 Smoking in bars and freestanding bars. 8.72.060 Child care facilities. 8.72.070 Regulation of smoking in places of employment. 8.72.080 Vending machines and Self Service Displays. 8.72.090 Where smoking is not regulated. 8.72.100 Posting of smoking and no smoking areas. 8.72.110 Violations. 8.72.120 Enforcement. 8.72.130 Non-Retaliation. 8.72.140 Other applicable laws. 8.72.150 Severability. Proposed Ordinance 01/25/02 8.72.010 Legislative findings. The Mayor and Common Council find and declare that: A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution. The Environmental Protection Agency, (EPA) has conducted additional studies to warrant the classification of environmental tobacco smoke (ETS) or secondhand smoke as a Group A carcinogen and is the only ?lgent ever classified by the EPA as a known human lung carcinogen. B. Reliable studies have shown that breathing secondhand smoke is a significant health hazard, especially for certain population groups, including elderly people, children, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; C. Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchioconstriction, and bronchiospasm; D. Nonsmokers with allergies, respiratory disease and all others who suffer ill effects of breathing secondhand smoke may experience a loss of job productivity; E. The Surgeon General of the United States has advised nonsmokers to avoid exposure to tobacco smoke wherever possible, and found that simple separation of nonsmokers and smokers lowers but does not eliminate the risk of nonsmokers from secondhand smoke; F. The smoking of tobacco, or any other weed or plant, is a proven danger to health; G. The Surgeon General of the United States has declared that nicotine is as addictive as cocaine or heroin; no other addictive product or drug, or cancer causing product or drug is sold through vending machines; H. The U.S. Secretary of Health, the U.S. Surgeon General and the leading voluntary health organizations all recommend the elimination of cigarette vending machines for health reasons; I. Accordingly, the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City will be benefited by the regulation of smoking in enclosed places. Proposed Ordinance 01/25/02 8.72.020 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: I\. "Bar" moaAS an area which is se\<oted to tho serving of alcoholic boveragos and in whiG!:I the servico of fees is only incidontal to the consumptien of such bevorages. ,^. ear includes only t!:lese placos, w!:liGh prohibit ontry at any time by any indi'/isl,Jal undor tho a!!e ef 21. "Bar" means an area which is devoted to the serving of alcoholic beverages and in which the service offood is only incidental to the consumption of such beverages. A bar includes only those places which prohibit entry at any time by any individual under the age of 21. "Bar" includes those facilities located within a hotel, motel, or similar transient occupancy establishment. B. "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit making purposes as well as professional corporations and other entities which provide legal, medical, dental engineering, architectural, or other professional services and which "business" employees two (2) or more persons. Management employees shall be included in the calculation of the two or more persons. C. "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. D. "Employer" means any business and any non-profit entity with two or more employees. Management employees shall be included in the calculation of the two or more persons. E. "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls and/or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein. F. "eAGlosed athlotiG recroatien area," moans gymnasiums, health spas, swimR'ling pools, roller aAs ice rinks. "Athletic recreation area," means gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys, sports facilities and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic activities or witness sports events. G. "Freestanding Bar" means a bar which is located in its own building or if in a building with another business or restaurant. has its ovm indo(3endent air ventilation systOR'l and a floor te GoiliA!! physical barrior. ,--- Proposed Ordinance 01/25/02 H. "Non-profit entity" means any corporation, unincorporated association, or other entity created for charitable, educational, political, social, or similar purposes, the net proceeds from the operation of the objects or purposes of the organization and not to private financial gain. A public agency is not a "non-profit entity" within the meaning of this section. I. "Place of employment": means 1) any enclosed area, 2) under the control of a public or private employer, 3) which employees occupy with normal frequency during the course of employment including but not limited to, work areas, employees lounges, and restrooms, conference and classrooms, cafeterias, and hallways, except that a private residence is not a place of employment, unless it is used as a child care or health care facility. J. "Pl,Jslic placo" moans any enclosed area te which tho public is J'lermitted, including bblt net limited to: sanks, privato mjl,Jcational facilitios, health facilities, public transportation facilities, malls, rocoption aroas, restaur-:lRts, retail food production and markotin€l establishmonts, retail servico establishments, retail storos, theaters, and office waiting rooms. ^ private residenco is not a pblblic placo. "Public place" means any enclosed area to which the public is permitted, including but not limited to: banks, private educational facilities, health facilities, public transponation facilities, malls, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, recreation and spans facilities, and office waiting rooms. A private residence is not a public place. K. "Restablrant" means any coffee shop, cafotoria, tavern, sandwicR stand, soda fountain, J'lrivate or public school cafoteria, and any ether eating establishment, organization, cl\,lb, boardin€l R0use, or guost Rouse, which gi'/es or offors fo0d for salo te the public, gl,Jests, patrons, or employoes, except that tho term "restaurant" shall not includo a cocktailloun€le er tavern if sais is a "bar" as dofines horoin. "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boarding house, or guest house, which gives or offers food for sale to the public, guests, patrons, or employees. L. "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories. A business that has been licensed by the California Alcoholic Beverage Control (ABC) Depanment as a public premise for the purpose of allowing on-site consumption of alcohol may not be designated as a "retail tobacco store ". M. "Service line: means an indoor queue in which one or more persons routinely wait for or receive service of any kind, whether or not such service includes the exchange of money. Proposed Ordinance 01/25/02 N. Smoking" means the igniting, inhaling, or carrying of any burning cigar, or cigarette of any kind, or the igniting, inhaling, exhaling or carrying of a pipe or other device for smoking, containing any burning substance. o. "Waiting room space" means the common area of any office, restaurant, theater or any other facility where persons routinely wait. P. "Tobacco vending machines" means any machine or device designated for or used for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coin bills, trade checks or slugs. 8.72.030 Prohibition against smoking in city owned facilities. Smoking is prohibited in all enclosed facilities owned by or under the direct or indirect control of the City of San Bernardino. A. The use of tobacco products is prohibited in all City vehicles. B. Personnel will not use tobacco products while engaged in any contact or conversation with any member of the public. C. Personnel who wish to smoke outside the enclosed facilities shall make every effort to insure that persons who may be sensitive to tobacco smoke are not adversely affected. D. Available ashtrays or trash receptacles shall be utilized for the disposal of tobacco related products. 8.72.040 Prohibition against smoking in public places. A. Smoking shall be prohibited except as otherwise specifically set forth herein in all enclosed public places, including, but not limited to, the following: 1. Elevators and restrooms. 2. Buses, taxicabs and other means of public transit operated under the authority or Franchise of the City of San Bernardino, and ticket boarding, and waiting areas of public transit depots. 3. Service lines. 4. Retail stores. 5. Retail food marketing establishments, including grocery stores and supermarkets. Those areas of such establishments set aside for the Proposed Ordinance 01/25/02 purpose of serving food and drink shall be subject to the same provisions as set forth, herein for the regulation of smoking in restaurants. 6. All areas available to and customarily used by the public in all businesses and non-profit entities patronized by the public, including, but not limited to, such areas in business offices, banks, hotels and motels. 7. Public areas of aquariums, libraries, and museums when open to tho I'l~Blis. Public areas of aquariums, libraries, and museums. 8. Any building not open to tho sky wAish is used primarily for exhibiting any motion picture, stage, drama, locturo, musical rosital er ether similar performance, except when smoking is a part of any s~sh I'lroEl~stion. Any facility used for exhibiting any motion picture, stage, drama, lecture, symphony or musical recital, and/or other similar performances. Q. Enclosed athletic recroation aroa. Any athletic recreation area, spons center, or spons facility, including but not limited to gymnasiums, swimming pools, bowling alleys, health spas and other similar places where members of the general public assemble either to engage in physical exercise, panicipate in athletic activities or witness spons events; except where designated by facility provider. 10. Waiting rooms of doctors' offices and dentists' offices, hallways, wards, and patient rooms of health facilities, including, but not limited to, hospitals, clinics, and physical therapy facilities. 11. Polling places. 12. Within an area measured twenty feet from the entrances and exits of all City buildings or facilities. 13. Within 25 feet of playground and/or tot-lot sandbox areas, including disposal of cigarettes and other tobacco related products in accordance with Section 1044.95 of the California Health and Safety Code. B. Notwithstanding any other provision of this section, any owner, operator, manger or other person who controls any establishment described in this section may declare the entire establishment or any portion thereof to be a non-smoking area. 8.72.050 Smoking in restaurants. Smoking is prohibited and is unlawful within all enclosed restaurants. Proposed Ordinance 01/25/02 8.72.055 Smoking in bars and freestanding bars. Smoking is prohibited and unlawful in bars and freestanding bars as defined in California Labor Code, Section 6404.5. 8.72.060 Child care facilities. Smoking is prohibited and unlawful in any facility or private home providing child care, either licensed or unlicensed, and either on a 24-hour basis or day care, for children not part of the family of the provider, but only when children are present. 8.72.70 Regulation of smoking in places of employment. Except as otherwise provided in this chapter; smoking shall be prohibited in all enclosed places of employment. 8.72.080 Vending machines and Self Service Displays. No cigarette or other tobacco produst FRay l3e sold, offered for salo, or distributed by er freFR a 'lending FRachine or othor appliance, or any other device designed or used ~or vonding purposos except in ~FeestaAEling bars. A. No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a vending machine or other appliance, or any other device designed or used for vending purposes. B. In accordance with California Business and Professions Code 22962, no cigarette or other tobacco product may be sold, offered for sale, or distributed through a self service display, which is an open display of cigarettes that is accessible to the public without the assistance of a clerk. 8.72.90 Where smoking is not regulated. Notwithstanding any other provisions of this chapter to the contrary, the following specific and limited areas shall not be subject to the smoking restrictions of this chapter. A. Bars and freestanding bars. Stricken/Omit item 1. B. Up to 35% of hotel and motel rooms in a hotel or motel rented to guests may be designated as smoking rooms; providing however, that smoking shall be prohibited in the lobby, conference rooms, and other common areas of hotels and motels. C. Retail tobacco stores. I Proposed Ordinance 01/25/02 8.72.100 Posting of smoking and no smoking areas. A. 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 on a sign of a minimum of six inches (6") in width and eight inches (8") in height), citing this subsection shall be clearly, and conspicuously posted in every building or other place where smoking is controlled by this chapter by the owner, operator, manager or other person having control of such building or other place. B. Every theater owner, manager or operator shall conspicuously post signs in the waiting area stating smoking is prohibited. 8.72.110 Violations. It is unlawful for any person to smoke in a place where smoking is prohibited by this chapter. A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the prohibition of this chapter to fail to comply with any of its provisions. B. Any person or business which violates subsection "A" or "B" of this section or permits such violations, or any other provision of this chapter, except as otherwise provided herein shall be guilty of an infraction, punishable as set forth in San Bernardino Municipal Code Section 1.12.010(B). 8.72.120 Enforcement. A violation of any of the provisions of this chapter shall constitute a public nuisance and may be abated by the City through means of restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisance and the City may take action to recover the cost of such nuisance abatement. Notwithstanding any other provision of this chapter, a private citizen may bring a legal action to enforce this chapter. 8.72.130 Non-Retaliation. It is hereby declared to be a violation of public policy for a person or employer to discharge, refuse to hire, or in any manner retaliate against any employee or applicant exercises any rights afforded by this chapter. 8.72.140 Other applicable laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable law or regulation. Proposed Ordinance 01/25/02 8.72.150 Severability. If any provision, clause, sentence or paragraph of this chapter of the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provision 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." III III III III III III III III III III III III III III III III III III III CITY OF SAN BERNARDINO DEPARTMENT DIRECTOR LETTER NUMBER 25 May 19, 1988 (Revi<;ed Jme 29, 1994) SUBJECT: Designation of Smoking Areas in City Hall and other City Facilities. I. PURPOSE The purpose of this Department Director Letter (DDL) is to designate the smoking areas within City Hall and other City facilities pursuant to the changes established by Ordinance No. MC-905 adopted on June 6, 1994. n. AUTHORITY City Ordinance No. MC-905 authorized the City Administrator or the Mayor and Common Council to designate areas of City Hall and other City facilities in which smoking will be permitted. Smoking in any other area not specifically designated below is prohibited. City Ordinance No. MC-905 further states that it is unlawful for any person to smoke in a place where smoking is prohibited and any person in violation of this section shall be guilty of an infraction, punishable as set forth in San Bernardino Municipal Code Section 1.12.01O(B). Any violations reported within the first seven days after the date noted on this DDL will be issued a warning only. The provisions of Municipal Code Section 1.12.01O(B) will take effect at the expiration of the seven day period. m. RESPONSmILITY Department Heads shall be responsible for ensuring compliance with the provisions of the DDL as it relates to their employees and offices. All violations shall be reported to the City Administrator's Office for appropriate action. IV. DESIGNATED AREAS The following areas are designated as smoking areas in City Hall and other City Hall facilities: a. Patio areas off the southwest stairwell of City Hall, between the main floor and stairwell, on all floors. b. Balcony areas on the south side of the City Hall building on all floors. r--- DDL No. 2S Page 1)yo c. Outside areas of all Police Department facilities as designated by the Police Chief. d. Outside areas of all fire stations as designated by the Fire Chief. e. Outside areas of Parks/Recreation/Community Service facilities, as designated by the Director of Parks, Recreation and Community Services, excludin~ all areas desil!:nated as athletic recreation areas such as swimminl!: pools or any other outside athletic recreation area as desil!:nated by the Parks. Recreation and Community Services Director. f. Outside areas of all city libraries as designated by the City Librarian. g. Outside areas of the Central Garage facility as designated by the Public Services Director. h. Outside areas of the Central Stores facility as designated by the Finance Director. i. Outside areas of all City Yard facilities as designated by the Public Services Director. j. Outside areas of the Economic Development Agency building and Public Enterprise building as designated by the Agency Administrator of the Economic Development Agency. k. Outside areas of the Animal Control facility as designated by the Animal Control Director. 1. Outside areas of the Cemetery facility as designated by the Cemetery Superintendent. m. Outside areas of the Water Reclamation Plant as designated by the General Manager of the Water Department. n. Outside areas of all other city owned facilities not addressed above, as designated by the City Administrator. APPROVED BY: ~c1/1J7a~0 , SHAUNA CLARK City Administrator . . 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I 281 I ; . tf~ I/e .. 'jt~~ /1 :7 v /~../.:.:.- '/ / "1 7 7 r" 1 2 3 4 5 Me-90S ,':.'- .' ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 8.72 of the San Bernardino Municipal 6 Code is hereby amended to read as follows: 7 "8.72.010 Legislative findings. 8 The Mayor and Common Council find and declare that: A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution. The Environmental Protection Agency ( EPA) has conducted additional studies to warrant the classification of environmental tobacco smoke ( ETS) or secondhand smoke as a Group A carcinogen and is the only agent ever classified by the EPA as a known human lung carcinogen. B. Reliable studies have shown that breathing secondhand smoke is a significant health hazard, especially for certain population groups, including elderly people, children, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; c. Health hazards induced by breathing secondhand smoke include lung cancex::, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchioconstriction. and :::AB, JS [SmokinqJ.Or:::l.! 1 : -?Q4 ~ay '_.1 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . .\ Me-90S ! / / o. bronchiospasm, Nonsmokers with allergies, respiratory disease and all others who suffer ill effects of breathing secondhand smoke may experience a loss of job productivity, The Surgeon General of the United States has advised nonsmokers to avoid exposure to tobacco smoke wherever possible, and found that simple separation of nonsmokers and smokers lowers but does not eliminate the risk of nonsmokers from secondhand smoke, The smoking of tobacco, or any other weed or plant, is a proven danger to health, The Surgeon General of the United States has declared that nicotine is as addictive as cocaine or heroin, no other addictive product or drug, or cancer causing product or drug is sold through vending machines: The U.S. Secretary of Health, the U.S. Surgeon General and the leading voluntary health organizations all recommend the elimination of cigarette vending machines for health reasons; Accordingly, the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City will be benefitted by the regulation of smoking in enclosed places. E. F. G. H. 1. 2 :"'lay 0 : ?Q4 JAB/js (SmoklnaJ C~dl . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . \ , "....... "''''J 8.72.020 Definitions. The fOllowing words and phrases, whenever used in this chapter, shall be construed as defined in this section: A. "Bar" means an area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages. A bar includes only those places which prohibit entry at any time by any individual under the age of 21. B. "Business" means any' sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit making purposes as well as professional corporations and other enti ties which provide legal, medical, dental engineering, architectural, or other professional services and which "business" employees two (2) or more persons. Management employees shall be included in the calculation of the two or more persons. C. "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. D. "Employer" means any business and any non-profit entity with two or more employees. Management employees shall be included in the calculation of :,0:;,8/]5 !SmoklngJ.Crdl 3 .'1ay":' :H4 I . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ! 'I II . . Me-90S . I I the two or more persons. E. "Enclosed Area" means all space between a floor and ceiling which is enclosed on all sides by solid walls and/or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all space therein. F. "Enclosed athletic recreation area" means gymnasiums, health spas, swimming pools, roller and ice rinks. G. "Freestanding Bar" means a bar which is located in its own building or if in a building with another business or restaurant, has its own independent air ventilation system and a floor to ceiling physical barrier. H. "Non-profit entity" means any corporation, unincorporated association, or other entity created for charitable, educational, political, social, or similar purposes, the net proceeds from the operation of which are committed to the promotion of the obj ects or purposes of the organization and not to private financial gain. A public agency is not a "non-profit entity" within the meaniftg of this section. I. "Place of employment": means l) any enclosed area, 2) under the control of a public or private employer, 3) which employees occupy with normal frequency during the course of employment, including but not limited to, work areas, ~',;8 js [Smo)ungJ.CrdJ 4 : ;:94 May <.l, . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L. employees lounges, and restrooms, conference and classrooms, cafeterias, and hallways, except that a private residence is not a place of employment, unless it is used as a child care or health care facility. "Public place" means any enclosed area to which the public is permitted, including but not limited to: banks, private educational .facilities, health facilities, public transportation facilities, malls, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, and office waiting rooms. A private residence is not a public place. "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria', and any other eating establishment, organization, club, boarding house, or guest house, which gives or offers food for sale to the public, guests, patrons, or employees, except that the term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined herein. "Retail tobacco store" utilized primarily for products and accessories. 5 l"J."- JUJ J. K. JAB js [Smok~nqJ OrdJ means a the sale retail store of tobacco May'? :194 . . 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . 1 2 3 M. "Service line" means an indoor queue in which one or more persons routinely wait for or receive service of any kind; whether or not such service includes the exchange of money. N. "Smoking" means the igniting, inhaling, or carrying of any burning cigar, or cigarette of any kind, or the igniting, inhaling, exhaling or carrying of a pipe or other device for smoking, containing any burning substance. o. "Waiting room space" means the common area of any office, restaurant, theater or any other facility where persons routinely wait. P. "Tobacco vending machines" means any machine or device designated for or used for the vending of cigarettes, cigars, tobacco, or tobacco products upon the insertion of coins, bills, trade checks or slugs. 8.72.030 Prohibition against smoking in city owned facilities. Smoking is prohibited in all enclosed facilities owned by or under the direct or indirect control of the City of San Bernardino; 8.72.040 Prohibition against smoking in public places. A. Smoking shall be prohibited except as otherwise specifically set forth herein in all enclosed public places, including, but not limited to, the following: 1. Elevators and restrooms. ~AB/js [Smokinq3.0rdJ 6 ~ay~. :Q94 r~-- . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Me-90S 7. 8. 9. 10. =AB JS 'SmOKlnqJ.Ord) 2. Buses, taxicabs and other means of public transit operated under the authority or Franchise of the City of San Bernardino, and ticket boarding, and waiting areas of public transit depots. Service lines. Retail stores. Retail food marketing establishments, including grocery stores and supermarkets. Those areas of such establishments set aside for the purpose of serving food and drink shall be subject to the same provisions as set forth herein for the regulation of smoking in restaurants. All areas available to and customarily used by the public in all businesses and non-profit entities patronized by the public, including, but not limited to, such areas in business offices, banks, hotels and motels. Public areas of aquariums, libraries, and museums when open to the public. Any building not open to the sky which is used primarily for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except when smoking is a part of any such production. Enclosed athletic recreation area. Waiting rooms of doctors' offices and dentists' offices, hallways, wards, and patient rooms of health facilities, including, but not limited to, 7 ~ay ~ :]94 3. 4. 5. 6. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ! . . Me-90S hospitals, clinics, facilitie$. and therapy I physical 11. Polling places. B. Notwithstanding any other provision of this section, any owner, operator, manager or o~her person who controls aoy.establishment described in this section may declare the entire establishment or any portion thereof to be a non- smoking area. 8.72.050 Smoking in re.~auran~.. Smoking is prohibited and is unlawful within all enclosed restaurants. 8.72.060 Child care facili~ies. Smoking is prohibited and unlawful in any facility or private home providing child care, either licensed or unlicensed, and either on a 24-hour basis or day care, for children not part of the family of the provider, but only when children are present. 8.72. 070 Regula~ion of smoking in places of employmen~. Except as otherwise provided in this chapter, smoking shall be prohibited in all enclosed places of employment. 8.72.080 Vending machines. No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a vending machine or other appliance, or any other device designed or used for vending purposes except in :AB/js (SmoKingJ.Ordl 8 May 9 :?94 . . . Me-90S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 freestanding bars. 8.72.090 Where smoking is no~ regula~ed. Notwi thstanding any other provisions of this chapter to the contrary, the following specific and limited areas shall not be subjec~ to the smoking restrictions of this chapter. 1. Bars and freestanding bars. 2. Up to 35% of hotel and motel rooms in a hotel or motel rented to guests may be designated as smoking rooms; providing however, that smoking shall be prohibited in the lobby, conference rooms, and other common areas of hotels and motels. 3. Retail tobacco stores. 8.72.100 Pos~ing of smoking and no smoking area.. A. 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 on a sign of a minimum of six inches ( 6") in width and eight inches (8") in height), ci ting this subsection shall be clearly, and conspicuously posted in every building or other place where smoking is controlled by this chapter by the owner, operator, manager or other person having control of such building or other place. B. Every theater owner, manager or operator shall conspicuously post signs in the waiting area stating smoking is prohibited. :~B/]s [SmokingJ.Crdl 9 ~ay Q :. 194 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . MC-905 8.72.110 Violations. A. It is unlawful for any person to smoke in a place where smoking is prohibited by this chapter. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the prohibition of this chapter to fail to comply with any of its provisions. Any person or business which violates subsection "A" or "B" of this section or permits such violations, or any other provision of this chapter, except as otherwise provided herein shall be guilty of an.iafraction, punishable as set forth in San Bernardino Municipal Code, Section 1.12.010(B). 8.72.120 Enforceaent. A violation of any of the provisions of this chapter shall constitute a public nuisance and may be abated by the City through means of restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisance and the City may take action to recover the cost of such nuisance abatement. Notwithstanding any other provision. of this chapter, a private citizen may bring a legal actio~ to enforce this chapter. 8.72.130 Non-Retaliation It is hereby declared to be a violation of public 10 May 9. B. C. :.?94 JABI JS [Smokinq3.0rd] . . . MC-~U:' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / pOlicy for a person or employer to discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. 8.72.140 Other applicable laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by ,other applicable law or regulation. 8.72.150 Severability. If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidi ty shall not affect the other prOVision of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declare to be severable." 11 May 9 :. ?94 :AB/Js ;Smoklng3.Crdl . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I . .' Me-90S i " AN ORDINANCE... AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO I MUNICIPAL CODE RELATING TO SMOKING I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Common Council of the City of San regular meeting thereof, held on the 6th , 1994, by the following vote, to wit: Bernardino at a day of June Council Members: NEGRETE CURLIN HERNANDEZ OBERHELMAN DEVLIN POPE-LUDLAM MILLER AYES NAYS ABSTAIN ABSENT x x x x x x x ()~~ C~k The foregoing Ordinance is hereby approved this ?PG day of June , 1994. Approved as to form and legal content: JAMES F. PENMAN, City Attorney (". _ ;-f'l y~c ,z~'- By' , . - JL.K .tj#:rUtk-I ,/ I , .,.itCt. (t '1 LI?p;/~/J.7-v / .. -/1*7;!f/L-/ L\ I / / :1 I f7tt4 1i'v"I>:.!-')"'?" '';7<.'d-,u-,.vc--<--- " :~8!JS [Smoking] CrdJ , -----, / . ..,yv; .! ,: /1: H"\ -:: . ~#. .:...<; ........ Tom.Minor, Mayor City of San Bernardino 12 ~ay -? _ .'14 .' OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO JAMES F. PENMAN CITY ATTORNEY TO: Mayor and Common Council 'liS ::0 m ('") m . <: m 0 W l - ('") ~ "0 -< .. ("") ~ r- m x ~ The State law FROM: James F. Penman, City Attorney DATE: January 31,2002 RE: City Smoking Ordinance State law presently prohibits smoking in any enclosed workplace in the State. further provides that: "The smoking prohibition set forth in this section shall constitute a uniform statewide standard for regulating the smoking of tobacco products in enclosed places of employment and shall supersede and render unnecessary the local enactment or enforcement of local ordinances regulating the smoking of tobacco products in enclosed places of employment. Insofar as the smoking prohibition set forth in this section is applicable to all (100 percent of) places of employment \vithin this state and, therefore, provides the maximum degree of coverage, the practical effect of this section is to eliminate the need of local governments to enact enclosed workplace smoking restrictions within their respective jurisdictions." Labor Code ~6404.5(g) Although the above State legislation renders our smoking ordinance unenforceable, we have not repealed Chapter 8.72 of our Municipal Code. Furthermore, I have been advised that the Mayor and Council do not wish to strengthen this ordinance. Representatives of TURN advised the Legislative Review Committee on January 24 that because the City's ordinance is inconsistent with State law, it is confusing to businesses and others as to which restrictions are actually in place. This may give rise to a legal (but false) defense by some such establishments that they are confused as to which law to apply. Throughout our County, restaurants and bars openly violate the State's no smoking ban. It is time for the cities of San Bernardino County to get serious about whether or not we are going to follow State law in our communities or merely amend unenforceable City ordinances with milk-toast language that, according to a TURN representative (at the January 24 Legislative Review Committee), will not add any new smoking restrictions not already provided by State law. (Actually, ' TURN's proposed language does add a few, new restrictions.) f\:3-e.r.ti0- .:+:.--\eJ(\ Ncs. ' d~1 d- "II q.. 30 308'lIiti~It1)1'~EET' SAN BERNARDINO. CAlg2418-0001 . (909) 384-5355' FAX (909) 384-5238 ()~- 6l-{-6d.. To: Mayor and Common Council Re: City Smoking Ordinance Page 2 If the Mayor and Common Council choose not to repeal Chapter 8.72 "SMOKING," this office will bring forward, at the Council meeting on February 19, an ordinance that will prohibit smoking in all "unenclosed workplaces" in the City, including "smoking patios" of restaurants and bars. It will also prohibit smoking within thirty (30) feet of any private or public business, office, or other non-residential structure in the City. The proposed ordinance will specifically authorize the Office of the City Attorney to seek temporary and permanent injunctive orders against any business violating Labor Code 96404.5. Other provisions covering smoking in locations not prohibited by State law will also be included. If we are going to have a smoking ordinance, it should be enforceable by this office. If the Council chooses to keep the ordinance, we need to amend it to permit such enforcement. It is my beliefthat we can stop all smoking within all restaurants and bars in the City within six months of the above-language taking effect. This will occur either because the owners of restaurants and bars will actively prevent all smoking in their establishments or because those which do not stop smoking will be closed by court injunction or put out of business indirectly by the cost oflitigation. (It will be important to get the County and all other cities to enact ordinances with the same language so that our City's restaurants and bars are not subject to an "uneven playing field. ") In conclusion, it makes no sense to keep on the books a law that we cannot enforce nor to amend such a law and pretend that it will have an impact on smoking in our City. We must choose either to continue the pretense of following the State law in its entirety or step up to the plate, enact the language suggested herein and aggressively enforce such a new ordinance. Actions speak louder than words, and, by our actions, we can effectively impact smoking throughout places of employment in the City of San Bernardino. The alternative is to continue to play games and pay lip service by maintaining and amending an outdated, unenforceable and useless ordinance in our City's Municipal Code. Respectfully submitted, MES F. PENMAN, ity Attorney Enclosures (2) cc: Fred Wilson, City Administrator Rachel Clark, City Clerk JFI'/js [SMOKING.MEM] 2 LABOR CODE n standard or other standard utilizing appropriate ']ectronic, a.od biotechnical systems, adopted by the the federal Environmental Protection Agency. If ,tandards of the Occupational Safety and Health standards adopted by the federal Environmental 'l'k area where no one, as part of his or her work If this paragraph, "work responsibilities" does not ! out in the breakroom when it is unoccupied. accommodate nonsmokers. Jloyees, either full-time or part-time. may pennit .~ent to permit smoking. No one, as part of his or an area where smoking is permitted. An employer 'r~ion to obtain consent or who has required an IhJect to the penalty provisions of Section 6427. il'ectly to the outside by an exhaust fan. Air from t~ of the building. I standard or other standard utilizing appropriate lectronic, and biotechnical systems, adopted by the "he federal Environmental Protection Agency. If - andards of the Occupational Safety and Health .~tandards adopted by the federal Emil-onmental ~ersede or render inapplicable an.y condition or Ie types of business establishments by any other otherwise applicable paragraph of this subdivision not be construed to require employers to provide 'eakrooms for smokers or nonsmokers. ,n. smoking may be permitted in gaming clubs, as ,aI'S and taverns, as defined in paragraph (8) of Occupational Safety and Health Standards Board 2nvironmental tobacco smoke to a le\'el that will rects to exposed employees or Oil by the federal ndard for reduction of permissible exposure to It will prevent anything other than insignificantly [Jaragraph (I) is adopted on or before January 1, g clubs and in bars and taverns, subject to full regulation within two years following the date of achieve compliance with, or conformity to, the moking in the gaming club, bar, or tavern until mal Safety and Health Standards Board and the ,t regulations specified in subparagraph (B) of 'he Occupational Safety Standards Board shall be ironmentaI Protection Agency. aragraph (1) is not adopted on or before January (8) of subdivision (d) shall be inoper-crtive on and l. Upon adoption of such a regulation on or after in gaming clubs and in bars and ta\'erns, subject in the regulation within two years foHowing the :' to achieve compliance with, or conformity to, the ,moking in the gaming club, bar, or ta\'ern until mal Safety and Health Standards Board and the ~rline; deletions by asteriSks" .. .. 1 ~ 6404.51 [LABOR CODE r -.-- ---,--~- federal Environmental Protection Agency both adopt regulations specified in subparagraph (B) of paragraph (1) that are inconsistent, the regulations of the Occupational Safety and Health Standards Board shall be no less stringent than the regulations of the federal Environmental Protection Agency. (4) From'.January 1,1997, to December 31,1997, inclusive, smoking may be permitted in gaming clubs, as defined in paragraph (7) of subdivision (d), and in bars and taverns, as defined in paragraph (8) of subdivision (d), subject to both of the following conditions: (A) If practicable, the gaming club or bar or tavern shall establish a designated nonsmoking area. (B) If feasible. no employee shall be required, in the performance of ordinary work responsibilities, to enter any area in \....hich smoking is .permitted, ' 1 (g) The smoking prohibition set forth in this section shaII constitute a uniform statev.ide standard for I'regulating the smoking of tobacco products in enclosed places of employment and shall supersede and render unnecessary the local enactment or enforcement of local ordinances regulating the smoking of I tobacco products in enclosed places of employment. Insofar as the smoking prohibition set forth in this I section is applicable to all (100 percent of) places of employment within this state and, therefore, provides the maximum degree of coverage, the practical effect of this section is to eliminate the need of local I government..,> to enact enclosed workplace smoking restrictions mtnin their respective jurisdictions. (h) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place of emplo~llnent for any rea~on. (i) The enactment of local regulation of smoking of tobacco products in enclosed places of employment by local gf)\'ernments shall be suspended only for as long as, and to the extent that, the (l00 percent) smoking prohibition pro\ided for in this section remains in effect. In the event this section is repealed or modified by subsequent legislative or judicial action so that the (l00 percent) smoking prohibition is no longer applicable to all endu:ied places of emplojTIHmt in California, local governments shall have the full right and authority to enforce previously enacted, and to enact and enforce new, restrictions on the smoking of tobacco products in enclosed places of emplo.)'TT1ent \vithin their jurisdictions, including a complete prohibition of Rmoking, Notwithstanding any other prO\ision of this section, any area not defined as a "place of emplo,vment" or in which the smoking is not regulated pursuant to subdivision (d) or (e), shall be subject to local regulation of smoking of tobacco products. Ul Any \iolation of the prohibition set forth in subdhision (b) is an infraction * * * punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation ....ithin one year, and live hundred dollars ($500) for a third and for each subsequent violation within one year, This subdhision shall be enforced by local law enforcement agencies including, but not limited to, local health depaltments, as determined by the local governing body, (k) Notwithstanding Section 6.309, the division shall not be required to respond to any complaint regarding the smoking of tobacco products in an enclosed space at a place of employment, unless the employer has been found guilty pursuant to subdivision (j) of a third violation of subdivision (b) within the previous year, (l) If any pro\ision of this act or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other prOvisions or applications of the act that can be given effect '\\;thout the invalid provision of application, and to this end the provisions of this act are severable. (Added by Stats.1994, c. 310 (A.B.13), ; 1. Amended by Slats.I995, c. 91 (S.B.975), ; 110; Slats.I996, c. 989 (A.B.3037), ! I; Slats.1998, c. 606 (S.B.1880), ! 5.) Historical and Statutory Nates 1994 Legislation The Senate Daily JOW71al for the 1993-94 Regular Session, pages 5528 to 5529, contained the following letter dated June 20, 1994, from Gene Wong, counsel for the Senate Judiciary Committee, regarding AB.l3 (Stats. 1994,c.310); "Last Thursday, you requested a quick memo on 'the meaning of the June 16th a.mendments to AB 13. Particu- larly, you were interested in the relationship of the new e."(emption (No, 14) for 'employers with a total of five or fewer employees' and the e."(emption (No.8) for bars and taverns, During the discussion of the amendments, you asked whether the new exemption applied to bars and taverns and would pennit smoking in that employment situation. The response from Senator Bergeson was that it did. That response was incorrect and requires clarifica- tion. Additions or changes Indicated "Under exemption No.8, bars and taverns (dermed to include 'stand-alone' bars and hotel bars, but not including restaurant bars) are exempt from the smoking restrictions of AB 13 until January 1, 1997. If CaVOSHA or federal EP A adopts standards to reduce employee exposure to emironmental tobacco smoke before Jan. 1, 1997, the business may permit smoking for two additional years while it complies with the standard. If the standards are not adopted, the exemption would expire on Jan, 1, 1997 and smoking would be prohibited in those establishments until the adoption of those standards. Upon that adop- tion, the business will have two years to comply and may permit smoking during that compliance period. "New exemption. No. 14 permits smoking in employ- ment situations involving five or fewer employees,. The exemption is conditioned upon the area being closed to minors and the consent of all employees who enter that by underline; deletions by asterisks" * * 87 - CITY OF SAN BERNARDI~MflAURA~mtlHAT MAY BE IMPACTED BY CITY ATTORNEY'S PROPOSED NEW ORDINANCE QO: fl q IE lW. SIT All Fast Food Restaurants with Outside Seating Alfredo's Pizza & Pasta Arrowhead Credit Union Park Baja Fresh (Hospitality Lane) Black Angus Restaurant Stuart Anderson's Brandin Iron Castaway Restaurant & Banquets Celebrities Sports Grill Chili's Grill & Bar Claim Jumper Church's Fried Chicken Costco Wholesale - Hot Dog Stand Crabby Bob's D.l's Coffee Shop Fanatics Greenbrier Guadalaharry's Mexican Restaurant & Cantina Gus Jr. Burgers In-N-Out Burgers Jose's Mexican Food Lamplighters Marie Callendar's Restaurant & Bakeries McDonald's Restaurants Mediterranean Mexico Restaurant Mimi's Cafe Molly's Cafe Outback Steakhouse Panda Express Pan's Restaurant Popeye's Chicken & Bisquits Red Fox Red Lobster Restaurant Rosa Maria's Spencer's Restaurant (Radisson Hotel) Starbucks TGI Friday's TOGO's (Hospitality) The Mad Greek Uptowner and Probably Many More . " ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING. , ~ 4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 5 7 SECTION I. Chapter 8.72 of the San Ber~rd~? Municipal Code is hereby amended in its 0<0 ..,. ..' 4-"" entirety to now read as follows: . ,\ yo..> ",. 'Ct, ~ (,\,\:, " ~> i'>:;r_ "~ .,'; Section 8.72.010 Definitions. ":''J,,..'( > .. ,...- .~. The following words and Phra~Q \~henever used jnt~;s'C;h,~Pte~:' s~all be construed as , 6 8 9 10 defined in this section: II A. "Business" means any sole proprietorship, partnership, joint venture, corporation or 12 other business entity in any form. 13 B. "Unenclosed space at a place of employment" means any area in which an employee 14 performs work-related tasks that are not included within the meaning of "enclosed space of 15 employment" in California Labol' Code section 6404,5, related case law, and Opinions of the 16 Attorney General of California, The fact that a space has some but not all the traditional indicia of 17 an enclosed space, including, but not limited to, a wall or walls, a roof, or screens, shall not eliminate 18 an area from qualifying as an "unenclosed space at a place of employment." "Unenclosed space at 19 a place of employment" shall include, but is not limited to, smoking patios, including those designed 20 primarily for non-employees, 21 c. "Smoking" means the igniting. inhaling, exhaling, or carrying of any burning cigar. 22 cigarette, pipe with a burning substance, or the use of any other smoking device, irrespective of the 23 substance being burned. 24 Section 8.72.020 Smoking Prohibited in Any Unenclosed Space at a Place of Employment. 25 Smoking shall be prohibited in any unenclosed space at a place of employment. 26 III 27 III 28 III MR/tbm [smoking.ord] Section 8.72.030 Smoking Prohibited Within Thirty Feet of Entrances and Exits. 2 Smoking shall be prohibited within thirty (30) feet from the entrances and exits of all private 3 businesses. public-owned buildings. all public and private offices..(jr any other non-residential . .... p' >/ 4 building. ,OJ 5 Section 8.72.040 Violation. 6 A. It is unlawful for any person to smoke in a place where smoking is prohibited by this 7 Chapter. 8 B. It is unlawful for any person. including a business or other entity, who owns, 9 manages, leases, operates, or otherwise controls the use of any premises subject to the prohibitions 10 of this Chapter, to fail to comply with any of the provisions, or to permit their customers, invitees. II or agents to violate any provision of this Chapter. The fact that any person, including a business or 12 other entity, who furnishes ashtrays, other ash receptacles. or matches, shall create a rebuttable 13 presumption that smoking is permitted. 14 c. Any person, including a business or other entity. who violates subsection "A" or "B" 15 of this section, permits any such violation(s), fails to take all lawful actions to prevent any 16 violation(s), or permits violations of any other provision of this Chapter, except as otherwise "f-')'l provided herein, shall be guilty of a misdemew~ltl'i~;; ;P~ion, punishable as set forth in San 1'> v...... t. .""') f' 1" ~ Bernardino Municipal Code, section 1.l2.01(}t~~thN>dl1iS subsection, "permits such violations" includes, but is not limited to, any situation where any person, including a business or other entity. 17 18 19 20 fails to direct any person, who is in violation of subsection "A", to cease said violation, or fails to 21 take all lawful action to compel any person, who is in violation of subsection "A", upon demand, 22 to leave any building or area where smoking is prohibited. 23 D. Nothing in this section shall be deemed to prevent the City Attorney from 24 commencing a civil or administrative action to abate a nuisance in addition to, alternatively to, or 25 in conjunction with the criminal sanctions outlined in this section. 26 Section 8.72.050 Civil or Administrative Nuisance Abatement Allowed. 27 A violation of any provision of this Chapter shall constitute a public nuisance and may be 28 abated by the City Attorney, through means ofa civil nuisance action maintained in the name of the MR/tbm [sllloking.ord] 2 People of the State of Cali fomi a, including by an action for injunctive relief, or in any other manner 2 provided by law, including an action pursuant to California Civil Code Division 4, Part 3. including 3 section 3479 el seq. The City Attorney may also abate any nuisance defined in this Chapter pursuant 4 to the procedure set forth in San Bernardino Municipal Code Chapter 8.30. The City Attorney may 5 6 take any action authorized by law to recover the cost of any nuisance abatement. The City Attorney may enforce the provisions of Cali(iJrnia Labor Code section 649il.5 by a civil nuisance abatement -~. t:... i ,-\(\' ':) . - ~~~. ~ actiOn. C\\.\i r' .'" 'j. "'" .} Section 8.72.060 Severability. A~".~:.,."", "" \)'- If any section, provision, clause, sentence~word(s), or paragraph of this Chapter or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect any 7 8 9 10 11 other provision or applications of this Chapter. Such portion or portions found invalid shall be 12 deemed to be separate, distinct, and independent provisions. and such a finding of invalidity shall 13 not affect the validity of the remaining portions of this Chapter. AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING. 2 3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a 5 _ day of 6 COUNCIL \lEMBERS: 7 ESTRADA 8 LIEN 9 MCGINNIS 10 SCHNETZ 11 SUAREZ 12 ANDERSON 13 MC CAMMACK 14 15 16 17 18 19 20 21 22 meeting thereof, held on the , 2002, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT City Clerk The foregoing Ordinance is hereby approved this _ day of 23 Approved as to form 24 and legal content: 25 JAMES F. PENMAN City Attorney 26 27 City Attorney D f'') A r"''T'"' . n "'.~'~ /' 28 MR/tbrn [snwkingord] ,2002. JUDITH V ALLES, Mayor City of San Bernardino 4 Voice of the People The Sun 399 N. "D" Street San Bernardino, CA 92401 January 30, 2002 I work at a local smoke-free bar in the City of San Bernardino and I am very happy to be protected from secondhand tobacco smoke. My workplace voluntarily removed a cigarette vending machine from the bar months before the "no smoking" in a bar ordinance took effect. We did this in order to encourage smokers not to smoke in our establishment. I want a local tobacco ordinance in order to send a message that this city cares about its workers. I also want you to strengthen it to reflect extra protection for our children and our families, especially when they are out in public areas. Thank you for your support, Name~\~t~t Phone Number( ~ )~... <{D~ 1 ~/t./I0;6 * L -z..- Voice of the People The Sun 399 N. "D" Street San Bernardino, CA 92401 January 30, 2002 I am and have been a bartender for twenty-one years. I live and I bartend in the City of San Bernardino. Our bar obeyed the law and became smoke-free from day one. Not only is my workplace environment healthier for me, but also for the others who work here. At first, business went down as it possibly did at bars throughout the city, but now it's better than ever! Our old customers returned and they smoke outside. We also made many new customers. Amend, strengthen, and adopt the San Bernardino Smoking Ordinance. Ensure that our public, children, and families are protected by strong provisions in the local ordinance. Thank you, S:{Q'-4,--~TD flz..zA 3)~ C1tlf;t~ 10<; ) B?S~'7Scr I Cc Mayor Valles San Bernardino City Council Voice of the People The Sun 399 N. "D" Street San Bernardino. CA 92401 January 30, 2002 I work at a local smoke-free bar in the City of San Bernardino and I am very happy to be protected from secondhand tobacco smoke. My workplace voluntarily removed a cigarette vending machine from the bar months before the "no smoking" in a bar ordinance took effect. We did this in order to encourage smokers not to smoke in our establishment. I want a local tobacco ordinance in order to send a message that this city cares about its workers. I also want you to strengthen it to reflect extra protection for our children and our families, especially when they are out in public areas. Thank you for your support, Name ~ ~' Phone Number( qr:TC& 5J> /- 2 31 (, JJ..~ The Press Enterprise January 31, 2002 Penman 'never signed off on the existing (smoking) ordinance'. The same ordinance had been approved, at that time, by the San Bernardino city council and signed by the mayor. His office will recommend a resolution "promoting a healthy environment and a healthy citizenry". Then, he'll ask to repeal the local tobacco ordinance. This is such a bad move. He states that the ordinance caused businesses to close. Bad business and bad location caused one restaurant to close. Hospitality Lane is thriving and so are other bars, restaurants and business throughout the city. The tobacco ordinance has a lot more to offer than what Penman says. Why does he want to go back to primitive times? An ordinance protects us from secondhand smoke while we are out in public. Let's stay health conscience. I urge the City of San Bernardino city council to keep and update the local ordinance. Strengthen the provisions to make it conducive to "a healthy environment and a healthy citizenry. Our city needs a tobacco ordinance, not a resolution!! J~~.~ Henry Salas San Bernardino 1067 W. Temple San Bernardino (909) 237-5439 Voice of the People The Sun 399 North "D" St. San Bernardino, CA 92401 January 30, 2002 To Whom It May Concern: I am a teacher and have been teaching for 11 years in San Bernardino County with all levels of education, K-12. Currently, I am teaching at EI Prado Adult School in Frontera. I have seen some of my young students, adult students, and their children who have been and are affected negatively by secondhand smoking. The law has made my workplace environment healthier for me by not allowing smoking in public areas. However, I live in the County of San Bernardino and do enjoy the smoke-free environment provided by the City of San Bernardino at public places, restaurants, public buildings, shops, and etc. My friends, who work at restaurants and bars, share their comments on how great it is to have a smoke-free environment to work in. People must earn a living, does that mean they have to risk their health for it? Even when talking to some smokers, they stated that they do enjoy eating their meals in a smoke-free restaurants. Adopting, amending, and strengthening the San Bernardino Smoking Ordinance is a must. I strongly believe that our public, children, and families need to be protected by strong provisions in the local ordinance. rL ,~ I^- Tramy Nguyen 28636 Fenwick Way Highland, CA 92346 909-864-1257 cc.: Mayor Valles City Council Members Voice of the People The Sun 399 N. "0" Street San Bernardino, CA 92401 January 30, 2002 I work at a local smoke-free bar in the City of San Bernardino and I am very happy to be protected from secondhand tobacco smoke. My workplace voluntarily removed a cigarette vending machine from the bar months before the "no smoking" in a bar ordinance took effect. We did this in order to encourage smokers not to smoke in our establishment. I want a local tobacco ordinance in order to send a message that this city cares about its workers. I also want you to strengthen it to reflect extra protection for our children and our families, especially when they are out in public areas. Thank you for your support, Nam;-'\--21t~" I . GO' W\~t.- Phone Number( 'fo1) 1q z.---rG 53. Voice of the People The Sun 399 N. "D" Street San Bernardino, CA 92401 January 30, 2002 I work at a local smoke-free bar in the City of San Bernardino and I am very happy to be protected from secondhand tobacco smoke. My workplace voluntarily removed a cigarette vending machine from the bar months before the "no smoking" in a bar ordinance took effect. We did this in order to encourage smokers not to smoke in our establishment. I want a local tobacco ordinance in order to send a message that this city cares about its workers. I also want you to strengthen it to reflect extra protection for our children and our families, especially when they are out in public areas. Thank you for your support, Name 'Fe I )....( 'D \l? 0( Y1/) h (' '" Phone Number( if 0 71 t!7:5' 7- '\ :5 Y 2.. '-- Voice of the People The Sun 399 N. "0" Street San Bernardino, CA 92401 January 30, 2002 I work at a local smoke-free bar in the City of San Bernardino and I am very happy to be protected from secondhand tobacco smoke. My workplace voluntarily removed a cigarette vending machine from the bar months before the "no smoking" in a bar ordinance took effect. We did this in order to encourage smokers not to smoke in our establishment. I want a local tobacco ordinance in order to send a message that this city cares about its workers. I also want you to strengthen it to reflect extra protection for our children and our families, especially when they are out in public areas. Thank you for your support, Name ~Vt'rI~-;iY'-'t t-k'VV\JA VlfGcc Phone Number(t'[OC() ?::>70. ~?.c>81