HomeMy WebLinkAbout15-City Attorney
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ORDl:NANCE NO.
AN ORDl:NANCE OF THE Cl:TY OF SAN BERNARDl:NO AMENDl:NG CHAPTER
8.72 RELATl:NG TOS!,!OKl:NG.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTl:ON 1. Chapter 8.72 of the San Bernardino Municipal
Code is hereby amended to read as follows:
8.72.010
8.72.020
8.72.030
8.72.040
8.72.050
8.72.060
8.72.070
8.72.080
8.72.090
8.72.100
8.72.110
8.72.120
8.72.010
Legislative findings.
Definitions.
Prohibition against Smoking in city owned
facilities.
Prohibition against smoking in public places.
Smoking in restaurants.
Regulation of smoking in places of employment.
Where smoking is not regulated.
Posting of smoking and no smoking areas.
Violations.
Enforcement
Non-Retaliation.
Other applicable laws.
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;
B. Reliable studies have shown that breathing sidestream or
secondhand smoke is a significant health hazard, especially
for certain population groups, inc1uding elderly people,
individuals with cardiovascular disease, and individuals
wi th impaired respiratory function, including asthmatics and
C.
those with obstructive airway disease;
Heal th h~zards induced by breathing sidestream or secondhand
smoke include lung cancer, respiratory infection, decreased
exercise tolerance,
decreased respiratory function,
bronchioconstriction, and bronchispasm;
DAB:ja ls.GkiDg5.0rd]
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September 22. 1994
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1 D. Nonsmokers with allergies, respiratory disease and those who
2 suffer other ill effects of breathing sidestream or
3 secondhand smoke may experience a loss of job productivity;
4 E. The Surgeon General of the Uni ted States has advised
5 nonsmokers to avoid exposure to tobacco smoke wherever
6 possible, and;
7 F. The smoking of tobacco, or any other weed or plant, is a
8 proven danger to health.
9 Accordingly, the health, safety and general welfare of the
10 residents of, persons employed in, and persons who frequent
11 this City will be benefitted by the regulation of smoking in
12 designated enclosed places.
13 8.72.020 Definitions.
14 The fOllowil!g words and phrases, whenever used in this
15 chapter, shall be construed as defined in this section:
16 A. "Bar" means an area which is devoted to the serving of
17 alcoholic beverages and in which the service of food is only
18 incidental to the consumption of such beverages. The area
19 devoted to such use shall be as set forth in any conditional
20 use permit, variance or other Planning Department or
21 Building and Safety Department document establishing such
22 use or, as determined for pUrPOses of collection of business
23 taxes by the office of the City Clerk.
24 B. "Business" means any sole proprietorship, partnership, joint
25 venture, cOrPOration or other business entity formed for
26 profitmaking purposes as well as professional corporations
27 and other entities which provide legal, medical, dental,
28 engineering, architectural, or other professional services
DAB:ja l_ing5.0rdJ 2 Sept_ber 22. 1994
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1 and which "business" employs ten (10) or more persons.
2 Working owners and management employees shall be included in
3 the calculation of the ten or more persons.
4 c. "Dining area" means any enclosed area containing a counter
5 or tables upon which meals are served.
6 D. "Employees" means any person who is employed by any employer
7 in consideration for direct or indirect monetary wages or
8 profit, and any person who volunteers his or her services
9 for a non-profit entity.
10 E. Employers" means any business and any non-profit entity with
11 ten or more employees. Working owners and management
12 employees shall be included in the calculation of the ten or
13 more persons.
14 F. "Enclosed" means closed in by roof and four walls with
15 appropriate openings for ingress and egress except the
16 public areas of any shopping mall shall not be deemed to be
17 "enclosed" for pUrPOses of the application of this chapter.
18 G. "Non-profit entity" means any corporation, unincorporated
19 association, or other entity created for charitable,
20 educational, political, social, or similar purposes, the net
21 proceeds from the operation of which are committed to the
22 promotion of the objects or purposes of the organization and
23 not to private financial gain. A public agency is not a
24 "non-profit entity" within the meaning of the section.
25 H. "Place of employment:" means 1) any enclosed area, 2) under
26 the control of a public or private employer, 3) which
27 employees occupy with normal frequency during the course of
28 employment, including but not limited to, work areas,
llAIl:j. [s.okiDg5.Drd] 3 Sept_ber ~~. 1994
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1 employee lounges, and restrooms, conference and class rooms,
C 2 cafeterias, and hallways, except that a private residence is
3 not a place of employment, unless it is used as a child care
4 or health care facility.
5 I. "Public place: means any enclosed area to which the public
6 is permitted, including, but not limited to: banks, private
7 educational facilities, health facilities, public
8 transportation facilities, reception areas, restaurants,
9 retail food production and marketing establishments, retail
10 service establishments, retail stores, theaters, and office
11 waiting rooms.
12 J. "Restaurant" means any coffee shop, cafeteria, tavern,
13 sandwich stand, soda fountain, private or public school
14 cafeteria, and any other eating establishment, organization,
~ 15 club, boarding house, or guest house, which gives or offers
16 food for sale to the public, guests, patrons, or employees,
17 except that the term "restaurant" shall not include a
18 cocktail lounge or tavern if said cocktail lounge or tavern
19 is a "bar" as defined herein.
20 K. "Retail tobacco store" means a retail store utilized
21 primarily for the sale of tobacco products and accessories.
22 L. "Service line" means an indoor queue in which one or more
23 persons routinely wait for or receive service of any kind,
24 whether or not such service includes the exchange of money.
25 M. "Smoking" means the igniting, inhaling, exhaling, or
26 carrying of any burning cigar, or cigarette of any kind, or
27 the igniting, inhaling, exhaling or carrying of a pipe or
C 28 other device for smoking, containing any burning substance.
DAB:je [&.oking5.0rdJ 4 Sept..ber 22. 1994
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N. "Enclosed athletic recreation area" means gymnasiums, health
spas, swimming pOOls, roller and ice rinks.
o. "Waiting room space" common area of any office, restaurant,
theater or any other facility where persons routinely wait.
8.72.030 Prohibition against smoking in city owned facilities.
All enclosed facilities owned by the City of San Bernardino
shall be subject to the provisions of this section.
A. Places of public assembly. Smoking is prohibited in all
hearing rooms or places of public assembly in which the
business of the City of San Bernardino, or any of its Boards
or Commissions, is regularly conducted.
B. Public lobbies, public hallways. Smoking is prohibited in
all waiting rooms, lobbies, and public hallways of every
building under direct or indirect control of the city;
provided, however, that this prohibition does not prevent
the establishment of separate areas of such building in
which areas smoking may be permitted.
C. Smoking is prohibited in all areas of the City Hall, except
those areas designated by the City Administrator or Mayor
and Common Council.
D. Notwiths~anding any other proviSion herein, the City
.. .
Administrator or the Mayor and Common Council may exempt any
place of public assembly, public lobby or public hallway
from the prohibition of smoking or designate areas within
said place of public assembly, public building or public
hallway as a "smoking area."
8.72.040 Prohibition against smoking in public places.
A. Smoking shall be prohibited except as otherwise specifically
DAB:ja l_ing5.0rd] 5 Sept.-ber 22. 1994
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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, provided, however, that
this prohibition does not prevent the establishment of
separate waiting areas for cigarette smokers.
3. Service lines.
4. Retail stores, except areas in said stores not open to
the public and except all areas within retail tobacco
stores.
5. Retail food marketing establishments, including grocery
stores and supermarkets except those areas of such
establishment set aside as restrooms and offices, and
areas thereof not open to the public, which may be
otherwise regulated by this chapter. 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.
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
DAB:jo [Smoking5.0rd] 6 Sept..ber 22. 1994
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open to the public; provided, however, that this
prohibition does not prevent the establishment of
separate smoking areas in a building in which cigarette
smoking is otherwise prohibited.
8. Any building not open to the sky which is used
primarily for exhibiting and motion picture, stage
drama, lecture, musical recital or other similar
performance, except when smoking is a part of any such
production, provided, however, that this prohibition
does not prevent the establishment of separate areas in
the waiting room of such building, in which waiting
room cigarette smoking may be permitted.
9. Enclosed athletic recreation area, except in designated
smoking areas.
10. Waiting rooms of doctors' offices and dentists'
offices, hallways, wards, and semi-private rooms of
health facilities, including, but not limited to,
hospitals, clinics, and physical therapy facilities.
In bed space areas of health facilities used for two or
more patients, smoking shall be prohibited unless all
patients within the room request to be placed in a room
where smoking is permitted.
11. Polling places.
Notwithstanding any other provision of this section, any
owner, operator, manager 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.
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DAB:ja [Saoklng5.Ord]
Septembar 22. 1994
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8.72.050 Smoking in res~auran~s.
A. Smoking is prohibited and is unlawful within all enclosed
restaurants whose occupancy capacity is thirty (30) or more
persons, provided, however, that this prohibition shall not
apply to any such establishment maintaining a smoking
policy, notice of which is published on the exterior or
within the waiting area of such establishment and plainly
visible to prospective patrons of such establishment. Such
pOlicy shall set forth the fact that a nonsmoking section is
available and whether such seating is contiguous or non-
contiguous to other nonsmoking seating.
B. Any portion of a restaurant used as a bar is excluded from
the prohibition of this section.
8.72.060 Regula~ion of smoking in places of employmen~.
A. Within.10 days of the effective date of this chapter, each
employer shall adopt, implement, make known and maintain a
smoking policy stating where smoking is permitted and where
it is prohibited.
B. The smoking policy shall be communicated to all existing
employees an~ shall be provided to new employees at the time
of their initial interview.
C. Every employer shall have the right to designate any place
of employment or portion thereof, as a non-smoking area.
8.72.070 Where smoking is no~ regula~ed.
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.
1. Bars.
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Sept.-her 22. 1994
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1 2. Hotel and motel rooms rented to guests.
~ 2 3. Retail~obacco stores.
3 4. Restaurants, hotel and motel conference or meeting
4 rooms and public and private assembly rooms while these
5 places are being used for any private functions.
6 8.72.080 Posting of smoking and no smoking areas.
7 A. The international "No Smoking" symbol (consisting of a
8 pictorial representation of a burning cigarette enclosed in
9 a red circle with a red bar across it on a sign of minimum
10 of six inches ( 6") in width and eight inches ( 8") in
11 height L ci ting this subsection shall be clearly, and
12 conspicuously posted in every building or other place where
13 smoking is controlled by this chapter by the owner,
14 operator, manager or other person having control of such
~ 15 building or other place.
16 B. Every theater owner, manager or operator shall conspicUOUSly
17 post signs in the waiting area stating that smoking is
18 prohibited except within designated smoking areas.
19 8.72.090 Viola~ion..
20 A. It is unlawful for any person to smoke in a place where
21 smoking is prohibited.
22 B. It is unlawful for any person who owns, manages, or
23 otherwise controls the use of any premises subject to the
24 prohibi t;J.on of this chapter to fail to post signs as
25 required by this chapter or to knowingly permit a violation
26 of this ordinance.
27 c. Any person or business which violates subsection 'A' or
C 28 permits such violations, or any other provision of this
DAB:ja lSaokiugS.OrdJ
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Septeaber 22. 1994
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1 chapter, except as otherwise provided herein shall be guilty
c:: 2 of an infraction, punishable as set forth in San Bernardino
3 Municipal Code Chapter 1.12(B).
4 8.72.100 Enforcement.
5 A violation of any of the provisions of this chapter shall
6 constitute a public nuisance and may be abated by the City through
7 means of restraining order, preliminary or permanent injunction or
8 in any other manner provided by law for the abatement of suchy
9 yn nuisances and the City may take action to recover the cost of
10 such nuisance abatement.
11 8.72.110 Non-Retaliation.
12 It is hereby declared to be a violation of public policy for
13 a person or employer to discharge, refuse to hire, or in any
14 manner retaliate against any employee or applicant for employment
~ 15 because such employee or applicant exercises any rights afforded
16 by this chapter.
17 8.72.120 Other applicable laws.
18 This chapter shall not be interpreted or construed to permit
19 smoking where it is otherwise restricted by other applicable law
20 or regulation.
21 I I I
22 III
23 III
24 III
25 III
26 III
27 III
C 28 III
DA8:ja ISDokiDg5.0rd]
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September 22. 1994
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ORDJ:NANCE...AMENDJ:NG CHAP'1'ER 8.72 RELA'1'J:NG '1'0 SMOKJ:NG.
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
day of
Council Members:
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
11 DEVLIN
12 POPE-LUDLAM
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MILLER
meeting thereof, held on the
, 1994, by the following vote, to wit:
AYES
NAYS
ABSTAIN
ABSENT
City Clerk
of
The foregoing Ordinance is hereby approved this
day
, 1994.
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney
By: 4rVr:~aJJ~
./ .
DAB:j. Is.okiDg5.0rdl
'1'om Minor, Mayor
City of San Bernardino
11
Sept..bor 22. 1994