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CITY OF SAN BERt:4~RDINO - R~QUEST I~OR COUNCIL ACTION
· From:
James F. Penman
Dept:
City "Attorney
Su~~t: Ordinance of the City of
San Bernardino amending
Chapter 8.72 of the San
Bernardino Municipal Code
Relating To Smoking
Date:
July 14, 1994
Synopsis of Previous Council action:
4/18/88
6/6/94
MC-623
MC-90S
R~ommended motion: Waive further reading and layover for final adoption.
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Contact person:
Phone:
Supporting data attached:
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.1
(Acct. Descriotionl
Finence:
Council Notes:
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75-0262
Agenda I tem No
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,I,.
- REQUEST FOR COUNCIL ACTION
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STAFF REPORT
On June 6, 1994 the Mayor and Council on a vote of 4-3 approved MC-
905 which significantly restricted smoking in work sites and areas
open to the public within the City.
Members of the Council have asked that this matter be revisited.
This proposed ordinance would repeal the restrictions imposed by
MC-90S and reinstate the ordinance as it existed prior to the
adoption of MC-905.
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OP SAN BERNARDINO AMENDING CHAPTER
8.72 OP THE 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 to read as follows:
"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;
B.
Reliable studies have shown that breathing sidestream
or secondhand smoke is a significant health hazard,
especially for certain population groups, including
elderly people, individuals wi th cardiovascular
disease, and individuals with impaired respiratory
function, including asthmatics and those with
obstructive airway disease;
C.
Health hazards induced by breathing sidestream or
secondhand smoke include lung cancer, respiratory
infection, decreased exercise tolerance, decreased
respiratory
function,
bronchioconstriction,
and
bronchiospasm;
D.
Nonsmokers with allergies, respiratory diseases and
those who suffer other ill effect~ of breathing
sidestream or secondhand smoke may experience a loss of
E.
job productivity;
The Surgeon General of the United Stat~s r.;s advised
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nonsmokers to avoid exposure to tobacco smoke wherever
possible, and;
F. The smoke of tobacco, or any other weed or plant, is a
proven danger to health. 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 designated
enclosed places.
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 to such beverages.
The area devoted to such use shall be as set forth in
any conditional use permit, variance or other Planning
Department or Building and Safety Department document
establishing such use or, as determined for purposes of
collection business taxes by the Office of the City
Clerk.
B. "Business" means any sole proprietorship, partnership,
j oint 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,
archi tectura1, or other professional services and which
"business" employs ten (10) or more persons. Working
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owners and management employees shall be included int
he calculation of the ten or more persons.
C. "Dining area" means any enclosed area containing a
counter or tables upon which meals are served.
D. "Employee" means any person who is employed by any
employer in consideration for direct or indirect
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monetary wages or profit, and any person who volunteer
his or her services for a non-profit entity.
E. "Employer" means any business and any non-profit
entity with ten or more employees. Working owners and
management employees shall be included in the
calculation of the ten or more persons.
F. "Enclosed" means closed in by 'roof and four walls with
appropriate openings for ingress and egress except the
public areas of any shopping mall shall not be deemed
to be "enclosed" for purposes of the application of
this chapter.
G.
"Non-profit
any
corporation,
entity"
means
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 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 the section.
H. "Place of employment" means 1) any enclosed areas, 2)
under the control of a public or private employer, 3)
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which employees occupy with normal frequency during the
course of employment, including but not limited to,
work areas, employee lounges, and restrooms, conference
and class rooms, cafeterias, and hallways, except that
a private residence is not a place of employment,
unless it is used as a child care or health facility.
I. "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, reception
areas,
restaurants,
retail food production and
marketing
establishments,
retail
service
establishments, retail stores, theaters, and office
waiting rooms.
J. "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, patron, 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.
K. "Retail tobacco store" means a retail store utilized
primarily for the sale of tobacco products and
accessories.
L.
"Service line" means an indoor queue in wh~ch one or
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more persons routinely wait for or receive service of
any kind, whether or not such service includes the
exchange of money.
M. "Smoking" means the igniting, inhaling, exhaling, 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.
N. "Enclosed athletic recreation area" means gymnasiums,
health spas, swimming pools, roller and ice rinks.
o. "Waiting room space" means the common area of any
office, restaurant, theater or any other facility where
persons routinely wait.
8.72.030 Prohibition against smoking 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,
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except those area designated by the City Administrator
or Mayor and Common Council.
D. Notwithstanding any other provision herein, the City
Administrator or Mayor and Common Council may exempt
any place of public assembly, public lobby or public
hallway from the prohibition of smoking or designate
areas wi thin said place of public assembly, public
building or public hallway as a "smoking area."
8.72.040 Prohibition agains~ 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; 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 wi thin
retail tobacco stores.
5. Retail food marketing establishments, including
grocery stores and supermarkets except those areas
of such establishment set aside as restrooms and
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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 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 any 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
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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.
B. Notwithstanding any other provision of this section,
any owner, operator, manager or other person who
control 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.
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
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 contig~ou~ or non-
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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 Regulation of smoking in places of employment.
A. Within 90 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 and shall be provided to new
employees at the time of their initial interview.
C. Every employer shall have the right to designate at
place of employment or portion thereof, as a non-
smoking area.
8.72.070 Where smoking is not regulated.
Nothwi thstanding 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.
2. Hotel and motel rooms rented to guests.
3. Retail tobacco stores.
4. Restaurants, hotel and motel conference or meeting
rooms and public and private assembly rooms while these
places are being used for any private functions.
8.72.080 Posting of smoking and no smoking areas.
A. The international "No Smoking" symbol (consisting of a
pictorial representation of a burning cigarette
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enclosed in a red circle with a red bar across it on a
sign of 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, manger 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
that smoking is prohibited except wi thin designated
smoking areas.
8.72.090 Violations.
. A. It is unlawful for any person to smoke in a place where
smoking is prohibited.
B. It is unlawful for any person who owns, ,manages, or
otherwise controls the use of any premises subject to
the prohibition of this chapter to fail to post signs
as required by this chapter or to knowingly permit a
violation of this ordinance.
C. Any person or business which violates subsection "A" or
permits such violations, or any other provision of this
chapter, except as otherwise provided herein shall be
gui 1 ty of an infraction, punishable as set forth in San
Bernardino Municipal Code Chapter 1.12(B).
8.72.100 Enforcement.
A violation of any of the provisions of this chapter shall
constitute a public nuisance and may be abated by the City through
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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.
8.72.110 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 for employment
because such employee or applicant exercises any rights afforded
by this chapter.
8.72.120 Other applicable law..
This chapter shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable law
or regulation.
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I HEREBY CERTIFY that the foregoing Ordinance was duly
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adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on the
, 1994, by the following vote, to wit:
day of
Council Members:
AYES
NAYS
ABSTAIN ABSENT
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
DEVLIN
POPE-LUDLAM
MILLER
City Clerk
The foregoing Ordinance is hereby approved this
day
, 1994.
Tom Minor, Mayor
City of San Bernardino
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney
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