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MAYOR & COMMON COUNCIL
MEETING BACKUP
MEETING DATE:
March 4, 2002
GROUP MEETING:
Mayor & Common Council /
Community Development Commission
DEPUTY: Linda Sutherland
*** No backup materials are included for the following items. ***
ITEM #
STATUS
24
Continued to June 3. 2002
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Laid Over
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Laid Over (A-C)
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Laid Over
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney
Subject:
AN ORDINANCE OF THE CITY OF
SAN BERNARDINO ADDING
CHAPTER 8. 73 RELATING TO
SMOKING WITHIN 25 FEET OF
PLAYGROUNDS AND/OR TOT LOT
SANDBOX AREAS.
e
Dept: City Attorney
Date: March 4, 2002
Synopsis of Previous Council action:
None.
Recommended motion:
That said ordinance be laid over for final adoption.
e
L
{!
f.~
Signature
Contact person:
James F. Penman
Phone:
5355
Supp0l1ing data attached:
Staff Report
Ward: ALL
FUNDING REQUIREMENTS:
Amount: NONE
Source: (Ace!. No.)
(Ace!. Description)
Finance:
Council Notes:
Agenda Item No. Nt;. 07.2 A
3/'IID<r
75-0262
e
e
e
e
TO:
FROM:
DATE:
AGENDA:
STAFF REPORT
Council Meeting Date: March 4, 2002
Mayor and Common Council
City Attorney's Office
February 21, 2002
March 4, 2002
Health and Safety Code S 1 04495 prohibits smoking and the disposal of cigarettes and
other tobacco related products within playgrounds and/or tot lot sandbox areas. This ordinance
will expand this regulation to prohibit smoking and the disposal of cigarettes and other tobacco
related products within 25 feet of any playground and/or tot lot sandbox area.
e
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1
ORDINANCE NO.
2
3
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER
8.73 RELATING TO SMOKING WITHIN TWENTY-FIVE FEET OF PLAYGROUNDS
OR TOT LOT SANDBOX AREAS.
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
6 SECTION 1. Chapter 8.73 is hereby added to the San Bernardino Municipal Code to
read as follows:
7
Chapter 8.73 Smoking Within Twenty-five Feet of Playgrounds or Tot lot Sandbox Areas.
8
Section 8.73.010
Definitions.
9
A. "Playground" means any park or recreational area specifically designed to be used
10 by children that has play equipment installed. or any similar facility located on public or private
school grounds, or on any City park grounds.
11
B. "Tot lot sandbox area" means a designated play area within a public park for the
12 use by children under five years of age. Where the area is not contained by a fence, the boundary
ofa tot lot sandbox area shall be defined by the edge of the resilient surface of safety material, such
13 as concrete or wood, or any other material surrounding the tot lot sandbox area.
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c.
"Public park" includes a park operated by a public agency.
D. "Smoke or smoking" means the igniting, inhaling, exhaling, or carrying of any
burning cigar, or cigarette of any kind, or the igniting, inhaling, exhaling or carrying a pipe or other
device for smok'Db. containing any burning substance of any kind, including, but not limited to
tobacco. or any other weed or plant.
E. "Cigarette" means any product that contains nicotine, is intended to be burned or
18 heated under ordinary conditions of use, and consists of or contains (1) any roll of tobacco wrapped
in paper or in any substance not containing tobacco; (2) tobacco, in any form, that is functional in
19 the product, which because of its appearance, the type of tobacco used in the filler, or its packaging
and labeling, is likely to be offered to,.or purchased by, consumers. as a cigarette; or (3) any roll of
20 tobacco wrapped in any substance containing tobacco which, because of its appearance, the type
of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased
21 by, consumers as a cigarette described in this section. "Cigarette" also includes "roll-your-own"
tobacco. meaning any tobacco which, because of its appearance, type, packaging, or labeling is
2 2 suitable for use and likely to be offered to, or purchased by consumers as tobacco for making
cigarettes.
23
24
Section 8.73.020
Smoking Prohibited Within Twenty-Five Feet of Playground or Tot
Lot Sandbox Area.
2 5 A. No person shall smoke a cigarette, cigar, or other tobacco-related product within
twenty-five feet of the boundaries of any playground, or tot lot sandbox area.
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B. No person shall dispose of cigarette butts, cigar butts, or any other tobacco-related
waste within twenty-five feet of any playground, or tot lot sandbox area.
28
1
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER
8.73 RELATING TO SMOKING WITHIN TWENTY-FIVE FEET OF PLAYGROUNDS
2 OR TOT LOT SANDBOX AREAS.
3
C. Any person who violates this section is guilty of an infraction, punishable in
4 accordance with Section 1.12.010 of this Code.
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER
8.73 RELATING TO SMOKING WITHIN TWENTY-FIVE FEET OF PLAYGROUNDS
2 OR TOT LOT SANDBOX AREAS.
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 regular meeting thereof, held on
5
the day of March, 2002, by the following vote, to wit:
6
ABSTAIN ABSENT
7
COUNCIL MEMBERS:
ESTRADA
LIEN
MCGINNIS
DERRY
SUAREZ
ANDERSON
AYES
NAYS
8
9
12
13
MCCAMMACK
14
15
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Rachel G. Clark, City Clerk
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The foregoing ordinance is hereby approved this _ day of
.2002.
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21
JUDITH V ALLES, Mayor
City of San Bernardino
22
Approved as to
23 form and legal content:
24 JAMES F. PENMAN.
City Attorney
25
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rl~
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3
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney
.
Subject:
AN ORDINANCE OF THE CITY OF
SAN BERNARDINO ADDING
SECTION 8.73.030 TO THE SAN
BERNARDINO MUNICIPAL CODE
RELATING TO THE SALE OF
TOBACCO PRODUCTS THROUGH
SELF-SERVICE DISPLAYS
Dept: City Attorney
Date: March 4. 2002
Synopsis of Previous Council action:
None.
Recommended motion:
That said ordinance be laid over for final adoption.
.
L7,f~
o Signature
Contact person:
James F. Penman
Phone:
5355
Supporting data attached:
Staff Report
Ward: ALL
FUNDING REQUIREMENTS:
Amount: NONE
Source: IAcc!. No.)
I Ace!. Description)
Finance:
Council Notes:
_5.0262
Agenda Item No.
2. t RJ
'.3/#J~
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STAFF REPORT
Council Meeting Date: March 4, 2002
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
February 26, 2002
March 4, 2002
Business and Professions Code S22962 prohibits any person engaged in the retail sale of
tobacco products to sell, offer for sale, or display for sale cigarettes by self-service displays.
Adding Section 8.73.030 to the Municipal Code will expand this regulation to prohibit the sale of
any tobacco product through self-service displays. This will prevent any person engaged in the
retail sale of tobacco products to sell, offer for sale, or display for sale all tobacco products by
self-service displays. and not only cigarettes as the current state law provides.
Business and Professions Code S22962( d) allows local agencies to adopt greater
restrictions on the access to tobacco products than that imposed by this section. By passing this
ordinance, the City would have a stronger restriction than the state by prohibiting the use of self-
service displays for all tobacco products, rather than solely cigarettes.
.
.
. 27
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1
ORDINANCE NO.
2
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
3 8.73.030 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO THE SALE
OF TOBACCO PRODUCTS THROUGH SELF SERVICE DISPLAYS.
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
6 SECTION 1. Section 8.73.030 is hereby added to the San Bernardino Municipal Code
to read as follows:
7
8
Section 8.73.030
Prohibited.
Sale of Tobacco Products Through Self-Service Displays
9 A. For the purposes of this section, "self-service display" means the open display of
tobacco products in a manner that is accessible to the general public without the assistance of the
10 retailer or employee of the retailer.
11 B. It shall be prohibited for any person engaged in the retail sale of tobacco products
to sell. offer for sale, or display for sale any tobacco product by self-service display.
12
C. Any person who violates this section is guilty of an infraction. punishable in
13 accordance with Section \.12.010 of this Code.
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
8.73.030 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO THE SALE
2 OF TOBACCO PRODUCTS THROUGH SELF SERVICE DISPLAYS.
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 regular meeting thereof, held on
5
the _ day of March, 2002, by the following vote, to wit:
6
COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
7
ESTRADA
8
LIEN
9
MCGINNIS
10
11
DERRY
SUAREZ
12
ANDERSON
13
MCCAMMACK
14
15
16
Rachel G. Clark, City Clerk
17
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The foregoing ordinance is hereby approved this ~ day of
,2002.
19
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21
JUDITH V ALLES, Mayor
City of San Bernardino
22
Approved as to
23 form and legal content:
24 JAMES F. PENMAN,
City Attorney
25
By: L ?,!~
o
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney
.
Subject:
AN ORDINANCE OF THE CITY OF
SAN BERNARDINO ADDING
SECTION 8.73.040 TO THE SAN
BERNARDINO MUNICIPAL CODE
RELATING TO SMOKING IN
OUTDOOR RECREATION AREAS,
SPORTS CENTERS AND SPORTS
FACILITIES
Dept: City Attorney
Date: March 4, 2002
Synopsis of Previous Council action:
None.
Recommended motion:
.
That said ordinance be laid over for final adoption.
r I p~
7.
Signature
Phone:
Ward: ALL
5355
Contact person:
James F. Penman
Supporting data attached:
Staff Report
FUNDING REQUIREMENTS:
Amount: NONE
Source: (Ace!. No.)
(Ace!. Description)
Finance:
Council Notes:
_5-0262
Agenda Item No. ? . ~ c...
.slf/~2/
.
.
.
TO:
FROM:
DATE:
AGENDA:
STAFF REPORT
Council Meeting Date: March 4, 2002
Mayor and Common Council
City Attorney's Office
February 26, 2002
March 4, 2002
Labor Code S6404.5 prohibits smoking in enclosed places of employment. This
provision does not include any facility that is not enclosed, or open to the air. Adding Section
8.73.040 to the Municipal Code will expand this regulation to prohibit smoking in outdoor
athletic recreation areas and sports facilities except in designated areas set by the facility
provider. This new section would also require facility providers to designate at least one
smoking area at the venue.
1
ORDINANCE NO.
e
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
3 8.73.040 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING
IN OUTDOOR RECREATION AREAS, SPORTS CENTERS, AND SPORTS FACILITIES.
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
6 SECTION 1. Section 8.73.040 is hereby added to the San Bernardino Municipal Code
to read as follows:
7
Section 8.73.040 Smoking In Outdoor Athletic Recreation Areas, Sports Centers And
8 Sports Facilities Prohibited.
9 A. For the purposes of this section, "outdoor athletic recreation area, sports centers
and sports facilities" shall include. but not be limited to, any stadium, gynmasium, swimming pool.
10 playing field, health spa or other similar place, open to the air, where members of the general public
assemble to either engage in physical exercise, participate in athletic activities or witness sports
11 events.
12 B. It shall be prohibited for any person to smoke any tobacco product in an outdoor
athletic recreation area. sports center or sports facility, except in the areas designated by the facility
13 provider,
e
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C. Facility providers of outdoor athletic recreation areas, sports centers and sports
facilities shall designate at least one area in which the general public is not prohibited from
smoking.
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16 D. Any person who violates this section is guilty of an inti'action. punishable in
accordance with Section 1.12.010 of this Code.
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
8.73.040 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING
2 IN OUTDOOR RECREATION AREAS, SPORTS CENTERS AND SPORTS FACILITIES.
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 regular meeting thereof, held on
5
the _ day of March, 2002, by the following vote, to wit:
6
7
COUNCIL MEMBERS:
ESTRADA
AYES
ABSTAIN ABSENT
NAYS
8
LIEN
9
MCGINNIS
10
11
DERRY
SUAREZ
12
ANDERSON
13
MCCAMMACK
14
15
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Rachel G. Clark, City Clerk
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The foregoing ordinance is hereby approved this _ day of
,2002.
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JUDITH V ALLES, Mayor
City of San Bernardino
22
Approved as to
23 form and legal content:
24 JAMES F. PENMAN,
City Attorney
25
By:t~. i.~
()
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~-;;oo;
INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
TO:
The Mayor and Common Council
FROM:
.Tolena E. Barnes, Deputy City Attorney
DATE
March 4. 2001
RE:
Comparison of Current Smoking Ordinance (SBMC Chapter 8.72) and State
Law Under Labor Code !j6404.5 and Analysis of Proposed Amendment to
Chapter 8.72.
Labor Code S6404.5(a) states that the regulation of smoking in the \\orkplace is a matter of
statewide interest and concern. It r..lrther states tbat It is the intent of the State Legislature in enacting
this section to prohibit the smoking of tobacco products in all enclosed places of employment in this
state, thereby eliminating the neEd of local governments to enact workplace smoking
restrictions 'I"ithin their respective jurisdictions. This section goes on fUl1her to state that it is the
intent of the Legislature to create a uniform statewide standard to restrict and prohibit the smoking
of tobacco products in enclosed places of emplo) ment. Additionally it is the Legislature' s intent to
eliminate the hardship that can result from enactmcnt or enforcement of disparate local
workplace smoking restrictions.
Labor Code S6404.5(a) fUl1her states that it is the intent of the Legislmure that any area not
defjll~d as a "place of employment" pursuant to subdi,'ision (d) or ill which the smoking of tobacco
products is not regulated pursuant to subdivision (e) shall be subject to local regulation of smoking
of tobacco products.
The Legislature's intent is reiterated in Labor Code S6404.5(g) where it states that the
smoking prohibition set fOl1h 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. It gaes on further to state that the
practical effect of this section is to eliminate the need of local governments to enact enclosed
workplace smoking restrictions within their respective jurisdictions.
] have attached a copy of Labor Code ~6404.5 for your convenience.
COMPARISON OF CURRENT CHAPTER 8.72 AND LABOR CODE !j6-10-l.5
San Bernardino Municipal Code Chapter 8.71 as it is currently written is inconsistent with
state law under Labor Code S6404.5 in the following ways:
JElliaclMCCSmokMem]
JJI
I. Under 98.72.090(A) smoking is permitted in bars and freestanding bars.
Under Labor Code 96404.5 after January I, 1998 smoking is no longer permitted in bars and
freestanding bars.
2. Under 98.72.090(B) smoking is permitted in up to 35% of hotel and motel
rooms. Under Labor Code 96404.5 smoking is permitted in up to 65% of hotel and motel rooms.
The current ordinance is more restrictive than state law in this respect.
3. Under 98.72.020(D) employer is defined as any business with two or more
employees. Under Labor Code 96404.5 employers with a total of five or fewer employees may
permit smoking where an enumerated list of conditions are met. Under the Labor Code, one ofthe
conditions is that all employees who enter the smoking area consent, without coercion, to permit
smoking.
There are a few sections of our current smoking ordinance that include more than the Labor
Code. They are as follows:
I. Under 98.72.120 violations of this chapter may be abated as public nuisances
under the Civil Code. It also provides that a private citizen may bring legal action to enforce this
chapter. Neither of these provisions, nor any that are similar, are part of the Labor Code.
2. Under 98.72.130 it is a violation of public policy for a person or employer to
discharge, or refuse to hire, or in any manner retaliate against any person who exercises any rights
afforded by this chapter. There is no similar provision in the Labor Code.
PROPOSED AMENDMENT TO CHAPTER 8.72
The proposed amendment to Chapter 8.72 basically reiterates state law as it is found in Labor
Code 96404.5. There are a few areas that are stricter than state law. These areas are as follows:
I. Under the proposed 98.72.020(F) the new language eliminates the word
"enclosed" from the definition of athletic recreation area. State law only applies to enclosed places
of employment. This new definition would expand the area of regulation to include athletic
recreation areas that are not enclosed (i.e. open to the air).
2. Proposed 98.72.030 adds language to prohibit the use of tobacco products in
all City vehicles, to prohibit the use of tobacco products while engaged in contact or conversation
with any member of the public, requires employees who wish to smoke outside to make every effort
to insure that persons who may be sensitive to tobacco smoke are not adversely affected, and
requires that available ashtrays or trash receptacles be used for the disposal of tobacco related
products.
There are no similar provisions in the Labor Code dealing with these issues.
However, it is already a City policy in the Police Department and Code Enforcement that smoking
is not permitted in City vehicles.
JEB/ac[MCCSmoke.Mem]
2
3. Under proposed S8.72.040(A)(8) language that was similar to that in the
Labor Code providing an exception to smoking when it is part of a motion picture, stage, drama,
lecture, musical recital or other similar performance has been removed.
Labor Code S6404.5( d)(9) provides an exception to smoking in an enclosed place of
employment at theatrical production sites, if smoking is an integral part of the story in the theatrical
production. The proposed ordinance may violate the First Amendment ifit prohibits smoking even
if it is a part of a theatrical production.
4. Under proposed S8.72.040(A)(9) enclosed athletic recreation area is changed
to athletic recreation area. This language would include athletic recreation areas that are open to the
air as well as those that are enclosed. Labor Code S6404.5 only prohibits smoking in enclosed
places of employment.
5. Under proposed S8.72.040(A)(\2) smoking would be prohibited within twenty
feet from the entrances and exits of all City buildings or facilities. There is no similar provision
under state law.
6. Under proposed S8.72.040(A)(\3) smoking would be prohibited within 25 feet
of a playground and/or tot lot sandbox areas, including the disposal of cigarettes and other tobacco
related products in accordance with Health and Safety Code S I 04495 (note there is a typo when the
proposed amendment refers to the Health and Safety Code SI044.95, which does not exist). Health
and Safety Code S I 04495 prohibits smoking and the disposal of cigarettes and other tobacco related
products within a playground and/or tot lot sandbox areas.
Health and Safety Code SI04495(g) states that it shall not preempt the authority of any
county, city, or city and county to regulate smoking around playgrounds or tot lot sandbox areas.
Any county, city, or city and county may enforce any ordinance adopted prior to January 1,2002,
or may adopt and enforce new regulations that are more restrictive than this section, on and after
January I, 2002.
7. Under proposed S8.72.020(A) the sale of cigarettes or other tobacco products from
a vending machine or other appliance used for vending purposes would be prohibited. Although our
current ordinance has the same prohibition, there is an exception for freestanding bars. Under
Business and Professions Code S22960, which prohibits the sale of cigarettes and tobacco products
from vending machines, there is an exception that allows vending machines to be located at least 15
feet away from the entrance of a premise issued an on-sale public premises license for the sale of
alcoholic beverages (i.e. bars).
8. Under proposed S8.72.020(8) would ban the sale of cigarettes and other tobacco
products from self-service displays that are accessible to the public without the assistance of a clerk.
Business and Professions Code S22962 prohibits the sale of cigarettes from self-service displays and
does not include other tobacco products. The definition section of this code does define a self-
service display as the open display of tobacco products in a manner that is accessible to the general
public, however the prohibition section only mentions cigarettes.
JEB/ac[MCCSmoke.Mem]
3
All of the other changes and additions to Chapter 8.72 are identical to state law under Labor
Code 96404.5.
I have attached copies of Health and Safety Code 9104495 and Business and Professions
Code 922960 and 922962 for your convenience.
RELEVANT CASE LAW REGARDING THE LEGALITY OF ENACTING A CITY
ORDINANCE THAT DUPLICATES A STATE LAW
Government Code 937100 states that a legislative body may pass ordinances not in conflict
with the Constitution and laws of the State or the United States.
Under the California Constitution, Article XI, Section 7, any county, city, town or township
may make and enforce within its limits all such local, police, sanitary, and other regulations as are
not in conflict with general laws. General state laws will prevail over a city's ordinances if those
ordinances are in conflict with the general laws. Conflict exists if an ordinance contradicts or
duplicates the general laws. Southern Pacific Pipe Lines, Inc. v. City of Long Beach (1988) 204
Cal.App.3d 660, 667-668.
In People v. Villarino (1955) 134 Cal.App.2d Supp. 893, the court states "...It is apparent that
an ordinance and a statute may be identical under this rule yet the ordinance is invalid because within
the constitutional provision it is in conflict with the statute. The invalidity arises not from a conflict
oflanguage, but from the inevitable conflict of jurisdiction which would result from dual regulations
covering the same ground. Only by such a broad definition of 'conflict' is it possible to confine local
legislation to its proper field of supplementary regulation." The court goes on further to state "[a]n
ordinance is void which prohibits the same acts which are forbidden by a state law to the extent of
duplication. "
Under this case any part of our local smoking ordinance that duplicates the regulations set
forth in Labor Code 96404.5 would be void and invalid.
In People v. Stone and Segesman (1987) 190 Cal.App.3d Supp. I, the court held "[i]n matters
which are of a statewide concern, charter cities like all other cities are subject to the general state
laws." The court further held "[i]t is settled law... that if a local ordinance duplicates a state statute,
a conflict exists between the two. [Citations omitted] The problem arises, '...not from a conflict of
language, but from the inevitable conflict of jurisdiction which would result from dual regulations
covering the same ground.' [Citations omitted] In addition, a defendant would be subject to double
jeopardy if both the statute and ordinance were viable."
In Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, the court held local
legislation in conflict with general law is void. Conflict exists if the ordinance duplicates,
contradicts, or enters an area fully occupied by general law, either expressly or by legislative
implication. This case was recently cited by the Fourth Appellate District in its decision in
People v. Minor (2002) 2002 DJDAR 1655, 1659.
As a charter city, San Bernardino is subject to general state laws. If the City were to enact
a local smoking ordinance that duplicates state law as set forth under the Labor Code, there
JEB/ac[MCCSmoke.Mem]
4
would be a conflict ojjurisdiction which may result in one person being responsible jor the same
act under two jurisdictions constituting double jeopardy and make our ordinance unviahle.
..-~clsLV\.9t~U'u.o
Jolerla.,E. Barnes, Deputy City Attorney
( \
'-.__.~
JEB/ac[MCCSmoke.Mem]
5
~ 6401.7
LABOR CODE
Law Review and Journal Commentaries
Review oE selected 1989 California legislation. 21 Pac.
L.J. 505 (1990).
Review of selected 1993 California legislation. 25 Pac
L.J. 736 (1994).
Legal Jurisprudences
CaI Jur 3d Lab ~ 65; Work Camp ~ 881.
Forms
Cal Transaction::; Foms: Business Entities ~
Library References
CaI Transactions Forms: Business Transactions 12:9.
1:33.
~ 640.2. Pre\'enting entry into unsafe or unhealthful place
Notes of Decisions
Tort action 5
policy, and discharged employee may bring tort action for
wrongful discharge in addition to his or her statutory
remedies. Barton v. New United Motor Manufacturing,
Inc. CAppo 1 Dist. 1996) 51 Cal.Rptr.2d 328, 43 CaLA.pp.4tl~
1200, review denied.
5. Tort action
Employer who fires employee in retaliation for protest-
ing unsafe working conditions violates fundamental public
~ 6403. Failure to furnish safety devices or adopt safe practices and procedures
Notes of Decisions
Employer 4
>w;th occupational safety orders, for injuries sustained b:,
employee of independent contractor hired to remove stor-
age tanks from property absent e\;dence that lessee Via..-
emplo)'"er of independent contractor's employee or general
contractor \Vith respect to excavation work. Lopez \'.
University Partners (App" 4 Dist. 1997) 63 Ca!.Rptr.~ti
359,54 Cal.App.4th 1117.
4. Employer
Lessee in possesiiion of real propert.;; was not iiubject to
negligence per se liability, based on any failure to comply
~ 6404.5. Enclosed place of employment; smoking prohibition; legislath'e findings, declarations,
and intent; uniform statewide standard; violation; penalties
(a) The Legislature finds and declares that regulation of smoking in the workplace is a matter of
statewide interest and concern. It is the intent of the Legislature in enacting this section to prohibit the
smoking of tobacco products in all (100 percent of) enclosed places of employment in this state, as covered
by this section, thereby eliminating the need of local governments to enact workplace smoking
restrictions \\ithin their respecti....e jurisdictions. It is further the intent of the Legislature to create a
unifonn state\\ide standard to restrict and prohibit the smoking of tobacco products in enclosed places of
employment, as specified in this section, in order to reduce employee exposure to environmental tobacco
smoke to a le....el that will prevent anything other than insignificantly hannful effects to exposed
employees, and also to eliminate the confusion and hardship that can result from enactment or
enforcement of disparate local workplace smoking restrictions. N otv.;thstanding any other provision of
this section, it is the intent of the Legislature that any area not defined as a "place of employment"
pursuant to subdi\ision (d) or in which the smoking of tobacco products is not regulated pursuant to
subdivision (e) shall be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally pennit, and no person shall engage in, the smoking of
tobacco products in an enclosed space at a place of employment.
(c) For purposes of this section, an employer who pennits any nonemployee access to his or her place
of employment on a regular basis has not acted knowingly or intentionally if he Or she has taken the
following reasonable steps to prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or structure, a sign stating "No smoking"
shall be posted at each entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building or structure, a sign stating
"Smoking is prohibited except in designated areas" shall be posted at each entrance to the building or
structure.
Additions or changes Indicated by underline; deletions by asterisks
84
. . .
~.
LABOR CODE
numal Commentaries
Review of seleeted 1993 California legislation. 25 Pac.
L.J. 736 (1994),
References
ea] Transaction:; Forms: BlL'>iness Transactions 12:9.
.!lful place
Decisions
policy, and discharged employee may bring tort action for
v,TOngful discharge in addition to his or her statutory
remedies. Barton v. New United Motor Manufacturing,
Inc. (App. 1 Dist. 1996) 51 CaLRptr.2d 328, 43 Cal.AppAth
1200, review denied.
pt safe practices and procedures
f Decisions
\\.ith occupational safety orders, for injurie.,; sustained by
employee of independent contractor hired to remove star.
age tanks from property absent e~idence that lessee was
employer of i~dependent contractor's employee or general
c?n.lract,or WIth respect to eXC3\'ation work. Lopez v.
TJnlverslty Partners (App. ;I Dist. 199i) 63 Ca1.Rptr.2d
;l.'j9, 54 Cal.App.4th l11i.
.ing prohibition; legislative findings, declarations,
lard; violation; penalties
';'';~Hion of smoking in the workplace is a matter of
he Legis]ature in enacting this section to prohibit the
rlclo:<ed places of employment in this state. as covered
. 'f. local governments to enact workplace smoking
t 1:< further the intent of the Legis]ature to create a
the smoking of tobacco products in enclosed places of
, reduce employee exposure to emironmental tobacco
ler than insignificantly harmful effect:; to exposed
and hardship that can result from enactment or
l"o-strictions. Noh\ithstanding any other pw....ision of
,t any area not defined as a "place of employment"
ng of tobacco products is not regulated pursuant to
5moking of tobacco products.
permit, and no person shall engage in, the smoking of
'mployment.
<l permits any nonemployee access to his or her place
no\\ingly or intentionally if he or she has taken the
nonemployee;
~ building or structure, a sign stating "No smoking"
:ructure.
. areas of the building or structure, a sign stating
shall be posted at each entrance to the building or
Jnderline; deletions by asterisks" .. ..
,4
..-.-------- -
LABOR CODE
~ 6404.5
- - .
(2) Has requested, when appropriate, that a nonemployee who is smoking refrain from smoking in the
enclosed workplace.
For purpO:'l':' of this suhdi....ision, "rea..<;onable steps" does not include (A) the physical ejection of a
nonemployee from the place of employment or (8) any requirement for making a request to a
nnnemployee to refrain from smoking, under circumstances im'olving a risk of physical harm to the
employel' or an~' t'mplo~'t'e.
(el) For pllrpo~~s of this section, "place of employment" ducs not include any of the follo\\ing:
(1) Si.xty-lh'e percent or the guest room accommodation.s in a hotel, motel, or similar transient lodging
establishment.
(2) Areas of the lobby in a hotel, motel, or other similar transient lodging establishment designated for
smoking by the establishment. '" ill '" An establishment may permit smoking in a designated lobby area
that does not exceed 2fi percent of the-total floor area of the lobby or, if the total area of the lobby is
2.000 square fed or less, that does not exceed 50 percent of the total floor area of the lobby. For
purposes of this paragraph, "lobby" means the common public area of ill '" ~ an establishment in which
registration and other ;:;imilar or related tram;actions, or both, are conducted and in \....hich the
establishment's guests and members of the public t,ypically congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similar to a
hotel or motel. restaurant, or public convention center, except while food or beverage functions are taking
place, including setup, service, and cleanup activities, or when the room is being used for exhibit
purposes. At times when smoking is not permitted in ill '" '" a meeting or banquet room pursuant to this
paragraph, the establishment may permit smoking in corridors and prefunction areas adjacent to and
serving the meeting or banquet room if no employee is stationed in that corridor or area on other than a
pa...~sing basi;:.
(-1) Retail or wholesale tobacco shops and private smokers' lounge~. For purposes of this paragraph:
(A) "Private ~mokers' lounge" means any enclo:'led area in or attached to a retail or whole:,ale tobacco
shop that i~ dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.
(B) "Retail or wholesale tobacco shop" means any busine~s establishment the main purpo:::e of which is
the sale of tobacco product", including, but not limited to, Cig:lfS, pipe tobacco, and smoking accessories.
(5) Cabs of motortrucks. as delined in Section 410 of the Vehicle Code. or truck tractors. ~ defined in
Section Gfifi of the Vehicle Code. if no nonsmoking employees are present.
(fi) Warehou:,e facilities. For purpo.:;es of this paragraph, "warehouse facility" means a warehouse
facility \\ith more than 100,000 si"J.uare feet of total floor space, and 20 or fewer full-time employees
w\H'king at the facility. but does not include any area within a facility that is utilized a.;; office space.
(7) Gaming club;:. in which smoking is permitted by subdhi~ion (D. Fat. purposes of thi5 paragraph.
"gaming club"" means any gaming c]uh, as defined in Section 19802 of the Business and Profe:::sions Code.
or bingo facility. as delined in Section 326.5 of the Penal Coele, th:lt restrict.:; acce:i\S to minors under 13
year:' or age.
(8) Bars and tavern:" in which smoking is permitted hy subdivh,ion (0. For purposes of this
paragraph, "bar" or "tavern" means a facility primarily devoted to the ser.-ing of alcoholic beverages for
consumption by guests on the premises, in which the sening of food is incidental. "Bar or tavern"
includes tho,:,:e facilities located \\ithin a hotel, motel, or other similar transient occupancy establishment.
Ho\....e\.er, when located \\ithin a building in conjunction \....ith another use, including a restaurant, "bar" or
..tavern" includes only those areas used primarily for the sale and ser.ice of alcoholic beverage5. "Bar"
01' "tavern" doe::> not include the dining areas of a restaurant, regardless of whether alcoholic be.....erages
al'e served therein.
(9) Theatrical production site::, if smoking is an integral part of the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral to the research and treatment being
conducted.
(11) Private residences. except for private residences licensed as family day care homes, during the
hours of operation as family day care homes and in those areas where children are present.
(12) Patient smoking areas in long-tenn health care facilities, as defined in Section 1418 of the Health
and Safety Code.
(13) Breakrooms designated by employers for smoking, prO\ided that all of the following conditions are
met:
(A) Air from the smoking room shall be exhausted directly to the outside by an exhaust fan. Air from
the smoking room shall not be recirculated to other parts of the building.
Additions or changes Indicated by underline; deletions by asterisks .. * ..
85
~ 6404.5
LABOR CODE
(B) The employer shall comply with any ventilation standard or other standard utilizing appropriat,
technology, including, but not limited to, mechanical, electronic. and biotechnical systems, adopted by lh.
Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. I
both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Healt:
Standards Board shall be no less stringent than the standards adopted by the federal Emironrnenw
Protection Agency.
(C) The smoking room shall be located in a nonwork area where no one, as part of his or her work
responsibilities, is required to enter. For purposes of this paragraph, ''work responsibilities" does no
include any custodial or maintenance work carried out in the breakroom when it is unoccupied
(0) There are sufficient nonsmoking breakrooms to accommodate nonsmokers.
(14) Employers with a total of five or fewer employees, either full-time or part-time, may penn:
smoking where all of the following conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit smoking. No one, as part of his 01
her work responsibilities, shall be required to work in an area where smoking is pennitted. An employe:
who is determined by the division to have used coercion to obtain consent or who has required ar
employee to work in the smoking area shall be subject to the penalty provisions of Section 642';"
(C) Air from the smoking area shall be exhausted directly to the outside by an exhaust fan. Air fron
the smoking area shall not be recirculated to other parts of the building.
(0) The employer shall comply \..ith any ventilation standard or other standard utilizing appropriah
technology, including, but not limited to, mechanical, electronic, and biotechnical systems, adopted by tht
Occupational Safety and Health Standards Board or the federal Environmental Protection Agency. I.
both adopt inconsistent standards, the ventilation standards of the Occupational Safety and Healti
Standard~ Board shall be no less stringent than the standards adopted by the federal Emironmenta
Protection Agency.
This pal'agraph shall not be con::;trued to (i) supersede or render inapplicable any condition 0:
limitation on smoking areas made applicable to specific types of business establishments by any othe
paragraph of this subdivision or (ij) appl)' in lieu of any othei......ise applicable paragraph of this subdivisio'
that has become inoperative.
(e) Paragraphs (1:3) and (14) of subdh.ision (d) shall not be construed to require employers to provid
reasonable accommodation to smokers, or to provide breakl'ooms for smokers or nonsmokers.
(t)(l) Except as other.\ise pro\ided in this subdhision, smoking may be permitted in gaming clubs, <l.i
defined in paragraph (7) of subdi\ision (dJ, and in bars and taverns, a;:; defined in paragraph (8) 0
subdhision (d), until the earlier of the follo\\ing:
(A) .January 1, 1998.
(8) The date of adoption of <1 regulation (i) by the Occupational Safety and Health Standards Boar:
reducing the permissible emplo)'ee exposure level to environmental tobacco smoke to a level that \\il
prevent an,ything other than insignificantly hannful effects to exposed employees or (ii) by the federa
Emironmental Protection Agency establishing a standard for reduction of pennissible exposure t<
environmental tobacco smoke to an exposure level that ....ill prevent an.ything other than insignificantl:,
harmful effects to exposed persons.
(2) If a regulation specified in subparagraph (8) of paragraph (1) is adopted on or before January 1
1998, smoking may thereafter be permitted in gaming clubs and in bars and taverns, subject to fuJ:
compliance \\ith, or conformity to, the standard in the regulation \\ithin two years following the date 0:
adoption of the regulation. An employer failing to achieve compliance \..ith, or conformity to, the
regulation within this two-year period shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and Health Standards Board and the
federal Environmental Protection Agency both adopt regulations specified in subparagraph (B) or
paragraph (1) that are inconsistent, the regulations of the Occupational Safety Standards Board shall bt
no less stringent than the regulations of the fed~ral Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph 0) is not adopted on or before Januar;.
1, 1998, the exemptions specified in paragraphs (7) and (8) of subdi..ision (d) shall be inoperative on and
after January 1, 1998, until" .. .. a regulation is adopted. Upon adoption of such a regulation on or after
January 1, 1998, smoking may thereafter be permitted in gaming clubs and in bars and taverns, subject
to full compliance with, or conformity to, the standard in the regulation within two years follo.....ing thE-
date of adoption of the regulation, An employer failing to achieve compliance \\ith, or confonnity to. thE
regulation within this two-year period shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achie'ied. If the Occupational Safety and Health Standards Board and the
Additions or changes Indicated by underline; deletIons by asterisks" .. ..
86
LABOR CODE
tion standard or other standard utilizing appropriate
I, electronic, and biotechnical systems, adopted by the
<II" the federal Environmental Protection Agency. If
1 Htandards of the Occupational Safety and Health
he standards adopted by the federal Emironmental
work ~ea where no one, as part of his or her work
~ of Hus paragraph, "work responsibilities" does not
1ed out In the breakroom when it is unoccupied.
to accommodate nonsmokers.
"nployees. either full-time or part-time ma.," permit
t: '
'm:-;ent to permit smoking. :-';0 one, as part of his or
m an .area where smoking is pemitted. An employer
:oer:lOn to obtain consent or who has required an
subject to the penalty pro'visions of Section 6427.
! directly to the outside by an exhaust fan. Air from
'arts of the building.
ion stand~rd or other standard utilizing appropriate
. ,electr?mc, and bi?technical systems, adopted by the
'I the !ederal,Ennronmental Protection Agenc,)", If
:-;tandards of the Occupational Safet\' and Health
"(' .standards adopted by the federal Emironmental
Llp.ersede or ren~er inapplicable any condition or
L.thc types of busmess establishment5 bv any other
\y othet"\\ise applicable paragraph of this subdhision
:11 not be construed to require employers to pro...icJe
:il'eakl'ooms for smokers or nonsmokers.
~ion, smoking may be pennitted in gaming clubs, as
bars and tavern:>. a;:; detined in paragraph (8) of
Occupational Safety ancl Health Standards Board
I emironmental tobacco smoke to a level that \vill
l'ffects to exposed emplovees or (ii) bv the federal
tanda:d for reduction or permissible" exposure to
:l<.1t \\111 prevent anything other than insignificantly
.r paragraph (l ~ is adopted on or before January I,
mg clubs. and m hal'S and taverns. subject to full
.:2 re~latlon wit~in two years follo\\ing the date of
.0 achieve comphance \\ith, or conformitv to, the
~moking in the gaming club, bar, or ta\:ern until
tlOnal Safety and Health Standards Board and the
;Ipt regulatio~s specified in subparagraph (B) of
, t?e OccupatIonal Safety Standards Board shall be
tl\lronmental Protection Agency,
paragraph (1~ !s. not adopted on or before January
lei (8) of subdiVISion (d) shall be inoperative on and
:e~. UpO? adoption of such a regulation on or after
d I? gammg clubs and in bars and taverns, subject
.(] m the. regulation \\;thin two years following the
\~ to ~chle.ve complia~ce \\;th, or confonnity to, the
~mokmg m the gammg club, bar, or tavern until
'IOnal Safety and Health Standards Board and the
jerline; deletions by asterisks * * *
LABOR-<:ODE
~ 6404.5
t'edera] Environmental Protection Agency both adopt regulations specified in subparagraph (8) of
paragraph (1) that are inconsistent, the regulations of the Occupaticmal Safety and Health Standards
Board ~hall be no less stringent than the regulations of the federal Environmental Protection Agency.
(4) From-,January I, 199i. to December 31, 199i, inclusi....e, smoking may be pennitted in gaming clubs,
as defined in paragraph (7) of subdi\ision (dl, and in bars and taverns, a;:; defined in paragT"dph (8) of
::.ubdhision (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 perfonnance of ordinary work responsibilities, to
enter any area in which smoking is 'permitted.
(g) The smoking prohibition set forth in this section shaJl coO!,titute a unifonn statev.ide 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 emplo~Tnent. Insofar as the smoking prohibition set forth in this
::;ection is applicable to all (100 percent 01) places of employment v.ithin this state and, therefore, provides
the maximum degree of coverage, the practical effect of this section is to eliminate the need of local
government.." to enact enclosed workplace smoking restrictions \\ithin their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from prohibiting smoking in an enclosed place of
employment for any reason.
(i) The enactment of loca] regulation of smoking of tobacco products in enclosed places of employment
by local governments shall be sU5pended only for as long as, and to the extent that, the (100 percent)
smoking prohibition prO\ided for in this section remains in effect. In the event this section is repealed or
modilied by subsequent Jegislati\.e or judicial action so that the (100 percent) smoking prohibition is no
longer applicable to all enclosed places of employment in California. local governments shall have the full
right and authority to enforce previou5]Y enaL'ted. and to enact and enforce new, restrictions on the
smoking of tobacco products in enclosed places of employment \\ithin their jurisdictions, including a
complete prohibition of :-;moking. Notwithstanding any other pro....ision of this section, any area not
defined as a ';place of employment" or in which the smoking is not regulated pursuant to subdivision (d)
or (e). shall be subject to locall'egulation of smoking of tobacco products.
(j) Any \iolation of the prohibition set forth in subdhision (b) is an infraction * * \ punishable by a
tine not to exceed one hundred dollars ($100) for a first \iolation, two hundred dollars ($200) for a second
\iolation \\;thin one year, and five hundred dollar.; ($..')00) for a third and for each subsequent ,dolation
\\ithin one year. This subdhision shall be enfQrcecl by local law enforcement agencies including, but not
limited to, local health departments. as detennined by the local governing body.
(k) ~ot\\ithstanding Section 6:308, the di\ision shall not be required to respond to any complaint
regarding the smoking of tobacco proelucts in an enclosed space at a place of emplo,yment, unless the
employer has been founel guilty pursuant to subdhision (jl of a third \;olation of subdivision (b) within the
pre\ious 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 without
the in\'3lid provision of application, and to this end the provisions of this act are severable.
(Added by St.ts.1994, c. 310 (A.B.13), ,1. Amended by Stats.!995, c. 91 (S.B.975). , 110; Stats.1996, c.
989 (A.B.:3017), ~ 1; Stats.1998. c. 606 (S.B.18S0). S 5.)
Historical and Statutory :Xotes
199,,\ Legislation
The Senate Dail\' Journal for the 1993-9,1 Rellular
Session, pages 5.')28 "to 5529, contained the follo\',ing letter
dated June 20, 1994, from Gene \Vong, counsel for the
Senate Judiciary Committee, regarding A.R13 (Stat.s.
1994, c. 310l:
"Last Thursday, you requested a quick memo on the
meaning of the June 16th amendments to AB 13. Particu.
larly, you were interested in the relationship of the new
exemption (No. 14) for 'employers \\ith a total of five or
fewer employees' and the exemption (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 permit smoking in that emplo)ment
situation. The response from Senator Bergeson was that
it did. That response was incorrect and requires clarifica.
tion.
"Under exemption No.8. bars and taverns (defined 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
environmental tobacco smoke before Jan. 1, 1997, the
business may permit smoking for two additional years
while it complies with the standard. If the standards an>
not adopted. the exemption would expire on Jan, 1, 199'i
and smoking <would be prohibited in those establishments
until the adoption of those standards, Upon that adop-
tion, the business ~ill have t\1,'o years to comply and may
pennit smoking during that compliance period.
"New exemption No. 14 pencil;; 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
Additions or changes Indicated by underline; deletions by asterisks * * *
87
~ 104450
HEALTH AND SAFETY CODE
.. .
(Amended by 8tats.2001. c. 750 (A.B.1I07). ! 20.)
! 104485. Repealed by 8tats.1997. c. 294 (8.B.391),! 8, eff. Aug. 18, 1997
Historical and Statutory Notes
The repealed section, amended by Stats.1996, c. 199 124950 of the Health and Safety Code, Section 12699.50 of
(A.B.3487), ~ 5, provided that Article 1 would remain the Insurance Code, Sections 14148.99 and 16997.1 of the
operative only until Jul)' 1, 1997. and would be repealed on Welfare and Institutions Code, and by deleting subdivision
Jan. I, 1998. (e) of Section 16809.5 of the Welfare and Institutions
Section 90 of Stats.1997, c. 294 (S.B.S9ll, eff. Aug. 18, Code, it is the intent of the Legislature to continue the
1997, provides: effect and operation of the provisions affected by those
"In the event that this act is not enacted until after July repealed and deleted provisions. If this act is not enacted
I, 1997. all programs autho~ or amended by this act until after July 1. 1997, those affected provisions shall
by the amendment of Sections 16909 and 16945 of the again become operative on the effective date of this act"
Welfare and Institutions Code, and by those sections
referred to in the following sentence, shall be deemed to Severability of provisions of Stata.I997, c. 294 (S.B.391),
be operative for the entire 1997-98 fiscal year. Also, by see Historical and Statutory Notes under Government
repealing Sections 349.109, 104485, 104550, 104569, and Code ~ 95001.5.
A 104495. Definitions; smoking near playground and sandbox areas
(a) For the purposes of this section the following definitions shall govern:
(1) "Playground" means any park or recreational area specifically designed.to be used by children that
has play equipment installed, or any similar facility located on public or private school grounds, or on city,
county, or state park grounds.
(2) "Tot lot sandbox area" means a designated play area \\;tmn a public park for the use by children
under five years of age. Where the area is not contained by a fence, the boundary of a tot lot sandbox
area shall be dermed by the edge of the resilient surface of safety material, such as - concrete or wood, or
any other material surrounding the tot lot sandbox area.
(3) "Public park" includes a park operated by a public agency.
(4) "Smoke or smoking" means the carrying of a lighted pipe, lighted cigar, or lighted cigarette of any
kind, or the lighting of a pipe, cigar, or cigarette of any kind, including, but not limited to, tobacco, or any
other weed or plant.
(5) "Cigarette" means the same as dermed in Section 104556.
(6) "Cigar" means the same as defined in Section 104550.
(b) No person shall smoke a cigarette, cigar, or other tobacco-related product within the boundaries of
any playground, or tot lot sandbox area.
(c) No person shall dispose of cigarette butts, cigar butts, or any other tobacco-related waste within a
playground, or a tot lot sandbox area.
(d) No person shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of
retaliating against another person who seeks to attain compliance with this section.
(e) AIly person who violates this section is guilty of an infraction and shall be punished by a fme of one
hundred dollars ($100) for each violation of this section.
(f) The prohibitions contained in subdivisions (b), (c), and (d) shall not apply to private property.
(g) This section shall not preempt the authority of any county, city, or city and county to regulate
smoking around playgrounds or tot lot sandbox areas. Any county, city, or city and county may enforce
any ordinance adopted prior to January I, 2002, or may adopt and enforce new regulations that are more
restrictive than this section, on and after January I, 2002.
(Added by 8tats.2001, c. 150 (A.B.l88), f 2.)
Historical and Statutory Note.
2001 Lerlllatlon the rupiratory health or hundred. of thou.and. of chil.
Section 1 of Stata.2001, c. 150 (A.B.I8:8), providel: dren.
I1The Leplature lind. and declare. all of the followini': "(b) Secondhand .moke expo'un! increueI the rIIk of
"(a) Secondhand .moke alIo knO'Nll. u envlronmental lower re.plratory tract lnfect1olll, includini bronch1tfa and
tobacco .moke 1a reaponalble for approximately 8,000 luni' pneumonia, which occur In infanta and young chlldren up
cancer deatha each year in noramotdn,ldulta and Impain to 18 month. ot ali'e.
Addltlonl or chlngll Indlcltld by underllnl: dllltlonl by uterllkl . . .
58
~ 22958 STOP TOBACCO ACCESS TO KIDS
Div. 8.5
(e) Proceedings under this section shall be conducted in accordance with
Chapter 5 (commencing with Section 11500) of Part I of Division 3 of Title 2 01
the Government Code.
(Added bv S'a'5.1994. c. 1009 (S.B.I927). ~ 1. Amended by Stats.199S. c. 823 (A.B.
686). ~ I:)
Historical and Statutory Notes
The 1995 amendment added a new subd. (b), ed as subds. (c) through (e) former subds. (b'l
requiring the state department to assess penal- through (d); and made a nonsubstantivt.'
ties for violations of Section 22960; redesignat- change.
Law Review and Journal Commentaries
Review of selected J 995 California legislation.
27 Pac.L.J. 349 (I 996).
Library References
Infants <';:=13.
WESTLA W Topic No. 211.
c.J.S. Infants SS 5.92 to 98.
~ 22959. Sale of Tobacco to ]\finors Control Account; funding; expendi-
tures
(a) The sum of one million five hundred thousand dollars ($1,500,000) in the
1994-95 fiscal year and the sum of two million dollars ($2,000,000) in the
1995-96, 1996-97, 1997-98, and 1998-99 fiscal years shall be transferred
annually from the portion of the federal Substance Abuse Prevention and
Treatment block grant moneys allocated to the State Department of Alcohol and
Drug Programs for administrative purposes related to substance abuse pro-
grams, to the Sale of Tobacco to Minors Control Account.
(b) Upon appropriation by the Legislature, moneys in the Sale of Tobacco to
Minors Control Account shall be expended by the state department to adminis-
ter and enforce this division.
(Added by S'at5.1994, c. 1009 (S.B.I927), ~ 1.)
Library References
Infants ,*",13.
WESTLAWTopic No. 211.
c.J.S. Infants SS 5, 92 to 98.
~ 22960. Vending machines and appliances; sale or distribution of tobacco;
local standards; inconsistencies with state law
(a) Except as provided in subdivision (b), no cigarette or tobacco product
shall be sold, offered for sale, or distributed from a vending machine or
appliance, or any other coin or token operated mechanical device designed or
used for vending purposes, including, but not limited to, machines or devices
that use remote control locking mechanisms.
(b)(I) Commencing January I, '1996, cigarette or tobacco product vending
machines or appliances may be located at least 15 feet away from the entrance
of a premise issued an on-sale public premises license as defined in Section
8
;0 ACCESS TO KIDS
Div. 8.5
,d in accordance with
Division 3 of Title 2 of
Stats.1995. c. 823 (A.B.
,'ough (e) former subds. (b)
made a nonsubstanth"e
"
,t; funding; expend i-
rs ($1.500,000) in the
; ($2,000,000) in the
shall be transferred
buse Prevention and
rtment of Alcohol and
substance abuse pro-
Ie Sale of Tobacco to
partment to adminis-
;tribution of tobacco;
aw
or tobacco product
'ending machine or
J device designed or
machines or devices
co product vendin"
"
'y from the entrance
i defined in Section
i
I
J
ENFORCEMENT ACT !l22960
Div.8.5
23039 by the Department of Alcoholic Beverage Control to sell alcoholic
beverages.
(2) As used in this subdivision "at least 15 feet away from the entrance"
means within the premises of the licensed establishment and not outside those
premises.
(c) This section and subdivision (b) of Section 22958 set forth minimum state
restrictions on the sale of cigarettes or tobacco products frorri vending ma-
chines or devices and do not preempt or otherwise prohibit the adoption of a
local standard that further restricts access to and reduces the availability of
cigarette or tobacco products from vending machines or devices or that
imposes a complete ban on the sale of cigarettes or tobacco products from
vending machines or devices. A local standard that further restricts or imposes
a complete ban on the sale of cigarettes or tobacco products from vending
machines or devices shall control in the event of an inconsistency between this
section and a local standard.
IAdded by Stats.1995, c. 823 (A.B.686), 9 2.)
i
t
~
~
,
.~
Law Review and Journal Commentaries
Review of selected 1995 California legislation.
27 Pac.L.J. 349 (1996).
;,
Library References
C.J.S. Infants !is 5, 92 to 98.
C.J.5. Municipal Corporations S
143.
<
;~
::
Infants e=>13.
Municipal Corporations ~592.
WESTLAWTopic Nos. 211, 268.
.
~
;!
'1
~
/
9
~ 22958
Note 2
foreement rel\ponsibilities of Department of Health Ser-
vices (DHS) under Stop Tobacco Access to Kids Enforce-
ment (STAKE) Act; attorney general could intervene tn
action, and plaintiff was seeking restitution to state and
BUSINESS AND PROFESSIONS CODE
B
injunction, not enforcement of penal code or STAKE Act.
Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 71
Cal.Rptr.2d 731,17 Ca1.4th 503, 950 P.2d 1086.
,
t
r
t
. 22959. Sale of Tobacco to Minors Control Account; funding; expenditures
(a) The sum of >II . "'two million dollars ($2,000,000) . '" . shall be transferred annually from the
portion of the federal Substance Abuse Prevention and Treatment block grant moneys allocated to the
State Department of Alcohol and Drug Programs for administrative purposes related to substance abuse
programs, to the Sale of Tobacco to Minors Control Account.
(b) Upon appropriation by the Legislature, moneys in the Sale of Tobacco to Minors Control Account
shall be expended by the state department to administer and enforce this division.
(Amended by Stats.199B, c. 648 (A.B.734),! 2.)
~ 22961. Advertisements of tobacco products on outdoor billboards; restrictions on use within
1,000 feet of publiC or private schools or playgrounds
(a) No person, firm, corporation, partnership, or other organization shall advertise or cause to be
advertised any tobacco products on any outdoor billboard located within 1,000 feet of any public or private
elementary school, junior high school, or high school, or public playground.
(b) This section sets forth minimum state restrictions on the advertisement of any tobacco products on
outdoor billboards near schools and public playgrounds and does not preempt or otherwise prohibit the
adoption of a local standard that imposes a more restrictive or complete ban on billboard advertising or
on tobacco-related billboard advertising. A local standard that imposes a more restrictive or complete
ban on billboard advertising or on tobacco-related billboard advertising shall control in the event of any
inconsistency between this section and a local standard.
(c) This section shall not be construed to prohibit the display of a message or advertisement opposing
the use of tobacco products. However, this subdivision shaH not be construed to pennit an advertisement
promoting the use of tobacco products by including a message opposing the use of tobacco products
within that advertisement.
(Added by Stats.1997, c. 219 (A.B.752),! 3.)
Historical and Statutory Notes
"(d) The United States Supreme Court has ruled that
commerdal advertising may be regulated, pro'\oided the
resuictions meet a four-part. test, including, but not limit.
ed to, whether the advertising is deceptive and misleading.
"(e) Although the federal Cigarette Labeling and Ad-
vertising Act (15 U.s.c.A.. Sec. 1331 et seq.) preempts
states and localities from restricting advertising based
upon public health considerations, it does not prevent
measures directed at the reduction of illegal purchasing of
tobacco by minors.
"(f) Accordingly, the LegislatUl'f hereby endorses a
restriction on the advertising of tobacco products near
schools as a means to curb the illegal use of toba.cto by
minors."
1997 Legislation
Section 1 of Stats.1997, c. 219 (A.B.752), provides:
"The Legislature finds and declares all of the fo\l0'\;ng:
"(a) The state has a special responsibility to protect
minors from engaging in illegal activities.
"(b) The state has strongly supported classroom edu.
cation concerning the dangers of tobacco use, but this
message is undercut if there are advertisements near
schools that encourage the use of tobacco products.
"(c) Many school districts in California have endorsed
restricting the advertising of tobacco products and alco-
holic beverages near schools in order to avoid sending
mixed messages to their students.
~ 22962. Unlawfulness for ~ny person engaged in retail sale of tobacco prodUCts to sell, offer for
sale, or display for sale cigarettes by self.service display
(a) For purposes of this section, "self-service display" means the open display of tobacco products in a
manner that is accessible to the general public without the assistance of the retailer or employee of the
retailer.
(b) Except as pennitted in subdivision (b) of Section 22960, it is unlawful for any person engaged in the
retail sale of tobacco products to sell, offer for sale, or display for sale ~igarette~ by ~elf-seT\ice display.
Any person who violates this section is subject to those civil penalties speCified in the schedule in
subdivision (a) of Section 22958.
(c) The Attorney General, a city attorney, a county counsel, or a district attorney may bring a civil
action to enforce this section.
Additions or changes Indicated by undertlne; deletion. by ..terlsks * * *
. 4
BUSINESS AND PROFESSIONS CODE
:njunction, not enforcement of penal code or STAKE Act.
~top Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 71
Cll.1.Rptr.2d 731,17 CalAth 503, 900 P,2d 1086.
mt; funding; expenditures
00) . . . shall be transferred annually from the
nd Treatment block grant moneys allocated to the
administrative purposes related to substance abuse
:count.
, in the Sale of Tobacco to Minors Control Account
rer and enforce this division.
outdoor billboards; restrictions on use within
IT playgrounds
other organization shall advertise or cause to be
lard located mthin 1,000 feet of any public or private
or public playground.
inS on the advertisement of any tobacco products on
;ds and does not preempt or otherv.ise prohibit the
tnctive or complete ban on billboard advertising or
,ndard that imposes a more restrictive or complete
llboard advertising shall control in the event of any
,I.
he display of a message or advertisement opposing
n shall not be construed to pennit an advertisement
~ a message opposing the use of tobacco products
)tatutory Notes
"(d) The United States Supreme Court has ruled that
commercial advertising may be regulated, provided the
restrictions meet a four.part test, induding, but not limit.
ed to, whether the advertising is deceptive and misleading.
"(e) Although the federal Cigarette Labeling and Ad.
vertising Act (15 U.S.C.A. Sec. 1331 et seq.) preempts
states and localities from restricting advertising based
upon public health considerations, it does not prevent
measures directed at the reduction of illegal purchasing of
tobacco by minors.
"(0 Accordingl;;.', the Legislature hereby endorses a
restriction on the advertising of tobacco products near
schools as a means to curb the illegal use of tobacco by
minors,"
n retail sale of tobacco products to sell, offer for
~elf.service display
.lay" means the open display of tobacco products in a
lout the assistance of the retailer or employee of the
on 22960, it is unlawful for any person engaged in the
or display for sale cigarettes by self-service display.
:0 those chil penalties specified in the schedule in
;nty counsel, or a district attorney may bring a civil
underllnej deletions by asterisks *
4
. .
BUSINESS AND PROFESSIONS CODE
~ 23050
(d) This section does not preempt or otherwise prohibit the adoption of a local standard that imposes
greater restrictions on the access to tobacco products than the restrictions imposed by this section. To
the extent that there is an inconsistency between this section and a local standard that imposes greater
restrictions on the access to tobacco products, the greater restriction on the access to tobacco products in
the local standard shall prevail.
(Added by Stats.2ool. c. 376 (S.B.757). ! 2.)
Division 9
ALCOHOLIC BEVERAGES
Chapter 1
GENERAL PROVISIONS A.1I/D DEFINITIONS
! 23000. Short title
Notes of Decisions
5. Purpose of law
Legislative goal underlying Alcoholic Beverage Control
Act has traditionally been recognized as the promotion of
temperance. Department of Alcoholic Beverage Control
v. Alcoholic Beverage Control Appeals Bd. CAppo 4 Dist.
1999) 84 Cal.Rptr.2d 621, 71 CaI.AppAth 1518, rehearing
denied, review denied.
f 23004. Alcoholic beverage
Cross References
On.sale general licenses, bed and breakfast inn, alcohol.
ic beverages, see Business and Professions Code
~ 24045.12.
Chapter 1.5
ADMINISTRATION
Article 1
THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
Section
23050. Existence of
pointment,
Council.
department; director; ap-
salary, membership on
f 23050. Existence of department; director; appointment, salary, membership on Council
There is in the State Government a Department of Alcoholic Beverage Control. The department shall
be administered through a civil executive officer who shall be known as the Director of Alcoholic
Beverage Control. The director shall be appointed and shall serve as provided in Section 22 of Article
XX of the Constitution and shall receive an annual salary as provided for by Chapter 6 of Part 1 of
Division 3 of Title 2 of the Government Code. . ..
(Amended by Stats.2000. c. 979 (A.B.2759).! 1.)
Chapter 2
AUTHORIZED UNLICENSED TRANSACTIONS Al'ID EXEMPTIONS
Section
23100.
Section
or failure to renew license; pennission
to sell stock; 4epartment supervision.
Possession of stock of lawfully acquired
alcohol following revocation, suspen-
sion, or voluntary surrender of license,
Additions or. changes indicated by underline; deletions by asterisks * * *
5
1
ORDINANCE NO.
2
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
3 8.73.040 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING
IN OUTDOOR RECREATION AREAS, SPORTS CENTERS, AND SPORTS FACILITIES.
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
5 DO ORDAIN AS FOLLOWS:
6 SECTION 1. Section 8.73.040 is hereby added to the San Bernardino Municipal Code
to read as follows:
7
Section 8.73.040 Smoking In Outdoor AtWetic Recreation Areas, Sports Centers And
8 Sports Facilities Prohibited.
9 A. For the purposes of this section, "outdoor athletic recreation area, sports centers
and sports facilities" shall include, but not be limited to, any stadium, gymnasium, swimming pool,
10 playing field, health spa or other similar place, open to the air, where members of the general public
assemble to either engage in physical exercise, participate in athletic activities or witness sports
11 events.
12 B. It shall be prohibited for any person to smoke any tobacco product in an outdoor
athletic recreation area, sports center or sports facility, except in the areas designated by the facility
13 provider.
14 C. Publicly owned outdoor athletic recreation areas, sports centers and sports facilities
shall designate one or more areas in which the general public is not prohibited from smoking.
15
D. Privately owned athletic recreation areas, sports centers and sports facilities, or
16 publicly owned athletic recreation areas, sports centers and sports facilities that are leased by a
private entity for any term greater than one year, may designate one or more areas in which the
17 general public is not prohibited from smoking.
18 E. Any person who violates this section is guilty of an infraction, punishable in
accordance with Section 1.12.010 of this Code.
19
20
21
22
23
24
25
26
1
~9~
27
28
....
1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION
8.73.040 TO THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SMOKING
2 IN OUTDOOR RECREATION AREAS, SPORTS CENTERS AND SPORTS FACILITIES.
3
4
I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a regular meeting thereof, held on
5
the _ day of March, 2002, by the following vote, to wit:
6
7
COUNCIL MEMBERS:
ESTRADA
ABSTAIN ABSENT
AYES
NAYS
8
9
LIEN
MCGINNIS
DERRY
SUAREZ
ANDERSON
MCCAMMACK
10
11
12
13
14
15
16
Rachel G. Clark, City Clerk
17
18
The foregoing ordinance is hereby approved this _ day of
,2002.
19
20
21
JUDITH VALLES, Mayor
City of San Bernardino
22
Approved as to
23 form and legal content:
24 JAMES F. PENMAN,
City Attorney
25
26 By:
27
28
2