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HomeMy WebLinkAbout09-City AttorneyMAYOR & COMMON COUNCIL MEETING BACKUP MEETING DATE: March 18, 2002 Mayor & Common Council / GROUP MEETING: Community Development Commission DEPUTY: Linda Hartzel *** No backup materials are included for the following items. *** ITEM # STATUS 13 Continued to April 1, 2002 28 Continued to April 1, 2002 31 Continued to April 1, 2002 ..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 { I ~ ~,,y i ~ M ~-~ L 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. ~12rv'~.d~-. Signature Contact person: James F. Penman Phone: 5355 Supporting data attached: Staff Report Ward: ALL FUNDING REQUIREMENTS: Amount: NONE Source: (Acct. No.l (Acct. Description) Finance: Council Notes: ~s-ozez Agenda I NQ, 7 ~ _ ~~/©~ STAFF REPORT Council Meeting Date: March 4, 2002 TO: Mayor and Common Council FROM: City Attorney's Office DATE: February 26, 2002 AGENDA: March 4, 2002 Business and Professions Code §22962 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 cun•ent state law provides. Business and Professions Code §22962(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 cigazettes. 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 Section 8.73.030 Sale of Tobacco Products Through Self-Service Displays 8 Prohibited. 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 1.12.010 of this Code. • 14 D. This section shall not apply to any "retail or wholesale tobacco shop" meaning any business establishment the main purpose of which is the sale of tobacco products, including, but 15 not limited to, cigars, pipe tobacco and smoking accessories. 16 17 18 19 20 21 22 23 24 25 26 • 27 2 8 ~~L4t n 3/~l/6 ~J ~B "~ 1 /T 3~~ $/oz 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 DERRY 11 SUAREZ 12 ANDERSON 13 MCCAMMACK • 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: a ., • 27 28 2 . CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From: James F. Penman, City Attorney Subject: AN ORDINANCE OF THE CITY OF I 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. Signature Contact person: James F. Penman Phone: 5355 Supporting data attached: Staff Report Ward: ALL FUNDING REQUIREMENTS: Amount: NONE Source: (Acct. No.l fAcct. Description) Finance: Council Notes: ti~ 9~ 75-0262 Agenda Its a J//~/(~~ STAFF REPORT Council Meeting Date: March 4, 2002 TO: Mayor and Common Council FROM: City Attorney's Office DATE: February 26, 2002 AGENDA: March 4, 2002 Labor Code §6404.5 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. . ~ r~ ~' ~i / 1 ORDINANC O. s 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 Atliletic 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, l 0 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 • 27 28 1 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 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 ESTRADA 8 LIEN 9 MCGINNIS to DERRY 11 SUAREZ 12 ANDERSON 13 MCCAMMACK • 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 2 3 form and legal content: 24 JAMES F. PENMAN, City Attorney 25 • 27 28 2 INTER OFFICE MEMORANDUM c<n p~oFHEy OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO ,~,,,,~° TO: The Mayor and Common Council FROM: .Tolena E. t3atnes. Deputy City Attorney DATE: March 4, 2CC2 RE: Comparison of Current Smoking Ordinance (SBMC Chapter 8.72) and State Law Under Labor Cnde §6404.5 and Analysis of Proposed Amendment to Chapter 8.72. Lahnr Code 864C4S(a) states that the regulation of smoking in the workplace is a matter of statewide interest and concern. It further states that it is the intent of the State Legislature in enacting this section to prchibit the smoking o tobacco products in all enclosed places of employment in this state, thereby eliminating the need of local governments to enact workplace smoking restrictions within their respective jurisdictions. This section goes on further to state that it is the intent of the Leeislaiure to create a uniform statew:cie standard to restrict and prohibit the smoking of tobzcca products in enclosed places of employment. Additionally it is the Legislature's intent to eliminate. the hardship that can result from enachnent or enforcement of disparate local workplace smoking restrictions. L,zbor Code 86404.5(x) further statee that it is the intent of the Legislature that any area not defined as a '`place of employment" pursuant to subdivision (d) or in which the smoking of tobacco products is not regulated nttrsuant to subdivision (e; small be subject to local regulation of smoking oitobacco products. 71ie Legislature's intent is reitera?rd in labor Code §6404.5(8) where it states that the smoking prohibition set forth in thts sec?ion. shall constitute a uniform statewide standard for regulating the smoking of tobacco products in enclosed places of employment and shall supersede and render unnecessary tF.e iota] enactment or enforcement of local ordinances regulating the smoking of tobacco products iu e :closed places of employment. It goes on further to state that the practical effect of this section is io eliminate the need of local governments to enact enclosed workplace smoking resh•ictions Fvithin their respective jurisdictions. I hove attached a copy of Labor Code 86404.5 for your convenience. COMPAR750N OF CURRENT CHAPTER 8.72 AND LABOR CODE §6404.5 San Berncrrdino.ti&micipal Ccide Chapter $.72 as it is currently written is inconsistent with state law under I abor Code §6404.5 iu the following ways: IEB/ac(MCCSmokc.Mem] I 1. Under §8.72.090(A) smoking is permitted in bars and freestanding bars. Under Labor Code §6404.5 afrer January I, 1998 smoking is no longer permitted in bars and freestanding bars. 2. Under §8.72.090(B) smoking is permitted in up to 35% of hotel and motel rooms. Under Labor Code §6404.5 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 §8.72.020(D) employer is defined as any business with two or more employees. Under Labor Code §6404.5 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 of the 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: 1. Under §8.72.120 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 §8.72.130 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 §6404.5. There are a few areas that are stricter than state law. These areas are as follows: 1. Under the proposed §8.72.020(F) the new language eliminates the word "enclosed" from the definition of athletic recreation azea. State law only applies to enclosed places of employment. This new definition would expand the azea of regulation to include athletic recreation azeas that aze not enclosed (i.e. open to the air). 2. Proposed §8.72.030 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 aze 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] ~ ~I ~'. 3. Under proposed §8.72.040(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 §6404.5(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 if it prohibits smoking even if it is a part of a theatrical production. 4. Under proposed §8.72.040(A)(9) enclosed athletic recreation area is changed to athletic recreation azea. This language would include athletic recreation areas that are open to the air as well as those that are enclosed. Labor Code §6404.5 only prohibits smoking in enclosed places of employment. 5. Under proposed §8.72.040(A)(12) 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 §8.72.040(A)(13) smoking would be prohibited within 25 feet of a playground and/or tot lot sandbox aeeas, including the disposal of cigarettes and other tobacco related products in accordance with Health and Safety Code § 104495 (note there is a typo when the proposed amendment refers to the Health and Safety Code § 1044.95, which does not exist). Health and Safety Code § 104495 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 §104495(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 aeeas. 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 1, 2002. 7. Under proposed §8.72.020(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 §22960, which prohibits the sale of cigazettes 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 §8.72.020(B) 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 §22962 prohibits the sale of cigarettes from self-service displays and does not include other tobacco products. The definition section of this code does define aself- 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 aze identical to state law under Labor Code §6404.5. I have attached copies of Health and Safety Code § 104495 and Business and Professions Code §22960 and §22962 for your convenience. RELEVANT CASE LAW REGARDING THE LEGALITY OF ENACTING A CITY ORDINANCE THAT DUPLICATES A STATE LAW Government Code §37100 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 aze 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. Sozzthern Pacifc Pipe Lines, Inc. v. City of Long Beach (1988) 204 Ca1.App.3d 660, 667-668. In People v. Villarino (1955) 134 Ca1.App.2d Supp. 893, the court states "...It is appazent 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 of language, 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 Laboz• Code §6404.5 would be void and invalid. In People v. Stone and Segesn:an (1987) 190 Ca1.App.3d Supp. 1, 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 More/tart v. County ojSantn Barbara (1994) 7 Ca1.4th 725, the court held ?ocal 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 genera[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[MCCSmohe.Mem] 4 would be a conflict of jurisdiction which may result in one person being responsible for the same act under two jurisdictions constituting double jeopardy and make our ordinance unviable. --O~V19 Jole E. Barnes, Deputy City Attorney JEB/ac[MCCSmoke.Mem] 5 § 6401.7 LABOR CODE Law Review and Journal Commentaries Review of selected 1989 California legislation. 21 Pac. Review of selected 1993 California legislation. 25 Pac L.J. Wi (1990). L.J. 736 (1994). Library References Legal jurisprudences Cal Transactions Forms: Business TransaMions 12:9. Cal Jur 3d Lab § 65; Work Comp §881. Forms Cal Transactions Fonns: Business Entities § 1:37. § 6402. Preventing entry into unsafe or unhealthful place Notes of Decisions Tort action 5 policy, and discharged employee may bring tort action far wrongful discharge in addition to his or her sfa[uton~ remedies. Barton v. New United Met9r Manufacturing, 5. Tort action Inc. (App. 1 Dist. 1996) 51 Ca1.Rptr.2d 328, 43 CalAppdth Employer who tires employee in retaliation for protest- 1200, review denied. ing unsafe working conditions violates fundamental puhlic § 6403. Failure to fucnish safety devices or adopt safe practices and procedures Notes of Decisions Employer 4 with occupational safety orders, for injuries sustained by employee of independent contractor hired to remove sror- age tanks from property absent evidence that lessee was 4. Em lu ~er employer of independent contractors employee or general P > contractor with respect N excavation work. Loper v. Lessee in possession of rexi property was not subject to University Partners (App. 4 Dist 1951) 63 Cal.Rptr.2d negligence per se liability, based on any failure to comply 359, 54 Cal_4pp.4th 1117. § 640•L3. Enclosed place of employment; smoking prohibition; legislative 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 within their respective jurisdictions. IC is further the intent of the Legislature to create a unifot7n statewide standard to restrict and prohibit the smoking of tobacco producU in enclosed places of employment, as specified in this section, in order to reduce employee exposure to environmental tobacco smoke to a level that will prevent anything other than insignificantly harmful effect to exposed employees, and also to eliminate the confusion and hardship that can result from enactment or enforcement of disparate local workplace smoking restrictions. Notwithstanding any other provision of this section, it is the intent oC the Legislature that any azea not defined a, a "place of employment" pursuant to subdivision (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 permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place o(employment. (d For purposes of this section, an employer who permits any nonemployee access to his or her place of employment on a regulac 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 follons: (A) Where smoking is prohibited throughout the building or structure, a sign stating "No smoking" shall be posted at eacfi entrance to the building or sWeture. "~ (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. jl Additions or changes indicated by underline; deletions by asterisks 1; ~ ( i T LABOR CODE LABOR CODE § s¢Q¢,5 nurnal Commentaries ('_') Has requested, when appropriate, that x nonemployee who is smoking refrain from smoking in the Review of selected 1993 California legislation. 25 Pae. enclosed workplace. L.J. 735 (1994). Fnr purposes of this subdivision, "reasonable steps" does not include (A) the physical ejection of a nonemployee from the place of employment or (B) arty requirement for making a request m a References nonemplm•ee to refrain from smoking, under circumstances involving a risk of physical harm to [he employer or any employee. Cal Transactions Form;: Basiness' Transac[ior~s I?:9. - (rll For purpo: as of this sectioq "place of employment" dues not include any of the following: (ll SLxty-lice percent of the guest room accommodation: in a hotel, motel, or similar transieat lodging establishment. ('?) Areas of [he lobby in a hotel, motel, or other similar transient lodging establishment designated for hful place smoking by the establishment. " " An establishment may permit smoking in a designated lobby azea that does nn[ exceed 'LS percent of the total floor area of the lobby or, if the total area of the lobby is ' Decisions 2.W0 square feet or less, that does not exceed bU percent of the total door area of the lobby. For purpmes of [his paragraph, "lobby" means the common public urea of * * * an establishment in which policy, and discharged employee map bring tort action for registration and other similar or related transactions, or both, are conducted and in which the wrongful discharge in addition to his or her statutory establishment's guests and members of the public typically congregate. remedies. Barton v. New United Motor hlanutac[uring, Inc. (App. 1 Dist 1996) 51 Ca1.Rptr.?d 3?9, 43 CaIA 4th (3) Meeting and banquet rooms in a hotel, motel, other transient lodging establishment similaz to a l3(ro, review denied. pv hotel or moteh restaurant, or public convention center, except while food or beverage functions aze taking place, including setup, senice, and cleanup activities, or when the room is being used for exhibit purposes. AC times when smoking is not permitted in * * * a meeting or banquet room pursuant to this pt safe practices and procedures paragraph, the establishment may permit smoking in corridors and prefunction areas adjacent to and sen'ing the meeting or banquet room if no employee is stationed in that corridor or area on other than a f Decisions pausing basis with occupational sefety orders, for injuries sustained by (11 Retail or wholesale tobacco shops and plicate smokers lounges. For purposes of this paragraph: employee of independent contractor hired to remove sloe- (Al "Private smokers' lounge" means arty enclnsetl area in or attached to a retail m' wholesale tobacco age ranks from property absent evidence that lessee was shop [hat is dedicated to the use of tobacco products, including, but not limited [o, cigars and pipes. employer of independent contractor's employee or gene[zl contractor with respect to zscacadon work. Lopez v, lB) "Retail or wholesale tobacco sho(i' means any business establishment the main purpose of which is University Partners (App. 4 Dist. 19911 63 Ca1.Rptr.?d the sale of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories. 359, &1 CaLAppd[h 111 i. (v) Cabs of mo[ortrucks, as defined in Sec[inn 110 of the Vehicle Code. or truck tractors, dr defined in Section 6oi of the Vehicle Code, if no nonsmoking employees are present. ling prohibition; legislative findings, declarations, (6) lb'arehoune facilities. For m ores of this ara a h. "warehouse facility' means a warehouse ard; violation; penalties p V P~ p facili[p With more than 100,000 square feet of total floor space, and 20 or Fewer full-time employees ration of smoking in the workplace is a matter of 1°orkmg at the facility, but dove not include any area within a facility that i; utilized as office space. 'rte Legislature in enacting this section to prohibit the t.1 Gaming clubs, in which smoking is permitted by subdilisien (q. Fnr purposes of thin paragraph, nelused places oCemploy'men[ in this state, L,i covered "gaining cluh" means any gaming cluh. as defined in Section lOSO'? of [he Rosiness and Professions Code. d loco! governments to enact workplace smoking or bingo facility'. as defined in Section 32fi.i of the Penal C'ude, that resLicts access to minors under 18 t i~ further the intent of the Legislature to create a }'ears of age. :he smoking of tobacco products in enclosed places of (g) Bars and taverns, in which smoking is permitted by subdivision (t1. Fm• purposes of this reduce employee exposure to environmental tobacco paragraph, "bar" or "tavern" means a facility primarih~ devoted to the serving of alcoholic beverages For ter than insignificantly harmful effect to exposed consumption by guests on the premises, in which the seeing oC food is incidental. "Bar or tavern" and hardship that can result from enactment or includes Ihose facilities located within a hotel, motel, or other similar transient occupancy establishment. restrictions. Noh~ithstanding any other provision of However, lvhen located within a building in conjunction with another use, including x restaurant, "bar" or any area not defined as a "place of employment" 'tavern" includes only those areas used primarily Cor the sale and senice of alcoholic beverages. "Bar" ng of tobacco producU is not regulated pursuant to ur "tavern" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages smoking of tobacco products. are sen'ed therein. permit, and no person shall engage in, [he smoking of (9) Theatrical production sites, if smoking is an integral part of the story in the theatrical production. •mpluyment. (10) Medical research or treatment sites, if smoking is integral to the research and treatment being •1 permits any nonemployee access to his or her place conducted. nowingly or intentionally if he or she has taken the nonemployee: (11) Private residences, except for private residences licensed as family day care homes, during the hours of opet•ation as family day care homes and in those areas where children are present. (12) Patient smoking areas in long-term health care facilities, as defined in Section 1918 of the Health building or structure, a sign stating "No smoking" and Safety Code. 'ructure. (13) Breakrooms designated by employers for smoking, prolided that all of the following conditions are areas of the building or structure, a sign stating met: ' shell be posted at each entrance to the building or (A) Air from the smoking room shall be exhausted directly to the outside by an exhaust fan. Air from the smoking room shall nut be recirculated to other parts of [he building. mderllne; deletions by asterisks ' * " Additions or changes Indicated by underline; deletions by asterisks ' ' * 3~ 85 § 6404.5 LABOR CODE (B) The employer shall comply with any ventilation standard or other standazd utilizing appropriat technology, including, but not limited [n, mechanical, electronic, and bio[echnical systems, adopted by the 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 Heat; Standards Board shall be no less stringent than the standards adopted by the federal Environmenat Protection Agency. (C) The smoking room shall 6e located in a nomvork area where no one, ai part of his or her worF. responsibilities, is required to enter. For purposes of this paragraph, 'work responsibilities" does no' include any custodial or maintenance work carved out in the breakroom when it is unoccupied. (D) There are sufficient nonsmoking breakrooms to accommodate nonsmokers. (ld) Employers with a total of five or fewer employees, either full-time or part-time, may permi smoking where all of the following conditions are met: _ (.4) The smoking area is not accessible to minors. (B) All employees who enter Che smoking area consent to permit smoking. Yo one, as part of his or her work responsibilities, shall be reyuired to work in an area where smoking is permitted. An employer who is determined by the division to hate used coenion [o obtain consent or who has required ar employee to work in the smoking area shall be subject to the penalty provisions of Section 6J?S (C) Air from the smoking area shall be exhausted directly to the outside 6y an exhaust fan. Av from the smoking area shall not be recirculated to other parts of the building. (D) The employer shall comply with any ventilation standard or other standard utilizing appropriate technology, including, but not limited to, mechanical, electronic, and biotechnica] 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 Heal[t Standard: Board shall be no les stringent than the standards adopted by the federal Emironmenta. Protection Agency. This paragraph shall not be construed to (i) supersede or render inapplicable any condition or limitation on smoking areas made applicable to specific types of business establishments by any other - paragraph of this subdivision or (ii) apply in lieu of any othendse applicable paragraph of this subdbisio: that has became inoperative. (e) Paragraphs (13) and (14) oC subdivision (d) shall not be construed to reyuire employers to provid reasonable accommodation to smoker, or [n provide breakrooms for smokers or nonsmokers. (0(1) Except as othernise prodded in this subditision, smoking may be permitted in gaming clubs, a: defined in paragraph (i) oC subditision (d), and in bars and taverns, as defined in paragraph 13) o; subditision (d), until the earlier of the following: (A) January 1. 199`3. (Bl The date of adoption of a regulation (i) by [he Occupational Safety and Health Standards Boarr' reducing the permissible employee exposure level to environmental tobacco smoke to a level that oil: prevent anything other than insignificantly harmful effects to exposed employees or (ii) by the federa! Emironmen[xl Protection Agency establishing a standard for reduction of permissible exposure v environmental tobacco smoke to an exposure level that will prevent anything other than insignificantl;: harmful eCfacts to exposed persons. (YI If a regulation specified in subparagraph (B) oC paragraph (1) is adopted on or before January 1. 1993. smoking may thereafter be permitted in gaming clubs and in bars and taverns, subject to ful: compliance with, or conformity to, the standard in the regulation within two years following the date o; adoption of the regulation. An employer failing to achieve compliance with, 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) oC paragraph (1) that are inconsistent, the regulations of the Occupational Safety Standards Board shall br no less stringent than the regulations of the federal Environmental Protection Agency. (3) If a regulation specified in subparagraph (B) of paragraph (1) is not adopted on or before January 1, 1993, the exemptions specified in paragraphs ('7) and (3) of subdivision (d) shall be inoperative on and after January 1, 1993, until' " " a regulation is adopted. Upon adoption of such a regulation on or after January I, 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 following the date of adoption of [he regulation. An employer failing to achieve compliance with, 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 Additions or changes Indicated by underline; deletions by asterisks 86 L.9BOR CODE LABOR-CODE ' - ~ §6404.5 [ion standard or other standard utilizing appropriate federal Environmental Protection Agency both adopt regulations specified in subparagraph (B) of I, electronic, and bio[echnical systems, adopted by the paragraph (D that are inconsistent, the regulations of the Occupational Safety and Health Standards or Che federal Emtronmen[al Protection Agency. IC Roard :hall he no less stringent than the regulations of the federal Environmental Protection Agency. i standards of the Occupational Safety and Health he standards adopted by the federal Environmental From January 1, 1991, to December 31, 1997. inclusive, smoking may be permitted in gaming clubs, as defined in paragraph (7) of subdivision (d), and in bars anti taverns, ns defined in paragraph (8) of >ubdivision (d), subject [o both aC the following conditions: work azea where no one, as part of his or her work of this paragraph, '4vork responsibilities" does not (•a) IE practicable, the gaming club or bar or tavern shall establish a designated nonsmoking area led out in the breakroom when i[ is unoccupied. (B) IC feasible, no employee shall be required, in the performance of ordinary work responsibilities, to to accommodate nonsmokers. enter any area in which smoking is permitted. nployees, either full-time or part-time, may permit (B> The smoking prohibition set forth in this section shall constitute a uniform statewide standard far t: 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 nroduct in enclosed places of employment. Insofar a; the smoking prohibition set forth in this ~~nsent to permit smoking. So one, as part of his or section is applicable to all (100 percent ot) places of emplgvment within this state and, therefore, provides m an area where smoking is permitted. An employer the ma'dmum degree of coverage, the practical effect oC this section is to eliminate the need of local :oercion to obtain consent or who has required an government [o enact enclosed workplace smoking restrictions within their respective jurisdictions. subject to the penalty praisions of Section 6427. (h) Yothin m this section shall rohibit an em lover from rohibitin smokin g P p p g gin an enclosed place of i directly to the outside by an exhaust fan. Air from employment for any reason. art of the building. (i) The enactment of local regulation of smoking of tobacco product in enclosed places of employment ion standard or other standard utilizing appropriate by local government shall be suspended only for as long a;, and to the extent that, the (100 percent) electronic, and biotechnical systems, adopted by the smoking prohibition prodded for in [his section remains in effect. In the event this section is repealed or ~r the federal Em~ironmentul Protection Agency. If modified by subsequent legislative or judicial action so that [he (100 percent) smoking prohibition is no s[antlards of the Occupational Safety and Health longer applicable to all enclosed places of employment in California. local government- shall hate Che full '.e standards adopted by the federal Environmental right and authorih~ to enforce preciously enacted. and to enact and enforce new, restrictions on the smoking of tobacco products in enclosed places of employment within [heir jurisdictions, including a upetsetle or render inapplicable any condition or complete prohibition of smoking. Sohvithstanding am• other prmision of this section, any area not chic types of business establishment by any other defined as a "place of employment" or in which the smoking is not regulated pursuant to subdivision (d) is u[hennise applicable paragraph of this subdivision nr (e), shall be subject Co local regrdation of smoking of tobacco produce. Ql .~r,y violation of [he prohibition set forth in subdivision (b) is an infraction " " ", punishable by a .II not be construed to require employers to provide fine not to exceed one hundred dollars ($100) far a first violation, hvo hundred dollars ($''?00) for a second hreakrooms for smokers or nonsmokers. violation within one year, and lice hundred dollars (13001 for a third and for each subsequent violation within one year. This subdivision shall be enforced by local law enforcement agencies including, but not -ion, smoking may be permitted in gaming clubs, as limited tu, local health departments, as determined by the local governing body. bars and taverns, as defined in paragi~aph fS) of g ection 6309, the division :hall no[ be required to respond to any complaint (k) Sohvithstandin S regarding the smoking of tobacco product in an enclosed space a[ a place of emoloymen[, unless the employer has been found guilty pursuant to subdivision (j) of a third violation of subdivision (b) within the -~ Occupational Safety and Health Standards Board Previous year. environmental tobacco smoke to a level that will (U If any provision of this act or the application thereof to am' person or cvcumstnces is held invalid, rffects to exposed employees or (ii) by the federal that im~a]idity shall no[ affect other provisions or applications of [he act that can be given effect without cmdard for reduction of permissible exposure to the invalid provision of application, and to this end [he provision; of this act are severable. hat will prevent anything other than insignificantly (Added by Stat.1994, c. 310 (A.B.13), § I. Amended by Stae.199o, c. 91 (S.B.975). § 110; Stat.1996, c. 9R9 (A.B.3037), § 1; 5tae.1998, c. 606 (S.B.18901, ~ SJ :' paragraph (U is adopted on or before January 1, ing clubs and in bars and taverns, subject to Pull Flistorical and Statuton' Sores regulation within hvo years following the date of 1994 Legislation "Under exemption No. 9, bars and taverns (defined to achieve compliance with, or conformity to, the The Senate Daily Journal for the 1993-&t Regrdar include'stand-alone' bars and hotal bars, but not including smoking in the gaming club, bar, or tavern until Session, pages &i2S to a~29, contained the following letter restaurant bars) are exempt from [he smoking restrictions tionxl Safety and Health Standards Board and the dated June 20, 1994, from Genx {4'ong, counsel for the of AB 13 until January I, 1997. If CaV05HA or tederst qvt regulations specked in subpazagraph (B) of Senate Judiciary Committee, regarding AB.13 (Stara. EPA adapts standards to reduce employee exposure to f the Occupational Safety Standards Board shall be 1994, c. 310): environmental tobacco smoke before Jan. 1, 1997, [he mironmental Protection Agency. "Last Thursday, you requested a quick memo on the business may permit smoking for two additional years 1t a a p meaning of the June 16th amendments to AB 13. Portico- while it complies with the standard. If Che standards are p. ' gr ph (1) is not ado fed on or before January larly, you were interested in the relationship of the new not adopted, the exempton would exp'u'e on Jan. 1, 19~ id (8) of subdivision (d) shall be inoperative on and exemption (NC. 14) for 'employers with a total of five or and smoking would be prohibited in those establishments :ed. Upon adoption of such a regulation on or after fewer employees' and the exemption (NO. 8) for bars and until the adoption of those standards. Upon that adop- d in gaming clubs and in bars and taverns, subject taverns. During the discussion of the amendments, you flan, the business affil have two years to comply and may 'd in the regulation within hvo years following the asked whether the new exemption applied to bars and permit smoking during that compliance period. I :g to achieve compliance with, or conformity to, the Caverns and would permit smoking in that employtnent "New exempton No. 14 permit smoking in employ- smoking in the gaming club, bat•, or tavern until situation. The response from Senator Bergeson was that ment situations invoking five or fewer employees. The •.ional Safety and Health Standards Board and the it did. That response was incorrect and requves clanlica- exemption is conditioned upon the area being closed to won. minors and the consent of all employees who enter that ierlfne; deletions by asterisks ' • * Additions or changes indicated by underline; deletions by asterisks " 87 Y § 104450 HEALTH AND SAFETY CODE (Amended by SCats.2001, e 750 (A.B.1107), § 20.) § 104435. Repealed by Stats.1997, c. 294 (S.B.391), § 8, eff. Aug. 18, 1991 Historical and Statutory Notes The repealed section, amended by State.1996, c. 199 124950 of the Health and Salety Code, Section 12899.50 of (AB.3487), 4 5, provided that Article 1 woWd remain Ne Insurance Code, Sections 14148.99 and 16997.1 0[ the operative only until JWy 1, ]997, and would be repealed on Welfare and Institution Code, and by deleting subdivision Jan. 1, 1998. (e) of SeMion 16809a of the Welfare and Inetitutlon SeMfon 90 of Stats.1997, c. 294 (S.B.391), eff. Aug. 18, Code, it u the intent of the Legislature to rnntlnue 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 provision. IP this set is not enacted 1, 1997, all programs authorized or amended by this act until after JWy 1, 1997, those affected provisions shall by the amendment o! Sections 16909 and 16945 of the again hecome 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 o[ provisions of Stats.1997, c. 294 (S.B.39ll, be operative for the entire 1997-98 6scW yeaz. Also, by see Historical and Statutory Notes under Government repealing Secions 349.109, 104485, 104550, 104569, and Code 5 96001.5. 4 104495. DeFnitiona; 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 within 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 defined 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 agaz, or Bghted cigarette of any kind, or the lighting of a pipe, cigaz, or cigarette of any kind, including, but not limited to, tobacco, or any other weed or plant. (5) "Cigrette" means the same as defined in Section 104566. (6) "Cigar" means the same as defined in Section 104550. (b) No person shall smoke a cigazette, cigaz, or other tobacco-related product witkdn the boundaries of any playground, or tot lot sandbox area. (c) No person shall dispose of cigazette butts, cigar butts, or any other tobacco-related waste within a playground, or a tot lot sandbox area. (d) No person shalt 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) Any person who violates this section is guilty of an infraction and shall be punished by a fine of one hundred dollars ($100) for each violation of this section. (fl 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. My county, city, or city and county may enforce any ordinance adopted prior to January 1, 2002, or may adopt and enforce new regulaWone that are more restrictive than this section, on end after January 1, 2002. (Added by 9tata.2001, c. 160 (AB.188), $ 2J Hstorical end Statutory Notes - 2001 Legldatlon the reeplratory health of hundreds oP thousands of ehll• 9eMion 1 oP 9tate.2001, c. 160 (AB.1887, prevldee: dren. "The Legislature finds end declares all oP the following "(b) Secondhand smoke expoeuro lncreaeee the risk of "(a) Secondhand smoke also known u envWnmenW lower respiratory traM lnfectlone, fnduding bronchitis and tobacco smoke L responsible for epproxlmate4y 3,0001ung pneumonia, which occur U Infante and young chOdren up cancer deaNe each year In nonemoldng adWte and Impeln to t8 months of age. Additlon~ or ehanpu IndlcaNd by und~rlln~; dNHlone by eebrblu 68 § 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 1 of Division 3 of Title 2 of the Government Code. (Added by Stats.1994, c. 1009 (S.B.1927), § L Amended by Stats.1495, c. 823 (A.B. 686), § 1.) Historical and Statutory Notes The 1991 amendment added a new subd. (b), ed as subds. (c) through (e) former subds. (6~ requiring [he state department to assess penal- through (d); and made a nonsubstantive ties for violations of Section 22960; cedesignat- change. Law Review and Journal Commentaries Aeview of selected 1995 California legislation. 27 PacL.J. 349 (1996). Library References Infants a13. WESTLAW Topic No. 211. C.J.S. InFants 5, 92 to 98. § 22959. Sale of Tobacco to Minors 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 Stats.1994, c. 1009 (S.B.1927), § I J Library References Infants 4 13. WESTLAW Topic No. 211. C.J.S. Infanss 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)(1) Commencing January 1, 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 ,O ACCESS TO KIDS § 22960 Div 8 g ENFORCEMENT ACT ed in accordance with Dtv 8 5 Division 3 of Title 2 of ?3039 by the Department of Alcoholic Beverage Control to sell alcoholic beverages. S[ats.1995, c. 823 (A.B, (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. ~oueh (e) former subds. (b) ,~ (c) This section and subdivision (b) of Section 22958 set forth minimum state made a nonsnbstana~~e f restrictions on the sale of cigarettes or tobacco products from vending ma- chines or devices and do not preempt or otherwise prohibit the adoption of a os 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 d machines or devices shall control in the event of an inconsistency between this } section and a local standard. (Added by Stats.1995, c. 823 (A.B.686), § 2.) .t; funding; expendi- Law Review and Journal Commentaries N: Review of selected 1995 California legislation. rs ($1,500,000) in the '-~ I'ac. L.l. 349 (1996). > ($2,000,000) in the & Library References shall be transferred -' Infants e713. C.J.S. Infants 5.92 to 98. -~ Municipal Corporations w5592. C.7.S. Municipal Corporations § 143. buse Prevention and 6VESTLAW Topic ~:os. 211, 268. rtment of Alcohol and substance abuse pro- i to Sale of Tobacco to partment to adminis- . e ;tribution of tobacco; aw or tobacco product ending machine or l device designed or machines or devices co product vending ty from the entrance > defined in Section 9 I• f $ 22955 BUSINESS AND PROFE98ION8 CODE - H Nots 2 farcement responsibilities oP Department oP Health Ser• Iglunctian, not eNorcement of penal mde or STA%E AM. vices (DH8) under Stop Tabecco Access to Kida Enforce- Stop Youth Addiction, Inc. v. Lucky Store& Ina (1998) 71 ment (STAKE) Act; attorney general could intervene In CeLRptc2d 731, 17 Cal.4th 6c3, 960 P.2d 1086, g action, and plaintiff was seeking restitution to state end t r § 22959. gale of Tobacco to Minors Control Account; funding; expenditures t_ C (a) The sum of * " "two million dollars ($2,000,000) ' • 'shall be transferred annually Crom 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 ControP Account shall be expended by the state department to administer and enforce this division. (Amended by Stats.1998, c. 648 (AB,734), § 2J § 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, fu7n, 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 ar private elementary school, junior high school, or high school, or public playground. fb) This section sets Porth 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 bil)boazd advertising or on tobacco-related billboard advertising. A local standazd 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. fc) This section shall not be conatrved to prohibit the display of a message or advertisement opposing the use of tobacco products. Howeeer, this subdivision shall not be constrved to permit 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 1997 Legislation "(d) The United States Supreme Court has ruled that Section I of S[ats.199i, e. ?19 (AB.7i2), provides: commetcial advertising may be regulated, provided the restrictions meet afour-part test, including, but not limit- "The Legislature finds and declares all of the following: ed to, whether the advertising is deceptive antl misleading. "(a) The state has a special responsibility to protect ^(e) Although the federal Cigarette Labeling and Ad- minors from engaging in illegal activities. vertising Act (16 U.S.C Sec. 1331 et segJ preempts "lb) The state has strongly supported classroom edu- states and IocaGtles from restricting advertising based cation concerning the danger of tobacco use, but this upon public health considerations, it does not prevent message is undercut if there aze advertisements near measures directed at [he reduction of illegal purchasing of schools that encourage the use of tobacco products. tobacco by minors. "(c) Many school districts in California have endorsed "(D Accordingly, the Le~slatwe hereby endorses a resMeting the advertising of tobacco products and oleo- restriction on the advertising at tobacco products near holic beverages neaz schools in order to avoid sending schools as a means rn rwb the illegal use of tobacco by mixed messages to their students. minors." § 22962. Unlawfulness for any person engaged in retail sale of tobacco products to Bell, offer for sale, or display for sale cigarettes by self-service display (a) Far 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 permitted in subdivision (bl of Section 22960, it is unlawful for any person engaged in the retail sa)e of tobacco products to sell, offer for sale, or display for sale cigazettes by self-senice 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 Intlieated byuntleHlns; delstlona by aateNaks • • 4 BUSINESS AND PROFESSIONS CODE BUSINESS AND PROFESSIONS CODE § 23050 ialunetion, not enforcement of penal code or STARE AM. Stop Youth Addiction, Inc. v. Lucky Storee, Inc, (1998) 71 (d) This section does not preempt or otherwise prohibit the adoption of a local standard that imposes Ca1.Rptr.2d 731, 17 Ca1.4[h 553, 950 P2d ]086, greater restrictions on the access to tobacco products than the restrictions imposed by this eection. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrctiens on the access to tobacco products, the greater restriction on the access to tobacco products in mt; funding; expenditures the local standard shall prevail. (Added by Stata.2001, c. 378 (S.B.75?), $ 2.) 00) • • "shall be transferred annually Prom the nd Treatment block grant moneys allocated to the administrative purposes related to substance abuse Division 9 :count. in the Sale of Tobacco to Minors Control Account ALCOHOLIC BEVERAGES ter and enforce this division. ' Chapter 1 outdoor billboards; reatrictiona on use within GENERAL PROVISIONS AND DEFINITIONS ~r playgrounds $ 23000. Short title other organization shall advertise or cause to be yard located within 1,000 feet of any pubNe ar private Notes of Decisions or public playground. 5. Purpose o[ few v, Alcoholic Beverage Control Appeals Bd. (App. 4 Dist. ins on the advertisement of any tobacco products on Legislafive goal underlying Alcoholic Beverage Control 7999) 84 Ca1.Rptr.2d 621, 71 CalApp.4th 1518, rehearing .ds and does not preempt or otherwise prohibit the Act has traditionally been recognized as the promotlon of denied, review denied. drictive or complete ban on billboard advertising or temperance. Department of Alcoholic Beverage Control mdard that imposes a more restrictive or complete !Iboazd advertising shall control in the event of any ¢ 23004. Alcoholic beverage 1. '.he display of a message or advertisement opposing Cross References n shall not be construed to permit an advertisement On-sale genetal licenses, bed and breakfast inn, alcohol- a message opposing the use of tobacco products is beverages, see Business and Professions Code $ 24045.12. Chapter 1.5 statutory Notes "(d) The United States Supreme Coun has ruled that ADMINISTRATION commercial advertising may be Tegulated, prodded the restrictions meet afoot-part test. including, but not limit- Article 1 ed to, whether the advertising is deceptive and misleading. THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL "(e) Although the federal Cigarette Labeling and Ad- vertising Act (15 U.SC.A Sec. 1331 et seq.) preempts Section states and localities from restriMing advertising based 23050. Existence of de artment; director; a upon public health considerations, it does no[ prevent P P- measures directed at the reduction of illegal purchasing of pointment, salary, membership on tobacco by minors. Council. "(p Accordingly, the Legislature hereby endorsee a restriction on the advertising of tobacco produMS near schools as a means to curb the illegal use of tobacco by ¢ 23050. Existence of department; director; appointment, salary, membership on Council minors " There is in the State Government a Department of Alcoholic Beverage Control. The department shall n retail sale of tobacco products to sell, offer for be administered through a civil executive officer who shall be known as the Dvector of Alcoholic Beverage Control. The director shall be appointed and shall serve as provided in Section 22 of Article self-service diepltw XX of the Constitution and shall receive an annual salary as provided for by Cbapter 6 of Part 1 of Division 3 of Title 2 of the Government Code' ~~lay" means the open display of tobacco products in a (emended by Stats.2000, c. 979 (A.B.2759), $ 1J gout the assistance of the retailer or employee of the nn 22960, it is unlawful for any person engaged in the Chapter 2 or display for sale cigarettes by self-service display. AUTHORIZED UNLICENSED TRANSACTIONS e4ND EYEMPTIONS -o those civil penalties specified in the schedule in Section Section :nty counsel, or a district attorney may bring a civil 23100. Poeaeasion of stock of lawfully acquired or failure to renew license; permission alcohol following revocation, auspen• to sell stock; department supervision. sion, or voluntary surrender of license, underline; deletions by asterisks • • * Addttiona or changes Indicated by underline; deletions by asterlake 4 5 xzn>t nl= A " * * FOR OFFICE IISE ONLY RIOT A PUBLIC DOCUMENT * * s ..<., ,=;r '. ~ -_ .,.:sir' ,. ,. -'F, 5'+re°2f. q-~; _ CITY OF SAN BERNARDINO = C17Y CLERK'S OFFICE "-'''" - RECORDS & INFORMATION tNANAGEMENT PROGRAM ' .'.. " - AGENDA IT M TRACKING FORM Meeting Date/Date Adopted: 3 -/t~- ~ L._ Item No. 9 /~ Resolut o~n/~Ordi~nan_~e ~ ~o/. /y/l' - ~ ~ Ordinance Urgency: Yes / Effedive~ Dated 7 - /Ff - n 2--- Termination/Sunset Date: ~//!~ Vote: Ayes: /- 7 Nays: ~- Abstain_ -~ Absenh ~-- Dale Sent to Mayor: 3-/ ~J - o Z.- Date Returned from Mayor. -3 /9-y Z_ Date of Mayor's Signature: 3'~9-U ~- Date of Clerk's Signature: 3--~-~ -O L c~ Date Summary Sent to Attorney: 3-~9- D ~ _ Date Summary Returned from Attorney: / / -02- Date Published: 3-ZZ-O Z.- Meeting Type:~~,~ ~ Date Seal Impressed: 3-20 -0 2- Continued FromlT6 & Item No. Date Sent for Signature: To Whom: Expiration Date: Date Returne Copies Distributed To: rv ' Exhibits Complete & Attac ed to Resolution/Ordinance: Reminder Letter Sent: Reminder Letter Sent: ' Reminder Letter Sent: Request for Council Action & Staff Report Attached: Yes No Notes: .~t1%? ~/~ - 3 ~l 9 ~02 Ready to Fife: Date: CONMrIYr rOCATIOM WRMSrnOerda Ree TOO~in~ram.CC Fwm nn llt .lYt UOdkt t7pYt996 . .,. * rtzm n1L A FOR OFFICE tISE ONLY NOT A PIIBEIC DOCUMENT " CITY OF SAN BERNAROINO =CITY CLERK'S OFFICE " RECORDS & INFORMATION AMNAGEMENT PROGRAM .- ~'. AGENDA IT M TRACKING FORM Meeting Date/Date Adopted: ~'/~-~ 2_- Item No. ResolutioNOrdinance No. /h C- // l~j' Ordinance Urgency: Yes /~i _ Effective Date: y /~- OL~ Tennination/Sunset Date: /U /f~ Vole: Ayes: ~ ? Nays: 't Abstains -~'- Absent:- -~~ Date Sent to Mayor; ~-/S-O?~ Date Returned from Mayor. 3-/c/-® Z_ Date of Mayor's Signature: 3-/9-~ 2- Date of Clerk's Signature: .3 -2p - 0 2_ Date Summary Sent to Attorney:___,~~`~- G Z- Date Summary Returned from Attorney: .3-/rj- ~ Z Oate Published: 3 ~ Z Z -fl Z- Meeting Type: Date Seal Impressed:- -~~.20~0 'L Continued Fromlfo & Item No. ~ Date Sent for Signature: To Whom: Expiration Date: ~e Returned: -b ~ Vii' i Copies Distributers T -,.L ~ Exhibits Complete & Attached to ResolutioNOrdinance: Reminder Letter Sent: Reminder Letter Sent: ' Reminder Letter Sent: Request for Council Ayctio~n &~YStaff Report Attached: Yes No Ready to file: Date: oocvMevr caunoN: FWMYAµnd~ San Tm~Yy Fam -CC ram Nu 111 • Ist Updned: 17AW79%