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HomeMy WebLinkAbout38-City Attorney . o 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JFW:ms 3-10-88 o o o 1 2 3 4 5 ORDINANCE NO. ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 8.72 OF THE SAN BERNARDINO MUNICIPAL CODE. REGULATING SMOKING IN PUBLIC PLACES AND PLACES OF EMPLOYMENT. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 8.72 of the San Bernardino Municipal Code is amended to read as follows: "8.72.010 Legislative findings. The Mayor and Common Council find and declare that: A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollutionl B. Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard. especially for certain population groups, including elderly people. individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease 1 C. Health hazards induced by breathing sidestream or secondhand smoke include lung cancer. respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchioconstriction. and bronchiospasml D. Nonsmokers with allergies. respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivitYl 1 ~~ o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~ 21 ~ 23 24 ~ 26 27 28 JFW:ms 3-10-88 o o o E. The Surgeon General of the United States has advised nonsmokers to avoid exposure to tobacco smoke wherever possible, and: F. The smoking of tobacco, or any other weed or plant, is a proven danger to health. Accordingly, the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City will be benefited by the regulation of smoking in designated enclosed places. 8.72.020 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: A. nBARn means an area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption oe such beverages. The area devoted to such use shall be as set forth in any conditional use permit, variance or other Planning Department or Building and Safety Department document establishing such use or, as determined for purposes of collection of business taxes by the ofeice of the City Clerk. B. nBUSINESSn means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes as well as professional corporations and other entities which provide legal, medical, dental, 2 o JFW:ms 3-10-88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~ 24 25 26 27 28 C. D. E. F. o o o G. engineering, architectural, or other professional services and which nbusiness" employs ten (10) or more persons. Working owners and management employees shall be included in the calculation of the ten or more persons. nDINING AREA" means any enclosed area containing a counter or tables upon which meals are served. "EMPLOYEE" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity. nEMPLOYERn means any business and any non-profit entity with ten or more employees. Working owners and management employees shall be included in the calculation of the ten or more persons. nENCLOSEDn means closed in by roof and four walls with appropriate openings for ingress and egress except the public areas of any shopping mall shall not be deemed to be nenclosedn for purposes of the application of this chapter. nNON-PROFIT ENTITYn means any corporation, unincorporated association, or other entity created for charitable, educational, political, social, or similar purposes, the net proceeds from the operation of which are committed to the promotion of the objects or purposes of the organization and 3 o o o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~ 21 22 23 24 25 26 27 28 JFW:ms 3-10-88 not to private financial gain. A public agency is not a "non-profit entity" within the meaning of the section. H. "PLACE OF EMPLOYMENT" means 1) any enclosed area 2) under the control of a public or private employer 3) which employees. occupy with normal frequency during the course of employment, including but not limited to, work areas, employee lounges, and restrooms, conference and class rooms, cafeterias, and hallways, except that a private residence is not a place of employment, unless it is used as a child care or a health care facility. I. "PUBLIC PLACE" means any enclosed area to which the public is permitted, including, but not limited to: banks, private educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters, and office waiting rooms. J. "RESTAURANT" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boarding house, or guest house, which gives or offers food for sale to the public, guests, patrons, or employees, except that the term "restaurant" shall not include 4 o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~ 21 22 23 24 25 ~ 27 28 JFW:ms 3-10-88 o o o a cocktail lounge or tavern if said cocktail lounge or tavern is a "bar" as defined herein. K. RETAIL TOBACCO STORE" means a retail store utilized primarily for the sale of tobacco products and accessories. L. "SERVICE LINE" means an indoor queue in which one or more persons routinely wait for or receive service of any kind, whether or not such service includes the exchange of money. M. "SMOKING" means the igniting, inhaling, exhaling, or carrying of any burning cigar, or cigarette of any kind, or the igniting, inhaling, exhaling or carrying of a pipe or other device for smoking, containing any burning substance. N. "ENCLOSED ATHLETIC RECREATION AREA" means gymnasiums, health spas, swimming pools, roller and ice rinks. O. "WAITING ROOM SPACE" Common area of any office, restaurant, theatre or any other facility where persons routinely wait. 8.72.030 Prohibition against smoking in city owned facilities. All enclosed facilities owned by the City of San Bernardino shall be subject to the provisions of this section. A. PLACES OF PUBLIC ASSEMBLY. Smoking is prohibited 5 o o o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ~ 26 27 28 JFW:ms 3-10-88 in all hearing rooms or places of public assembly in which the business of the City of San Bernardino, or any of its Boards or Commissions, is regularly conducted. B. PUBLIC LOBBIES, PUBLIC HALLWAYS. Smoking is prohibited in all waiting rooms, lobbies, and public hallways of every building under direct or indirect control of the citYl provided, however, that this prohibition does not prevent the establishment of separate areas of such building in which areas smoking may be permitted. C. Smoking is prohibited in all areas of the City Hall, except those areas designated by the City Administrator or Mayor and Common Council. D. Notwithstanding any other provision herein, the City Administrator or the Mayor and Common Council may exempt any place of public assembly, public lobby or public hallway from the prohibition of smoking or designate areas within said place of public assembly, public building or public hallway as a "smoking area". 8.72.040 Prohibition against smoking in public places. A. Smoking shall be prohibited except as otherwise specifically set forth herein in all enclosed public places, including, but not limited to, the following: 6 O' JFW:ms 3-10-88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) (2) (3) (4) (5) o :> o Elevators and restrooms. Buses, taxicabs and other means of public transit operated under the authority or Franchise of the City of San Bernardino, and ticket, boarding, and waiting areas of public transit depotsl provided, however 1 that this prohibition does not prevent the establishment of separate waiting areas for cigarette smokers. Service lines. Retail stores, except areas in said stores not open to the public and except all areas within retail tobacco stores. Retail food marketing establishments, including grocery stores and supermarkets except those areas of such establishments set aside as rest rooms and offices, and areas thereof not open to the public, which may be otherwise regulated by this chapter. Those areas of such establishments set aside for the purpose of serving food and drink shall be subject to the same provisions as set forth herein for the regulation of smoking in restaurants. (6) All areas available to and customarily used by the public in all businesses and non- profit entities patronized by the public, 7 o o o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~ 24 25 26 27 28 JFW:ms ~_'n_RR including, but not limited to, such areas in business offices, banks, hotels and motels. (7) Public areas of aquariums, libraries, and museums when open to the publicI provided, however, that this prohibition does not prevent the establishment of separate smoking areas in a building in which cigarette smoking is otherwise prohibited. (8) Any building not open to the sky which is used primarily for exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is a part of any such production, provided, however, that this prohibition does not prevent the establishment of separate areas in the waiting room of such building, in which waiting room cigarette smoking may be permitted. (9) Enclosed athletic recreation area, except in designated smoking areas. (10) Waiting rooms of doctors' offices and dentists' offices, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, and physical therapy facilities. In bed space areas of health facilities used for 8 e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JF'1'l : ms 3-10-88 o o o two or more patients, smoking shall be prohibited unless all patients within the room request to be placed in a room where smoking is permitted. (11) Polling places. B. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare the entire establishment or any portion thereof to be a non-smoking area. 8.72.050 Smoking in restaurants. A. Smoking is prohibited and is unlawful within all enclosed restaurants whose occupancy capacity is thirty (30) or more persons, provided, however, that this prohibition shall not apply to any such establishment maintaining a smoking policy, notice of which is published on the exterior or within the waiting area of such establishment and plainly visible to orosoective patrons of such establishment. Such policy shall set forth the fact that a nonsmoking section is available and whether such seating is contiguous or non-contiguous to other nonsmoking seating. B. Any portion of a restaurant used as a bar is excluded from the prohibitions of this section. 8.72.060 Regulation of smoking in places of employment. A. Within 90 days of the effective date of this 9 o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JF\i: ms 3-10-88 o o o chapter, each employer shall adopt, implement, make known and maintain a smoking policy stating where smoking is permitted and where it is prohibited. B. The smoking policy shall be communicated to all existing employees and shall be provided to new employees at the time of their initial interview. c. Every employer shall have the right to designate any place of employment or portion thereof, as a non-smoking area. 8.72.070 Where smoking is not regulated. Notwithstanding any other provisions of this chapter to the contrary, the following specific and limited areas shall not be subject to the smoking restrictions of this chapter. (11 Bars. (2) Hotel and motel rooms rented to guests. (3) Retail tobacco stores. (4) Restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while these places are being used for any private functions. 8.72.080 posting of smoking and no smoking areas. A. The international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it on a sign of a minimum of six inches (6") in width and eight inches (8") in 10 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~ 21 22 23 24 ~ 26 ~ 28 JFW:ms 3-10-88 o o o height), citing this subsection shall be clearly, and conspicuously posted in every building or other place where smoking is controlled by this chapter by the owner, operator, manager or other person having control of such building or other place. B. Every theater owner, manager or operator shall conspicuously post signs in the waiting area stating that smoking is prohibited except within designated smoking areas. 8.72.090 Violations. A. It is unlawful for any person to smoke in a place where smoking is prohibited. B. It is unlawful for any person who owns, manages, or otherwise controls the use of any premises subject to the prohibition of this chapter to fail to post signs as required by this chapter or to knowingly permit a violation of this ordinance. C. Any person or business which violates subsection A. or permits such violations, or any other provision of this chapter, except as otherwise provided herein shall be guilty of an infraction, punishable as set forth in San Bernardino Municipal Code Chapter 1.12(B). 8.72.100 Enforcement. A violation of any of the provisions of this chapter shall constitute a public nuisance and may be abated by the City through means of restraining order, 11 o 10 11 12 13 14 15 16 17 18 19 20 21 22 ~ 24 25 26 27 28 JFW:ms 3-10-88 o o o 1 preliminary or permanent injunction or in any other manner 2 provided by law for the abatement of such nuisance and the 3 City may take action to recover the cost of such nuisance 4 abatement. 5 8.72.110 Non-Retaliation. 6 It is hereby declared to be a violation of public policy 7 for a person or employer to discharge, refuse to hire, or in any 8 manner retaliate against any employee or applicant for employment 9 because such employee or applicant exercises any rights afforded by this chapter. 8.72.120 Other applicable laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable law or regulation. I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1988, by the following vote, to wit: AYES: NAYS: ABSENT: City Clerk 12 c 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JFW:ms 3-10-88 Jl II o o o 1 Ordinance of the City of San Bernardino Amending Chapter 8.72 of the San Bernardino Municipal Code, Regulating Smoking in Public 2 places ... The foregoing ordinance is hereby approved this day of , 1988. Evlyn Wilcox, Mayor of the City of San Bernardino Approved as to form and legal content: , /t0~ ]. /&Y'~ Ci tY,! Attorney .; / j 13