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HomeMy WebLinkAbout1172. a • ORDINANCE NO. - 1172 (1990 Series) AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO AMENDING CHAPTER 8.16 OF THE SAN LUIS OBISPO MUNICIPAL CODE PROHIBITING SMOKING IN CERTAIN PUBLIC PLACES WHEREAS, The City Council finds that: (a) Numerous studies have found that tobacco is a major contributor to indoor air pollution: and (b) Reliable studies have shown that breathing second -hand smoke is a significant health hazard for several population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and (c) Health hazards induced by breathing second- hand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and (d) Nonsmokers who suffer allergies, respiratory disease and other ill- effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and (e) Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places and places of employment; and (f) Smoking is a potential cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to businesses. (g) The purposes of this ordinance are (1) to protect the public health and welfare by prohibiting smoking in enclosed public places open to the general public and by regulating smoking in places of employment; and (2) to strike a reasonable balance between the needs of persons who smoke and the need of non smokers to breathe smoke -free air, and to recognize that, where these needs conflict, the need to breath smoke -free air shall have priority. n 1 1 -7 i1 NOW THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Chapter 8.16, Smoking Prohibited in Certain Areas, is hereby amended to read as follows: Smoking Prc Sections: 8.16.010 8.16.020 8.16.030 8.16.040 8.16.050 8.16.060 8.16.070 8.16.080 8.16.090 Chapter 8.16 >hibited in Certain Areas Purpose. Definitions. Prohibition in certain public places. Regulation of smoking in the workplace. Posting of signs. Compliance. Violation -- Penalty. Where smoking not regulated. Severability 8.6.010 Purpose. Because smoking of tobacco or any other weed or plant is a positive danger to health and a cause of material discomfort and a health hazard to those who are present in confined places, and in order to serve public health, safety and welfare, the declared purpose of this chapter is to prohibit the smoking of tobacco or any other weed or plant in certain areas which are used by or open to the public. (Ord. 1048 § 1 (part), 1985) 8.16.020 Definitions. For the purpose of this chapter, the following words shall have the following meanings: A. "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages. B. "Employee" means any individual who receives remuneration for services performed within the city. C. "Employer" means any person, partnership or corporation who employs the services of an individual person or persons. D. "Smoke" or "smoking" means and includes the carrying of a pipe, cigar or cigarette of any kind which is burning, or the igniting of a pipe, cigar or cigarette of any kind which is burning. E. "Service line" means an indoor line or area where persons await service of any kind, regardless of whether or not such service involves exchange of money. Such service shall include, but is not limited to, sales, giving of information, directions or advice, and transfers of money or goods. F. "Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria or eating establishment, and any other eating establishment, organization, club, including veterans' club, boardinghouse or guesthouse, which gives or offers for sale food to the public, guests, patrons or employees as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities. G. "Retail Tobacco Store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental. H. "Workplace" means any interior space under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a workplace under this section. (Ord. 1048 § 1 (part), 1985) 8.16.030 Prohibition in certain public places. Smoking shall be prohibited in the following places: A. Elevators, museums, libraries, galleries, public transportation facilities open to the public and service lines of establishments doing business with the general public; B. Waiting rooms, sleeping rooms or public hallways of every private or public health care facility, including, but not limited to hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices; provided further, that this prohibition shall not prevent the establishment of a separate waiting room in which smoking is permitted, as long as there also exists a waiting room in the same facility in which smoking is prohibited. In bed space areas of health facilities used for two or more patients, smoking shall be prohibited unless all patients within the room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted. C. All buildings, vehicles, or other enclosed areas occupied by city staff, owned or leased by the city, or otherwise operated by the city, except in areas which the city administrator may designate as smoking areas. The city administrator may designate a smoking area only if the area involved: 1. Is not regularly open to the public; and 2. Does not require major room or building modifications; and 3. Is not regularly occupied by nonsmokers. In any dispute arising under the smoking area designations made by the city administrator under this chapter, the rights of the nonsmoker shall be given precedence. D. Within any building not open to the sky which is primarily used for or designated for the purposes of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance whenever open to the public, except smoking which is a part of a stage performance, including all restrooms, and any area commonly referred to as a lobby; E. Within all public areas in every retail store, including but not limited to, retail service establishments, retail food production and marketing establishments, retail, grocery, and drug stores; F. All restrooms open for public use; G. Within every restaurant and bar. H. All areas in a laundromat open to and available for use by the public. (Ord. 1048 § 1 (part), 1985) I. Within all areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, professional offices and other offices, banks, hotels and motels. J. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section may declare that entire establishment or facility as a nonsmoking establishment. 8.16.040 Regulation of smoking in the workplace. Each employer who operates a workplace in the city shall, within sixty days of the effective date of the ordinance codified in this section, adopt, implement and maintain a written smoking policy which shall contain, at a minimum, the following provisions and requirements: A. Any nonsmoking employee may object to his or her employer about smoke in his or her workplace. Using already available means of ventilation or separation or partition of office space, the employer shall attempt to reach a reasonable accommodation, insofar as possible, between the preferences of nonsmoking employees and smoking employees. However, an employer is not required by this section to make any expenditures or structural changes to accommodate the preferences of nonsmoking or smoking employees. B. If an accommodation which is satisfactory to all affected nonsmoking employees cannot be reached in any given workplace, the preferences of nonsmoking employees shall prevail and the employer shall prohibit smoking in that workplace. Where the employer prohibits smoking in a workplace, the area in which smoking is prohibited shall be clearly marked with signs. C. The smoking policy required by this section shall be announced within three weeks of adoption to all employees working in workplaces in the city and posted conspicuously in all workplaces in the city under the employer's jurisdiction. D. This section is not intended to regulate smoking in the following places and under the following conditions within the city: 1. A private home which may serve as a workplace; 2. Any property owned or leased by a state or federal governmental agency. (Ord. 1048 § 1 (part), 1985) E. Notwithstanding any other provision of this section, every employer shall have the right to designate any place of employment, or any portion thereof, as a nonsmoking area. 8.16.050 Posting of signs. Signs which designate smoking or no smoking areas established by this chapter shall be conspicuously posted in every room, building or other place so covered by this chapter. The manner of such posting shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. (Ord. 1948 § 1 (part), 1985) 8.16.060 Compliance. A. The city administrative officer or his designated representative shall be responsible for compliance with this chapter as to facilities which are owned, operated or leased by the city. The finance director shall provide each business license applicant with a copy of this chapter. B. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply with the provisions of this chapter. Notice of these regulations shall be given to all applicants for a business license. Such owner, operator or manager shall post or cause to be posted all no smoking signs required by this chapter and shall not allow service to any person who violates this chapter by smoking in a posted no smoking area. C. Any place of employment conducted or operated without compliance with the provisions of Section 8.16.0410 of this chapter applicable thereto shall be and the same is declared to be a public nuisance. Whenever there is reason to believe such public nuisance exists, any affected employee or any resident of the city, in his or her own name, may maintain an action in equity to abate and prevent such nuisance and to perpetually enjoin the employer from maintaining or permitting it. Upon the granting of equitable relief, in whole or in part, by a court of competent jurisdiction, an employer determined to be in violation of Section 8.16.040 of this chapter shall be liable for the attorney's fees, as may be determined by the court, incurred by the party bringing the action. D. The city administrative officer or his designee may enforce Section 8.16.040 of this chapter by either of the following actions: 1. Serving notice requiring the correction of any violation of that section; or 2. Requesting the city attorney to maintain an action for injunction to enforce the provisions of Section 8.16.0410 of this chapter, to cause the correction of any such violation, and for assessment and recovery of a civil penalty of such violation, including attorney's fees. E. Any employer who violates Section 8.16.040 of this chapter may be liable for a civil penalty, not to exceed five hundred dollars, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the city. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. Any penalty assessed and recovered in an action brought pursuant to this subsection shall be paid to the finance director of the city. F. In undertaking the enforcement of Section 8.16.040 of this chapter, the city is assuming an undertaking only to promote the general welfare. It is not assuming any duty or obligation, nor is it imposing any duty or obligation on its officers and employees, nor it is liable in money damages or otherwise to any person who claims that (1) the city or one of its officers or employees breached any such obligation, and (2) the breach proximately caused injury. (Ord. 1948 § 1 (part), 1985) 8.16.070 Violation -- Penalty. Any person who violates any provision of Section 8.16.030 or 8.16.040 of this chapter by smoking in a posted no smoking area, or by failing to post or cause to be posted a no smoking sign required by this chapter, or by serving any person who violates this chapter by smoking in a posted no smoking area, is guilty of an infraction, and is subject to punishment as provided for in chapter 1.12 of this code. (Ord. 1048 § 1 (part), 1985) 8.16.080 Where Smoking Not Regulated. Notwithstanding any other provision of�this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter: 1. Private residences, except when used as a child care or health care facility. 2. Hotel and motel rooms rented to guests. 3. Retail tobacco stores. 4. A private enclosed office workplace occupied exclusively by smokers, even though such an office workplace may be visited by nonsmokers. 5. Any area exterior to the building in which the establishment or facility is located. 6. Any enclosed rooms in an establishment or facility which are being used entirely for private functions. 8.16.090 Severability If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. SECTION 2. A summary of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published at least (3) days prior to its final passage in the Telegram- Tribune, a newspaper published and circulated in said City, and the same shall go into effect at the expiration of thirty (30) days after its said final passage. A copy of the full text of this ordinance shall be on file in the office of the City Clerk on and after the date following introduction and passage to print and shall be available to any interested member of the public. INTRODUCED AND PASSED TO PRINT by the Council of the City of San Luis Obispo at a meeting held on the 19th day of .TUNE , Councilman Councilman 1990, on motion of goal man , seconded by Rai Gc , and on the following roll call vote: AYES: Councilmembers Roalman, Reiss, Pinard. and Rappa NOES: Mayor Dunin ABSENT: None Mayor Ron Dunin ATTEST: City Aerk, Pamela oges ;ti APPROVED: City Ad inistrative Officer - Aa-w,"Wg, ,i - ItVor a d X:, �:, • to Ordinance No. 1172 FINALLY PASSED this —.3rd _ day of 19 90 on motion of Councilman Reiss vote: AYES: NOES: ABSENT: Councilwoman Pinard July , seconded by and on the following roll call Councilmembers Reiss, Pinard, Rappa, and Roalman Mayor Dunin None on Dunin — ATTEST: City �lerk Pam Voge Iv/ 0