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Ordinance 2364CITY OF ALAMEDA ORDINANCE NO. 2364 New Series AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING CHAPTER 11 TO TITLE XV THEREOF, REGULATING SMOKING IN PUBLIC PLACES, RESTAURANTS, HOTELS, MOTELS, AND PLACES OF EMPLOYMENT WHEREAS, numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and WHEREAS, studies have shown breathing secondhand smoke to be a significant health hazard for several populations, including elderly people, individuals with cardiovascular disease, individuals with impaired respiratory function, asthmatics, and those with obstructive airway disease; and WHEREAS, the Surgeon General of the United States found in his 1986 Report that secondhand smoke is a cause of disease, including lung cancer, in healthy nonsmokers; and WHEREAS, nonsmokers with allergies, respiratory diseases and those who suffer 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 reactions to secondhand smoke; and WHEREAS, studies have shown some nonsmokers cannot dine in restaurants because of adverse reaction or annoyance from secondhand smoke; and WHEREAS, studies have shown a majority of travelers prefer nonsmoking sections on airplanes, buses, and trains; and WHEREAS, smoking is a potential cause of fires, and because cigarette and cigar burns and ash stains on merchandise and fixtures cause losses to Alameda businesses; that: BE IT ORDAINED by the Council of the City of Alameda Section 1. The Alameda Municipal Code is hereby amended by adding Chapter 11 to Title XV thereof to read as follows: CHAPTER 11 SMOKING CONTROL Article 1. General Provisions, 15-1111. Article 2. General Restrictions, 15-1121. Article 3. Enforcement, 15-1131. -1- Article I. General Provisions Sec. 15- 1111. Purpose. The purpose of this chapter is to protect the public health and welfare by regulating smoking in public places and places of employment and to strike a reasonable balance between the needs of persons who smoke and the need of nonsmokers to breathe smoke -free air; and to recognize that, where these conflict, the need to breath smoke -free air shall have priority. Sec. 15 -1112. Definitions. For the purposes of this chapter, the following words and phrases shall have the following meaning: (a) "Bar" means an area in which the serving of food is only incidental to the consumption of alcoholic beverages. The term "bar" shall not include an adjacent restaurant dining area when meals are being served. (b) "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit- making purposes, including retail establishments where goods or services are sold, as well as professional corporations or other entities under which professional services are delivered. (c) "Dining Area" means any enclosed area containing a counter or tables upon which meals are served. (d) "Employee" means any person who is employed by any employer for direct or indirect monetary wages or profit including those employed full time, part time, temporary or contracted for from a third party; employee also means any person who serves as a volunteer for a business or non - profit entity. (e) "Employer" means any person, business, or non - profit entity which employs the services of one or more persons, and includes the City of Alameda. (f) "Enclosed" means closed in by a roof and four or more connected, floor -to- ceiling walls with appropriate openings for ingress and egress. -2- (g) "Mall" means any enclosed public walkway or hall area which serves to connect retail or professional establishments. (h) "Non-Profit Entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character building, political, social or other similar purposes, the net proceeds from the operations of which are not for private financial gain. A public agency is not a "Non-Profit Entity" within the meaning of this chapter. "Private Function" means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining where membership or specific invitation is a prerequisite to entry and where such event is not intended for attendance by the public. "Place of Employment" means any enclosed area under the control of an employer which employees normally frequent during the course of employment. (i) (j) (k) "Public Place" means any enclosed area to which the public is invited or in which the public is permitted. (1) "Restaurant" means any eating establishment, organization, 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 functions, except that the term "restaurant" shall not include a bar. (m) "Retail Tobacco Store" means a retail store utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental. (n) "Service Line" means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money. -3- (o) "Smoking" means inhaling, exhaling, burning or carrying any lighted cigarette, cigar, pipe, weed, plant or other combustible substance in any manner or in any form. (p) "Sports Arena" means an enclosed sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller and ice rink, bowling alley and other similar places where members of the general public assemble to either engage in physical exercise, participate in athletic competition or witness sports events. (q) "Work Area" or "Workplace" means any area of a place of employment enclosed by floor-to-ceiling walls in which two or more employees are assigned to perform work for an employer. Sec. 15-1113. Other Applicable Laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Sec. 15-1114. 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. Article 2. General Restrictions Sec. 15-1121. Prohibition of Smoking in Places Accessible to the General Public. Smoking shall be prohibited in the following public places: (a) All enclosed areas available to and customarily used by the general public and all areas of business establishments generally accessible to the public, including, but not limited to, the public area of retail stores, banks, and other offices; restaurants shall not be subject to this provision. (b) Elevators. -4- (c) Public restrooms. (d) Service lines. (e) Buses and other means of public transit directly provided by the City of Alameda. (f) All reception and waiting areas unless separate facilities are provided for smokers and nonsmokers. (g) In public areas of galleries, libraries, and museums when open to the public; provided, however, this prohibition does not prevent the designation of a separate room for smoking. (h) Within any facility which is primarily used for, or designed for the primary purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production; provided, however, this prohibition does not prevent designating a contiguous area containing no more than 25% of any area commonly called a lobby as a smoking area. (i) Sports arenas and convention halls; provided, however, that this prohibition shall not prevent (i) the establishment of a contiguous smoking area which shall not exceed 25% of the seating capacity, and (ii) 25% of any area commonly called a lobby as a smoking area. (j) Video arcades. (k) Child day care facilities as defined in the California Health and Safety Code. (1) Rooms, chambers, or other enclosed areas where a meeting is being held which is or can be attended by the general public. Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving food and drink. utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental. (m) -5- Sec. 15-1122. Regulation of Smoking in Places of Employment. It shall be the responsibility of employers to accommodate the needs of smoking and nonsmoking employees to the maximum extent possible, but employers are not required to incur any expense to make structural or other modifications in providing these areas. Sec. 15-1123. Employer Policy Required. No later than January 1, 1988 each employer shall adopt, disseminate, and implement a written smoking policy which shall contain at a minimum the requirements below. As a substitute for a written policy, businesses may conspicuously post all applicable requirements of this ordinance. (a) Smoking will be prohibited, in addition to all applicable portion of Section 15-1121 of this chapter, at all times in the following areas: (1) Work areas shared by smokers and nonsmokers; this provision excludes employees whose place of employment is a restaurant, bar, or retail tobacco store; (2) Auditoriums, classrooms, conference rooms, and meeting rooms; (3) Elevators; (4) Hallways and reception areas; (5) Medical facilities; (6) Restrooms (unless separate facilities are provided for smokers). (b) A separate and contiguous nonsmoking area of not less than 75% of the seating capacity and floor area must be provided in cafeterias, lunchrooms and lounges which are designated for use by employees. Provision can be made at any time for separate facilities, proportionately sized to accommodate both smokers and nonsmokers. Smoking shall be prohibited in cafeterias, lunchrooms and employee lounges seating less than 10 persons, unless used exclusively by smokers. (c) In any dispute arising under the smoking policy, the rights of the nonsmoker to clean air shall be given precedence. -6- (d) The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least yearly thereafter. (e) All employers shall supply a written copy of the smoking policy to all new employees and to any prospective employee who so requests or shall direct the individual to the location where applicable smoking regulations are posted. (f) An employer's policy may include reference to smoking optional areas as defined by Section 15-11211. Sec. 15-1124. Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. Sec. 15-1125. Restriction of Smoking in Restaurants. Within all restaurants having enclosed seating for more than 50 patrons, there shall be a designated and contiguous nonsmoking area consisting of no less than 50% of the enclosed tables currently in use; whenever possible smoking sections shall not be adjacent to any service lines, food preparation area, or food serving area. This section shall be implemented incrementally so that its nonsmoking area provision shall apply only to 35% of the enclosed tables currently in use through May 1, 1988. Sec. 15-1126. Restriction of Smoking in Hotels and Motels. Ten percent of the rooms in any hotel or motel shall be maintained as fixed nonsmoking rooms. Sec. 15-1127. Posting of Signs. General. "Smoking" or "No Smoking" signs, whichever are appropriate, with letters of not less than one inch (1") in height, or 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) shall be clearly , sufficiently and conspicuously posted in every building or other place where smoking is regulated by this chapter by the owner, operator, manager or other person having control of such building or other place. Sec. 15-1128. Posting of Signs. Additional Requirements for Theater Operators. Every theater owner, manager or operator shall post signs -7- conspicuously in the lobby stating that smoking is prohibited within the theater or auditorium, and in the case of motion picture theaters, such information shall be shown upon the screen for at least five seconds prior to the showing of each featured motion picture. Sec. 15-1129. Posting of Signs. Additional Requirements for Restaurants. Every restaurant shall have posted at its entrance a sign clearly stating that a nonsmoking area has been established, and every patron shall be asked as to his or her preference when a host or hostess is present. If no host or hostess is available, the nonsmoking area shall be conspicuously posted. Sec. 15-11210. Posting of Signs. Additional Requirements for Hotels and Motels. Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designed as being nonsmoking shall have signs designating such restriction conspicuously placed within the room. Sec. 15-11211. Smoking Optional. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter: (a) Bars. (b) Private residences, except when used as a family day care home. (c) Retail tobacco stores. (d) Restaurants, hotel and motel conference/meeting rooms, and public and private assembly rooms while these places are being used for private functions. (e) Malls. (f) An enclosed office workplace occupied exclusively by a smoker or smokers, even though such an office workplace may be visited by nonsmokers. -8- Article 3. Enforcement Sec. 15-1131. Enforcement. Enforcement of this chapter shall be implemented by the City Manager or his/her designee. Sec. 15-1132. Registration of Complaints. Any citizen, employee, or business patron who desires to register a complaint under this chapter may initiate enforcement with the City Manager or his/her designee. Complaints must be submitted in writing and signed by the complainant. Sec. 15-1133. Complaints Regarding Restaurants. Complaints received by the City Manager regarding a restaurant's compliance with this chapter shall first be forwarded to an authorized restaurant representative for resolution before any action is taken pursuant to Section 15-11310. If, after fifteen days of transmittal, a complaint referred to a restaurant's authorized representative has not been adequately resolved, in the judgment of the complainant, the complainant may request the City Manager or his/her designee to initiate additional investigation. Sec. 15-1134. Authority to Inform. Any owner, manager, or authorized agent of any establishment regulated by this chapter may inform persons violating this chapter of the appropriate provisions thereof. Sec. 15-1135. Limited Responsibility of Businesses. The owner, operator, or manager of a business shall not be responsible for violations of this chapter within their premises by patrons or citizens, provided that such patrons or citizens have been adequately informed that their actions may be in violation of the law; this limitation shall not apply to employees of such businesses. Sec. 15-1136. Additional Limits on Responsibility for Restaurants. The owner, operator, or manager of a restaurant shall not be responsible if a host or hostess fails to ask the seating preference of patrons as required by Section 15-1129; provided that such employees have been informed of this requirement. Sec. 15-1137. Enforcement Rights of Citizens. Notwithstanding any provision of this chapter, a private citizen may bring legal action to enforce this chapter. -9- Sec. 15-1138. Responsible Party. It shall be unlawful for any person who owns, operates, manages, or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to comply with its provisions. Sec. 15-1139. Smoking Where Prohibited. It shall be unlawful for any person to smoke in any area where such action is restricted by this chapter. Sec. 15-11310. Penalties. Any person who violates any provision of this chapter shall be subject to a citation and: (a) Upon the first violation shall receive an official notice of warning from the City Manager or his/her designee; (b) Upon the second violation within one year shall be guilty of an infraction and, upon conviction, shall be subject to a fine not to exceed fifty dollars. (c) Upon the third and additional violations within one year shall be guilty of an infraction and, upon conviction, shall be subject to a fine not to exceed one hundred dollars per conviction. Sec. 15-11311. Citation Authority. The City Manager and his/her designees shall have the authority to issue citations for violation of this chapter; however, such individuals shall not have the powers of a police officer in performing their duties under this chapter. Sec. 15-11312. Informal Warnings. The City Manager or his/her designee may issue informal warnings to violators of this chapter prior to taking action pursuant to Sections 15-11310 and 15-11311 of this chapter. Sec. 15-11313. Power to Adopt More Restrictive Smoking Policies. Notwithstanding any other provisions of this chapter, any owner, operator, manager, employer, or other person who controls any establishment or place of employment regulated by this chapter, may adopt policies relating to smoking which are more restrictive than those provided herein. -10- Sec. 15-11314. Governmental Agency Cooperation. The City Manager shall encourage other governmental agencies having facilities within the city to comply voluntarily with this article. Section 2. The Alameda Municipal Code is hereby amended by adding Subsection (z) to Section 1-512 of Article 1, Chapter 5, Title I thereof to read: Sec. 1-521. Violations Identified. (z) Title XV, Chapter 11; Section 3. The Alameda Municipal Code is hereby amended by amending Subsections (d) and (h) and adding Subsection (i) to Section 1-521 of Article 2, Chapter 5, Title I thereof to read: Sec. 1-521. Authorized Persons. (d) Zoning Administrator - Subsections (o), (y) and (z); (h) Community Service Officer - Subsections (a), (e), (i), (j), (1), (n), (o), (q), (t), (w)(1)(3)(4)(6)(7), (y) and (z); (i) City Manager - (z). Section 4. This ordinance shall be in full force and effect on January 1, 1988. Presiding Officer of the Council I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the 3rd of November, 1987, by the following vote to wit: AYES: Councilmembers Camicia, Haugner, Monsef, Thomas and President Corica - 5. NOES: None. ABSENT: None. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 4th day of November, 1987.