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SANTA CLARA COUNTY CODE OF ORDINANCES: CHAPTER V. SMOKING POLLUTION CONTROL*

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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CHAPTER V.
SMOKING POLLUTION CONTROL*

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Editor's note--Ord. No. NS-625.4, § 1, adopted Jan. 4, 1994, repealed former Ch. V, §§ B13-80--B13-93, which pertained to similar subject matter. Section 2 of said Ord. No. NS-625.4 added a new Ch. V, §§ B13-80--B13-94. Inasmuch as there already existed § B13-94, said sections have been redesignated as §§ B13-79--B13-93, at the discretion of the editor.

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Sec. B13-79. Findings and intent.

The Board of Supervisors of the County of Santa Clara does hereby find that studies have shown tobacco smoke is a major contributor to air pollution and is detrimental to nonsmokers' health, welfare and comfort, especially to elderly people, children, individuals with cardiovascular disease, impaired respiratory function, or allergies, and those who suffer 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.

The intent of this chapter is (1) to protect the public health and welfare by prohibiting or limiting smoking in public places as hereinafter set forth and (2) to strike a reasonable balance between the need of persons who smoke and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air should have priority.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-80. Compliance required.

(a) No person shall smoke where smoking is prohibited by this chapter.

(b) It shall be unlawful for any person who owns or controls a building or structure to permit, suffer, or allow smoking in violation of this chapter.

(c) Owners, operators, property managers and officers of homeowners' associations for residential properties will be deemed to not be in violation of the requirements of Subsection (b) by posting notices in accordance with the provisions of this chapter and by notifying violators that their actions are in violation of the law.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-81. Definitions.

The definitions set forth in this section shall govern the application and interpretation of this chapter.

(a) Bar 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 of such beverages.

(b) Bingo game means a game conducted by operators licensed pursuant to the provisions of the Santa Clara County Ordinance Code.

(c) Employee means any person who is employed by any employer in consideration for direct or indirect monetary wages or profits, including but not limited to temporary, permanent, part-time, and full-time employees and independent contractors.

(d) Employer means any person, as defined in this section, who employs the services of one or more persons.

(e) Enclosed means closed in by a roof and four walls with appropriate openings for ingress and egress.

(f) Hotel means hotel, motel, motor inn, bed and breakfast, boarding house, and other similar establishments in which the operator has the status of an "innkeeper."

(g) Person means any individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, municipal corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.

(h) Place of employment means any area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, offices, work areas, hallways, lobbies, employee lounges, conference rooms, employee cafeterias, locker rooms, dressing areas, or eating places. A private residence is not a place of employment for purposes of this chapter, unless it is used as a child care facility, health care facility, or community care facility.

(i) Smoke or smoking means and includes the combustion of any lighted pipe, or lighted cigar or lighted cigarette of any kind or the lighting of a pipe, cigar or a cigarette of any kind, or any similar article or any other combustible substance in any manner or in any form.

(j) Smoke free area means any location in which smoking is prohibited by this chapter.

(k) Sports arena means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, pool halls, and other similar places where members of the public assemble indoors to engage in physical exercise, participate in athletic competition, or witness sports events.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-82. General prohibition.

(a) Smoking shall be prohibited within any enclosed structure owned or leased by Santa Clara County, wherever located, and in all enclosed public places within the unincorporated areas of Santa Clara County as follows:

(5) Retail stores and all areas in shopping malls inside and outside of retail stores, restaurants, bars, restrooms, and offices.

(6) Areas available to or open to and customarily used by the general public in all business and nonprofit entities, including but not limited to, offices (such as the offices of attorneys, doctors, accountants, other professionals, and service providers), banks, and churches.

(7) Restaurants.

(8) Bars.

(9) Motels, motels, motor inns, bed and breakfasts, boarding houses, and other establishments in which the operator has the status of an "innkeeper."

(10) Aquariums, amusement parks, galleries, libraries, arcades, or museums when open to the public.

(11) Facilities primarily used as theaters, auditoriums, or halls; or which are used for exhibiting motion pictures, stage dramas, musical performances, ballets, lectures, debates or other similar performances, except when smoking is part of any such performance.

(12) Waiting rooms, hallways, wards, and rooms and offices of health facilities, including but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices, and dentists' offices.

(13) Sports arenas, convention halls, bingo halls, banquet rooms, and meeting rooms.

(14) Retail food marketing establishments, including grocery stores, convenience stores, warehouse stores, and supermarkets.

(15) Rooms, chambers, places of meeting or public assembly, including, but not limited to school buildings under the control of any board, council, commission, committee including joint committees, or agencies of the County during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the County.

(16) Lobbies, hallways, and other common areas in apartment buildings, condominiums, senior citizen residences, nursing homes, and other multiple-unit residential facilities.

(17) Polling places.

(18) Private clubs.

(b) Except as otherwise provided in Section B13-84, smoking shall be prohibited in all enclosed places of employment within the unincorporated areas of Santa Clara County.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-83. Prohibition in vehicles and common carriers.

Smoking is prohibited in motor vehicles for hire (such as taxi cabs) or which are operated in the course of employment for the use of more than one person at a time during the time of employment. Smoking is prohibited in:

(a) All County buses and County light rail vehicles wherever located within the County; and

(b) Any other form of public transit located within the unincorporated areas of the County.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-84. Exceptions.

(a) Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter, unless smoking or the use of combustible materials is otherwise regulated by any other provision of law or regulation.

(1) Private residences, except when used as a child care facility, health care facility, or community care facility.

(2) Hotel rooms rented to guests, except meeting and banquet facilities.

(3) Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia. (Insignificant sales of nontobacco items shall not disqualify a retail store under this provision.)

(4) An enclosed place of employment that is not accessible to the public, which employs only the owner and no other employee, provided that the enclosed place of employment does not share a ventilation system with any other enclosed place of employment or public place.

(5) Any portion of a place of employment which is not enclosed.

(b) Notwithstanding any other provision of this chapter, any owner, operator, manager or other person who controls any property may prohibit smoking within the entire property or a portion of the property.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-85. Smoking policy in places of employment.

(a) Within 90 days of the effective date of this chapter, each employer having an enclosed place of employment located within the unincorporated areas of Santa Clara County shall adopt, implement, make known and maintain a written smoking policy which shall contain the following requirements:

Smoking shall be prohibited in all enclosed facilities within place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, locker rooms, dressing areas, and all other enclosed facilities.

(b) The smoking policy shall be communicated to all employees within three weeks of its adoption.

(c) All employers shall comply with these nonsmoking provisions and shall be responsible for implementation in their place(s) of employment.

(d) "No smoking" signs shall be conspicuously posted at building entrances and in employee lounges, restrooms, locker rooms, dressing areas, cafeterias, and lunchrooms.

(e) All employers shall supply a written copy of the smoking policy to all employees.

(f) Places of employment exempt from the prohibition on smoking in Section B13-84 of this chapter shall also be exempt from this section.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-86. Retaliation prohibited.

It shall be unlawful for any person to take any retaliatory action against any person who has asserted a right to a smoke-free environment pursuant to this chapter.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-87. Posting of signs.

(a) "No smoking" signs 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 conspicuously posted in every building, where smoking is prohibited pursuant to this chapter, by the owner, operator, manager or other person having control of such room, building, or other place.

(b) Every enclosed restaurant and bar shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

(c) Owners, operators, property managers and officers of homeowners' associations for residential properties will be deemed to not be in violation of the requirements of this section, and of their obligation to enforce the prohibition in Section B13-82, if they have posted signs in accordance with the provisions of this section and have given written notice to violator(s) of this chapter that the violator(s)' actions are in violation of the law of the County.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-88. Enforcement.

(a) Enforcement of this chapter shall be implemented by the County Executive or his/her designees. The Fire Marshal or his/her designee or the Health Department shall have the right, in connection with any regular annual inspection of a business located in the unincorporated area of the County, to require that the owner, manager, operator or other person having control of such establishment certify that all applicable requirements of this chapter have been complied with.

(b) Any citizen may initiate enforcement of this chapter by notifying the County Executive or his/her designee of an alleged violation.

(c) Any owner, manager, operator or employee of any establishment controlled by this chapter shall have the right to inform persons violating this chapter of the requirements of the provisions being violated and the consequences of such violation.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-89. Violations.

(a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to comply with its provisions.

(b) It shall be unlawful for any person to smoke in any area restricted by the provisions of this chapter.

(c) Infraction(s). Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:

(1) A fine not exceeding $100.00 for a first violation.

(2) A fine not exceeding $200.00 for a second violation.

(3) A fine not exceeding $500.00 for each additional violation within one year.

(d) Misdemeanor(s). Any person, owner, operator, employer or manager of any establishment, subject to this chapter, who violates Section B13-86, or who violates any other provision of this chapter, in excess of three violations within one year, shall be deemed guilty of a misdemeanor. Upon conviction of a misdemeanor violation of this chapter, a person shall be subject to payment of a fine not to exceed $1,000.00, and shall be subject to incarceration in the County jail for a period not to exceed six months.

(e) Each day that a violation of Section B13-85 and B13-87 continues shall constitute a separate violation of this chapter.

(f) The County Executive or his/her designee is hereby authorized to institute and pursue, in the name of the County, pursuant to the provisions of Government Code § 25132, civil actions for the recovery of fines for violations of this chapter.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-90. Severability.

If any provision, clause, section, 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 section are declared to be severable.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-91. Public education.

The County Executive or his/her designee shall engage in a continuing program to inform and clarify the purposes of this chapter to citizens affected by it, and to guide owners, operators and managers in their compliance.

The County Executive or his/her designee shall leave responsibility of conducting a public education campaign, regarding the health consequences of smoking to other governmental and health agencies, including any County health agency, equipped with the needed expertise to conduct such campaigns.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-92. Governmental agency cooperation.

The County Executive or his/her designee shall annually request such governmental and educational agencies having offices within the unincorporated areas of the County to establish local operating procedures to cooperate and comply with this chapter. In federal, state and special school districts within the County, the County Executive shall urge enforcement of their existing no smoking prohibitions and request cooperation with this chapter.

(Ord. No. NS-625.4, § 2, 1-4-94)

Sec. B13-93. Other applicable laws.

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes.

(Ord. No. NS-625.4, § 2, 1-4-94)