HomeMy WebLinkAboutTC Ord 2017-05-03 (2) ORDINANCE NO. 571 N. S.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN
OF TIBURON AMENDING PROVISIONS OF TITLE VI,
CHAPTER 28 OF THE TIBURON MUNICIPAL CODE
(SMOKING AND TOBACCO REGULATIONS)
The Town Council of the Town of Tiburon does ordain as follows:
Section 1. Findings.
A. On July 20, 2011 the Town Council adopted Ordinance No. 531 N. S. making
substantial revisions to its smoking and tobacco regulations; said regulations were
further amended in October 2014 by adoption of Ordinance No. 553 N. S.
addressing electronic smoking devices.
B. The Town Council now desires to further revise Tiburon's regulations concerning
smoking and tobacco with respect to definitions, tobacco retailers, smoking in
certain public areas, and posting of signs.
C. The Town Council held a public hearing on May 3, 2017 and has heard and
considered any and all public testimony on this matter.
D. The Town Council finds that all notices and procedures required by law attendant to
the adoption of this Ordinance have been followed.
E. The Town Council finds the amendments made by this Ordinance are necessary for
the protection of the public health, safety, and welfare.
F. The Town Council finds the amendments made by this Ordinance are consistent
with the goals and policies of the Tiburon General Plan and other adopted
ordinances and regulations of the Town of Tiburon.
G. The Town Council finds these amendments are covered by the general rule that the
California Environmental Quality Act(CEQA) applies only to projects that have the
potential for causing a significant effect on the environment pursuant to CEQA
Guidelines Section 15061(b)(3), and further finds that if the amendments were not
covered by the above section, the amendments would be categorically exempt
pursuant to Sections 15305, 15307 and/or 15308 of the CEQA Guidelines.
Section 2. Amendments to Title VI Chapter 28, Section 28-2.
Title VI, Chapter 28 of the Tiburon Municipal Code is hereby amended as follows:
(A) In Section 28-2, the definition of"Common interest complex" is amended to
Town of Tiburon Ordinance No. 571 N.S. Effective 06/16/2017 Page 1
read as follows:
"Common interest complex"means a multi-unit residence that is a
condominium project, a community apartment project, a stock cooperative,
or a planned development as defined by California Civil Code section 4100,
or successor sections thereto.
(B) In Section 28-2, the definition of"Place of employment" is added to read as
follows:
"Place of employment" means any area under the legal or actual control of
an employer that an employee or the general public may have cause to enter
in the normal course of operation, regardless of the hours of operation,
including, but not limited to, indoor and outdoor work areas, construction
sites, vehicles used in employment or for business purposes, taxis, employee
lounges and restrooms, conference and banquet rooms, employee cafeterias,
warehouses, long-term care facilities, and lobbies and hallways. A private
residence is not a place of employment unless it is used as a child care or
residential health care facility.
(C) In Section 28-2, the definition of"Retail tobacco store" is amended to read
as follows:
"Retail tobacco store"means a retail store utilized primarily for the sale of
tobacco products, tobacco paraphernalia, or smoking products, and in which
the sale of other products is merely incidental.
(D) In Section 28-2, the definition of"Service line" is hereby deleted.
(E) In Section 28-2, the definition of"Service area" is added to read as follows:
"Service area" means any publicly or privately owned area, including streets
and sidewalks, that is designed to be used or is regularly used by one or
more persons to wait for or receive a service or make a transaction, whether
or not such service or transaction involves the exchange of money. The term
"service area" includes but is not limited to information kiosks, automatic
teller machines (ATMs), ticket lines, bus stops or shelters, transit shelters,
ferry terminals, mobile vendor lines, or taxi cab stands.
(F) In Section 28-2, the definition of"Smoking" is amended to read as follows:
"Smoking"means engaging in an act that produces gas,
particles, vapor or smoke by means of combustion, electrical
ignition or vaporization, where the apparent or usual purpose
of said act is the human inhalation of the byproducts.
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"Smoking" does not include acts where (a)the combustion or
vaporization material contains no tobacco or nicotine and(b)
the purpose is solely olfactory, such as producing smoke from
incense. "Smoking" does include the use of a lighted pipe,
lighted cigar or lighted cigarette, lighted hookah, electronic
smoking device or other device of any kind containing
tobacco, tobacco product, tobacco-like product, marijuana,
spices, or any other plant or herbal materials to the extent that
local regulation of such lighted device, product or material is
allowed by law.
(G) In Section 28-2, the definition of"Tobacco paraphernalia" is amended to
read as follows:
"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders
of smoking materials of all types, cigarette rolling machines, and any other
item designed for the smoking, preparation, storing, or consumption of
tobacco, marijuana, or other similar products.
(H) In Section 28-2, the definition of"Tobacco retailer" is added to read as
follows:
"Tobacco retailer" means any person who sells, offers for sale, or does or
offers to exchange for any form of consideration, tobacco,tobacco products,
tobacco paraphernalia, or smoking products within the corporate limits of
the Town of Tiburon. "Tobacco retailing" shall mean the doing of any of
the above. This definition is without regard to the quantity of tobacco,
tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged,
or offered for exchange.
(1) Section 28-3 is amended to read as follows:
Smoking is prohibited in all town-owned vehicles, including jitneys and
buses and other means of public transit under the authority of the town, and
in all enclosed residential and non-residential facilities, buildings, or
structures owned, leased, occupied and/or controlled by the town.
(J) Section 28-5(d)(4) is amended to read"Service areas".
(K) Section 28-5(b) is amended to read as follows:
(b)Notwithstanding any other provisions of this section, any owner,
operator, manager or other person who controls any establishment, building,
structure, or facility may declare that entire establishment, building,
structure, or facility as a non-smoking establishment, building, or structure.
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(L) Section 28-8 is revised to read as follows:
(a) Except as otherwise prohibited by applicable county, state or federal law,
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 residential health
care facility, or except as set forth in Section 28-7;
(2) Private vehicles not located in a multi-unit common area;
(3) Retail tobacco stores, only if:
(A) The retail tobacco store does not sell edible products, including,
for example, food, water, or drinks, and does not allow such products
to be consumed on the premises; and
(B) The retail tobacco store prohibits minors from entering the store
at all times.
(4) Unenclosed areas where smoking is not otherwise prohibited by law;
(5) An enclosed place of employment that employs only the owner and no
other employee or employees, provided that:
(A) The place of employment is not a public place, and
(B) The enclosed area containing the place of employment does not
share a ventilation system with any other enclosed place of
employment or public place.
(b)Nothing in this section shall be construed to prevent an owner, operator,
manager or other person who controls any business, establishment or facility
from declaring that entire business, establishment or facility as non-smoking.
(M) Section 28-10 is amended to read as follows:
(a) The person, employer, business or non-profit entity with legal or actual
control of a building or area where smoking is prohibited by this chapter
shall clearly and conspicuously post"No Smoking" signs at the entrances of
every building, as well as in other areas under their control where smoking is
prohibited under this chapter. However, where an entire building or
premises is non-smoking, only entrances need be signed, provided that they
are signed to that effect.
(b) Every tobacco retailer, retail tobacco store, and every vendor of tobacco
products shall visibly post signage pursuant to California Business and
Professions Code section 22952, or successor sections thereto, which
signage shall expressly reference California Penal Code section 308, or
successor sections thereto, at the entrances of any premises subject to
regulation under section 28-11 of this chapter and applicable county, state
and/or federal law.
(c) The absence of signs shall not be a defense to a violation of any
provision of this chapter.
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(N) Section 28-11 is amended to read as follows:
(a) Any person, business, tobacco retailer, retail tobacco store, or other
establishment subject to this chapter shall post plainly visible signs at each
point of purchase of tobacco products that state "THE SALE OF TOBACCO
PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS
PROHIBITED BY LAW. PHOTO ID REQUIRED. THE FINE FOR
BUYING TOBACCO FOR ANYONE UNDER 21 IS $200". The letters on
said signs shall be at least one-half(1/2) inch tall. These signs shall be
updated as necessary to conform to any subsequent state or federal
requirements or amendments to Business and Professions Code section
22952 and/or Penal Code section 308(a) or successor sections thereto.
(b)No person, business, tobacco retailer, or other establishment subject to
this chapter shall sell, offer to sell, or permit to be sold any tobacco product
to an individual without requesting and examining identification establishing
the purchaser's age as twenty-one (21) years or greater unless the seller has
some clear and convincing basis for knowing the buyer's age.
(c) It shall be unlawful for any person, business, tobacco retailer, or retail
tobacco store to sell, permit to be sold, or offer for sale any tobacco product
by means of self-service merchandising, or by any means other than vendor-
assisted sales.
(d)No person, business, tobacco retailer, retail tobacco store, or other
establishment subject to this chapter shall locate, install, keep, maintain or
use, or permit the location, installation, keeping, maintenance or use on his,
her or its premises any vending machine for the purpose of selling or
distributing any tobacco product.
(e) Any person, business, tobacco retailer, retail tobacco store, owner,
manager, or operator of any establishment subject to this chapter that
violates any provision of this section shall be deemed guilty of a
misdemeanor and upon conviction shall be subject to a fine as set forth in
Penal Code section 308(a) or successor sections thereto.
Section 3. Severability.
If any section, subsection, clause, sentence, or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional by a decision of a Court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of the
Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have
passed this Ordinance, any section, subsection, sentence, clause or phrase thereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses, or
phrases may be declared invalid or unconstitutional.
Section 4. Effective Date.
This ordinance shall be in full force and effect thirty (30) days after the date of
Town of Tiburon Ordinance No. 571 N.S. Effective 06/16/2017 Page 5
adoption. Pursuant to the provisions of the California Government Code, a summary of this
ordinance shall be prepared by the Town Attorney. At least five (5) days prior to the Town
Council meeting at which adoption of the ordinance is scheduled, the Town Clerk shall (1)
publish the summary in a newspaper of general circulation in the Town of Tiburon, and (2)
post in the office of the Town Clerk a certified copy of this ordinance. Within fifteen(15)
days after the adoption of this ordinance, the Town Clerk shall (1)publish the summary in a
newspaper of general circulation in the Town of Tiburon, and(2)post in the office of the
Town Clerk a certified copy of the ordinance along with the names of those Council
members voting for and against the ordinance.
This ordinance was read and introduced at a regular meeting of the Town Council of
the Town of Tiburon, held on May 3, 2017, and was adopted at a regular meeting of the
Town Council of the Town of Tiburon, held on May 17, 2017, by the following vote:
AYES: COUNCILMEMBERS: Doyle, Fraser, Fredericks, O'Donnell, Tollini
NAYS: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None J
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LEA STEFANI, TOWN CLERK
Town of Tiburon Ordinance No, 571 N.S. Effective 06/16/2017 Page 6