HomeMy WebLinkAboutTC Ord 2011-07-20ORDINANCE NO. 531 N. S.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
REPEALING MUNICIPAL CODE TITLE VI, CHAPTER 28 (SMOKING AND
TOBACCO REGULATIONS) AND ADOPTING A NEW MUNICIPAL CODE
TITLE VI, CHAPTER 28 (SMOKING AND TOBACCO REGULATIONS)
SECTION 1. FINDINGS.
WHEREAS, the Town Council adopted its current municipal code regulations
regarding smoking and tobacco in October 1992, codified as Title VI, Chapter 28 of the
Tiburon Municipal Code; and
WHEREAS, since that time there have been changes in the law and increased
interest by citizens in the regulation of smoking, and the Town Council desires to update
its smoking and tobacco-related regulations; and
WHEREAS, the Town Council finds that the magnitude of the proposed
amendments to Title VI, Chapter 28 are such that repeal of the entire chapter and
adoption of a new chapter is warranted and appropriate; and
WHEREAS, the Town Council finds that the regulations contained herein are
consistent with goals and policies of the Tiburon General Plan, and specifically with the
goals of the Safety Element of the Tiburon General Plan, and are adopted to promote the
health, safety and general welfare of the community by further regulating tobacco smoke
and tobacco-smoke-related hazards; and
WHEREAS, the Town Council held public hearings on October 20, 2010 and July
6, 2011, and has heard and considered all testimony and timely correspondence on the
proposed Municipal Code amendments; and
WHEREAS, the Town Council finds that that 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. REPEAL OF TITLE VI, CHAPTER 28.
NOW, THEREFORE, BE IT ORDAINED that the Town Council of the Town of
Tiburon hereby repeals Title VI, Chapter 28 (Smoking and Tobacco Regulations) of the
Tiburon Municipal Code.
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SECTION 3. ADOPTION OF TITLE VI, CHAPTER 28.
NOW, THEREFORE, BE IT FURTHER ORDAINED that the Town Council of
the Town of Tiburon hereby adopts a new Title VI, Chapter 28 (Smoking and Tobacco
Regulations) of the Tiburon Municipal Code to read as follows:
28-1 Findings and Purpose.
(a) The town council finds that:
(1) Numerous scientific studies have found that tobacco smoke is a major
contributor to indoor air pollution; R
(2) Reliable scientific studies, including studies by the Surgeon General of the
United States and studies commissioned and assessed by the U.S. Environmental
Protection Agency, have shown that breathing sidestream or secondhand smoke is a
significant health hazard to nonsmokers; particularly to children and teens, elderly
people, individuals with cardiovascular disease, and individuals with impaired respiratory
function, including asthmatics and those with obstructive airway disease;
(3) Health hazards induced by exposure to environmental tobacco smoke include
lung and other forms of cancer, respiratory infection, decreased respiratory function,
decreased exercise tolerance, broncho-constriction and broncho-spasm, and that the most
common cause of premature death from environmental tobacco smoke is heart disease;
(4) Reliable scientific studies assessed by the U.S. Environmental Protection
Agency have found that sidestream and secondhand tobacco smoke causes the death of at
least fifty-three thousand nonsmokers annually and is a leading cause of premature death
and disability among nonsmokers;
(5) Nonsmokers with allergies, respiratory diseases and those who suffer other ill
effects of breathing sidestream or secondhand tobacco smoke may experience a loss of
job productivity or may be forced to take periodic sick leave because of adverse reactions
to same;
(6) Persons, particularly employees, have a right to a smoke-free environment if
they desire;
(7) Tobacco smoking is a leading cause of fires, and cigarette and cigar burns and
ash stains on merchandise and fixtures cause economic losses to businesses;
(8) Substantial scientific evidence exists that the direct use of tobacco products
causes cancer, heart disease, and various other medical diseases. The Surgeon General of
the U.S. has found that tobacco-caused diseases are the leading cause of premature,
preventable death and disability in the U.S.;
(9) The National Centers for Disease Control have found that at least four
hundred thirty-four thousand Americans die each year from tobacco-caused diseases. The
Surgeon General of the U.S. and U.S. Department of Health and Human Services have
found that a majority of those Americans who die of tobacco-caused diseases became
addicted to nicotine in tobacco products as adolescents before the age of legal consent;
(10) The National Institute on Drug Abuse has concluded that the nicotine in
tobacco products is a powerful addictive drug and identifies nicotine addiction as the
most widespread example of drug dependence in the U.S.;
(11) The Surgeon General of the U.S. has found that nicotine in tobacco products
is as addictive as cocaine and heroin;
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(12) 87.9% of non-smokers showed detectable levels of cotinine (a metabolite of
nicotine) in their blood, the most likely source of which is secondhand smoke exposure;
(13) There is no Constitutional right to smoke;
(14) Secondhand smoke can seep under doorways and through wall cracks and
through ventilation systems;
(15) State law prohibits smoking in virtually all indoor places of employment
reflecting the state policy to protect against the dangers of exposure to secondhand
smoke;
(16) A local ordinance that authorizes residential rental agreements to include a
prohibition on smoking of tobacco products within the common areas of multi-unit
residences is not prohibited by state law;
(17) California law declares that anything which is injurious to health or obstructs
the free use of property, so as to interfere with the comfortable enjoyment of life or
property, is a nuisance.
(b) Accordingly, the town council finds and declares that the purposes of this chapter are:
(1) To protect public health, safety and general welfare by prohibiting tobacco
smoking in certain public places and in places of employment; and
(2) To guarantee the right of nonsmokers to breathe air free of toxins from
combustion of tobacco, tobacco product, tobacco-like product, spices or any other plant
or herbal materials to the extent that local regulation of sources of combustion of those
materials is allowed by law and to recognize that the need to breathe air free of the toxins
produced by smoking has priority over the desire to smoke;
(c) The town council further finds it is within its basic police power to implement and
enforce the provisions of this chapter.
28-2 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as
defined in this section:
"Bar" means an area which is devoted to the serving of alcoholic
beverages for consumption by patrons on the premises and in which the serving of
food is only incidental to the consumption of such beverages.
"Business" means any sole proprietorship, 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 and other entities where legal, medical, dental, engineering,
architectural or other professional services are delivered.
"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 1351.
"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 nonprofit entity.
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"Employer" means any person, partnership, corporation, including a
municipal corporation, or nonprofit entity, which employs the services of one or
more individual persons.
"Enclosed area" means all space between a floor and ceiling that is
enclosed on all sides by solid walls or windows (exclusive of door or passage
ways) that extend from the floor to the ceiling, including all space within said
walls or windows that may be screened or divided by partitions or other materials
or devices that do not extend to the ceiling or are not solid.
"Health department" means the County of Marin Health Department.
"Landlord" means any person who owns real property leased as residential
property, any person who lets residential property, or any person who manages
such property, except that "landlord" does not include sublessors.
"Minor" means any individual who is less than 18 years old.
"Multi-unit residence" means premises containing four (4) or more Units,
except that individual Units on separate parcels within a common interest
complex are exempt from provisions of this chapter.
"Multi-unit common area" means any indoor or outdoor area of multi-unit
residence premises accessible to and usable by residents of different units and/or
members of the public, including but not limited to halls and paths, lobbies,
laundry rooms, common areas, outdoor eating areas, play areas and swimming
pools; except that "Multi-unit common area" does not include outdoor, non-
enclosed common area facilities located within a common interest complex.
"Nonprofit 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 committed to the promotion of the objectives or purposes of the entity
and not to private gain. A public agency is not a "nonprofit entity" for purposes of
this chapter.
"No smoking sign" means a sign containing the words "No smoking" or
the international "No smoking" symbol (consisting of a pictorial representation of
a burning cigarette in a red circle or red heart with a red bar across it).
"Opening" means and shall include any main entrances, exits, operable
windows, and ventilation intake systems.
"Outdoor eating area" means an outdoor area, whether covered or
uncovered, under the control of a restaurant or bar or other food and/or drink-
serving business or establishment, where the consumption of food and/or drink
occurs.
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"Person" means any natural person, partnership, cooperative association,
private corporation, personal representative, receiver, trustee, assignee, or any
other legal entity.
"Premises" means a piece of land and any improvements upon it such as is
usually described in a deed, deed of trust or mortgage; including legally separate
but contiguous pieces of land that are owned by the same natural person or by
legal persons under common control.
"Public event" means an event open to the public, including but not
limited to sports events, entertainment, speaking performances, ceremonies,
pageants, parades, fairs and farmer's markets.
"Public park" means any parkland open to the public that is owned by the
town and is designated "Parks & Recreation" on the zoning map of the town.
"Public place" means any enclosed area to which the public is invited or in
which the public is permitted, including but not limited to, banks, educational
facilities, health facilities, shopping malls, laundromats, public transportation
facilities, reception areas, restaurants, bars, retail food production and marketing
establishments, retail service establishments, retail stores, hotels and motels and
the individual rooms therein, theaters and waiting rooms. A private residence is
not a "public place."
"Reasonable distance" means a distance of at least twenty-five (25) feet.
"Restaurant" means any coffee shop, cafeteria, sandwich stand, private
and public school cafeteria, including any associated outdoor eating area, and any
other eating establishment which gives or offers for sale food to the public, guests
or employees, as well as kitchens in which food is prepared on the premises for
serving elsewhere, including catering facilities.
"Retail tobacco store" means a retail store in which the primary
merchandise for sale consists of tobacco products and accessories, and in which
the sale of other products is merely incidental, and which does not provide any
entertainment, or any food or beverage for consumption on the premises.
"Self-service merchandising" means open display of tobacco products or
tobacco paraphernalia in a manner that is accessible to the general public without
the assistance of the retailer or employee of the retailer. This includes point-of-
sale tobacco promotional products (such as tobacco industry tee shirts, caps, key
chains, give-aways), to which the public has access without the assistance of an
employee. A vending machine is a form of self service displays.
"Separate ventilation system" means a system that is exhausted to the
outside and negatively pressurized.
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"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.
"Smoking" means possessing a lighted pipe, lighted cigar, or lighted
cigarette, lighted hookah, or other device of any kind, or the lighting of a pipe,
hookah, cigar or cigarette, or other device containing tobacco, tobacco product,
tobacco-like product, 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.
"Sports arena" means enclosed or unenclosed sports pavilions,
gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys
and other similar places where members of the general public assemble either to
engage in physical exercise, participate in athletic competition, or witness sports
events.
"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 products.
"Tobacco product" means:
(a) any substance containing tobacco leaf, including but not limited to
cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping
tobacco, bidis, blunts, clove cigarettes, or any other preparation of tobacco; and
(b) any product or formulation of matter containing biologically active
amounts of nicotine that is manufactured, sold, offered for sale, or otherwise
distributed with the expectation that the product or matter will be introduced into
the human body by inhalation; but does not include any cessation product
specifically approved by the U. S. Food and Drug Administration for use in
treating nicotine or tobacco dependence.
"Tobacco vending machine" means any machine, appliance, or other
mechanical device operated by currency, token, debit card, credit card, or any
other form of payment that is designed or used for vending purposes, including,
but not limited to, machines or devices that use remote control locking
mechanisms.
"Town" means the Town of Tiburon.
"Town manager" means the Town Manager of the Town of Tiburon, or
his or her designee.
"Town open space" means any open space land or easement owned by the
Town and designated as "Open Space" on the zoning map of the town.
"Unit" means:
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(a) a dwelling space consisting of essentially complete independent living
facilities for one or more persons, including, for example, permanent provisions
for living and sleeping, and any private outdoor spaces like balconies and patios;
and
(b) senior citizen housing and single room occupancy hotels, as defined in
California Health and Safety Code section 50519(b)(1) or successor sections
thereto, even where lacking private cooking facilities or private plumbing
facilities. "Unit" does not include lodging in a hotel or motel that meets the
requirements set forth in California Civil Code section 1940(b)(2).
"Vendor-assisted" means only a store employee has access to the tobacco
product and assists the customer by supplying the product. The customer does not
take possession of the product until it is purchased.
28-3 Smoking Prohibited in Town-owned Vehicles and Facilities.
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 all enclosed facilities owned
and/or controlled by the town.
28-4 Smoking Prohibited in Public Parks and Town Open Spaces.
(a) Smoking is prohibited in all public parks, whether in an enclosed area or an
unenclosed area.
(b) Smoking is prohibited in all town open spaces, whether in an enclosed area or an
unenclosed area.
28-5 Smoking Prohibited in Certain Public Places.
(a) Smoking is prohibited in all outdoor eating areas, as defined herein.
(b) Smoking is prohibited within twenty-five (25) feet of any entrance, exit, or opening to
a public building.
(c) Smoking is prohibited in all public events, and at events or functions for which a
Special Event Permit has been issued by the Town.
(d) Smoking is prohibited in all enclosed public places within the town, including, but not
limited to, the following places:
(1) Elevators;
(2) Buses, taxicabs, and other means of public transit under the authority of the
town and ticket, boarding, and waiting areas of public transit depots;
(3) Restrooms;
(4) Service lines;
(5) Retail stores;
(6) All areas available to and customarily used by the general public in all
business and nonprofit entities patronized by the public, including but not limited
to offices (such as attorneys, doctors, and other professionals), banks,
laundromats, malls, hotels and motels and the individual rooms therein;
(7) Restaurants;
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(8) Bars;
(9) Public areas of aquariums, galleries, libraries or museums when open to the
public;
(10) Any facility that is primarily used for exhibiting motion pictures, stage
productions, lectures, musical recitals or other similar performances;
(11) Sports arenas and convention halls;
(12) Every room, chamber, place of meeting or public assembly, including school
buildings under the control of any board, council, commission, committee
including joint committees, or agencies of the town or any political subdivision of
the state during such time as a public meeting is in progress, to the extent such
place is subject to the jurisdiction of the town;
(13) Waiting rooms, hallways, wards and rooms of health care facilities,
including, but not limited to, hospitals, clinics, physical therapy, mental health,
and drug and alcohol treatment facilities, doctors' and dentists' offices;
(14) Lobbies, hallways and other common areas in senior citizen residences,
nursing homes, and child-care facilities;
(15) Multi-unit common areas;
(16) Lobbies, hallways and other common areas in multiple-unit commercial
facilities;
(17) Polling places.
(b) Notwithstanding any other provisions of this section, any owner, operator, manager or
other person who controls any establishment or facility may declare that entire
establishment or facility as a non-smoking establishment.
28-6 Smoking Regulated in Places of Employment.
(a) Each employer having an enclosed place of employment located within the town
shall adopt, implement, make known and maintain a written smoking policy that shall
contain the following requirements:
Smoking is prohibited in all enclosed facilities within a 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, non-personal vehicles
and all other enclosed facilities.
(b) The smoking policy shall be communicated to all employees within thirty (30) days of
its adoption, and at least annually thereafter.
(c) All employers shall comply with these non-smoking provisions and shall be
responsible for their implementation in their places of employment.
(d) "No Smoking" signs shall be conspicuously posted at building entrances and in
employee lounges, cafeterias and lunchrooms.
(e) All employers shall supply a written copy of the smoking policy to any existing or
prospective employee.
(f) Places of employment exempt from the prohibition on smoking in other sections of
this chapter shall also be exempt from this section.
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28-7 Smoking Prohibited in Multi-unit Common Areas and in Multi-unit
Residences.
(a) Smoking is prohibited in all multi-unit common areas except that a landlord may
designate a portion of the outdoor area of the premises as a smoking area as provided in
paragraph (b) below.
(b) A designated smoking area:
(1) Must be located at least twenty-five (25) feet from any indoor area where
smoking is prohibited;
(2) Must not include, and must be at least twenty-five (25) feet from, outdoor
areas primarily used by children including, but not limited to, areas improved or
designated for play or swimming;
(3) Must be no more than 25% of the total outdoor area of the premises for
which it is designated;
(4) Must have a clearly marked perimeter;
(5) Must be identified by conspicuous signs; and
(6) Must not overlap with any area in which smoking is otherwise prohibited by
this chapter or other provisions of this Code, state law, or federal law.
(c) Non-smoking units required in multi-unit residences:
(1) New multi-unit residences: In every multi-unit residence that receives a
certificate of occupancy after August 19, 2011, one hundred percent (100%) of the units
(including private outdoor spaces associated with such units, such as balconies, patios
and decks), shall be non-smoking units by law.
(A) Required Lease Terms: Every lease or other agreement for the
occupancy of a unit in a new multi-unit residence shall include:
1. A clause stating that smoking is prohibited in the unit;
2. A clause stating that it is a material breach of the lease or
agreement to violate any law regulating smoking while on the premises, smoke in any
unit, or smoke on any multi-unit common area in which smoking is prohibited; and
3. A clause stating that all lawful occupants of the multi-unit
residence are express third-party beneficiaries of the above-required clauses.
(B) The California Apartment Association's Form 34.0, revised January
2007, meets the requirements for lease terms as outlined and is an option for use to
comply with this subsection.
(2) Existing multi-unit residences: In every multi-unit residence already existing
on August 19, 2011, one hundred percent (100%) of the units (including private outdoor
spaces associated with such units, such as balconies, patios and decks), shall by law be
non-smoking units by July 1, 2014. A landlord may make units non-smoking prior to
July 1, 2014.
(A) Landlords shall, by October 18, 2011, notify each existing and new
tenant as of August 19, 2011, of the lease terms required by this chapter.
(B) Required Lease Terms: Every new lease, lease renewal, lease
extension, or other agreement for the occupancy of a unit in a multi-unit residence made
on or after August 19, 2011, shall include:
1. A clause stating that smoking is prohibited in the unit;
2. A clause stating that it is a material breach of the lease or
agreement to violate any law regulating smoking while on the premises, smoke in any
unit, or smoke on any multi-unit common area in which smoking is prohibited; and
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3. A clause stating that all lawful occupants of the multi-unit
residence are express third-party beneficiaries of the above-required clauses.
4. Prior to July 1, 2014, this subsection 28-7(c)(2)(B) shall not
apply to renewal of a lease or other agreement for occupancy with a person lawfully
occupying the unit on August 19, 2011. On July 1, 2014, this exception shall expire and
all leases, lease renewals, lease extensions, and other agreements for occupancy shall
comply with this subsection 28-7(c)(2)(B).
(C) The California Apartment Association's Form 34.0. revised January
2007, meets the requirements for lease terms as outlined and is an option for use to
comply with this subsection.
(d) The lease or agreement terms required by subsection (c)(1) or (c)(2) of this section
are hereby incorporated by force of law into any lease or other agreement for the
occupancy of a unit in a multi-unit residence made on or after August 19, 2011 that does
not comply fully with subsection (c)(1) or (c)(2) of this section.
(e) A tenant who breaches the smoking regulations of a lease or knowingly allows
another person to do so shall be liable to:
(1) the landlord; and
(2) to any lawful occupant of the multi-unit residence who is exposed to
secondhand smoke as a result of that breach. A landlord shall not be liable to any person
for a tenant's breach of smoking regulations if the landlord has fully complied with the
requirements of this chapter.
(fl Failure to enforce any smoking regulation of a lease or agreement on one or more
occasions shall not constitute a waiver of the lease or agreement provisions required by
this section and shall not prevent future enforcement of any such smoking regulation on
another occasion.
(g) Disclosure of Dedicated Smoking Area. Every landlord shall maintain a diagram that
illustrates the precise location and configuration of any designated smoking area. This
diagram shall accompany every new lease, lease renewal, lease extension, or other
agreement for the occupancy of a unit in a multi-unit residence after August 19, 2011.
(h) Prohibitions and Duties Generally:
(1) No person shall smoke or knowingly permit smoking in an area of the
premises under his or her legal or de facto control in which smoking is prohibited by a
lease or agreement term, by this chapter, this Code, or any other state or federal law,
provided, however, that this prohibition does not apply to a person who is already
compelled to act under state or federal law.
(2) No person shall knowingly permit the presence or placement of ash trays,
cans, or other receptacles within multi-unit common areas under his or her legal or de
facto control in which smoking is prohibited by this chapter, this Code, or any other state
or federal law, including, for example and without limitation, within at least twenty-five
(25) feet of any non-smoking area.
(3) "No smoking" signs, with letters of no less than one inch in height or the
international "No smoking" symbol (consisting of a pictorial representation of a burning
cigarette enclosed in a red circle crossed by a red bar) shall be clearly and conspicuously
Town of Tiburon Ordinance No. 531 N. S. Effective 811912011 Page 10 of 15
posted in the multi-unit common areas, at every entrance and exit, and on every floor
near an elevator or common stairwell. Such signs shall be maintained by the landlord.
Signs must be posted in sufficient numbers and locations in the multi-unit common areas
and at entrances and exits to make areas where smoking is prohibited obvious to a
reasonable person. The absence of signs shall not be a defense to a violation of any
provision of this section.
(4) This chapter shall not create additional liability for a landlord for a person's
violation of this chapter provided that the landlord has fully complied with the required
disclosure, sign posting, and other provisions of this chapter.
(5) The provisions of this chapter are restrictive only and establish no new rights
for a smoker. t
(6) Notwithstanding any provision of this chapter or other provisions of this
Code or failure to restrict smoking under this chapter, including any explicit or implicit
provision that allows smoking, nothing in this chapter shall operate to limit a person's
legal rights under other laws with regard to smoking, including, for example, claims of
nuisance, trespass, property damage, and personal injury.
28-8 Smoking Not Prohibited; Owner Option to Prohibit.
(a) Except as otherwise prohibited by 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;
(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.
28-9 Duty .,of Person, Employer, Business or Non-profit Entity.
(a) No person, employer, business, or nonprofit entity shall knowingly permit the
smoking of tobacco products in an area which is under the legal or actual control of the
person, employer, business, or nonprofit entity and in which smoking is prohibited by law
and the person, employer, business or nonprofit entity is not otherwise compelled to act
under state or federal law.
(b) No person, employer, business, or nonprofit entity shall knowingly or intentionally
permit the presence or placement of ash receptacles, such as, for example, ashtrays or ash
cans, within an area that is under the legal or actual of the person, employer, business, or
nonprofit entity and in which smoking is prohibited.
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28-10 Posting of Signs.
(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 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 entrance of any premises subject to
regulation under section 28-11 of this chapter and applicable state and/or federal law.
(c) The absence of signs shall not be a defense to a violation of any provision of this
chapter.
28-11 Sale of Tobacco Products Regulated.
(a) It shall be unlawful for any person, business, 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.
(b) It shall be unlawful for any person, business, or retail tobacco store to 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.
(c) No person, business, retail tobacco store, or owner, manager or operator of any
establishment subject to provisions of this section 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 eighteen years or greater unless the
seller has some other clear and convincing basis for knowing the buyer's age.
(d) Any person, business, retail tobacco store or other establishment subject to provisions
of this section shall post plainly visible signs at the point of purchase of tobacco products
which comply with the signage requirements of California Business and Professions
Code section 22952, or successor sections thereto. These signs shall be updated to
conform to any subsequent state or federal requirements and/or amendments to California
Business and Professions Code section 308(a), or successor sections thereto.
(e) Any person, business, retail tobacco store or other establishment subject to provisions
of this section shall post signs at each entrance to any premises on which any tobacco
product is offered for sale. Such signs shall be plainly visible from outside the premises,
shall state, "Warning: The fine for buying tobacco for anyone under 18 is $200" in letters
at least one-half tall, and shall cite California Penal Code 308(a) or successor sections
thereto. These signs shall be updated to conform to any subsequent state or federal
requirements and/or amendments to Penal Code section 308(a), or successor sections
thereto.
(f) Any person, business, retail tobacco store, or owner, manager or operator of any
establishment subject to provisions of this section who 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.
Town of Tiburon Ordinance No. 531 N. S. Effective 811912011 Page 12 of 15
28-12 Enforcement.
(a) The remedies provided by this chapter are cumulative and in addition to any other
remedies available at law or in equity.
(b) Notice of these regulations shall be given to all applicants for a business license or
renewal thereof. However, lack of such notice shall be no defense to a violation of this
chapter.
(c) Enforcement of this chapter shall be the responsibility of the town manager, who shall
have the powers enumerated in this chapter and in chapter 31 of the Tiburon Municipal
Code as well as the power to issue citations for violation of the chapter in accordance
with section 853.6 of the California Penal Code, or successor sections thereto.
(d) The health department shall require, while an establishment is undergoing otherwise
mandated inspections, certification from the owner, manager, operator or other person
having control of such establishment that all requirements of this chapter have been
complied with.
(e) Health department inspectors, on their regular restaurant inspections, shall check for
compliance with sign posting requirements. Restaurants shall be notified in writing of
any violations on the standard health inspection report. Further, such violations shall be
reported in writing by the health department, on a quarterly basis, to the administrative
authority in the jurisdiction where such violations occur.
(f) Notwithstanding any other provision of this chapter, a private citizen may bring legal
action to enforce this chapter.
28-13 Violations and Penalties.
(a) It is unlawful for any person who owns, manages, operates or otherwise controls the
use of any premises or areas subject to regulation under sections 28-3, 28-4, 28-5, 28-6,
28-7, 28-9, 28-10, or 28-11 of this chapter to fail to comply with any of its provisions.
(b) It is unlawful for any person to smoke in any area where smoking is prohibited under
provisions of this chapter.
(c) Any person, business, retail tobacco store, or owner, manager or operator of any
establishment subject to this chapter who violates any provision of this chapter, other
than section 28-11, shall be deemed guilty of an infraction and upon conviction shall be
subject to payment of a fine not to exceed $100 or the limits set forth in Government
Code section 36900, as may be amended from time to time, whichever is lower.
(d) Violations of section 28-11 shall be a misdemeanor.
28-14 Non-retaliation.
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 right to a smoke-free environment afforded by this chapter.
28-15 Public Education.
The town manager or his/her designee will engage in a continuing educational program to
explain and clarify the purposes and requirements of this chapter, as well as a guide to
Town of Tiburon Ordinance No. 531 N. S. Effective 811912011 Page 13 of 15
owners, operators and managers with compliance. However, lack of such education shall
be no defense to a violation of this chapter.
28-16 Governmental Cooperation.
The town manager or his/her designee may annually request other governmental and
educational agencies having facilities within the town to establish local operating
procedures in cooperation and compliance with this chapter. This includes urging all
federal, state, county and school district agencies to update their existing smoking control
regulations to be consistent with current health findings regarding environmental tobacco
smoke. It
28-17 Other Applicable Laws.
It is the intent of the town to supplement applicable state and federal law and not to
duplicate or contradict such law, and this chapter shall be construed in a manner
consistent with that intention. This chapter shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable laws. 0
SECTION 4. SEVERABILITY.
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
Ordinance, or its application to any person or circumstance, is for any reason held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining sections, subsections, subdivisions, paragraphs,
sentences, clauses or phrases of this Ordinance, or its application to any other person or
circumstance. The Town Council of the Town of Tiburon hereby declares that it would
have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase
hereof, irrespective of the fact that any one or more other sections, subsections,
subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or
unenforceable.
SECTION 5. PUBLICATION AND EFFECTIVE DATE.
This ordinance shall be in full force and effect thirty (30) days after the date of
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.
Town of Tiburon Ordinance No. 531 N. S. Effective 811912011 Page 14 of 15
This Ordinance was introduced at a regular meeting of the Town Council of the
Town of Tiburon on July 6, 2011, and was adopted at a regular meeting of the Town
Council of the Town of Tiburon on July 20, 2011, by the following vote:
AYES: COUNCILMEMBERS: Collins, Fraser, O'Donnell, Slavitz
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Fredericks
JEF~"Y SLAVITb` AYOR
TO" OF TIB
ATTEST:
L
DIANE CRANE IkCOPI, TOWN CLERK
S: WnzinistrationlTown Councill Ordinances 12 01PSmoking ordinance 531 N.S. as adopted.doc
Town of Tiburon Ordinance No. 531 N. S. Effective 811912011 Page 15 of 15