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Title 8 HEALTH AND SAFETY
Chapter 8.32 REGULATION OF SMOKING AND SECONDHAND SMOKE IN CERTAIN PUBLIC AREAS
AND PLACES OF EMPLOYMENT
8.32.010 Purpose.
Smoking of tobacco or any other weed or plant is a positive danger to health and a cause of material
annoyance, inconvenience, discomfort, and a health hazard to those who are present in confined places.
Secondhand smoke is harmful to persons with certain respiratory conditions, and has also been determined to
cause cancer to nonsmokers exposed to secondhand smoke on a frequent basis. The United States Surgeon
General and the United States Department of Health and Human Services found that a majority of the four
hundred thirty-four thousand Americans that die each year from tobacco-related illness, and who smoked,
became nicotine addicts before their eighteenth birthday.
ln order to serve public health, safety and welfare,to reduce unwanted and unwelcome exposure to
secondhand smoke, to assure a cleaner and more hygienic environment for the city, its residents, and visitors,to
strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including
children and persons with existing respiratory conditions(while recognizing the threat to public health and the
environment which smoking causes), and to decrease the accessibility of tobacco and tobacco-related products,
the declared purposes of this chapter are (1)to prohibit the smoking of tobacco or any other weed or plant in
certain areas which are used by or open to the public, and certain areas in places ofemployment;(2) prohibit
self-service sales and self-service displays, racks and shelves of tobacco products;(3)require the posting of
warning signs at the point of purchase which state the legal age of sale and that identification is required to
purchase tobacco; (4) prohibit vending machine sales of tobacco products; and(5)require all tobacco products
be sold in original packaging with all legally required health warnings. (Ord. 4886 § 2, 2007,)
8.3Z.020 Definitions.
A. "Bar"includes that area of a restaurant which is devoted to the serving of alcoholic beverages and in
which the service of food may be only incidental to the consumption of such beverages provided that the
area is completely separated from the remainder of the restaurant by solid partitions or glazing without
openings other than doors or doorways, which shall meet the minimum standards applicable to such bar and
restaurant as established by the Uniform Building Code or other applicable building or fire regulations, and
the patrons of the restaurant are not required to pass through the bar in order to enter the restaurant.
B. "Business" means any sole proprietorship,joint venture, corporation, or other business entity formed for
profitmaking purposes, or for nonprofit 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.
C. "Common area at a shopping mall"means any indoor or outdoor common area of a shopping mall
accessible to and usable by the occupants or customers of more than retail establishment including, but not
limited to halls, lobbies, outdoor eating areas, play areas and parking lots.
D. "Employee" means any person who is employed by any employer in consideration for monetary
compensation or profit.
E. "Employer" means any person, partnership,corporation, including municipa� corporation, who employs
the services of more than four persons.
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F. "Enclosed area" means:
1. Any covered or partially covered area having more than fifty percent of its perimeter walled
or otherwise closed to the outside such as, for example, a covered porch with more than two walls;
2. Any space open to the sky (hereinafter"uncovered") having more than seventy-five percent
of its perimeter walled or otherwise closed to the outside such as, for example, a courtyard;
3. Except that an uncovered space of three thousand square feet or more is not an enclosed area,
such as, for example, a field in an open-air arena.
G. "Minor"means any individual who is less than eighteen years old.
H. "Multi-unit residence" means a building or portion thereof that contains more than one dwelling space,
each of which consists of independent living facilities for one or more persons, including but not limited to
single-room occupancy hotels (SROs), congregate care facilities other than those conducted in single-
family residential structures, and dormitories.
I. "Multi-unit residence common area"means any common area of a muiti-unit residence accessible to
and usable by the occupants of more than one dwelling, including but not limited to halls, lobbies, laundry
rooms, outdoor eating areas,play areas and swimming pools.
J. "Place of employment" means any area under the legal or de facto control of an employer, business or
nonprofit entity that an employee or the general public may enter in the normal course of operations, but
regardless of the hours of operation, including, for example, indoor and outdoor work areas,construction
sites, vehicles used in employment or for business purposes, taxis, employee lounges, conference and
banquet rooms, bingo and gaming facilities, long-term heaith facilities, warehouses, and, while employees,
children or patients are present, private residences that are used as child-care or health-care facilities subject
to licensing requirements.
K. "Playground"means any public or privately-owned park or recreational area designed in part to be used
by children that has play or sports equipment installed or has been designated or landscaped for play or
sports activities, or any similar faciliry located on public or private school grounds, or on city property.
L. "Public place"means any public or private place open to the general public, regardless of any fee or age
requirement, including, for example, streets, sidewalks, pla2as, bars, restaurants,clubs, stores, stadiums,
parks, playgrounds, taxis and buses. Public place includes any common area at a shopping mall.
M. "Person" means any individual, partnership, cooperative association, private corporation, personal
representative, receiver,trustee, assignee, or any other legal entity.
N. "Reasonable distance"means a distance of twenty feet or, with respect to a designated smoking area,
such larger area as the city manager reasonably determines in writing to be necessary in a given
circumstance to ensure that occupants of an area in which smoking is prohibited are not exposed to second-
hand smoke created by smokers outside the area.
O. "Recreational area"means any public or private area open to the public for recreational purposes
whether or not any fee for admission is charged, including, for example, parks, gardens, sporting facilities,
stadiums, playgrounds and play areas.
P. "Self-service merchandising" means open display of tobacco products and point-of-sale tobacco-related
promotional products to which the public has access without the intervention of any employee.
Q. "Shopping mall"means any parcel of land zoned and used for retail sales by more than one retailer that
is jointly operated or which includes shared parking facilities.
R. "Smoking"means possessing(and "smoke"means to possess)a tighted pipe, lighted cigar, or lighted
cigarette of any kind,or the lighting of a pipe, cigar,or cigarette of any kind, including, but not limited to,
any tobacco product, or any other weed or plant.
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� S. "Tobacco product"means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff,or any
other form of tobacco which may be utilized for smoking, chewing, inhaling, or other manner of ingestion.
T. "Tobacco retailer"means any person or governmental entity that operates a store, stand, concession, or
other place at which sales of tobacco products are made to purchasers for consumption or use.
U. "Tobacco vending machine"means any electronic or mechanical device or appliance the operation of
which depends upon the insertion of money, whether coin or paper bill, or other thing representative of
value, which dispenses or releases a tobacco product and/or tobacco accessories.
V. "Unenclosed area" means any area which is not an enclosed area.
W. "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.
(Ord. 4886 § 2, 2007.)
8.32.025 Smoking prohibited.
A. Smoking is prohibited in, and within twenty feet of,the following city-owned recreation buildings:
Bostonia Center, Fletcher Hills Center, Hillside Center, Kennedy Center, Renette Center, and Wells Center.
A recreation building is defined as a structure wherein the following activities are typically conducted:
games, meetings, dance, gymnastics, arts and crafts, sports, instructional activities, and recreation of�ices.
B. Smoking is prohibited in, and within twenty feet of, any tot lot, any playground, and any recreational
area. A tot lot is defined as any area located in a city park or city playground, or in a privately owned
playground open to the public, where playground equipment, intended for use by children, is located.
Playground equipment includes but is not limited to swings, slides, and climbing apparatus.
C. In addition to the restrictions found in subsections A and B ofthis section, and except as otherwise
provided by this chapter or state or federal law,the following restrictions on smoking, and using or
disposing of tobacco and tobacco-related products in public parks shall apply:
1. No person shall be in possession of a burning tobacco or tobacco-related product, including
but not limited to cigars and cigarettes, in or upon any park, playground or recreation center.
2. No person shall chew tobacco or tobacco-related products, in or upon any park, playground or
recreation center.
3. No person shall dispose of lighted or unlighted cigars or cigarettes, or cigar or cigarette butts,
or any other tobacco-related waste in or upon any park, playground or recreation center.
4. No person shall intimidate, threaten any reprisal,or ef�'ect any reprisal, for the purpose of
retaliating against another person who seeks to obtain compliance with this section.
D. In addition to the restrictions found in subsections A, B and C of this section, and except as otherwise
provided by this chapter or state or federal law, the following restrictions on smoking, and using or
disposing of tobacco and tobacco-related products in public places shall apply:
1. No person shall be in possession of a burning tobacco or tobacco-related product, including
but not limited to cigars and cigarettes, in:
a. Any public places;
b. Any places of employment;
c. Any multi-unit residence common areas; or
d. Any enclosed and unenclosed places of hotels, businesses, restaurants, and bars,
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and other public accommodation.
2. Notwithstanding subsection (D)(1) of this section, smoking is permitted in the following
locations within the city, unless otherwise provided by state or federal law:
a. Private residential property, other than those used as a child-care or health-care
facility subject to licensing requirements when employees, children or patients are present.
Nothing in this chapter shall require a person or entity who or which owns or controls a private
residential property, including but not limited to a condominium association or an apartment
owner,to permit smoking and such a person may choose to prohibit smoking throughout the
property he, she, or it owns or controls.
b. In up to twenty percent of guest rooms in any hotel or motel, if the hotel or motel
permanently designates at least eighty percent of its guest rooms as nonsmoking rooms,
appropriately signs nonsmoking rooms and permanently removes ashtrays and matches from
them. Smoking rooms shall be segregated from nonsmoking rooms on separate floors, wings, or
portions of either; smoking and nonsmoking rooms shal) not be interspersed. Nothing in this
chapter shall require a hotel or motel to provide smoking rooms and the owner or operator of a
hotel or motel may choose to prohibit smoking throughout the properry.
c. Designated unenclosed areas in shopping mall common areas ("smokers'
outposts"), provided that (i)there is not more than one square foot of unenclosed area designated
for smoking for every twenty thousand square feet of rentable enclosed or unenclosed space
shopping mall (provided that each shopping mall may have at least one smokers' outpost of forty
or fewer square feet in area); (ii)the area is prominently marked with signs; (iii) it is located the
greatest distance practicable, and at least twenry feet, from any doorway or opening into an
enclosed area or any access way from parking facilities to the retail areas of the shopping mall;
(iv) smoke is not permitted to enter adjacent areas in which smoking is prohibited by this
chapter, other law or by the owner, lessee or licensee of the adjacent property; and (v)the
location(s)of the smokers' outpost(s) is or are approved in writing by the community
development director of the city based on the standards of this subsection and the goals of this
chapter.
d. Smokers' outposts on public property in an unenclosed area designated by the city
manager, or his or her designee, if located within the area subject to Specific Plan l 82 so long
as: (i)the area is prominently marked with signs; (ii) it is located the greatest distance
practicable,and at least twenty feet, from any doorway or opening into an enclosed area; and
(iii) smoke is not permitted to enter adjacent areas in which smoking is prohibited by this
chapter, other law or by the owner, lessee or licensee of the adjacent property.
e. Any outdoor area in which no nonsmoker is present and, due to the time of day or
other factors, it is not reasonable to expect another person to arrive.
3. No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste
in an area in which smohing is prohibited by this chapter or other law, including within any
reasonable distance required by this chapter.
(Ord. 4886 § 2, 2007.)
8.32.030 Prohibitions.
A. No person or business shall offer for sale any tobacco product prior to prominently displaying a sign at
the point of purchase of tobacco products that states: "SELLING TOBACCO PRODUCTS TO PERSONS
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YOUNGER THAN EIGHTEEN YEARS OF AGE 1S ILLEGAL. PHOTO ID IS REQUIRED TO
PURCHASE ANY TOBACCO PRODUCT."The letters of the sign shall be at least one-quarter inch high.
B. No person, business, tobacco retailer, or owner, manager, or operator of any establishment subject to
this chapter shall sell,offer to sell, or permit to be sold any tobacco product to an individual without first
examining identification that establishes the purchaser's age as at least eighteen years unless the seller has
some reasonable basis for determining the buyer's age.
C. No person, business,tobacco retailer, or other establishment shall sell or offer for sale any tobacco
product that is not in the manufacturer's original packaging that contains all required health warnings.
D. It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold,offer for sale,
or display for sale any tobacco product by means of self-service merchandising or by means other than
vendor-assisted sales.
(Ord. 4886 § 2, 2007.)
8.32.035 Tobacco vending machines. �
No cigarette or other tobacco product, cigarette paper or wrapper, may be sold, offered for sale, or distributed
by or from a tobacco vending machine or other appliance, or any other device designed or used for vending
purposes. (Ord. 4886 § 2, 2007.)
8.32.040 Reasonable distance required.
No person shall smoke in an area in which smoking is otherwise permitted by this chapter or other law within
a reasonable distance from any entrance, opening, crack, or vent into an enclosed area in which smoking is
prohibited by this chapter, other law or by the owner, lessee or licensee of that enclosed area. (Ord. 4886 § 2,
2007.)
8.32.046 Allowing, aiding_or abetting illegal smoking. _ _ _
A. No person, employer, business, or nonprofit entity shall knowingly permit smoking in an area under his,
her, or its legal or de facto control in which smoking is prohibited by this chapter or other law.
B. No person, employer, business, or nonprofit entity shall allow the placement or maintenance of a
receptacle for smoking waste in an area under his, her, or its legal or de facto control in which smoking is
prohibited by this chapter or other law.
C. Notwithstanding any other provision of this chapter, any owner, landlord, employer, business, nonprofit
entity, or other person who or which has legal or de facto control over any property may declare any area in
which smoking would otherwise be permitted to be a nonsmoking area and, provided that signs are posted
giving notice of the smoking restriction, smoking in or within a reasonable distance of that area shall
constitute a violation of this chapter.
D. "No Smoking" or"Smoke Free" signs, with letters of not 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 with a
red bar across it) or any alternative signage approved by the community development director of the city shall be
conspicuously posted at each entrance to a public place in which smoking is prohibited by this chapter, by the
person, employer, business, or nonprofit entity who or which has legal or de facto control of such place. The city
manager shall post signs at each entrance to a public place in which smoking is prohibited by this chapter, which
is owned or
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controlled by the city. Signage required by this subsection shall not be subject to Chapter 17.66 of this
code. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the
violation of any other provision of this chapter, except as to an area in which smoking is prohibited only by
subsection C of this section.
(Ord. 4886 § 2, 2007.)
8.32.050 REPEALED.
(Repealed by Ord. 4886: Ord. 4528, 1997; Ord. 4301 § 5, 1991: Ord. 3845 § 1 (part), 1985: Ord 3706 § 1
(part), 1983: Ord. 2890 § 1, 1975: prior code § 18C-5.)
8.32.060 REPEALED.
(Repealed by Ord. 4886: Ord. 4528, 1997; Ord. 4301 § 6, 1991: Ord. 3845 § 1 (part), 1985.)
8.32.070 REPEALED.
(Repealed by Ord. 4886: Ord. 4528, 1997; Ord. 3845 § 1 (part), ]985: Ord. 3706 § 1 (part), 1983: Ord. 3647 §
7, I983: Ord. 2879 § I (part}, 1975: prior code § 18C-6.)
8.32.080 Private enforcement.
__..__ _ . . __. __. _ _ . _ __ _ . _ _
A. The city attorney or city prosecutor may also bring a civil action to enforce this chapter and to obtain
the remedies specified below or otherwise available in equity or at law.
B. Any person acting for the interests of himself, herself, or itself, or of its members, or of the general
public (hereinafter"a private enforcer") may bring a civil action to enforce this chapter with the remedies
specified below, if both of the following requirements are met:
1. The action is commenced more than sixty days after the private enforcer has given written
notice of an alleged violation of this chapter to the city attorney and to the alleged violator.
2. No person acting on behalf of the city or the state has commenced or is prosecuting an action
regarding the violation(s)which was or were the subject ofthe notice on the date the private action is
filed.
C. A private enforcer shall provide a copy of his, her, or its action to the city attorney within seven days of
filing it.
D. Upon settlement or judgment of an action brought pursuant to subsection G of this section, the private
enforcer shall give the city attorney a notice of that settlement or judgment and of the final disposition of
the case. No private enforcer may settle such an action, unless the city attorney or the court determines the
settlement to be reasonable in light of the purposes of this chapter and any settlement in violation of this
requirement may be set aside upon motion to a court of competent jurisdiction by the city attorney or city
prosecutor.
E. Upon proof of a violation of this chapter,the court shall award the following:
1. Damages in the amount of either:
a. Upon proof, actual damages;
b. With insufficient or no proof of damages,two hundred fifty dollars for each
violation of this chapter(hereinafter"statutory damages"). Unless otherwise specified in this
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chapter, each day of a continuing violation shall constitute a separate violation. Notwithstanding
any other provision of this chapter, no private enforcer suing on behalf of the general public
shall recover statutory damages based upon a violation of this chapter if a previous claim
brought on behalf of the general public for statutory damages and based upon the same violation
has been adjudicated, whether or not the private enforcer was a party to that earlier adjudication.
2. Restitution to the appropriate party or parties of the gains obtained by way of violation of this
chapter. •
3. Exemplary damages, where it is proven by clear and convincing evidence that the defendant
is guilty of oppression, fraud, malice, or a conscious disregard for the public health and safety.
4. Attorneys' fees and costs reasonably incurred by a successful party in prosecuting or
defending an action.
Any damages awarded in an action brought by the ciry attorney or city prosecutor shall be
paid into the city's general fund, unless the court determines that they should be paid to a damaged
third party.
F. Upon proof of at least one violation of this chapter, a private enforcer, the city prosecutor, city attorney,
any peace officer or code enforcement official may obtain an injunction against further violations of this
chapter, or as to small claims court actions, a judgment payable on condition that a further violation of this
chapter occur within a time specified by the court.
G. Notwithstanding any legal or equitable bar, a private enforcer may bring an action to enforce this
chapter solely on behalf of the gcneral public. When a private enforcer does so, nothing about such an
action shall act to preclude or bar the private enforcer from bringing a subsequent action on his, her, or its
own behalf based upon the same facts.
H. Nothing in this chapter shall prohibit a private enforcer from bringing a civil action in small claims
court to enforce this chapter, as long as the amount in demand and the relief sought are within the
jurisdiction o�'small claims court.
(Ord. 4886 § 2, 2007.)
8.32.090 Enforcement.
A. Except as allowed by Section 8.32.080, the city manager shall be responsible for compliance with this
chapter when facilities, which are owned, operated or leased by the city of El Cajon, are involved. The city
shall provide business license applicants with a copy of this chapter.
B. Owners, operators, or managers of any place of employment regulated herein shall comply with this
chapter. Such owner,operator, or manager shall post all signage required herein.
C. It shall be the responsibility of employers to disseminate information concerning the provisions of this
chapter to employees.
(Ord. 4886 § 2,2007.)
8.32.100 Violations and penalties
Any person who violates any provisions of this chapter is guilty of a misdemeanor or infraction, and, upon
conviction thereof, shall be punished by a fine as set forth in Section 1.24.010 of this code. No fines or private
damages shall be imposed or allowed for any violations occurring within six months following the effective date
of this chapter. (Ord. 4886 § 2, 2007.)
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8.32.110 Retaliation prohibited.
No person shall intimidate,threaten or effect any retaliation against an individual seeking enforcement of this
chapter. (Ord. 4886 § 2, 2007.)
8.32.115 Other applicable laws. _
This chapter shall not be interpreted or construed to permit tobacco vending machines and distribution of
tobacco product samples where they are otherwise restricted by other applicable law. (Ord. 4886 § 2, 2007.)
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