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HomeMy WebLinkAboutORD No. 1154A ORDINANCE NO. 1154A AN ORDINANCE OF THE CITY OF PALM DESERT, CALIFORNIA AMENDING AND RESTATING CHAPTER 8.36 OF THE CODE OF PALM DESERT, CALIFORNIA RELATING TO SMOKING. The City Council of the City of Palm Desert, California does hereby ordain as follows: 1. That Chapter 8.36 of the Code of the City of Palm Desert, California is hereby amended and restated as follows: "CHAPTER 8.36 REGULATION AND PROHIBITION OF SMOKING" 8.36.010 Purnose of chanter. Smoking of tobacco, or any other weed or plant, is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and health hazard to those who are present in confined places. In addition, the U.S. Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke and neither separating smokers from nonsmokers nor installing ventilation systems effectively eliminates secondhand smoke. Therefore, it is the City's intent to provide for the public health, safety and welfare by prohibiting the smoking of tobacco, or any other weed or plant, in public places and places of employment, except in designated smoking areas. 8.36.020 Definitions. A. "Common area" means any indoor or outdoor common area of a shopping mall accessible to and usable by the occupants or customers of more than one (1) retail establishment, including but not limited to halls, lobbies, outdoor eating areas, playgrounds and parking lots. B. "Place of employment" means any areas under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, conference rooms and employee cafeterias. A private residence is not a place of employment, except for child care facilities in private homes. R MB US\DER W IM297983.1 1 ORDINANCE N0. 1154A C. "Public place" means: l. Any area to which the public is invited or in which the public is permitted, including, but not limited to, retail stores, retail service establishments, retail food production and marketing establishments, restaurants, theaters, waiting rooms, reception areas, educational facilities, health facilities and public transportation facilities. A private residence or private country club is not a public place. 2. Areas measured a distance of fifty (50) feet from the entrances and exits to City-owned public places. 3. Outdoor locations owned by the City which have a designated "no smoking" sign posted at their normal entrances and exits to such outdoor locations, including, but not limited to: a. City-owned parks, playground, restrooms, baseball and soccer fields, excepting therefrom the golf course area of Desert Willow. b. Outdoor public events including, but not limited to, sports events, entertainment, speaking performances, ceremonies and fairs. c. City property, except where specific signs are posted permitting such smoking. 4. Such designated no smoking areas may contain specific limited areas posted permitting smoking. D. "Reasonable distance" means a distance of fifty (50) 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. E. "Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in smoking. F. "Shopping mall" means any parcel of land zoned and used for retail sales by more than one (1) retailer that is jointly operated or which includes shared parking facilities. G. "Smoke", or "smoking" as defined in this chapter means and includes the canying of a lighted pipe, or the lighting of a pipe, cigar or cigarette of any kind. R MB US\DGR W(N�297983.1 2 ORDINANCE NO. 1154A 8.36.030 Prohibition. A. Except as otherwise provided by this chapter or by state or federal law, smoking is prohibited everywhere in the City, including but not limited to: 1. Public places; 2. Places of employment; 3. Hotels, businesses, restaurants and bars, and other public accommodations, including the public right of way. In addition, smoking is prohibited within a reasonable distance of a dining area, except while actively passing on the way to another destination. B. No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area in which smoking is prohibited by this chapter or other law, including within any reasonable distance required by this chapter. 8.36.035 Secondhand smoke—Declaration of nuisance. Secondhand smoke constitutes a nuisance. Notwithstanding any other provisions of this chapter, a private citizen may bring a legal action to abate secondhand smoke as a nuisance and a trespass. 8.36.040 Desi�nation of smoking areas. A. Places Where Smoking Permitted. Notwithstanding section 8.36.030 of this chapter, smoking is permitted in the following locations within the City, unless otherwise provided by state or federal law: 1. Private residential property, other than (a) those private residential properiies 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 prohibit smoking throughout the property he, she or it owns or controls. 2. Designated areas in shopping mall common areas, provided that (i) there is not more than one square foot of area designated for smoking for every twenty thousand (20,000) square feet of rentable space of the shopping mall (provided that each shopping mall may have at least one (1) designated smoking area of forty (40) 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 a reasonable distance, from any doorway or opening into an 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 designated smoking area(s) is or are approved in writing by the City manager of the City based on the standards of this subsection and the goals of this chapter. R M B US�DER W IN�297983.1 3 � ORDINANCE N0. 1154A 3. 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. B. Where smoking areas are designated, existing physical barriers and ventilation systems shall be used to eliminate the toxic effect of smoke in adjacent nonsmoking areas, but employers are not required to incur any expense to make structural or physical modifications in providing these areas. There shall be no designated smoking areas in areas that have a common or shared air space with other areas in which smoking is prohibited such as, without limitation, air conditioning systems, heating systems, ventilation systems, entries, doorways, hallways, and stairways or within a reasonable distance of commercial building entrys. In all disputes in the work place, the rights of the nonsmoker shall be given priority over the rights of the smoker. C. 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 area in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of that area. 8.36.050 Optional prohibition. All managers and owners of any establishment exempted from the provisions of this chapter pursuant to Section 8.36.070, serving or doing business with the public may, at their discretion, post "No Smoking" signs within various areas of their businesses and utilize the full right of the provisions of this chapter. No public place other than those enumerated in Section 8.36.070 shall be designated as a smoking area in its entirety. 8.36.060 Postin� of si�ns. Signs which designate smoking or no-smoking areas established by this chapter shall be clearly, sufficiently and conspicuously posted in every room, building or other place so covered by this chapter. "No Smoking" signs shall be specifically placed in retail food productions and marketing establishments, including grocery stores and supermarkets open to t}�e public, so they are clearly visible to persons upon entering the store, clearly visible to persons in checkout lines and clearly visible to persons at meat and produce counters. The manner of such posting, including the wording, size, color, design and place of posting, whether on the walls, doors, tables, counters, stands or elsewhere, shall be at the discretion of the owner, operator, manager or other person having control of such room, building or other place, so long as clarity, sufficiency and conspicuousness are apparent in communicating the intent of this chapter. (Ord. 462 § 1 (part), 1986) 8.36.070 Excentions. A. Private offices, including those in the work place, hotels and motel meeting and assembly rooms rented to guests, areas and rooms while in use for private social functions, private hospital rooms, psychiatric facilities, jails, bar areas and stores that deal exclusively in tobacco products and accessories. B. Any owners or other person having control of a business or other establishment subject to this chapter may apply to the City for an exemption or modification of the provisions of this chapter due to unique or unusual circumstances or conditions R MB US\UER W IT�297983.1 4 ORDINANCE N0. 1154A 8.36.080 Nonretaliation. No person or employer shall discharge, refuse to hire or in any manner retaliate against an employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. 8.36.090 Enforcement. A. The owner, operator or manager of any facility, business or agency within the purview of this chapter shall comply herewith. Such owner, operator or manager shall post, or cause to be posted, all "No Smoking" signs required by this chapter. Such owner, operator or manager shall not allow service to any person who violates this chapter by smoking in a posted "No Smoking" area. B. It shall be the responsibility of employers to disseminate information concerning the provisions of this chapter to employees. C. The City's zoning and license officers, police and fire personnel are authorized to issue citations for violation of the provisions of this chapter. 8.36.100 Violation—Penaltv. Any person who violates any provision of this chapter by: (1) smoking in a posted "No Smoking" area; (2) failing to post or cause to be posted a "No Smoking" sign required by this chapter; or (3) violating any other provision of this chapter, is deemed guilty of an infraction in accordance with chapter 1.12 of this code. 8.36.110 Severability. The City council declares that, should any section, paragraph, sentence or word of this chapter of the code, hereby adopted, be declared, for any reason, to be invalid, it is the R MB US\DER W IT�(�297983.1 5 � ORDINANCE N0. 1154A intent of the council that it would have passed all other portions of this chapter independent of the eliminations herefrom of any such portion as may be declared invalid. PASSED, APPROVED AND ADOPTED by the Palm Desert City Council this day of , 2008, by the following vote, to wit: AYES: NOES: � ABSENT: ABSTAIN: JEAN BENSON, Mayor ATTEST: RACHELLE D. KLASSEN, City Clerk City of Palm Desert, California R M B U S\D E R W IN�297983.1 6