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HomeMy WebLinkAboutMINUTES - 09241991 - 1.22 1 . 22 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on September 24, 1991 by the following vote: AYES: Supervisors Fanden, Schroder, Torlakson , McPeak NOES: None ABSENT: Supervisor Powers ABSTAIN: None SUBJECT: Adoption of the County' s Model Smoking Ordinance The Board on September 17, 1991 introduced the County' s Model Smoking Ordinance and fixed this day for adoption. The Chair recognized Marvin Ellenberg, Oakland Vending, 7677 Oakport, Oakland, who commented on provisions in the ordinance .regulating the sale of cigarettes in vending machines- to minors. Board members expressed agreement to adopt the Ordinance as was introduced on September 17, but noted that there were several areas that should be subject to further review by staff. Therefore, IT IS BY THE BOARD ORDERED that the Model Smoking Ordinance (No. 91-44) is hereby ADOPTED. IT IS FURTHER ORDERED that the Health Services Director, County Administrator, and County Counsel are REQUESTED to review the issues of employee verification and control of the purchase of cigarettes from vending machines, the free distribution of tobacco products to adults at private events on private property where minors are excluded, and the feasibility of a smoking room in the workplace that has an independent ventillating system. 9 I hereby certify that this Is a true and Correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. cc: Health Services Director ATTESTED: .44=g�, -/, /5�:l County Administrator PHIL BA CHELOA,Clerk of the Board County Counsel of Supervisors and County Adminlstrator By .,— ,Deputv 0 e ORDINANCE NO. 91-44 (Amending the Smoking Ordinance) The Contra Costa County Board of Supervisors ordains as follows: SECTION I: Division 440 (Sections 440-2.002 through 440-2.022 inclusive) of the County Ordinance Code is repealed. SECTION II: Division 440 (Sections 440-2.002 through 440-12.008 inclusive) is added to the County Ordinance code to read: Division 440 TOBACCO PRODUCTS Chapter 440 - 2 FINDINGS AND DEFINITIONS 440-2.002 Findings. (a) The board of supervisors of the County of Contra Costa hereby finds that: (1) The U.S. Environmental Protection Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution; and (2) Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular _ disease, ) and individuals with impaired respiratory function; including asthmatics and those with obstructive airway disease; and (3). Health hazards induced by breathing sidestream or secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and 1 (4) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same. and (5) The smoking of tobacco, or any other weed or plant, is a danger to health; and (6) The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our. community; and (7) A. The free distribution of cigarettes and other tobacco products encourages people, to begin smoking and using tobacco products, and tempts those who had quit smoking to begin .smoking again; and ORDINANCE NO. 91_44 Page 2 (b) Free distribution of cigarettes and other tobacco products .promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets; and also causes pedestrian traffic congestion. 440-2.004 Purpose. The compelling purpose and intent of this division includes, but is not limited to, .generally promoting the health, safety, and welfare of all people in the community against the health -hazards and harmful effects of the use of addictive tobacco products. 440-2.006 Definitions. The following words and phrases, whenever used in this division, shall be construed as hereafter set out, unless it is apparent that they have a different meaning: (1) "Area Open to the Public" shall mean any area available to ,and customarily used by the general public. (2) "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 (Department of Alcoholic Beverage Control Type 61, 42 or 48 licenses) 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 shall also be considered a bar. An area in which foodservice is only incidental shall (1) not exceed 40% of a restaurant's total seating capacity, or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40%. The operator of each restaurant shall designate by which method it determines its bar area. (3) "Distribute" means to give, sell , deliver., dispense, issue, or cause or hire any person to give, sell , deliver, dispense, issue or offer to give, sell , deliver, dispense or issue. (4) "Employee" 'means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit. (5) "Employer" means any person., partnership, corporation, including municipal corporation or public entities, who employs the services of two or more persons or two or more people conduct business within the establishment. (6) "Enclosed" means closed in by a roof and walls with appropriate openings for ingress and egress. (7) "General Public" shall mean shoppers, customers, patrons, patients, students, clients and other similar invitees of a Commercial Enterprise or Non-Profit Entity. (8) "Place of employment" means any enclosed area 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 unless it is- used as a child care or health care facility. (9) "Smoking" means the carrying or holding of a lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking 44 ORDINANCE N0. 91- Page 3 equipment or the lighting or emitting or exhaling the smoke of a pipe, cigar, or cigarette of any kind. (10) "Sports Arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling centers, halls, and other similar places where members of .the public assemble to engage in physical exercise, participate in athletic competition, or witness sports events. (11) "Vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper bill , or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories. (12) "Bowling lane" means the bowler',s approach, thefoul line and the lanes; (13) "Bowlers' settee" means the area immediately behind the bowling lane in which score is kept and seating is provided for bowlers waiting their turn to bowl ; (14) "Visitors' settee" means seating provided immediately behind the bowlers' settee; - (15) "Bowling center concourse" means that area separated from the bowling lane, bowlers.' settee, and visitors' settee by at least one step or a physical barrier. Chapter 440-4 REGULATION OF SMOKING 440-4.002 County-owned facilities. (a)? Smoking is prohibited in all buildings, vehicles, or other enclosed areas occupied by county employees, owned or leased by the county, or otherwise operated by the county. (b) This prohibition is applicable to the grounds of the County's Jails and County Juvenile System facilities to the extent allowed by law. 440-4.004 Prohibition of smoking in enclosed places. Smoking is prohibited in the following places within the unincorporated urea of Contra Costa County: (1) All enclosed areas available to and customarily used by the general public and all businesses patronized by the pubilic, including, but not limited to, retail stores, the common area of hotel and motels, pharmacies, banks, shopping malls, and other offices. (2) All restaurants. The owner, manager or operator of the restaurant shall post signs as prescribed by Section 440-4.010(a) and remove all ashtrays from tables. (3) Waiting rooms, hallways, wards, and semi-private rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices, except that health facilities shall also be subject to the provisions of Section ORDINANCE NO. 91-44 Page 4 440-4.006 regulating smoking in places of employment; (4) Elevators, public restrooms, indoor services lines, buses, taxicabs and other means of public transit under the authority of public entities, and in ticket, boarding, and waiting areas of public transit deport; provided, however, that this prohibition does not prevent the establishment of separate waiting areas for smokers and .non-smokers, provided that at least sixty percent of a given waiting area shall be designated as a non-smoking area. (5) In public area of museums and galleries; (6) Theaters, auditoriums, concert facilities and halls which are used . for motion pictures, stage dramas and musical performances, ballets or other exhibitions, both indoor and outdoor, except when smoking is part of any such -production, provided however, in outdoor facilities, designated smoking areas may be provided which shall be segregated from non-smoking areas. Where seating area is provided in an outdoor facility, no more than 40% of the total seats of the facility may be designated as smoking seats; (7) Retail food marketing establishments, including grocery stores, and supermarkets; (8) Public schools and . other public facilities under the control of another public agency, which are available to. and customarily used by the general public, to the extent that the same are subject to the jurisdiction of the county; (9) Sports arenas, both indoor and outdoor, and convention halls, except in outdoor sports arenas, designated smok.,ing areas may be provided which shall be segregated from non-smoking areas. Where spectator seating is provided at outdoor arenas, no more than 40% of the seats shall be. designated as smoking seats;. (10) Bowling centers, including but not limited to bowling lanes, bowlers' settees, visitors' settees and gamerooms, provided however, that a designated smoking area may be provided on the bowling center concourse. The owner, manager or operator of the bowling center shall post signs as prescribed by Section 440- 4.010(a) and remove all ashtrays from non-smoking areas; (11) Private residences when used as child care or health care facilities. Board and care facilities shall provide smokefree living quarters for non-smoking boarders; (12) Bingo parlors, except a separate enclosed room may be designated as a smoking room. The owner, manager or operator of the bingo parlor shall post signs as prescribed by Section 440-4.010(a) and remove all ashtrays from the non-smoking room. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire .establishment as a nonsmoking establishment. 440-4.006 Regulation of smoking in alaces of employment. (a) Smoking is prohibited in any place of employment, including, but not limited to, open office areas, shared offices and private offices occupied by employees performing clerical , ORDINANCE NO. 91-44 Page 5 technical , administrative or other business or work functions; and, conference and meeting rooms, classrooms, auditoriums, rest rooms, medical facilities, hallways, and elevators. (b) The provisions of this division shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter. 440-4.008 Optional smoking areas. Notwithstanding any other provisions of this division to the contrary, the following areas shall not be subject to the smoking restrictions of this division: (1) A private residence, including one which may serve as a place of employment, except when covered by Section 440-4.004(11); (2) Bars, except as provided otherwise in this division; (3) Licensed' cardrooms; (4) Hotel and motel rooms rented to guests, provided however, that each hotel and motel designates not less than 30% of their guest rooms as non-smoking rooms and removes ashtrays from these rooms; (5) Rooms in restaurants, hotel and motel conference or meeting rooms and public and private assembly rooms while these rooms are being used for private functions; (6) Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia; (7) In places of employment, employers may provide specific smoking areas for employees provided all of the following conditions are met: A. The smoking area shall be provided with a heating, ventilating and air-conditioning (HVAC) system designed such that none of the air from the smoking area will be recirculated into the other areas of the building. B. The smoking area shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors, and all doors leading to the smoking area shall be self-closing. The doors shall be provided with a gasket so installed as to provide a seal where the door meets the stop on both sides and across the top. C. The smoking areas shall maintain a minimum negative pressure of 0.005-inch water column relative to nonsmoking areas. D. The employer shall submit written verification and test results to the Contra Costa health services department or its designees prepared by. a licensed mechanical contractor or engineer that the HVAC system has been designed and tested and meets the requirements set forth in subsections (a) through (c) above. E. If the HVAC system is part of a smoke removal system or pressurization system, any modificationsto these systems to provide smoking areas will require approval from the Fire Protection District in which the room is located. Written verification of this approval shall be provided to the Contra Costa health services department. F. If the specific smoking area is an employee break doom, lunch room or other area which may used by non-smoking employees, ORDINANCE NO. 91-44 Page 6 : then a separate non-smoking break room, lunch room or other area shall be provided of equal or larger size and include at least equal facilities. 440-4.010 Posting requirements'. (a) "Smoking" or "No Smoking" signs, whichever are appropriate, 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) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is controlled by this division, by the owner, operator, manager or •other person having control of such building or other place. (b) Every hotel or motel regulated by this division will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his or her preference-. Chapter 440-6 VENDING MACHINES 440-6.002 Vending Machines. Coin-operated cigarette vending machines may be located only on those premises which have either a type 61 , type 42 or type 48 license from the Department of Alcoholic Beverage Control. Cigarette vending machines must be located at least 25 feet from any entry into the premise. Chapter 440-8 DISTRIBUTION OF FREE SAMPLES AND COUPONS 440-8.002 Distribution of Free Samples and Coupons. (a) No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall or agent or employee thereof , in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute, (1) any cigarette or other tobacco or smoking product, including any smokeless tobacco product, or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building. (b) For purposes of this section,' "public ground" and "public building" include sports arenas as defined in section 440-2.006 (10) and any entertainment facility whether enclosed or not, except a bar, for which a charge is made for admission, whether publicly or privately owned. ORDINANCE NO. 91- 44 Page 7 Chapter 440-10 OUT OF PACKAGE SALES 440-10.002 Out of Package Sales. No person shall sell or offer for sale cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer. Chapter 440-12 ENFORCEMENT/PENALTIES 440-12.002 Enforcement. (a) Administration of this division shall be by the Contra Costa health services department or its designees. (b) Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the Contra Costa health services department or its designees. (c) Any owner, manager, operator or employer of any establishment controlled by this division may inform persons violating this division of the appropriate provisions thereof 440-12.004 Penalties. (a) It is unlawful for any person who owns, managers, operates or other wise controls the use of any premises subject to the restrictions of this section to fail to properly post signs required hereunder. (b) It shall be unlawful for any person to smoke in any area restricted by the provisions of this section. (c) Any person or business who violates subsection (a) o (b) herein; or any other provision of this section, shall be guilty of an infractionpunishable by: (i) A fine, not exceeding one hundred dollars, for the first violation; (2) A fine, not exceeding two hundred dollars, for a second violation of this ordinance within one year; (3) A fine, not exceeding five hundred dollars, for each additional violation of this ordinance within one year. 440-12.006 Nonretaliation. 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 rights afforded by this division. 440-12.008 Other applicable laws. This division shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. 44 ORDINANCE NO. 91- Page'3 SECTION III : SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions, clauses or applications thereof which can be implemented without the invalid provision, clause or application, and to this end the provisions and clauses of this ordinance are declared to be severable. SECTION III : EFFECTIVE DATE. This ordinance becomes effective on November, 21 , 1991 , the day of the Great American Smokeout, and within 15 days of passage shall be published once with the names of the supervisors voting for and against it in the Martinez News Gazette a newspaper published in this county. PASSED ON Set)t . 24, 1991_ by the following vote: AYES: Supervisors Fanden, Schroder, Torlakson, McPeak NOES: None ABSENT: Supervisor Powers ABSTAIN: None ATTEST: By Board Chair [SEAL] (September 11 , 1991) ORDINANCE NO. 91- 44 ORDINANCE NO. 91-44 (Amending the Smoking Ordinance) The Contra Costa County Board of Supervisors ordains as follows: SECTION I: Division 440 (Sections 440-2.002 through 440-2.022 inclusive) of the County Ordinance Code is repealed. SECTION II: Division 440 (Sections 440-2.002 through 440-12.008 inclusive) is added to the County Ordinance code to read: Division 440 TOBACCO PRODUCTS Chapter 440 - 2 FINDINGS AND DEFJNITIONS 440-2.002 Findings. (a) The board of supervisors of the County of Contra Costa hereby finds that: (1) The U.S. Environmental Protection. Agency has determined that tobacco smoke is the major contributor of particulate indoor air pollution; and (2) Reliable studies have shown that breathing sidestream or secondhand smoke is a significant health hazard, in particular for elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function; including asthmatics and those with obstructive airway disease; and (3) Health hazards induced by breathing sidestream or secondhand smoke include heart disease, lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm;. and (4) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; and (5) The smoking of tobacco, or any other weed or plant, is a danger to health; and (6) The health care costs and lost productivity incurred by smoking-related disease and death represent a heavy and avoidable financial drain on our community; and (7) A. The free distribution of cigarettes and other tobacco products encourages people to begin smoking and using tobacco products, and tempts those who had quit smoking to begin smoking again; and ORDINANCE NO. 91_44 1 Page 2 (b) Free distribution of cigarettes and other tobacco products, promotes unsightly litter, thereby increasing the costs to the public in cleaning the streets; and also causes pedestrian traffic congestion. 440=2.004 Purpose. The compelling purpose and intent of this division includes, but is not limited to, generally promoting the health, safety, and welfare of all people in the community against the health hazards and harmful effects of the use of addictive tobacco products. 440-2.006 Definitions. The following words and phrases., whenever used in this division, shall �be construed as hereafter set out, unless it is apparent that they have. a different meaning: (1) "Area Open to the Public" shall mean any area available to and customarily used by the general public. (2) "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 (Department of Alcoholic Beverage Control Type 61 , 42 or 48 licenses) 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 shall also be considered a bar. An area in which food service is only incidental shall (1) not exceed 40% of a restaurant' s total seating capacity, or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 400. The operator of each restaurant shall designate by which.method it determines its bar area. (3) "Distribute" means to give, sell , deliver, dispense, issue, or cause or hire any person to give, sell , deliver, dispense, issue or offer to give, sell , deliver, dispense or issue. (4) "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit. (5) "Employer" means" any person, partnership, - corporation, including municipal corporation or public entities, who employs the services of two ' or more persons or two or more people conduct business within the establishment. (6) "Enclosed" means closed in by a roof and walls with appropriate openings for ingress and egress. (7) "General Public" shall mean shoppers, customers, patrons, patients, students, . clients and other similar. invitees of a Commercial Enterprise or Non-Profit Entity. (8) "Place of employment" means any enclosed area 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 a place of employment-, unless it is used as a child care or health care facility. (9) "Smoking" means the carrying or holding of a lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking 44 ORDINANCE NO. 91- . i A Page 4 440-4.006 regulating smoking in places of employment; (4) Elevators, public restrooms, indoor services lines, buses, taxicabs and other means of public transit under the authority of public entities, and in ticket, boarding, and waiting areas of public transit deport; provided, however, that this prohibition does not prevent the establishment of separate waiting areas for smokers and non-smokers, provided that at least sixty percent of a given waiting area shall be designated as a non-smoking area. (5) In public area of museums and galleries; (6) Theaters, auditoriums, concert facilities and halls which are used for motion pictures, stage dramas and musical performances, ballets or other exhibitions, both indoor and outdoor, except when smoking is part of any such production, provided however, in outdoor facilities, designated smoking areas mly be provided which shall be segregated from non-smoking areas. Where seating area is provided in an outdoor facility, no more than 46% of the total seats of the facility may be designated as smoking seats; (7) Retail food marketing establishments, including grocery stores, and supermarkets; (8) Public schools and other public facilities under the control of another public agency, which are available to and customarily used by the general public, to the extent that the same are subject to the jurisdiction of the county; (9) Sports arenas, both indoor and outdoor, and convention halls, except in outdoor sports arenas, designated smoking areas may be provided which shall be segregated from non-smoking areas. Where spectator seating is provided at outdoor arenas, no more than 40% of the seats shall be designated as smoking seats; (10) Bowling centers, including but not limited to bowling lanes, bowlers' 'settees, visitors' settees and gamerooms, provided however, that a designated smoking area may be provided on the bowling center concourse. The owner, manager or operator of the bowling center shall post signs as prescribed by Section 440- 4.010(a) and remove all ashtrays from non-smoking areas; (11) Private residences when used as child care or health care facilities. Board and care facilities shall provide smokefree living quarters for non-smoking boarders;. (12) Bingo parlors, except a separate enclosed room may be designated as a smoking room. The owner, manager or operator of the bingo parlor shall post signs as prescribed by Section 440-4.010(a) and remove all ashtrays from the non-smoking room. Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. 440-4.006 Regulation of smoking in places of emplovment. (a) Smoking is prohibited in any place of employment, including, but not limited to, open office areas, shared offices and private offices occupied by employees performing clerical , ORDINANCE NO. 91:44 Page 5 . technical , administrative or other business or work functions; .and, conference and meeting rooms, -classrooms, auditoriums, 'rest rooms, medical facilities, hallways, and elevators. (b) The provisions of this division shall be communicated to all employees within three . weeks of its adoption, and at least annually thereafter. 440-4.008 Optional smoking areas. Notwithstanding any other provisions of this division to the 'contrary, the following areas shall not be subject to the smoking restrictions of th"is. division.: (1) A private residence, including one which may serve as a place of employment, except when covered by Section 440-4.004(11) ; (2) Bars, except as ,provided otherwise in this division; , (3) Licensed cardrooms; (4) Hotel- and motel "rooms rented to guests, provided however, that each hotel and motel designates not less than 30% of their guest rooms as non-smoking rooms and -removes ashtrays from "these rooms; (5) Rooms in restaurants, hotel and motel conference or ; meeting rooms and public and private assembly rooms while these rooms are being used for private functions; (6) Retail stores that, deal exclusively in the sale of tobacco - and smoking paraphernalia; (7) In places of employment, employers may provide specific smoking areas for employees provided all of .the following conditions are met: A. The smoking area shall be provided with a heating, ventilating and air-conditioning (HVAC) system designed such that none of the air from the smoking area will be recirculated into the other areas of the building. B. .The smoking area .shall be completely separated from the remainder of the building by solid partitions or glazing without openings other than doors, and all -doors leading tothe.smoking area shall be self-closing.. . The doors shall be provided with 'a gasket so installed as to provide a seal where the door meets the stop on both sides and across the top. C. The smoking areas shall maintain a' minimum negative pressure of 0.005-inch -water column relative to nonsmoking areas. D. The employer shall submit written verification and test results to. the Contra Costa health services department or its designees prepared by a, licensed mechanical contractor" or engineer that the HVAC system has, been designed and tested and meets the requirements set forth in'subsections (a) through (c) above. E. " If, the HVAC system is part of a smoke removal. system or pressurization system, any modifications to these systems to provide smoking areas will require approval from the Fire Protection District in which the roomA s located. Written verification of this approval shall be provided to the Contra' Costa health services -department. F* If the specific smoking area is an employee break room, lunch room or other area.which may be used by non-smoking employees, ORDINANCE NO. 91- 44 Page 6 then a separate non-smoking break room, lunch room or other area shall be provided of equal or larger size and include at least equal facilities. 440-4.010 Posting requirements. (a) "Smoking" or "No Smoking" signs, whichever are appropriate, 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) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is controlled by this division, by the owner, operator, manager or other person having control of such building or other place. (b) Every hotel or motel regulated by this division will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his or her preference. Chapter 440-6 VENDING MACHINES 440-6.002 Vending Machines. Coin-operated cigarette vending machines may be located only on those premises which have either a type 61 , type 42 or type 48 license from the Department of Alcoholic Beverage Control . Cigarette vending machines must be located at least 25 feet from any entry into the premise. Chapter 440-8 DISTRIBUTION OF FREE SAMPLES AND COUPONS 440-8.002 Distribution of Free Samples and Coupons. (a) No person, firm, association or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall or agent or employee thereof, in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute, (1) any cigarette or other tobacco or smoking product, including any smokeless tobacco product, or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk or in any public park or playground or on any other public ground or in any public building. (b) For purposes of this section, "public ground" and "public building" include sports arenas as defined in section 440-2.006 (10) and any entertainment facility whether enclosed or not, except a bar, for which a charge is made .for admission, whether publicly or privately owned. ORDINANCE NO. 91- 44 K Page 7 Chapter 440-10 OUT OF PACKAGE SALES 440-10.002 Out of Package Sales. No person shall sell or offer for sale cigarettes or smokeless tobacco not in the original packaging provided by the manufacturer. Chapter 440-12 ENFORCEMENT/PENALTIES 440-12.002 Enforcement. (a) Administration of this division shall be by the Contra Costa health services department or its designees. (b) Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the Contra Costa health services department or its designees. (c) Any owner, manager, operator or employer of any establishment controlled by this division may inform persons violating this division of the appropriate provisions thereof. 440-12.004 Penalties. (a) It is unlawful for any person who owns, managers, operates or other wise controls the use of any premises subject to the restrictions of, this section to fail to properly post signs required hereunder. (b) It shall be unlawful for any person to smoke in any area restricted by the provisions of this section. (c) Any person or business who violates subsection (a) or (b) herein, or any other provision of this section, shall be guilty of an infraction, punishable by: (1) A fine, not exceeding one hundred dollars, for the first violation; (2) A fine, not exceeding two hundred dollars, for a second violation of this ordinance within one year; (3) A fine, not exceeding five hundred dollars, for each additional violation of this ordinance within one year. 440-12.006 Nonretaliation. 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 rights afforded by this division. ` 440-12.008 Other applicable laws. This division shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. 44 ORDINANCE NO. 91,- Page 8 SECTION III: SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstIitutional or to be otherwise invalid' by any court of competent jurisdiction, such invalidity shall not affect other provisions, clauses or applications thereof , which can be implemented without the invalid provision, clause or application, and to this end the provisions and clauses of this ordinance are declared to be severable. SECTION III: EFFECTIVE DATE. This ordinance becomes effective on November, 21 , 1991 , the day of the Great American Smokeout, and within 15 days of passage shall be published once with the names of the supervisors voting for and against it in the Martifnez News Gazette- a newspaper published in this county. PASSED ON Suit . 24 .1991 by the following vote: AYES: Supervisors. Fanden, Schroder Torlakson, McPeak NOES: None ABSENT: Supervisor Powers ABSTAIN: None ATTEST: By '�? 1 ���C2.�+(�G ' 'Board Chair [SEAL] (September 11 , 1991) ORDINANCE NO. 91- 44