HomeMy WebLinkAboutMINUTES - 06251991 - 2.3 2 . 3
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on June 25, 1991 by the following vote:
AYES:
NOES: (See below for vote)
ABSENT:
ABSTAIN:
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SUBJECT: Proposed Smoking Ordinance
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The Board on June 18 , 1991, closed the public hearing on the
proposed smoking ordinance with written testimony accepted until 5
p.m. Friday, June 21, 1991, and fixed June 25, 1991 for decision on
the ordinance. The Board requested clarification from Health
Services staff on issuespertinent to smoking in open bars and
restaurants.
The Chair convened the discussion on the proposed smoking
ordinance noting that no additional testimony will be taken at this
time since the hearing was closed and was so referenced on the Board
Agenda.
In his June 25, 1991 . report to the Board Mark Finucane, Health
Services Director, presented the amendments recommended by his
Department to the proposed county smoking ordinance. A copy of that
report is attached and included as a part of this document. Mr.
Finucane commented on the differences in the ambient air in a bowling
center and in a bar and on guidelines being proposed by the Health
Services Department for these establishments taking these differences
into consideration. He requested the Board to grant his Department
permission to conduct three public hearings to insure that people
have an opportunity to comment on. the ordinance.
Supervisor McPeak reviewed the process that was noted at the
June 18 , 1991 hearing relative to deferring decision to this day on
the proposed ordinance, adopting the ordinance in. concept, and
carrying forward the work of the City/County Relations Committee with
the assistance of the Smoking Education Coalition in holding the
public hearings as proposed by the Health Services Director, and
fixing a date in October for the final adoption of the ordinance with
the effective date of the Ordinance to coincide with the date of the
Great American Smoke-Out: She noted that this timeframe would
coincide with the first phase of the City of Walnut Creek' s Ordinance
as well as highlight the collective action of the County, the cities
in the County, and the coalition of health care organizations working
cooperatively together to ratify the proposed ordinance.
Supervisor Schroder expressed reservations with adopting the
ordinance in concept prior to securing the endorsement of all
jurisdictions. He expressed a preference for securing the input and
reaction of the cities to the recommendations being presented this
day, and commented on the desirability of making the ordinance as
uniform as possible throughout the County. He proposed that the
Board accept the ordinance and set October for adoption of an
ordinance after negotiations with the cities.
Supervisor Torlakson spoke on the need to take some action in
order to provide the basis for the Health Services Department to
conduct workshops in the community that will give the public a chance
to focus on the preliminary consensus reached by the Board of
Supervisors. He advised; of his interest of a further study process
on the issue of the open; bar in relationship to restaurants, bars
that convert from restaurant/bar to bar/nightclub where entertainment
for adults only occurs after certain hours and children would not be
exposed to smoke. He commented on minor variations to the proposed
ordinance under consideration relative to the sale of cigarettes in
vending machines, the free distribution of cigarettes, and the out of
package sale of cigarettes. He advised that he was not prepared to
make a decision on banning smoking in bars or in outdoor arenas such
as amphitheaters at thisltime.
Supervisor Fanden concurred with the comments of Supervisors
Schroder and Torlakson. IShe referred to correspondence she received
from the City of Martinez and the Boys' Club advising of hardships
that might be experienced at certain activities such as bingo games
because of the smoking ban. She also commented on the potential
economic impact of the smoking ordinance on hotels catering to groups
and conventions where many of the participants smoke. Supervisor
Fanden inquired if the issue of hardship had been addressed, defined,
and criteria established ;to identify a hardship situation as a result
of the ordinance.
In referring to the comments of her colleagues, Supervisor
McPeak proposed that the Board approve in concept the proposed
Smoking Ordinance as opposed to adopt in concept so as to convey the
position of the Board reflecting approval of those areas agreed upon
with direction to staff to work on the others. She then moved that
the Board approve in concept the Ordinance presented and the
amendments that have been submitted this day by the Health Services
Director, and that staff continue to work with other jurisdictions to
work out a uniform approach to allow the Board to adopt the Ordinance
in October so that it can become effective in November during the
Great American Smoke-Out !Week. She advised that this action does not
designate non-smoking areas in outdoor sporting arenas and
amphitheaters but that this matter needs further discussion with the
cities. Supervisor McPeak advised that she believes the issues on
smoking in bars, bingo parlors, and the activities of non-profit
organizations is being addressed. She noted that the Board has
approved the Health Department' s continuing work with bowling centers
to reach agreement on application of the provisions of the ordinance.
Supervisor Torlakson seconded the motion. However, he advised
that he had reservations with a provision of the ordinance that would
not allow smoking in a shared restaurant bar area. He requested this
issue to be submitted for further study.
Supervisor Schroder advised that he was not satisfied with the
text of the motion to approve (or adopt) in concept but would find it
more preferable to "accept" the ordinance which would reflect the
Board' s intent to adopt amendments to the smoking ordinance in
October after consultation with the City/County Relations Committee.
Therefore, he moved to amend the motion to change the word from
approve to accept.
The amendment to the motion was seconded by Supervisor Fanden.
The vote on the motion was as follows:
AYES: Supervisors Fanden, Schroder
NOES: Supervisors McPeak, Torlakson, Powers
Following brief discussion, the Chair called for the vote on the
original motion. The vote was as follows:
AYES: Supervisors Fanden, McPeak, Torlakson, Powers
NOES: None
ABSENT: None
ABSTAIN: Supervisor Schroder
1 hereby certify that this is a true and corred copy of
cc• Health Services Director an action taken and entered on the minutes of the
County Counsel. Board of Supervisors on
Z dare ehOwn.
County Administrator ATTESTED:
PHIL I ATCHELOR,Clerk of the Board
of Supervisors and County Administrator
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By ,CepUW
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Contra
The Board of Supervisors Costa Health Services Department
Tam Powers,1st District County
Nancy C.Fanden,2nd District J OFFICE OF THE DIRECTOR
Robert 1.Schroder,3rd District :e
Sunne Wright McPeak,4th District
Tom Torlakson,5th District
RECEIVED arR`-inucane,Director
f Ad-,inistrative Offices
+ � ..
County Administrator ; 20Allen Street
�_ ' JUN 2 51991 1 Marti,ez,California 94553
Phil Batchelor 'r (415)646-4416
County Administrator ' .'ui -
'C LERK BOARD OF SUPERVISORS
CONTRA COSTA Co.
DATE: June 25, 11991
TO: Board of Supervisors
FROM: Mark Finudane, Health Services Director
RE: Recommendations for amendments to June 12 draft of
smoking ordinance
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The following are the amendments recommended by the Health Services
Department to the current county smoking ordinance:
• Ban smoking in ;workplaces with two or more employees;
• Designate non-smoking areas of at least 60% in outdoor
sporting arenas and amphitheaters;
• Ban smoking in all restaurants . Smoking is permitted in bars
that are separated from the dining area of a restaurant by
four walls and a door. Restaurants with bars sharing
enclosed space with the dining area may permit smoking
provided the entire establishment is declared a bar and
prohibit minors from entering. The dining area of the
establishment must be 100% non-smoking;
• Ban the sale of: tobacco products in vending machines;
• Ban the distribution of free product samples , and coupons for
free products in public places;
• Ban the out of package sale of cigarettes;
• Bingo parlors can allow smoking if they provide a separate
room to be used exclusively by smokers; and,
• Allow for a variance due to hardship, as determined by the
Health Services! Department.
The Health Services Department recommends deferring a decision
about regulation of smoking in bowling centers until staff have had
an opportunity to meet with the management and tour the eight
bowling centers located in the County. Reasonable accommodations
for bowling centersican be made in a variety of ways . We do not
recommend any standards for ventilation systems be included in the
ordinance until the EPA or another federal agency promulgate
standards on a safe !level of exposure to second-hand smoke.
The following amendments to the draft ordinance provided by County
Counsel on June 121 1991 need to be made to accomplish the
recommendations outlined above.
I . PURPOSE
a. Prevent youth use; limit youth access: Delete 440-2 . 004 ( 2)
and (3 ) .
II . DEFINITIONS
a. Employers, 440-2 .006 (5) : Amend the definition to read
" . . .who employs the services of more than two persons or two
or more people conduct business within the establishment. "
III . PROHIBITION OF SMOKING IN ENCLOSED PLACES
a. Restaurants, 440-4 . 004 (2) : Ban smoking in all restaurants .
Smoking is permitted in bars that are separated from the
dining area of a restaurant by four walls and a door.
Restaurants withlbars sharing enclosed space with the dining
area may permit smoking provided the entire establishment is
declared a bar and prohibit minors from entering. The dining
area of the establishment must be 100% non-smoking.
b. Theatres, auditoriums, concert facilities, and halls, 440-
4 . 004 (7 ) : Amend the provision to indicate that smoking is
not allowed in indoor facilities. In outdoor facilities allow
the establishmen't of no more than 40% of seating in the
facility as a smoking area.
IV. OPTIONAL -SMOKING: AREAS
a. Bars, 440-4 . 008 ( 2) : Amend the draft language to bars, except
where covered by: other provisions of this ordinance.
a. Hotel/Motel guest rooms, 440-4 . 008 (4 ) : Recommend that
hotel/motels desi
Ignate at least 30% of their guest rooms as
non-smoking rooms;
b. Private Functions: Reinstate 440-4 . 008 (5) of ordinance 87-
1
13: "Restaurants, hotel and motel conference or meeting rooms
and public andp�rivate assembly rooms while these places are
being used for private functions . "
C. Bingo Parlors: Bingo parlors have the option to allow smoking
if they designate a separate room for non-smokers .
d. Private enclosed place, 440-4 . 008 (5) : Delete this provision.
e. Contractors with the State Department of Rehabilitation, 440-
4 .008 ( 6 ) : Delete this provision.
f . Waiver to host competitive events, 440-4 . 008 (7 ) : Delete this
provision.
V. VENDING MACHINES.
a. Vending machine s in bars, 440-6 .004: Delete this provision.
VI . OUT OF PACKAGEDISTRIBUTION
a. Chapter 440-8: Rename the Chapter "Distribution of Free
Samples and Coupons . "
b. Add a provision to Chapter 440-8 regarding out of package
sales. Prohibit the sale of individual cigarettes and
smokeless tobacco out of packaging provided by the
manufacturer.
VII . REVIEW PROCESS
a. Add a provision; to allow for variances to the ordinance based
on hardship, to 'Ibe determined by the Health Services Director.
VIII . EFFECTIVE DATE
a. Add a provisio.n that all sections of the ordinance are
effective on November 21, 1991, the day of the Great American
Smokeout.
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OFFICE OF THE COUNTY COUNSEL
CONTRA COSTA COUNTY
Martinez,California
Date: June 12, 1991
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Edward Lane Jr. , Deputy
tie: Proposed Amendments to Smoking Ordinance
Attached is a revised draft smoking ordinance which has been amended to
address the concerns expressed by Board members when the draft were provided to
the Board on May 21, 1991: The shaded and strikeouts show changes from. the draft
submitted May 21, 1991 , a; copy of which is also attached. The amendments are as
follows:
1. Section 440-2.002. "Purpose and" deleted from caption because purpose
is now covered in section 440-2.004.
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2. Section 440-2.006(2). The deleted language removes cardrooms from the
definition of bar. Theyare treated separately in section 440-4.008.
3. Section 440-2.006(8). "The dining area of a restaurant is not a place
of employment. " has been Aeleted. In light of the more stringent prohibitions
of the amendments, this language is no longer necessary.
4. Section 440-4.004(1). The proposed language addresses concerns
expressed about a conflict in permitting smoking in hotel and motel rooms, but
not in the common areas. ;
5. Section 440-4.004(5). The change decreases the allowable percentage
of a waiting area for smokers from sixty to forty percent.
6. Section 440-4.004(7). The change adds concert facilities and makes
clear that the prohibition applies to both indoor and outdoor facilities.
7. Section 440-4.004(8). The deletion removes language inconsistent with
the overall amendments.
8. Section 440-41.004(10). The change makes it clear that smoking is
prohibited in both indoor and outdoor sports arenas but allows up to 40% of the
total seating to be devoted to smokers at outdoor arenas.
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Board of Supervisors -2- June 12, 1991
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9. Section 440-4.008(3). The proposed addition of this section permits
smoking in cardrooms.
10. Section 440-4:008(6). This subsection permits the County Health
Officer to waive the requirements of the ordinance for persons covered by
contracts with the Department of Rehabilitation (e.g. the blind vendor
contractors operating snack bars in County facilities) upon a finding that such
a waiver will not violate the spirit of the ordinance.
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11 Section 440-4.008(7). This amendmentaddresses the concern that
certain national competitions may be excluded from bowling alleys under the
ordinance, and permits limited waiver of the provisions by the County Health
Officer.
13. Section 440-6.004. Based on the Board's comments on May 21 , 1991 ,
this section would permit tobacco vending machines in bars so long as the vending
machines are not within twenty feet of the entrance.
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Some willingness expressed by the Board on May 21, 1991, to permit smoking
in separately ventilated rooms in any facility. We have not provided for such
smoking rooms. If the Board is inclined to do so, it may want to consider adding
the following language asjsubsection (8) to section 440-4.008:
"Notwithstanding any other provision of this division, the
operator of any facility listed in section 440-4.004 may provide a
separate enclosedroom for the use of smokers, which may not to
exceed 40% of the total area of the facility. Such room shall be
ventilated so that ismoke from the room shall not enter the areas
designated for non-smokers. "
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: Finally, we note that the amortization period for vending machines, upon
application of the owner;, is retained, and that we have not addressed the
question of advertising of tobacco products on billboards. As indicated before,
this issue is complex, particularly where the issue is regulation of the content
of a type of commercial speech as opposed to a total ban. on that particular type
of speech (i.e. billboards) , and we recommend that it be deferred to a later
date.
F.VLf
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REVISED DRAFT
ORDINANCE NO. 91
(Repealing and Reenacting the Smo ing Ordinance)
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The Contra Costa County Board of Supervisors ordains as follows (omitting the
parenthetical footnotes from the official text of the enacted or amended
provisions of the County Ordinance Code):
SECTION I: Division 4401 (Sections 440-2.002 through 440-2.022 inclusive) of the
County Ordinance Code i;s repealed.
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SECTION II: Division 440 (Sections 440-2.002 through 440-10.008 inclusive) is
added to the County Ordinance Code to read:
D
Division 440
TOBACCO PRODUCTS
Chapter 440-2
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—FINDINGS AND DEFINITIONS
440-2.002 Wiese-a 44-Findings. (a) The board of supervisors
of the county oflContra 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 smokelis a significant health hazard, in particular for
elderly . people,1 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.
(6) Accordingly, the health, safety and general welfare of the
residents of persons employed in, and persons who frequent this
county would be benefitted by the regulation of smoking in enclosed
places, including places of employment.
ORDINANCE NO. 91-
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Page 2
(7) The health care costs and lost productivity incurred by
smoking-related diisease and death represent a heavy and avoidable
financial drain on our community.
(8) A. The free distribution of cigarettes and other tobacco
products encourages people to begin smoking and using tobacco
products and thereby become addicted to the habit, discourages
people from quitting smoking, and tempts those who had quit smoking
to begin smoking again. Encouraging smoking and discouraging those
who are currently, smoking from overcoming the habit endangers the
public health by leading more people into habits that cause illness
and death.
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. (Ord's. 91- § 2, 87-13, § 2, 85-57 §1. )
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440-2.004 Purpose. The compelling purpose and intent of this
division includes';:
(1) To generally promote the health and welfare of all people
in the communityjagainst the health hazards and harmful effects of
using addictive tobacco products
(2) To significantly reduce the ability of young people from
illegally obtaining tobacco products by banning cigarette vending
machines and prohibiting the free distribution of tobacco products
in public places; and
(3) To prevent young people from using nicotine until they are
mature and capable of making an informed and rational decision.
440-2.006 Definitions. The following words and phrases,
whenever used inthis 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. , and 4Ael• des
sardFeem Tamensed by theShepiff�
(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 anyemployer
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 more: than three persons.
(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.
ORDINANCE NO. 91-
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Page 3
(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. The diniRg area
(9) "Smoking" means the carrying or holding of a lighted pipe,
cigar, or cigarette of any kind, or any other lighted smoking
equipment or the; lighting or emitting or exhaling the smoke of a
pipe, cigar, or cigarette of any kind.
(10) "Sport;s Arena" means sports pavilions, gymnasiums, health
spas, boxing arenas, swimming pools, roller and ice rinks, bowling
alleys, halls, an'd 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. (Ords. 91-,, § 2, 87-13, 85-57
§2• )
440-2.008 Regulations. The County Health Officer is
authorized to promulgate regulations implementing this division.
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. '(Ords. 91- § 2, 87-13, 85-57 §3. )
440-4.004 iProhibition of smoking in enclosed places. Smoking
is prohibited in :the following places within the unincorporated area
of Contra Costa County and to the extent allowed by law in county-
owned facilities::
(1) All enclosed areas available to and customarily used by
the general public and all businesses patronized by the public,
including, but not limited to, retail stores, � aGs
hotel and motels, pharmacies, banks, attorneys'""offices, shopping
malls, and other offices;
(2) Within; all restaurants. The owner, manager or operator of
a restaurant shall designate all available customer seating as non-
smoking. The owner, manager or operator of the restaurant shall
post signs as prescribed by Section 440-2.014 (a) and remove all
ORDINANCE NO. 91-
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ashtrays from tables. Where a bar shares the same enclosed area
with a restaurant; the bar also shall be designated as non-smoking.
(4) 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 facilitiesishall also be subject to the provisions of Section
440-2.010 regulating smoking in places of employment;
(5) 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 (a) the establishment of separate waiting areas for
(b)1 +L. + L,7. L....Y...+ of
smokers and nonsmokers, di -t
least per oi"' a g i ven waiting area 3 €> 1ze
;' ? $ `<as a"nonsmoking area.
(6) in public area of museums and alleries....;;
(7) Theaters, auditoriums, and halls which
are used for motion pictures,, stage:;dramas ano musical performances,
ballets or other 'exhibitions' '
>:; ,:::;.d.::.;.:.:;> .< >::. ;::::>. ::; ' exce t when
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smoking is part o;f any such production;
(8) Retail ;food marketing establishments, including grocery
stores,and supermarkets,a*Sept-these--areae of s eh establishments
set aside the;-se�=vieg of feed-a dr-44,rmestr-eems and-94TEe5,
;;Ad areas--11_ _ef eet--epen to the pewl4e, whieh may be other-wise
regulated by other seeti eAs-ef th 4 s-d4i-5-i9;
(9) 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;
(10) Sports arenas; ryVid! WNr' td.;.; #a:L�do ^�<:and convention
Y r.: ..
halls, except in 4lE � 3 '< rS 'es,. designated smoking areas Maas
. pro. .14..04
which; shal"l..be segre:gated::from non-smoking areas. Where
spectator seating is provided �3{ tppj ` ?:e[ no more than '4p
of the seats shall be designated *ds "smok ng' seats.
(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.
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. (Ords. 91- , § 2, 87-
13, 85-57 §4. )
440-4.006 :Regulation of smoking in places of employment.
Ta_ Smoking is prohibited in any place of employment,
including, but not limited to, open office areas, shared office and
private offices; occupied by employees performing clerical ,
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
ORDINANCE NO. 91-
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all employees within three weeks of its adoption, and at least
annually thereafter. (Ords. 91-_, § 2, 87-13, 85-57 §5.)
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 § 440-4.008(11) ;
(2) Bars, except where a bar shares the same enclosed area
with a restaurant.,.' the bar also shal 1 be designated as non-smoking. ;
( ) 'Cardroams :. cer�$ed by l:he<. herji'f + roner.
(4) Hotel and motel rooms rented to guests, provided however,
that each hotel and motel shall designate rooms as non-smoking
rooms, and smoking shall be prohibited therein;
(4) Retail stores that deal exclusively in the sale of tobacco
and smoking paraphernalia;
(5) A private enclosed place used exclusively by smokers, even
though such a place may be visited by nonsmokers, provided however,
that the place shall not be one accessible to the general public and
shall not be a place in which employees may be required to enter,
and excepting places in which smoking is prohibited by the f ire
department :or .by....any:other .,l:aw� :ordi:nance, or:;regulat:ion..
4:�} ::: o f #ae�l i ::.::. a ri >: t a' t Q .�: r°.:.day
autltariz :smaicig inac�] t�es gyrated by cax�tratt�rM.5 purssat to
cotr� efi btw the:< :: tt prtment a:<
e mo vi <�.ta'Jo. r1:f.f`nd :r� >.:tlt t:::>su lt<a U. ht r :gat:t:o ri:::w: : :1<:not Y s l a e
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not �t�t toy ng;:.a l�. y ,..:tie Cru"ty
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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 alpictorial 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. (Ords. 91-_, § 2, 87-13, 85-57 §7.)
ORDINANCE NO. 91-
Page 6
Chapter 440-6
VENDING MACHINES
440-6.002 Vending Machines. (a) No person, firm, association
or corporation shall locate, install , keep, maintain or use, or
permit the location, installation, keeping, maintenance or use on
his, her or its premises of any cigarette vending machine used or
intended to be use for the purpose of selling or distributing any
tobacco roducts therefrom..
(b� Any cigarette vending machine in use on the effective
date of this chapter shall be removed within one hundred twenty
(120) days after the effective date of this chapter.
Notwithstanding the previous sentence, any cigarette vending machine
which is the subject of a written contract authorizing its
installation which was entered into prior to the enactment of this
chapter shall be; removed within thirty (30) days after the date
specified in subparagraphs 1 or 2 below, whichever occurs later:
1. The first date on which permissive termination of
the written contract by the person on whose premises the
cigarette vending machine is located could take effect if said
person elected to terminate, or the expiration date of the
contract term in effect on the enactment date of this chapter
if no provision of the agreement authorized permissive
termination;
2. One hundred twenty (120) days after the effective date of
this ordinance.
(c) Any person who purchased a cigarette vending machine less
than thirty-six 1(36) months prior to the enactment of this chapter
for the purpose of using the vending machine to sell or distribute
tobacco productsl exclusively within the County of Contra Costa and
who has not, or will not have, recovered his, her or its investment
therein by the date on which discontinuance of use is required
pursuant to subsection B, may apply to the Director of for
a use extension based on financial hardship. A use extension shall
be granted if the Director of or the Director's
designee appointed to consider the application, makes all of the
following findings:
1. :That the vending machine was intended for use only
within the unincorporated area of the County of Contra Costa;
2. That the vending machine owner has not, or will not
have recovered his, her or its investment therein before the
date of required discontinuance;
3. 'That the vending machine owner has no practical way
to recover the investment in the machine other than its
continuediuse within the unincorporated area of the County of
Contra Costa;
4. That the investment not yet recovered exceeds ten
percent (10%) of the actual cost of the machine; and
5. That the vending machine will be located in a place
not accessible to minors, or if so accessible to minors, that
y ORDINANCE NO. 91-
Page 7
it will be placed in a location on the premises easily viewed
and supervised by the owner or responsible employee.
The length of the use extension shall not exceed that
additional time period estimated to be necessary to allow recovery
of the owner's investment; provided, however, that no use extension
shall be granted which allows the total time in which the machine
will be in use within the unincorporated area of the County of
Contra Costa to exceed three (3) years. The cigarette vending
machine owner shall bear the burden of proof on each issue. The
decision of the Director of , or the Director's
designee, shall be ;final. (Or 1- 2.
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Chapter 440-8
OUT OF PACKAGE DISTRIBUTION
440-8.002 Out of Package Distribution. (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 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) No agent' or employee of any person, firm, association or
corporation in the business of selling or otherwise distributing
cigarettes or other tobacco or smoking products for commercial
purposes shall in ;the course of such business distribute, (1) any
cigarette or 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.
(c) For purposes of this section, "public ground" and "public
building" include sports arenas as defined in section 440-2.006 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-
i
Page 8
Chapter 440-10
ENFORCEMENT/PENALTIES
440-10.002 ,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.
(Ords. 91- 2, 87-13, 85-57 8. )
440-10.004 ' 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 theprovisions 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. (Ords.
91-_, 2, 87-13, 86-35 2, 85-57 9. )
440-10.006 : 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. (Ords.
91-_, . 2, 87-13, 85-57 10. )
440-10.008; Other applicable laws. This division shall not be
interpreted or construed to permit smoking where it is otherwise
restricted by other applicable laws. (Ords. 91-_, 2, 87-13, 85-
57 11. )
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.
ORDINANCE NO. 91-
Page 9
SECTION IV: EFFECTIVE DATE. This ordinance becomes effective 30 days after
passage, and within 15 days of passage shall be published once with the .names of
the supervisors voting for and against it in the
a newspaper published in this County.
PASSED ON by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: PHIL BATCHELOR, Clerk of
the Board and County Administrator
By
Board Chair
[SEAL]
EVL:
(June 13, 1991)
ORDINANCE NO. 91-
OFFICE OF THE COUNTY COUNSEL
CONTRA COSTA COUNTY
Mr dru,cakfornis
Date: May 20, 1991
To: Board of Supervisors
rte: Victor J. We ,Gil6tjLyCounse 1
By: E. —d ane Jr., ITeputy
Re: Proposed Amendments/to Smoking Ordinance
The attached draft of amendments to the County's smoking ordinance has been
prepared pursuant to the direction of the Board on April 16, 1991 (which also
fixed June 18, 1991, as.the date for hearing on the draft.) The shaded portions
are additions to the existing provisions; the strikeouts, deletions to the
existing provisions. We provide the following comments regarding the attached
draft:
1. County contractors. A proposal to require companies located outside
of this County's unincorporated area and contracting with the County to adopt
smoking .regulations similar to the County's has .been omitted at the suggestion
of the involved County departments. The views were expressed that:
a. It may be unrealistic to expect companies to comply with such a
provision.
b. Many companies, because of labor relations contracts may not be able to
comply.
c. If enforced, such a provision would probably deny the county to access
to the products of most large companies.
d. Instead, the County, as a matter of policy, may wish to encourage its
contractors to voluntarily adopt smoking policies consistent with the County's
policy.
2. Vendina machines. The language used in the attached vending machines
provisions has been taken from the recently adopted Vallejo City ordinance.
Also, the ability of the County to regulate placement of cigarette vending
machines to prevent easy access by minors may be preempted by Penal Code section
308. The question of legality of this type of regulation is currently before the
Court of Appeal in Bravo Vending v. City of Rancho Mirage No. E009272. (The City
prevailed in the trial court.) Although section 308 doesn't specifically
regulate the location of vending machines, it does crake it a crime to sell
r cigarettes minors and states:
"For purposes of this section, the person liable for selling
or furnishing tobacco products to minors by a tobacco vending
Board of Supervisors -2- May 20, 1991
machine shall be the person authorizing the installation or
placement of the tobacco vending machine upon premises he or she
manages or otherwise controls and under circumstances in which he or
she has knowledge, or should otherwise have grounds for knowledge
that the tobacco vending machine will be utilized by minors."
(Penal Code § 308(a). )
"It is the Legisla'ture's intent to `regulate the matter of this
section. As a result, no city, county, or city and county shall
adopt any ordinance; or regulation inconsistent with this section."
(Penal Code § 308(e).) (Emphasis added.)
Section 308 also provides criminal penalties for minors who purchase or
receive tobacco products. It is our understanding that the Board desires to take
action now to . ban cigarette vending machines subject to whatever the courts
ultimately determine what has, or has not, been preempted by section 306.
We do not believe that section 308 would be interpreted to preempt County
land use regulation of the placement of cigarette vending machines. Here
however, if any cigarette machines have already been installed pursuant to
existing land use regulations (LUPs, etc,), it may be necessary to provide for
phasing out current machines over a reasonable amortization period rather than
immediate removal from premises covered by the permits as was done in the Vallejo
ordinance. At this time, it is not clear that such amortization is legally
required. We have used the Vallejo language which permits a vending machine
owner to apply for an"amortization period" in the case of demonstrated hardship.
If the amortization provision is retained, it will be necessary to designate a
County Officer (e.g. treasurer, zoning administrator, etc.) for its
administration.
We note that the City of Walnut Creek ordinance has delayed the effective
date of the ban on vending machines until October 1, 1991. Also, that city's
ordinance permits vending machines in a place which has a "type 61, type 42, or
type 48 license from the' Department of Alcoholic Beverage Control."
3. Meet and Confer. To the extent that changes are made in the ordinance
with respect to smoking An County buildings or on County grounds, meeting and
conferring with recognized employee organizations under the Meyers-Mi Iias-Brown
Act may be required.
4. Advertising. We have not addressed the issue of restricting tobacco
advertising on transit vehicles, sports arenas, and elsewhere. The question
involves complex issues in that substantial control of advertising of tobacco
products has been preempted by federal Cigarette Labeling and Advertising Act
("Act") , (15 U.S.C. §§ .1331 et seq.) and the question of limiting advertisements
a of tobacco products brings into question Constitutional issues of free speech.
fi
Board of Supervisors -3- May 20, 1991
We believe that under the act, the federal government has precluded local
regulation of the content of tobacco advertising. (15 U.S.C. Is 1334(b). ) tinder
Central Hudson Gas & Electric Corp. Y. Public Serrice Commission, 447 U.S. 447,
65 L.Ed.2d 341 (1980), in striking dorm a New York ban on public utilities
advertising, the Supreme Court formulated a four-part test regulating restraints
on commercial speech. (65 l.Ed.2d at pp. 349-50.)
A. To have First Amendment protection, commercial speech
must concern lawful activity and may not be misleading, "
B. A restraint on otherwise protected speech must attempt
to implement a substantial governmental interest.
C. The restraint must directly advance the governmental
interest.
0. The restraint must not be more restrictive than
necessary to serve the government's interest.
Pursuing this issue further would require considerable time both in
determining the permissible limits of such restraints and developing the factual
findings necessary to support any restraints that the Board determines to enact.
Consequently, we recommend that consideration of restrictions on advertising be
considered at a future date if that is desired.
5. Americans With Disabilities Act (ADA). Generally, the ADA requires
that employers, among others, accommodate persons with disabilities. Yet to be
answered is whether smoking (nicotine addiction) may be construed as a disability
under the ADA. If nicotine addiction is a disability, a number of provisions
limiting the rights of smokers may be preempted by the ADA and require
modifications at that time. The current draft regulations issued by the Equal
Employment Opportunity Commission (EEOC) do not specifically address the issue.
While it seems unlikely that the ADA will be so construed by either the EEOC or
the courts, we cannot say for sure that it won't happen.
Evt:t
1
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