Smoking of any tobacco product or any other weed or plant is a positive danger to health and a cause of material annoyance, inconvenience, discomfort, and a health hazard to those who are present in confined places. Secondhand smoke is harmful to persons with certain respiratory conditions, and has also been determined to cause cancer to nonsmokers exposed to secondhand smoke on a frequent basis. The United States Surgeon General and the United States Department of Health and Human Services found that a majority of the four hundred thirty-four thousand Americans that die each year from tobacco-related illness, and who smoked, became nicotine addicts before their twenty-first birthday.
In order to serve public health, safety and welfare, to reduce unwanted and unwelcome exposure to secondhand smoke, to assure a cleaner and more hygienic environment for the city, its residents, and visitors, to strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including children and persons with existing respiratory conditions (while recognizing the threat to public health and the environment which smoking causes), and to decrease the accessibility of tobacco, tobacco-related products, and electronic vapor inhalation substances and devices, the declared purposes of this chapter are (1) to prohibit the smoking of tobacco or any other weed or plant or plant product or electronic vapor device in certain areas which are used by or open to the public, and certain areas in places of employment; (2) prohibit self-service sales and self-service displays, racks and shelves of tobacco products, and electronic vapor devices and electronic vapor inhalation substances; (3) require the posting of warning signs at the point of purchase which state the legal age of sale and that identification is required to purchase tobacco and electronic vapor devices and electronic vapor inhalation substances; (4) prohibit vending machine sales of tobacco products; and (5) require all tobacco products and electronic vapor devices and electronic vapor inhalation substances be sold in original packaging with all legally required health warnings.
(Ord. 5144, 12/10/2024[1])
[1]
Former § 8.32.010, enacted by Ord. 5011 § 3, 2014, was repealed by Ord. 5144, 12/10/2024.
"Bar"
includes that area of a restaurant which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages provided that the area is completely separated from the remainder of the restaurant by solid partitions or glazing without openings other than doors or doorways, which shall meet the minimum standards applicable to such bar and restaurant as established by the Uniform Building Code or other applicable building or fire regulations, and the patrons of the restaurant are not required to pass through the bar in order to enter the restaurant.
"Business"
means any sole proprietorship, joint venture, corporation, or other business entity formed for profitmaking purposes, or for nonprofit purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.
"Common area at a shopping mall"
means any indoor or outdoor common area of a shopping mall accessible to and usable by the occupants or customers of more than retail establishment including, but not limited to halls, lobbies, outdoor eating areas, play areas and parking lots.
"Electronic Vapor Device"
means any device with a heating element, a battery, or an electronic circuit that provides nicotine or other vaporized liquids to the user in a manner that simulates smoking tobacco products, shisha, herbs, or any other product that produces smoke.
"Electronic Vapor Inhalation Substance Products"
means cartridges, cartomizers, e-liquid, smoke juice, tanks, tips, atomizers, vaporizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic vapor devices.
"Employee"
means any person who is employed by any employer in consideration for monetary compensation or profit.
"Employer"
means any person, partnership, corporation, including municipal corporation, who employs the services of more than four persons.
"Enclosed area"
means:
1. 
Any covered or partially covered area having more than fifty percent of its perimeter walled or otherwise closed to the outside such as, for example, a covered porch with more than two walls;
2. 
Any space open to the sky (hereinafter "uncovered") having more than seventy-five percent of its perimeter walled or otherwise closed to the outside such as, for example, a courtyard;
3. 
Except that an uncovered space of three thousand square feet or more is not an enclosed area, such as, for example, a field in an open-air arena.
"Hookah"
means a pipe commonly, but not always, made of glass, used for vaporizing and smoking tobacco, flavored tobacco, non-flavored tobacco, shisha, dried fruits, or other substances in which vapor or smoke is passed through a water basin before inhalation.
"Minor"
means any individual who is less than twenty-one years old.
"Multi-unit residence"
means a building or portion thereof that contains more than one dwelling space, each of which consists of independent living facilities for one or more persons, including, but not limited to, single-room occupancy hotels (SROs), congregate care facilities other than those conducted in single-family residential structures, and dormitories.
"Multi-unit residence common area"
means any common area of a multi-unit residence accessible to and usable by the occupants of more than one dwelling, including, but not limited to, halls, lobbies, laundry rooms, outdoor eating areas, play areas and swimming pools.
"Place of employment"
means any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may enter in the normal course of operations, but regardless of the hours of operation, including, for example, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses, and, while employees, children or patients are present, private residences that are used as child-care or health-care facilities subject to licensing requirements.
"Playground"
means any public or privately owned park or recreational area designed in part to be used by children that has play or sports equipment installed or has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds, or on city property.
"Public place"
means any public or private place open to the general public, regardless of any fee or age requirement, including, for example, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis and buses. Public place includes any common area at a shopping mall.
"Person"
means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
"Reasonable distance"
means a distance of twenty-five feet or, with respect to an existing approved designated smoking area, twenty feet or, with respect to a proposed 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.
"Recreational area"
means any public or private area open to the public for recreational purposes whether or not any fee for admission is charged, including, for example, parks, gardens, sporting facilities, stadiums, playgrounds and play areas.
"Self-service merchandising"
means open display of tobacco products and point-of-sale tobacco-related promotional products to which the public has access without the intervention of any employee.
"Shopping mall"
means any parcel of land zoned and used for retail sales by more than one retailer that is jointly operated or which includes shared parking facilities.
"Smoking"
means possessing (and "smoke" means to possess) an electronic vapor device, hookah, a lighted pipe, lighted cigar, or lighted cigarette of any kind, or the lighting of a pipe, cigar, or cigarette of any kind, including, but not limited to, any tobacco product, or any other weed or plant or plant product.
"Tobacco product"
means (1) any product containing tobacco leaf including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, shisha, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human lungs or mouth; (3) any electronic vapor device, electronic vapor inhalation substance, and hookahs; or (4) any plant, weed, or plant product that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human lungs or mouth, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
"Tobacco retailer"
means any person or governmental entity that operates a store, stand, concession, or other place at which sales of tobacco products, electronic vapor devices, electronic vapor inhalation substances, and hookahs are made to purchasers for consumption or use.
"Tobacco vending machine"
means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.
"Unenclosed area"
means any area which is not an enclosed area.
"Vendor-assisted"
means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.
(Ord. 5011 § 5, 2014; Ord. 5144, 12/10/2024)
A. 
Smoking is prohibited in, and within twenty-five feet of, the following city-owned recreation buildings: Bostonia Center, Fletcher Hills Center, Hillside Center, Kennedy Center, Renette Center, and Wells Center. A recreation building is defined as a structure wherein the following activities are typically conducted: games, meetings, dance, gymnastics, arts and crafts, sports, instructional activities, and recreation offices.
B. 
Smoking is prohibited in, and within twenty-five feet of, any tot lot, any playground, and any recreational area. A tot lot is defined as any area located in a city park or city playground, or in a privately owned playground open to the public, where playground equipment, intended for use by children, is located. Playground equipment includes but is not limited to swings, slides, and climbing apparatus.
C. 
In addition to the restrictions found in subsections A and B above, and except as otherwise provided by this chapter or state or federal law, the following restrictions on smoking, and using or disposing of tobacco and tobacco-related products in public parks shall apply:
1. 
No person shall be in possession of a burning tobacco or tobacco-related product, including, but not limited to, cigars and cigarettes, in or upon any park, playground or recreation center.
2. 
No person shall chew tobacco or tobacco-related products, in or upon any park, playground or recreation center.
3. 
No person shall dispose of lighted or unlighted cigars or cigarettes, or cigar or cigarette butts, or any other tobacco-related waste in or upon any park, playground or recreation center.
4. 
No person shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to obtain compliance with this section.
D. 
In addition to the restrictions found in subsections A, B and C above, and except as otherwise provided by this chapter or state or federal law, the following restrictions on smoking, and using or disposing of tobacco and tobacco-related products in public places shall apply:
1. 
No person shall be in possession of a burning tobacco or tobacco-related product, including, but not limited to, cigars and cigarettes, in:
a. 
Any public places;
b. 
Any places of employment;
c. 
Any multi-unit residence common areas; or
d. 
Any enclosed and unenclosed places of hotels, businesses, restaurants, and bars, and other public accommodation.
2. 
Notwithstanding paragraph 1 of this subsection D, smoking is permitted in the following locations within the city, unless otherwise provided by Chapter 15.60 of this Code, or state or federal law:
a. 
Private residential property, other than those used as a child-care or health-care facility subject to licensing requirements when employees, children or patients are present. Nothing in this chapter shall require a person or entity who or which owns or controls a private residential property, including, but not limited to, a condominium association or an apartment owner, to permit smoking and such a person may choose to prohibit smoking throughout the property he, she, or it owns or controls.
b. 
In up to 20% of guest rooms in any hotel or motel, if the hotel or motel permanently designates at least eighty percent of its guest rooms as nonsmoking rooms, appropriately signs nonsmoking rooms, and permanently removes ashtrays and matches from them. Smoking rooms shall be segregated from nonsmoking rooms on separate floors, wings, or portions of either; smoking and nonsmoking rooms shall not be interspersed. Nothing in this chapter shall require a hotel or motel to provide smoking rooms and the owner or operator of a hotel or motel may choose to prohibit smoking throughout the property.
c. 
Designated unenclosed areas in shopping mall common areas ("smokers' outposts"), provided that: (i) there is not more than one square foot of unenclosed area designated for smoking for every twenty thousand square feet of rentable enclosed or unenclosed space shopping mall (provided that each shopping mall may have at least one smokers' outpost of forty or fewer square feet in area), (ii) the area is prominently marked with signs, (iii) it is located the greatest distance practicable, and at least twenty feet (or twenty-five feet if Chapter 15.60 of this Code applies), from any doorway or opening into an enclosed area or any accessway from parking facilities to the retail areas of the shopping mall, (iv) smoke is not permitted to enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property, and (v) the location(s) of the smokers' outpost(s) is or are approved in writing by the community development director of the city based on the standards of this subsection and the goals of this chapter.
d. 
Smokers' outposts on public property in an unenclosed area designated by the city manager, or her designee, if located within the area subject to Specific Plan 182 so long as: (i) the area is prominently marked with signs, (ii) it is located the greatest distance practicable, and at least twenty feet (or twenty-five feet if Chapter 15.60 of this Code applies), from any doorway or opening into an enclosed area, and (iii) smoke is not permitted to enter adjacent area in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property.
e. 
Smokers' outposts designated by a landlord of a multi-unit residential property, if apartments, or designated by the board of directors of a homeowners association, if a residential common interest development, so long as: (i) the area is prominently marked with signs, (ii) it is located the greatest distance practicable, and at least twenty-five feet, from any doorway or opening into an enclosed area of the multi-unit residential property, and at least twenty feet (or twenty-five feet if Chapter 15.60 of this Code applies) from any playgrounds, recreation areas, swimming pools, or any other areas where smoking is otherwise prohibited by this chapter, and (iii) the area is not more than twenty-five percent of the total outdoor area (excluding parking lots, sidewalks, stairways, non-exclusive balconies, patios and breezeways) of the premises where it is located, to a maximum of forty square feet. If the requirements of this subsection cannot be satisfied for a multi-unit residence property due to the unique physical features of the outdoor common area then no smokers' outpost will be permitted.
f. 
Any outdoor area in which no nonsmoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive.
3. 
No person shall dispose of smoking waste or place or maintain a receptacle for smoking waste in an area in which smoking is prohibited by this chapter or other law, including within any reasonable distance required by this chapter.
(Ord. 4953 § 3, 2010)
A. 
No person or business shall offer for sale any tobacco product prior to prominently displaying a sign at the point of purchase of tobacco products that states: "SELLING TOBACCO PRODUCTS TO PERSONS YOUNGER THAN TWENTY-ONE YEARS OF AGE IS ILLEGAL. PHOTO ID IS REQUIRED TO PURCHASE ANY TOBACCO PRODUCT." The letters of the sign shall be at least one-quarter inch high.
B. 
No person, business, tobacco retailer, or owner, manager, or operator of any establishment subject to this chapter shall sell, offer to sell, or permit to be sold any tobacco product to an individual without first examining identification that establishes the purchaser's age as at least twenty-one years.
C. 
No person, business, tobacco retailer, or other establishment shall sell or offer for sale any tobacco product that is not in the manufacturer's original packaging that contains all required health warnings.
D. 
It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, offer for sale, or display for sale any tobacco product by means of self-service merchandising or by means other than vendor-assisted sales.
(Ord. 4886 § 2, 2007; Ord. 5144, 12/10/2024)
No cigarette or other tobacco product, cigarette paper or wrapper, may be sold, offered for sale, or distributed by or from a tobacco vending machine or other appliance, or any other device designed or used for vending purposes.
(Ord. 4886 § 2, 2007)
No person shall smoke in an area in which smoking is otherwise permitted by this chapter or other law within a reasonable distance from any entrance, opening, crack, or vent into an enclosed area in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of that enclosed area.
(Ord. 4886 § 2, 2007)
A. 
No person, employer, business, landlord or nonprofit entity shall knowingly permit smoking in an area under his, her, or its legal or de facto control in which smoking is prohibited by this chapter or other law.
B. 
No person, employer, business, landlord or nonprofit entity shall allow the placement or maintenance of a receptacle for smoking waste in an area under his, her, or its legal or de facto control in which smoking is prohibited by this chapter or other law.
C. 
Notwithstanding any other provision of this chapter, any owner, landlord, employer, business, nonprofit entity, or other person who or which has legal or de facto control over any property may declare any area in which smoking would otherwise be permitted to be a nonsmoking area and, provided that signs are posted giving notice of the smoking restriction, smoking in or within a reasonable distance of that area shall constitute a violation of this chapter.
D. 
"No Smoking" or "Smoke Free" signs, with letters of not less than one inch in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) or any alternative signage approved by the community development director of the city shall be conspicuously posted at each entrance to a public place in which smoking is prohibited by this chapter, by the person, employer, business, or nonprofit entity who or which has legal or de facto control of such place. The city manager shall post signs at each entrance to a public place in which smoking is prohibited by this chapter, which is owned or controlled by the city. Signage required by this subsection shall not be subject to Chapter 17.66 of this code. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter, except as to an area in which smoking is prohibited only by subsection C of this section.
E. 
Notwithstanding any other provision of this chapter, a landlord of a multi-unit residence shall not be deemed to have allowed, aided or abetted illegal smoking if he, she, or it can show through written documentation that, upon receipt of a complaint about a tenant or guest of a tenant smoking in a prohibited area, reasonable steps were taken by the landlord in response to the complaint. "Reasonable steps," shall include, but not be limited to (i) up to three verbal warnings, memorialized in writing, indicating that the offending tenant and his or her guest has been given notice of such violations, (ii) if three verbal warnings are ineffective, one written warning issued to the offending tenant and his or her guest, and/or formal legal notices served on the offending tenant. In the event a landlord elects to commence eviction proceedings based on a violation of this chapter, it shall be prima facie evidence that a landlord has not allowed, aided or abetted illegal smoking, even in the event a court refuses to order such eviction.
(Ord. 4913 § 3, 2008)
(Prior code § 18C-5; Ord. 2890 § 1, 1975; Ord. 3706 § 1, 1983; Ord. 3845 § 1, 1985; Ord. 4301 § 5, 1991; Ord. 4528, 1997; repealed by Ord. 4886)
(Prior code § 18C-6; Ord. 2879 § 1, 1975; Ord. 3647 § 7, 1983; Ord. 3706 § 1, 1983; Ord. 3845 § 1, 1985; Ord. 4528, 1997; repealed by Ord. 4886)
A. 
The city attorney or city prosecutor may also bring a civil action to enforce this chapter and to obtain the remedies specified below or otherwise available in equity or at law.
B. 
Except as otherwise provided herein, any person acting for the interests of him, her, or itself, or of its members, or of the general public (hereinafter "a private enforcer") may bring a civil action to enforce this chapter against any person who knowingly violates this chapter with the remedies specified below, if both of the following requirements are met:
1. 
The action is commenced more than sixty days after the private enforcer has given written notice of an alleged violation of this chapter to the city attorney and to the alleged violator.
2. 
No person acting on behalf of the city or the state has commenced or is prosecuting an action regarding the violation(s) which was or were the subject of the notice on the date the private action is filed.
Notwithstanding the right of a private enforcer to bring a civil action to enforce this chapter, only the city attorney or city prosecutor may bring an action for a violation of Section 8.32.046.
C. 
A private enforcer shall provide a copy of his, her, or its action to the city attorney within seven days of filing it.
D. 
Upon settlement or judgment of an action brought pursuant to subsection G of this section, or upon settlement of any claim or demand presented by a private enforcer prior to commencement of an action, the private enforcer shall give the city attorney a notice of that settlement or judgment and of the final disposition of the case. No private enforcer may settle such an action unless the city attorney or the court determines the settlement to be reasonable in light of the purposes of this chapter, and any settlement in violation of this requirement may be set aside upon motion to a court of competent jurisdiction by the city attorney or city prosecutor.
E. 
Upon proof of a violation of this chapter, the court shall award the following:
1. 
Damages in the amount of either:
a. 
Upon proof, actual damages;
b. 
With insufficient or no proof of damages, two hundred fifty dollars for each violation of this chapter (hereinafter "statutory damages"). Unless otherwise specified in this chapter, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no private enforcer suing on behalf of the general public shall recover statutory damages based upon a violation of this chapter if a previous claim brought on behalf of the general public for statutory damages and based upon the same violation has been adjudicated, whether or not the private enforcer was a party to that earlier adjudication.
2. 
Restitution to the appropriate party or parties of the gains obtained by way of violation of this chapter.
3. 
Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, or a conscious disregard for the public health and safety.
4. 
Attorney's fees and costs reasonably incurred by a successful party in prosecuting or defending an action.
Any damages awarded in an action brought by the city attorney or city prosecutor shall be paid into the city's general fund, unless the court determines that they should be paid to a damaged third party.
F. 
Upon proof of at least one violation of this chapter, a private enforcer, the city prosecutor, city attorney, any peace officer or code enforcement official may obtain an injunction against further violations of this chapter or, as to small claims court actions, a judgment payable on condition that a further violation of this chapter occur within a time specified by the court.
G. 
Notwithstanding any legal or equitable bar, a private enforcer may bring an action to enforce this chapter solely on behalf of the general public. When a private enforcer does so, nothing about such an action shall operate to preclude or bar the private enforcer from bringing a subsequent action on his, her, or its own behalf based upon the same facts.
H. 
Nothing in this chapter shall prohibit a private enforcer from bringing a civil action in small claims court to enforce this chapter, as long as the amount in demand and the relief sought are within the jurisdiction of small claims court.
(Ord. 4913 § 4, 2008)
A. 
Except as allowed by Section 8.32.080, the city manager shall be responsible for compliance with this chapter when facilities, which are owned, operated or leased by the city of El Cajon, are involved. The city shall provide business license applicants with a copy of this chapter.
B. 
Owners, operators, or managers of any place of employment regulated herein shall comply with this chapter. Such owner, operator, or manager shall post all signage required herein.
C. 
It shall be the responsibility of employers to disseminate information concerning the provisions of this chapter to employees.
(Ord. 4886 § 2, 2007)
Any person who violates any provisions of this chapter is guilty of a misdemeanor or infraction, and, upon conviction thereof, shall be punished by a fine as set forth in Section 1.24.010 of this code. No fines or private damages shall be imposed or allowed for any violations occurring within six months following the effective date of this chapter.
(Ord. 4886 § 2, 2007)
This chapter shall not be interpreted or construed to permit tobacco vending machines and distribution of tobacco product samples where they are otherwise restricted by other applicable law.
(Ord. 4886 § 2, 2007)