Chapter 10 SMOKING REGULATED OR PROHIBITED

The City Council finds that smoking of tobacco or any other weed or plant is a positive danger to health and a cause of material annoyance, inconvenience, discomfort and a health hazard to those who are present in areas exposed to secondhand smoke.

The declared purpose of this chapter is to:

Protect the public health, safety and welfare by prohibiting smoking in public places and places of employment; and

"Designated smoking area"

Guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke.

(§ 1, Ord. 703, eff. February 12, 1994)

§ 5-10.02 Definitions.

The following words, phrases and terms, as used in this chapter, shall be construed as defined in this section:

"Bar"

means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area. A "bar" for the purpose of this definition does not include any bar where smoke can filter into a restaurant through a passageway, ventilation system, or any other means.

"Business"

means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making 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.

"City"

means the City of Ojai, California.

"Common area"

means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one unit are entitled to enter or use, including, for example, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.

means an outdoor common area of a multi-unit residence designated as such by the owner, manager, or operator of the multi-unit residence, and located at least 25 feet from all units and areas primarily used by children.

"Employee"

means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.

"Employer"

means any person, partnership, corporation, including a public entity, or non-profit entity, who employs the services of one or more individual persons.

"Enclosed area"

means all space between a floor and ceiling which is enclosed on all sides of solid walls or windows (exclusive of door or passageways) which extend from the floor to the ceiling, including all space therein screened by portions which do not extend to the ceiling or are not solid, such as "office landscaping" or similar structures.

"Home occupation"

means any use within a dwelling which has been issued a home occupation permit by the City.

"Incidental food sales/service"

means the sale or service of food products in a bar if such sale/service constitutes 25% of the annual gross income of the bar.

"Landlord"

means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multi-unit residence that is leased to a residential tenant, except that landlord does not include a tenant who sublets a unit.

"Multi-unit residence"

means property containing two or more units, including, but not limited to, apartment buildings, condominium complexes, senior and assisted living facilities, group homes, long-term health care facilities, mobile home parks, and campgrounds. Multi-unit residences do not include the following:

A single-family home, except if used as a child care, group home, or health care facility subject to licensing requirements; and

"Separate ventilation system"

A single-family home with a detached or attached accessory dwelling unit, except if used as a child care or health care facility subject to licensing requirements.

"Non-profit entity"

means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public entity is not a 'non-profit entity' within the meaning of this section.

"Person"

means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"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 and rest rooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a "place of employment" unless it is used as a child care or health care facility.

"Public entity"

means any county, municipality, school or special district or political subdivision of the State, to the extent such public entity is subject to the jurisdiction of the City.

"Public place"

means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to, banks, educational facilities, health facilities, shopping malls, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, hotels and motels, theaters and waiting rooms. A private residence is not a "public place."

"Restaurant"

means any coffee shop, cafeteria, sandwich stand, private and public school cafeterias, including any associated outdoor eating area, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that the term "restaurant" shall not include a "bar."

"Retail tobacco store"

means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

means a system which is approved by the building official, exhausted to the outside, and negatively pressurized.

"Service line"

means any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.

"Smoking"

means vaping, inhaling, exhaling, burning or carrying any lighted, activated, or openly burning cigar, cigarette, electronic cigarette, weed, plant, combustible substance, or other mechanical or electronic device used for consuming tobacco, tobacco products, or any other weed or plant in any manner or in any form.

"Sports arena"

means enclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

"Tobacco product"

means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, snuff or any other form of tobacco which may be utilized for smoking, chewing, inhalation or other manner of ingestion.

"Tobacco 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 accuracy, or other things representative of value, which dispenses or releases a tobacco product.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 1, Ord. 704, eff. April 7, 1994, and § 1, Ord. 899, eff. July 25, 2019)

§ 5-10.03 Prohibition of smoking in public places.

Except as otherwise provided, smoking shall be prohibited in all public places within the City, including, but not limited to, the following areas:

All areas available to and customarily used by the general public in all public, business and non-profit entities patronized by the public, including, but not limited to, offices (such as attorneys, doctors, and other professionals), banks, retail stores and shopping malls;

Buses, trolleys, taxicabs and other means of public transit provided by or under the authority of the City, and in ticket, boarding and waiting areas of public transit depots;

Elevators;

Public restrooms;

Service lines;

Libraries, museums and galleries;

(7)

All reception and waiting areas;

(8)

Waiting rooms, dining rooms, recreation rooms, lounges, hallways, wards and semiprivate rooms of private and public health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, senior care facilities, drug and alcohol treatment facilities, and doctors' and dentists' offices;

(9)

Child day care facilities as defined in the California Health and Safety Code and private residences while used as a family day care home or group home;

(10)

Within any facility which is primarily used for, or designed for the primary purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except to the extent smoking is part of a stage production;

(11)

Video arcades, bingo parlors, game rooms, pool halls, and other amusement and entertainment centers;

(12)

Sports arenas, health and fitness clubs, auditoriums, and other facilities used for sports, recreation and fitness purposes;

(13)

Bowling centers, including, but not limited to, bowling lanes, bowlers' settees, visitors' settees and concourses;

(14)

Rooms, chambers, halls, or other places used for public meetings or public assembly, during such time as a public meeting is in progress;

(15)

Restaurants, including outdoor seating areas;

(16)

Retail food marketing establishments, including, but not limited to, grocery stores and super-markets;

(17)

Beauty and personal care salons and barber shops;

(18)

Laundromats;

(19)

Common areas;

(20)

Hotel and motel facilities, except as provided in Section 5-10.07;

(21)

Educational facilities;

(22)

Polling places.

§ 5-10.04 Prohibition of smoking in multi-unit residences.

Notwithstanding any other provision of this section, any owner, operator, manager, or other person who control any establishment or facility may declare that entire establishment or facility as a non-smoking establishment, whether enclosed or not.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 2, Ord. 899, eff. July 25, 2019)

Smoking is prohibited in all of the following, except as permitted under Section 5-10.07:

Units in a multi-unit residence;

§ 5-10.05 Regulation of smoking in places of employment.

Exclusive-use enclosed areas associated with a multi-unit residence, such as a private balcony, porch, deck, or patio;

(3)

Common areas in a multi-unit residence complex, except in a designated smoking area.

(§ 4, Ord. 899, eff. July 25, 2019)

Smoking is prohibited in all enclosed places of employment. Each employer associated with each such place of employment shall make reasonable efforts, as necessary, to ensure that all enclosed areas in the place of employment controlled by such employer are free from tobacco smoke or other smoke emanating from smoking products.

All employers shall comply with these non-smoking provisions and shall be responsible for their implementation in their places of employment.

Employers shall post "No Smoking" signs in accordance with Section 5-10.11 of this chapter.

§ 5-10.06 Restriction of smoking in other areas.

Places of employment exempt from the prohibition on smoking in other sections in this chapter shall be exempt from this section.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 3, Ord. 899, eff. July 25, 2019)

Smoking shall be restricted in Libbey Bowl and other outdoor City recreational and entertainment facilities, including, but not limited to, ball fields, sports arenas, children's play areas, swimming pools, and outdoor theaters where the general public assembles to either engage in physical exercise, participate in athletic competition or witness sports or entertainment events; provided, however, that smoking may be permitted in unenclosed areas of these facilities designated for smoking by the City.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 5, Ord. 899, eff. July 25, 2019)

§ 5-10.07 Smoking optional areas.

Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

Single-family homes, except when used as a child care or health care facility or group home;

Bars;

Retail tobacco stores;

Dwellings used for home occupations;

(e)

Hotel and motel rooms with separate ventilation systems rented to guests provided each hotel and motel designates not less than 50% of its guest rooms as non-smoking rooms;

(f)

Conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions provided these rooms are equipped with separate ventilation systems, while these places are being used for private functions. However, 50% of these areas will be designated non-smoking;

(g)

An enclosed place of employment which employs only the owner and no other employee provided that the place of employment is not a public place and does not share a ventilation system with any other enclosed place of employment or public places;

(h)

Bar areas within restaurants provided that such areas meet the separation standards enumerated in subdivisions (1) through (3) of this subsection and provided that the restaurant/bar intends to comply with these standards. The intent to comply shall be demonstrated by the restaurant/bar owner in the following manner:

The bar must have a separate ventilation system from the restaurant,

§ 5-10.08 Prohibition of tobacco vending machines.

There must be a wall or walls with no penetration between the two uses. A doorway may penetrate the wall if the doorway contains a door,

(3)

If a bar and restaurant are both attached through a kitchen or other space, that space must be equipped with a separate ventilation system or vented through the restaurant ventilation system;

(i)

Designated smoking areas in multi-unit residences;

(j)

Units within multi-unit residences with separate ventilation systems.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 6, Ord. 899, eff. July 25, 2019)

No cigarette or other tobacco product may be sold, offered for sale, or distributed by or from a tobacco vending machine or other device designed or used for vending purposes, except from vending machines located on premises which have either a type 61, type 42 or type 48 license from the Department of Alcoholic Beverage Control. Each tobacco vending machine must be located at least 25 feet from any entry into the premises. The provisions of this section shall become effective 180 days after the effective date of this chapter.

(§ 1, Ord. 703, eff. February 12, 1994 , as amended by § 7, Ord. 899, eff. July 25, 2019)

§ 5-10.09 Regulation of tobacco products.

Any person in the business of selling or otherwise distributing or marketing cigarettes or other tobacco or smoking products for commercial purposes shall post plainly visible signs at the point of purchase of tobacco products which state "THE SALE OF TOBACCO PRODUCTS TO PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY LAW. PHOTO I.D. IS REQUIRED." The letters of said signs should be at least one-quarter inch high.

No person in the business of selling or otherwise distributing or marketing cigarettes or other tobacco or smoking products for commercial purposes shall in the course of such business distribute any cigarette or other tobacco product, or coupon, certificate, or other written material which may be redeemed for tobacco products without charge, to any person on a public street or sidewalk or in a public park or on other public grounds.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 8, Ord. 899, eff. July 25, 2019)

§ 5-10.10 Out of package sales.

No person shall sell or offer for sale cigarettes or other tobacco or smoking products not in the original packaging provided by the manufacturer and with all required health warnings.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 9, Ord. 899, eff. July 25, 2019)

§ 5-10.11 Education.

The City Manager or designee, in conjunction with the Ventura County Department of Health, shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it, and to guide landlords, owners, operators, employers and managers in their compliance with it. Such program may include publication of a brochure for affected businesses and individuals explaining the provisions of this chapter.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 10, Ord. 899, eff. July 25, 2019)

§ 5-10.12 Posting of signs.

"No Smoking" signs 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 regulated by this chapter, by the landlord, owner, operator, manager, employer or other person having control of such building or other place.

Every restaurant shall have posted within every entrance a conspicuous sign clearly stating that smoking is prohibited.

Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that non-smoking rooms are maintained and may be available; rooms designated as being nonsmoking shall have signs designating such restriction conspicuously placed within the room.

The posting of signs pursuant to this section shall be exempt from the provisions of Chapter 6 of Title 9 of this Code.

(e)

The City Manager may adopt such regulations as are reasonably necessary to carry out the purpose and intent of this section.

(f)

The absence of signs shall not be a defense to a violation of any provision of this chapter.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 11, Ord. 899, eff. July 25, 2019)

§ 5-10.13 Landlord's responsibilities.

On the effective date of the ordinance adding this section, the following regulations apply:

The landlord will not permit the presence of ash trays, ash cans, or other receptacles designed for, or primarily used for, the disposal of smoking waste within any common area, except in a designated outdoor smoking area.

The landlord shall provide written notice to all tenants whose units are governed by an existing lease restating Section 5-10.04 and describing their rights to submit written complaints to the landlord under Section 5-10.13(a)(4) or to the City Manager under Section 5-10.14(c). If the landlord has created a designated smoking area, the landlord must include a floor plan of the building in the notice identifying the location of the designated smoking area. The landlord does not need to comply with this provision if smoking is already prohibited in all common areas and units in the multi-unit residence.

(3)

Every new lease shall include a provision substantially consistent with the following: "Ojai Municipal Code Chapter 5-10 prohibits smoking in all units, exclusive use enclosed areas, and common areas in a multi-unit residence, except as permitted under Section 5-10.07. It is a material breach of this lease for the tenant, or any other person subject to the control of the tenant or resident by invitation or permission of the tenant, to engage in vaping, inhaling, exhaling, or burning any electronic cigarette, lighted cigar, cigarette, weed, plant, combustible substance, or mechanical or electronic device in any manner or in any form on the property, or to violate any law regulating smoking while anywhere on the property. Violations are punishable under Ojai Municipal Code Section 5-10.15."

(4)

Upon receiving a signed written complaint regarding prohibited smoking, the landlord must provide a warning to the offending tenant, stating that the tenant may be evicted if three or more complaints are received. Upon receiving a third signed, written complaint against the offending tenant, the landlord may evict the tenant or pursue other legal remedies available. The landlord must maintain copies of the written complaints and make them available to the City upon request.

If the landlord has fully complied with Chapter 5-10, the landlord shall not be criminally or civilly liable to any person for a person's breach of any smoking provision while in the multi-unit residence.

A landlord's failure to enforce any smoking regulation of a lease agreement on one or more occasions does not constitute a waiver of the lease or agreement provisions required by this section, and does not prevent future enforcement of the lease or agreement provisions required by this section.

(§ 12, Ord. 899, eff. July 25, 2019)

§ 5-10.14 Enforcement.

Notice of the provisions set forth within this chapter shall be given to all applicants for a business license.

Enforcement of this chapter shall be implemented by the City Manager or designee.

Any citizen who desires to register a complaint under this chapter may initiate enforcement with the City Manager or designee.

Notwithstanding any other provisions of this chapter, a private citizen may bring legal action to enforce this chapter.

(§ 1, Ord. 703, eff. February 12, 1994, as amended by § 13, Ord. 899, eff. July 25, 2019)

§ 5-10.15 Violations and penalties.

It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with any of its provisions.

It shall be unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.