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Ordinance 1986-18ORDINANCE NO. 86-18 AN ORDINANCE OF THE CITY OF GILROY ENACTING AS CHAPTER 19A OF THE GILROY CITY CODE A SMOKING POLLUTION CONTROL ORDINANCE. WHEREAS, after public hearings the City Council has determined that control of smoking in public places would improve public health and welfare in the City of Gilroy, and good cause appearing therefore, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES ORDAIN AS FOLLOWS: SECTION I. Chapter 19A, of the Gilroy City Code is enacted to read as follows: CHAPTER 19A SMOKING POLLUTION CONTROL Sec. 19A.1 Definitions. The following words and phrases, whenever used in this Ordinance, shall be construed as follows: (a) "Bar" means any area or a room utilized primarily for the sale of intoxicating liquors for consumption by guests on the premises and in which the sale of food and the provision of entertainment is merely incidental to the sale of intoxicating liquors. (b) "Dining area" means an enclosed area containing tables or counters upon which meals are served. (~) "Employee" means any person who is employed by an employer in the consideration for direct or indirect monetary wages or profit. (d) "Employer" means any person who employs the services of an individual person. (D) "Enclosed" means closed in by a roof and four (4) walls with appropriate openings for ingress and egress, light and air. (f) "Open to the public" means available for use by or accessible to the general public during the normal course of business conducted by either private or public entities. (g) "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: (1) conference and classrooms (_2) employee cafeterias (13) employee lounges (14) hallways (15) work areas (Private residences mdd dining areas of restaurants are not "places of employment.") ORDINANCE NO. 86-18 -1- (h) "Restaurant" means any coffee shop, cafeteria, short order cafe, luncheonette, tavern, cocktail lounge, sandwich stand, sode fountain, private school cafeteria or eating establishment, and any other eating establishment, organization, club (including veterans' club), boarding house, or guesthouse the primary function of which is to give, sell or offer for sale, food to the public, guests, patrons, or employees, except that the term "restaurant" shall not include a tavern or a cocktail lounge if said tavern or cocktail lounge is a "bar" as defined in subsection (a) of this section. (ii) "Semiprivate room" means a room in a public or private health care facility containing two beds for patients of the facility. (j) "Smoke" or "smoking" means and includes inhaling or exhaling upon, burning or carrying any lighted smoking equipment for tobacco, or any other plant or product used for the personal habit commonly known as smoking. (k) "Smoking victim" means any person present in a place where smoking is prohibited pursuant to this Ordinance at the time that smoking occurs in such a place. Sec. 19A.2. Smoking prohibited. (a) Restaurants. (1) Restaurants for Fifty or More Persons. Smoking is prohibited in every restaurant whose maximum total occupancy is fifty (50) or more persons. This prohibition shall not apply to any restaurant maintaining a contiguous nonsmoking area of not less than fifty percent (50%) of both the seating capacity and the floor space in which customers are being served (excluding outdoor seating and bar). This prohibition shall not apply to banquet rooms while they are being used for private functions. At the request of a patron, the patron shall be seated in a nonsmoking area if available. (2) Restaurants for Fewer than Fifty Persons. Any restaurant whose occupied capacity is fewer than fifty (50) persons may either prohibit smoking in the entire area or permit smoking. Notice of the operative policy of such restaurant must be posted at all entrances to such restaurant. (3) Outdoor Eating Areas. Fifty percent of outdoor eating areas for all eating establishments shall be reserved for nonsmokers. Smoking is prohibited and unlawful in such areas. (lb) Elevators. Smoking is prohibited in elevators in buildings generally open to and used by the public, including elevators in apartment buildings, irrespective of the number of living units in such apartment buildings. (c) Hospitals and Health Care Facilities. Smoking is prohibited in semiprivate rooms, war'ds, waiting rooms,,lobbies and public hallways of every public and private health care facility including, but not limited to, hospitals, clinics and physicianM and dentistf offices provided, however, that smoking may be permitted in a semiprivate room when both patients assigned to such room are smokers and request in writing upon the health care facility's admission forms to be placed in a room where smoking is permitted; and provided, further, that this prohibition does not prevent a facility from establishing separate waiting area(s) in which smoking is permitted so long as said smoking areas contain no more than fifty percent of the waiting room space in said facility. The exceptions set later in this Ordinance shall not apply to this subsection. ORDINANCE NO. 86-18 -2- (d) Places o~ Public Assembly. Smoking is prohibited in hearing rooms or ~laCes of pUblic lssembly owned by the City of Gilroy or in which the business of the City of Gilroy, or any of its boards or commissions, is conducted. (e) Publ'ic Lobbies,~Publ~ic Hallways. Smoking is prohibited in waiting rooms, lobbies and public hallways of every building under direct or indirect control of the City of Gilroy. [f) MuseUms, Libraries, Galleries. Smoking is prohibited in public Parts of museums, libraries and galleries. (g) Designated Nonsmoking Areas. Smoking is prohibited in any area of any business, governmental or charitable establishment which has been designated by the owner or person in charge of such establishment as a nonsmoking area and marked with a non- smoking sign or signs. Exceptions set forth later in this Ordinance shall not apply to this subsection. (h) Public Restrooms. Smoking is prohibited and is unlawful in public restrooms. (ii) Indoor Service Lines. Smoking is prohibited and is unlawful in indoor service---I~es in which more than one person is giving or receiving services of any kind, with the exception of indoor service lines in restaurants with seating size of fifty persons or less, and for which the proprietor has chosen to allow smoking in all seating areas of that restaurant pursuant to this Ordinance. Sec. 19A.3. Smoking optional. Notwithstanding any other provisions of this Ordinance to the contrary, the following areas shall not be subject to the smoking restrictions of this Ordinance: (ia) Areas not generally open to the public; (b) Any property owned or leased by county, state or federal governmental entities; (C) Private residences including private residences which may serve as a place of employment; (d) A private enclosed office workplace occupied exclusively by smokers even though such an office workplace may be visited by nonsmokers; (e) Semiprivate rooms of health facilities occupied by one or more patients all of whom are smokers who have requested in writing upon the health care facility's admissions forms to be placed in a room where smoking is permitted; (if) Notwithstanding any other provision of this Ordinance, any owner, operator, manager or other person who controls a business may declare that entire business, or designated sections thereof, as a nonsmoking establishment. Sec. 19A.4. Smoking RegUlated Plac~of employment. Within ninety (90) days of the effective date of this Ordinance, each employer shall adopt, implement, make known and maintain a ORDINANCE NO. 86-18 -3- written smoking policy which shall maintain as a minimum the following requirements; (a) Prohibition of smoking in employer'~s: (1) auditoriums (2) classrooms (13) conference and meeting rooms (4) elevators (5) hallways (6) medical facilities (17) restrooms (b) Provision and maintenance of a separate and contiguous nonsmoking area of not less than seventy five percent (75%) of the seating capacity and floor space in cafeterias, lunchrooms and employee lounges. (c) Any employee in a place of employment shall be given the right to designate his or her immediate work area as a nonsmoking area and to post the same with an appropriate sign or signs to be provided by the employer. The policy adopted by the e~,,ployer shall include a definition of the term "immediate work area. (id) In any dispute arising under the smoking policy, the rights of the nonsmoker shall be given precedence. (e) The smoking policy shall be communicated to all employees within three (3) weeks of its adoption, and at least yearly thereafter. (f) All employers shall supply a written copy of the smoking policy to any prospective employee who so requests. Employers shall also furnish all signs required to implement the smoking policy for their business. (g) Notwithstanding the provisions of this section, every employer shall have the right to designate any place of employment or any portion thereof, as a nonsmoking area. Sec. 19A.5 Posting of signs. Posting of signs shall be the responsibility of the owner, operator, manager or other person having control of any place generally open to the public where smoking is prohibited by this Ordinance. (a) Except as provided in subsection (b) of this section or in facilities owned or leased by county, state, or federal governmental entities, "No Smoking" 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) shall be clearly, sufficiently and conspicuously posted in every room, building or other place where smoking is regulated by this Ordinance, including, but not limited to, all entrances, all restrooms and all elevators. Signs of equivalent size and character reading "Smoking Permitted" may be posted where legally applicable. Alternative means of notification (individual place cards, etc.) may be employed, provided they are equivalent to the aforementioned signs in their effect. Ail other signs required by this Ordinance shall be posted within ninety (90) days of the effective date of this Ordinance. ORDINANCE NO. 86-18 -4- (b) Except in facilities owned or leased by county, state, or federal governmental entities, a conspicuous and clearly legible sign shall be posted at every public entrance to a restaurant indicating the policy of the restaurant with respect to whether it: (1) Prohibits smoking throughout the dining area of the restaurant; or (12) Divides the dining area of the restaurant into smoking and nonsmoking sections. (c) The sign used must state in characters of not less than one inch in height, "No Smoking Section", followed by one of the following: (1) "Upon request"; or (2) "X%", Where X is expressed as a percentage of the total number of seats in the dining area of the restaurant. (d) In restaurants with both smoking and nonsmoking sections, individual signs, cards, or placards with either the words "No Smoking" or the international no smoking symbol must be placed on every table and counter in the nonsmoking section of the dining area. Sec. 19A.6. Unlawful acts designated. It is unlawful for any person to smoke in a place within the City where smoking is p~ohibited. Further, it is unlawful for any person who owns, manages or otherwise controls the use of any premises subject to this Ordinance to fail to post signs as required by this Ordinance. Sec. 19A.7. Nondiscrimination. No person shall discharge, refuse to hire or in any manner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this Ordinance. Sec. 19A.8. Enforcement and Penalties. (a) Enforcement of this Ordinance shall be carried out by the City Administrator of the City of Gilroy, or his/her designee. During business license renewal, the Finance Department of the City of Gilroy shall require from any establishment which comes under the provisions of this Ordinance a "self-certification" from the owner, manager, operator, or other person having control of such establish- ment, that all requirements of this Ordinance have been complied with. Any owner, manager, operator, or other person having control of such establishment shall respond to the City's request~ for certifica- tion within sixty (60) days of said request. Failure to self- certify shall be grounds to deny said business license, and initiate proceedings for violation of this Ordinance. Any owner, manager, operator, or employee of any establishment shall have the right to inform persons violating this Ordinance of the appropriate provisions thereof. ORDINANCE NO. 86-18 -5- (b) Any person violating any of the provisions of this Ordinance shall be guilty of an infractionpunishable according to City and State Codes. SECTION II. All other ordinances and parts of ordinances in conflict herewith are hereby repealed. SECTION' III. This ordinance shall take effect and be in full force thirty (30) days from and after its adoption and approval. PASSED AND ADOPTED this 15th day of September 1986 by the following vote: AYES: COUNCILMEMBERS: ALBERT, GAGE, PALMERLEE, VALDEZ and HUGHAN NOES: COUNCILMEMBERS: KLOECKER and MUSSALLEM ABSENT: COUNCILME~ERS: NONE APPROVED: Mayor ATTEST: ORDINANCE NO. 86-18 -6- I, SUSANNE E. STEINMETZ, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 86-18 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 15th day of present. September , 19 86 , at which meeting a quorum was affixed the Official Seal of the City of Gilroy, this of October , 19 86 ~' ri IN WITNESS WHEREOF, I have hereunto set my hand and 7th day (Seal)