Chapter 9.31
SMOKING AND SECONDHAND SMOKE
Sections:
9.31.040 Secondhand smoke – Declaration of a nuisance.
9.31.050 Places where smoking is prohibited.
9.31.060 Places where smoking is optional.
9.31.070 Designated smoking areas.
9.31.080 Sign posting and ash receptacle requirements.
9.31.090 Other requirements and prohibitions.
9.31.100 Required lease terms.
9.31.110 Penalties and enforcement.
9.31.010 Title.
This chapter shall be entitled “Smoking and Secondhand Smoke.” (Ord. 856 § 2(part), 2015).
9.31.020 Purpose and intent.
It is the intent of the city council, in enacting this chapter, to provide for the public health, safety, and welfare of all citizens and visitors of the city by limiting exposure to secondhand smoke to non-tobacco users, especially children, and to affirm and promote a healthy environment in the city. (Ord. 856 § 2(part), 2015).
9.31.030 Definitions.
The following words or phrases, whenever used by this chapter, shall be construed as defined in this section, unless it is apparent from the context that they have a different meaning:
A. “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 that provide legal, medical, dental, engineering, architectural, or other professional or personal services.
B. “Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease.
C. “Employee” means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer.
D. “Employer” means any person, business or nonprofit entity, including a municipal corporation, which retains the service of one or more employees.
E. “Enclosed area” means all space between a floor and ceiling where the space is closed in on all sides by solid walls or windows that extend from the floor to the ceiling. An enclosed area may have openings for ingress and egress, such as doorways or passageways. An enclosed area includes all areas within that space, such as hallways and areas screened by partitions that do not extend to the ceiling or are not solid.
F. “Existing unit” means a unit that was issued a certificate of occupancy or received a final inspection prior to the effective date of the ordinance codified in this chapter.
G. “Landlord” means any person who owns property let for residential use, any person who lets property, and any person who manages such property, except that “landlord” does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.
H. “Multi-unit residence” means a building or portion thereof that contains two or more units.
I. “Multi-unit residence common area” means any area of a multi-unit residence which residents of those units are entitled to enter or use, including but not limited to halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, laundry facilities, picnic areas and other shared eating areas, playgrounds, swimming pools, gym facilities, parking garages, parking lots, shared restrooms and shared cooking areas.
J. “Nonprofit entity” means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, 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 government agency is not a “nonprofit entity” within the meaning of this section.
K. “Outdoor dining area” means any unenclosed area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink.
L. “Person” means any individual, firm, partnership, corporation, company, association, joint stock association, city, county, state, or district; and includes any trustee, receiver, assignee, or other similar representative thereof.
M. “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 have cause to enter in the normal course of operations, regardless of the hours of operation, including but not limited to construction sites, vehicles used in employment or for work purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health care facilities, and warehouses.
N. “Public place” means any area, publicly or privately owned, which is open to the general public regardless of any fee or age requirement, including but not limited to streets, sidewalks, plazas, and courtyards; clubhouses, meeting halls, and community centers; elevators, restrooms, lobbies, public hallways, and waiting rooms; banks, retail stores, galleries, aquariums, libraries and museums; bars, restaurants, and clubs; and taxis and buses.
O. “Recreational area” means any area, publicly or privately owned, which is open to the public for recreational purposes regardless of any fee or age requirement, including but not limited to parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, swimming pools, sporting facilities, stadiums, roller and ice skating rinks, skateboard parks, and amusement parks.
P. “Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and tobacco accessories and for which the sale of other products is merely incidental.
Q. “Service line” means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or make a transaction, whether or not such service or transaction involves the exchange of money. The term “service line” includes, but is not limited to, information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or taxi stands.
R. “Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the resulting byproducts, except when the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, marijuana smoke, and electronic smoking device emissions.
S. “Smoking” means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.
T. “Tobacco product” means any substance containing tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff and chewing tobacco. “Tobacco product” also means any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah.
“Tobacco product” does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
U. “Unenclosed area” means any area which is not an enclosed area.
V. “Unit” means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, including but not limited to a “dwelling unit” or “housing unit” as defined in Chapter 17.90. “Unit” includes but is not limited to an apartment; a common interest development such as a condominium, townhouse or tenant-in-common; a room in a dormitory; a room in a senior citizen residence, nursing home, assisted living facility, or long-term health care facility; a room in a single room occupancy (“SRO”) facility; and a room in a homeless shelter. “Unit” also includes any associated exclusive use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio. (Ord. 856 § 2(part), 2015).
9.31.040 Secondhand smoke – Declaration of a nuisance.
Secondhand smoke constitutes a nuisance. Notwithstanding any other provisions of this chapter, a private citizen may bring a legal action to abate secondhand smoke as a nuisance. (Ord. 856 § 2(part), 2015).
9.31.050 Places where smoking is prohibited.
A. Enclosed Areas. Smoking shall be prohibited in the following enclosed areas within the city except in places listed in Section 9.31.060 and except in such places in which smoking is already prohibited by state or federal law, in which case the state or federal law shall apply:
1. Places of employment;
2. Public places, whether publicly or privately owned and operated;
3. Recreational areas;
4. All buildings and vehicles owned, leased, operated or controlled by the city;
5. Multi-unit residence common areas; and
6. Units of multi-unit residences, including the exclusive use areas of the units such as private balconies, porches, decks, or patios; except that a qualified medical cannabis patient as defined in California Health and Safety Code Section 11362.7 et seq., as amended, may use an electronic smoking device for the use of medical cannabis. An existing unit and its associated exclusive use areas shall not be subject to the smoking restrictions of this chapter until January 1, 2017.
B. Unenclosed Areas. Smoking shall be prohibited in the following unenclosed areas within the city except the areas listed in Section 9.31.060 and except in areas in which smoking is already prohibited by state or federal law, in which case the state or federal law shall apply:
1. Recreational areas;
2. Service lines;
3. Old Redwood Highway and its abutting sidewalks between the hours of six a.m. and eight p.m.;
4. Outdoor dining areas, except that restaurants and bars/taverns with frontage on Old Redwood Highway between Page Street and the southernmost intersection of La Plaza shall instead conform to the following regulations:
a. Between the hours of six a.m. and eight p.m. smoking is prohibited within outdoor dining areas located on, adjacent to, or directly accessible from Old Redwood Highway and its abutting sidewalks;
b. Smoking is optional at all times in outdoor dining areas that are not on, adjacent to, or directly accessible from Old Redwood Highway and that must be accessed from within the restaurant or bar/tavern;
5. Property owned or controlled by the city; provided, that smoking is permitted on streets, alleys and abutting sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law;
6. Public places, when being used for a public event, including a farmers’ market, parade, craft fair, festival, or any other event which may be attended by the general public;
7. Multi-unit residence common areas; except that a person with legal control over a multi-unit residence common area, such as a landlord or homeowners’ association, may designate a portion of the multi-unit residence common area as a smoking area; provided, that at all times the designated smoking area meets the criteria set out in Section 9.31.070; and
8. Exclusive-use areas associated with a unit of a multi-unit residence, such as a private balcony, porch, deck, or patio; except that a qualified medical cannabis patient as defined in California Health and Safety Code Section 11362.7 et seq., as amended, may use an electronic smoking device for the use of medical cannabis. An existing unit and its associated exclusive use areas shall not be subject to the smoking restrictions of this chapter until January 1, 2017.
C. Smoking shall be prohibited within twenty-five feet of any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited under subsection A of this section, and within twenty-five feet of an area where smoking is prohibited under subsection B of this section, except while actively passing on the way to another destination and provided smoke does not enter any area in which smoking is prohibited. This subsection shall not be construed to prohibit smoking within any portion of an outdoor dining area that conforms and is subject to the regulations set forth in subsections (B)(4)(a) and (b) of this section.
D. Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area. (Ord. 859 § 2(part), 2015; Ord. 856 § 2(part), 2015).
9.31.060 Places where smoking is optional.
Notwithstanding Section 9.31.050, smoking is optional in the following enclosed and unenclosed areas within the city except in areas where smoking is prohibited by state or federal law, in which case the state or federal law shall apply:
A. Private residential property developed and occupied with detached housing units, unless said residential property is used as a child care or health care facility subject to separate registration or licensing requirements.
B. Public streets, alleys and abutting sidewalks, unless otherwise prohibited, and only when the streets, alleys or abutting sidewalks are being used in their traditional capacity as pedestrian or vehicular thoroughfares to travel from one destination to another.
C. Private automobiles.
D. In up to twenty-five percent of guest rooms in any hotel or motel, if the hotel or motel permanently designates at least seventy-five percent or more of its guest rooms as nonsmoking rooms. Smoking-allowed rooms shall be segregated from nonsmoking rooms and located on separate floors, wings, or portions of the building. Smoking and nonsmoking rooms shall not be interspersed. Nothing in this chapter shall require a hotel or motel to allow smoking, and smoking may be prohibited on the entire property.
E. By performers during theatrical productions, if smoking is an integral part of the story in the theatrical production.
F. Designated smoking areas that meet the requirements set forth in Section 9.31.070.
G. Cannabis consumption cafe/lounges, as permitted by the city in accordance with Section 17.42.200, provided the activity is compliant with local requirements and state law. This use shall meet the following additional requirements:
1. Enclosed smoking areas must be separately ventilated, with sufficient negative pressure, air exchange, odor control/filtration, self-closing sealed doors, and other operational and physical measures to ensure that the general public or other persons outside of the enclosed smoking area are not exposed to secondhand smoke or associated odors. Employee exposure, if any, shall be consistent with state law.
2. Outdoor smoking areas, if any, must be approved by the city on a case-by-case basis by meeting the requirements of the city through an associated cannabis permit. Additionally, these areas must be sufficiently ventilated to prevent any secondhand smoke or odors from being detectable beyond the boundaries of the permitted area.
H. Notwithstanding any other portion of this chapter, electronic smoking devices may be used within retail tobacco stores for product sampling. Retail tobacco stores shall post signs prohibiting people less than twenty-one years of age from entering the establishment. (Ord. 908 § 5 (Exh. 1 § 5), 2022; Ord. 859 § 2 (part), 2015; Ord. 856 § 2 (part), 2015).
9.31.070 Designated smoking areas.
Person(s) with legal control over property may designate an outdoor area where smoking is permitted if the area meets all of the following criteria:
A. The area is completely unenclosed;
B. The area is located at least twenty-five feet, vertically or horizontally, from a window, door or vent into any unit or enclosed area where smoking is prohibited by this chapter or other law, by binding agreement relating to the ownership, occupancy, or use of real property, or by designation of a person with legal control over the premises. A designated smoking area may require modification or elimination as laws change or binding agreements are created;
C. The area is located no less than twenty-five feet from the boundary line of an adjacent property which is not owned or managed by the same person(s) or entity;
D. The area does not include, and is at least twenty-five feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, swimming pools, and school campuses;
E. The area includes no more than twenty percent of the total unenclosed area of the premises for which it is designated;
F. The area has a clearly marked perimeter;
G. The area is identified by conspicuous signs;
H. The area does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state, or federal law; and
I. The area is not comprised of a public street or sidewalk that is simultaneously being used in its traditional capacity as a pedestrian or vehicle thoroughfare. (Ord. 856 § 2 (part), 2015).
9.31.080 Sign posting and ash receptacle requirements.
A. “No Smoking” or “Smoke Free” signs, with letters of no 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 city, shall be conspicuously posted and maintained by the person, employer, business, or nonprofit entity who or which has legal or de facto control of a place in which smoking is prohibited by this chapter and shall be placed at each point of ingress to the area, and in at least one other conspicuous point within the area. Signage required by this subsection shall not be subject to Chapter 17.38 (Signs). Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter.
B. No person, employer, business, or nonprofit entity with legal or de facto control of area where smoking is prohibited by this chapter shall knowingly or intentionally allow the presence or placement of ash trays, ash cans or other receptacles designed for or primarily used for disposal of smoking waste within an area where smoking is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking in violation of any provision of this chapter. (Ord. 856 § 2(part), 2015).
9.31.090 Other requirements and prohibitions.
A. Smoking in an unenclosed multi-unit residence common area, on or after November 13, 2015, other than in a designated smoking area established pursuant to Section 9.31.070 is a violation of this chapter.
B. Smoking in a unit in a multi-unit residence, on or after January 1, 2017, is a violation of this chapter.
C. No person, employer, business, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the
person, employer or nonprofit entity and in which smoking is prohibited by this chapter or other law.
D. Any person, employer, business, or nonprofit entity with the legal or de facto control of an area in which smoking is prohibited by this chapter shall inform any apparent violator, whether a person or employee, about any smoking restrictions applicable to that area.
E. No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking is prohibited. (Ord. 856 § 2(part), 2015).
9.31.100 Required lease terms.
A. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence entered into, renewed, or continued month-to-month shall include the provisions set forth in subsection B of this section on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.
B. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence entered into, renewed, or continued month-to-month shall be amended to include the following provisions:
1. A clause stating that as of January 1, 2017, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of January 1, 2017.”
2. A clause stating that it is a material breach of the agreement for the tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a designated smoking area. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists.”
3. A clause stating that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.”
4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the agreement. Such a clause might state, “Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.”
C. The clauses required by subsections A and B of this section shall be implied and incorporated by law into every agreement for the occupancy of a unit in a multi-unit residence to which subsections A and B of this section apply and shall become effective as of the earliest possible date on which they could have been included pursuant to subsections A and B of this section.
D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to:
1. The person with legal control over the unit in the multi-unit residence, such as a landlord; and
2. Any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of that breach.
E. This chapter shall not create additional liability in a person with legal control over a unit in the multi-unit residence, such as a landlord, to any person for a tenant’s breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a multi-unit residence if the person with legal control over the unit in the multi-unit residence, such as a landlord, has fully complied with subsections A and B of this section, Section 9.31.080, and Section 9.31.090(C) and (D).
F. Failure to enforce any smoking provisions of a lease or rental agreement on one or more occasions shall not constitute a waiver of the lease or rental agreement provisions required by this chapter and shall not prevent future enforcement of any such smoking provisions on another occasion. (Ord. 856 § 2(part), 2015).
9.31.110 Penalties and enforcement.
A. Every instance of smoking in violation of this chapter shall be deemed an infraction subject to a one hundred dollar fine. Other violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
B. Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.
C. In addition to other remedies provided by this chapter or other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
D. Any person, including a legal entity or organization, acting for the interests of itself, its members, or the general public may bring a civil action for injunctive relief to prevent future such violations or sue to recover such actual or statutory damages as he or she may prove.
E. Except as otherwise provided, enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against private parties. (Ord. 856 § 2(part), 2015).