Division II. Offenses Against the Person
Chapter 17.06
SMOKING REGULATIONS
Sections:
17.06.030 Smoking prohibited – Smoking in or near public facilities.
17.06.050 Smoking prohibited – Smoking in family day care facilities.
17.06.060 Smoking prohibited – Smoking prohibited by law in certain areas.
17.06.070 Smoking prohibited – Smoking prohibited in common areas except designated smoking areas.
17.06.080 Nonsmoking buffer zones.
17.06.090 Smoking restrictions in new units of multi-unit residences.
17.06.100 Nonsmoking designations for existing units of a common interest complex.
17.06.120 Nonsmoking designations for existing units of a rental complex.
17.06.130 Required and implied lease terms for all new and existing units in rental complexes.
17.06.140 Procedures and requirements for mandated submissions.
17.06.150 Smoking and smoke generally.
17.06.160 Penalties and enforcement.
17.06.170 Private enforcement.
17.06.010 Purpose.
The purpose of this chapter is to:
A. Provide for the public’s health, safety, and welfare by discouraging the inherently dangerous activity of tobacco use around nonconsenting individuals, protecting children from exposure to smoking where they live and play, and protecting the public from nonconsensual exposure to secondhand smoke in and around their homes.
B. Ensure a cleaner and more hygienic environment within the city, reduce litter, protect the city’s constituency, and protect the city’s natural resources.
C. Enhance the welfare of residents, workers, and visitors by reducing exposure to secondhand smoke, which studies confirm can cause negative health effects in nonsmokers.
D. Balance the needs of persons who smoke with the needs of nonsmokers, including children and youth, to be free from the discomforts and health threats created by exposure to secondhand smoke and vapor. (Ord. 901 § 2, 2019).
17.06.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as follows:
A. “Adjacent property” shall mean any enclosed area or unenclosed area of property, publicly or privately owned, that abuts a multi-unit residence, but does not include property developed with non-multi-unit residence or property specifically identified as an exception under this chapter.
B. “City-sponsored event” means an event that is designated by the city as such and is sponsored financially or in-kind in whole or in part by the city.
C. “Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.
D. “Cannabis products” means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.
E. “Common area” means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators, stairs, community rooms and playgrounds, gym facilities and swimming pools, parking lots and garages, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.
F. “Common interest complex” means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development, as defined by Civil Code Section 4100.
G. “Designated smoking area” shall mean an area where smoking is permissible and has been established in accordance with the provisions of BGMC 17.06.070.
H. “Electronic smoking device” means an electronic and/or battery-operated device that can deliver an inhalable dose of nicotine, cannabis, or other substance to the user. “Electronic smoking device” includes any product meeting this definition, regardless of whether it is manufactured, distributed, marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or descriptor.
I. “Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:
1. Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other physical boundaries of any height, whether or not those boundaries include vents or other openings; or
2. Four walls or other vertical boundaries that exceed six feet in height, whether or not those boundaries include vents or other openings.
J. “Existing unit” shall mean a unit in existence on or before December 1, 2019.
K. “Family day care home” shall be defined as set forth in Health and Safety Code Section 1596.78.
L. “HOA” shall mean an organization or entity established for the purpose of managing and/or maintaining a common interest complex.
M. “Landlord” means any person who owns property with a multi-unit residence and lets such property for residential use, any person who lets residential property used as multi-unit residences 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.
N. “Multi-unit residence” means property containing three or more attached units and shall include a rental complex and a common interest complex, except the following specifically excluded types of housing:
1. A hotel or motel that meets the requirements set forth in Civil Code Section 1940(b)(2), as amended;
2. A mobilehome park; and
3. A campground.
O. “New unit” means a unit that is issued a certificate of occupancy on or after December 1, 2019.
P. “Nonsmoking area” means any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by: (1) this chapter or other law; (2) binding agreement relating to the ownership, occupancy, or use of real property; or (3) designation of a person with legal control over the enclosed or unenclosed area. In the case of a smoking prohibition established only by private agreement or designation and not by this chapter or other law, it shall not be a violation of this chapter for a person to engage in smoking or to allow smoking in a nonsmoking area, unless the person knows smoking is not permitted or a reasonable person would know smoking is not permitted.
Q. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including governmental agencies.
R. “Parks” means and includes all parks and parkways owned or controlled by the city. The term “parks” also includes, but is not limited to, all parking lots and alleys which are owned or controlled by the city and used or intended to be used in connection with a park or parkway. The term “parks” does not include golf courses.
S. “Public facility” means enclosed and unenclosed areas of any buildings, structures, facilities, or complexes owned, leased, or operated by the city of Bell Gardens and accessible to the general public as determined by the property lines of such facilities. Such public facilities include but are not limited to City Hall, city offices, city buildings, meeting or conference facilities, library, and recreational buildings.
T. “Recreational area” means any area that is owned, controlled or used by the city and open to the general public for recreational purposes, regardless of any fee or age requirement. The term “recreational area” includes but is not limited to picnic areas, playgrounds, sports fields, tracks, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools and skateboard parks. “Recreational area” does not include golf courses.
U. “Rental complex” means a multi-unit residence for which 50 percent or more of the units are let by or on behalf of the same landlord.
V. “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 byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory or congestion relief, such as, for example, smoke from incense or vapor from a congestion relieving vaporizer. The term “smoke” includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and cannabis smoke.
W. “Smoking” means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any lighted or heated plant product intended for human inhalation, whether natural or synthetic, in any manner or in any form. “Smoking” includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.
X. “Unenclosed area” means any area that is not an enclosed area, including but not limited to patios, outdoor dining areas, and outdoor service areas.
Y. “Unit” means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio.
Z. “Vapor” means aerosol produced from the use of an electronic smoking device. (Ord. 901 § 2, 2019).
17.06.030 Smoking prohibited – Smoking in or near public facilities.
Smoking is prohibited inside a public facility or in an outdoor area within 40 feet of a main exit, entrance, or operable window of a public facility. (Ord. 901 § 2, 2019).
17.06.040 Smoking prohibited – Smoking in or near public parks, recreational areas, and city-sponsored events.
Smoking is prohibited inside a public park, recreational area, a city-sponsored event, or in an outdoor area within 40 feet from a public park, recreational area, or city-sponsored event. This prohibition shall also apply to public sidewalks located within 40 feet of a public park, recreational area, or city-sponsored event. (Ord. 901 § 2, 2019).
17.06.050 Smoking prohibited – Smoking in family day care facilities.
Health and Safety Code Section 1596.795 prohibits smoking in a single-family dwelling licensed as a family day care home during operations of that facility for that purpose. If smoking is permitted and occurring at a location licensed as a family day care home during hours of nonoperation of that facility for day care purposes, then the person with legal control over the family day care home must disclose, to the parents and guardians of those potentially to be serviced by that facility, smoking is permitted and does occur at that facility during those hours of nonoperation. (Ord. 901 § 2, 2019).
17.06.060 Smoking prohibited – Smoking prohibited by law in certain areas.
A. Smoking in a common area, other than a designated smoking area established pursuant to BGMC 17.06.070, is prohibited and a violation of this chapter.
B. Smoking in a new unit or existing unit, as set forth in BGMC 17.06.090, 17.06.100, and 17.06.120, is prohibited and a violation of this chapter.
C. Smoking in a designated nonsmoking unit is prohibited and a violation of this chapter.
D. Smoking in an exclusive-use unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as set forth in BGMC 17.06.080, 17.06.090, 17.06.100, and 17.06.120, is prohibited and a violation of this chapter.
E. Smoking in an unenclosed area of a multi-unit residence within 40 feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, as set forth in BGMC 17.06.080(A), is prohibited and a violation of this chapter.
F. Smoking in an unenclosed area of an adjacent property within 40 feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, as set forth in BGMC 17.06.080(B), is prohibited and a violation of this chapter.
G. Smoking in any nonsmoking area is prohibited and a violation of this chapter. (Ord. 901 § 2, 2019).
17.06.070 Smoking prohibited – Smoking prohibited in common areas except designated smoking areas.
A. Smoking is prohibited in all common areas pursuant to BGMC 17.06.060(A), except that a person with legal control over a common area, such as, for example, a landlord or HOA, may designate a portion of the common area as a designated smoking area; provided, that, at all times, such designated smoking area, at a minimum, complies with subsection (B) of this section.
B. For a location to be a designated smoking area, at a minimum it:
1. Must be an unenclosed area;
2. Must be located at least 40 feet from any enclosed area that is a nonsmoking area; provided, that a person with legal control over a common area in which a designated smoking area has been established shall modify, relocate, or eliminate such smoking area so as to maintain compliance with the requirements of this subsection (B) as laws change, as binding agreements are created, and/or as nonsmoking areas on neighboring property are established;
3. Must be at least 40 feet from unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses;
4. Must be no more than 10 percent of the total unenclosed area of the multi-unit residence for which it is designated;
5. Must have a clearly marked perimeter; and
6. Must be clearly identified by conspicuous signage. The signs shall have letters of no less than one inch in height and shall be maintained by the person or persons with legal control over the designated smoking area.
C. No person with legal control over a common area in which smoking is prohibited by this chapter or other law shall knowingly permit the presence of any ashtray, ash can, or other receptacle designed for or primarily used for disposal of smoking waste within the common area.
D. Clear and unambiguous “No Smoking” signs shall be posted in sufficient numbers and locations to make common areas where smoking is prohibited by this chapter or other law obvious to a reasonable person. The signs shall have letters of no less than one inch in height or contain the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by the person or persons with legal control over the common areas. The absence of signs shall not be a defense to a violation of any provision of this chapter. (Ord. 901 § 2, 2019).
17.06.080 Nonsmoking buffer zones.
A. Smoking is prohibited in every unenclosed area of a multi-unit residence, including any balcony, porch, deck and patio that is within 40 feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area.
B. Smoking is prohibited in unenclosed areas of adjacent property within 40 feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area.
C. Smoking is prohibited in all exclusive-use unenclosed areas associated with a unit, such as, for example, a private balcony, porch, deck, and patio. (Ord. 901 § 2, 2019).
17.06.090 Smoking restrictions in new units of multi-unit residences.
Each new unit of a multi-unit residence is hereby designated a nonsmoking unit, including, without limitation, each new unit in a rental complex or in a common interest complex. (Ord. 901 § 2, 2019).
17.06.100 Nonsmoking designations for existing units of a common interest complex.
A. All existing units of a common interest complex, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, and patio, are hereby designated as nonsmoking units as of June 1, 2021.
B. At least six months before June 1, 2021, the HOA shall provide each tenant with:
1. A written notice clearly stating that all units, including the homeowner’s unit, are designated nonsmoking units and that smoking in a unit shall be prohibited as of June 1, 2021; and
2. A copy of this chapter. (Ord. 901 § 2, 2019).
17.06.110 Required and implied terms to be included in rules and regulations for all new and existing units in common interest complexes.
A. All existing rules and regulations for common interest complexes shall include the provisions set forth in subsection (B) of this section on the earliest possible date such rules and regulations may be amended in accordance with applicable law, including providing the minimum legal notice.
B. All existing rules and regulations applicable to a common interest complex shall be amended to include the following provisions:
1. A clause providing that as of June 1, 2021, or an earlier date if the HOA board so determines, it is a violation of the rules and regulations to engage in smoking in a unit. Such clause shall be substantially consistent with the following:
It is a violation of these rules and regulations for a homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to engage in smoking or vaping tobacco or cannabis products in the unit as of June 1, 2021 [or an earlier date that the HOA board so determines].
2. A clause providing that it is a violation of the rules and regulations for the homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to engage in smoking in any common area of the property other than a designated smoking area. Such clause shall be substantially consistent with the following:
It is a violation of these rules and regulations for a homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to engage in smoking or vaping of tobacco or cannabis products in any common area of the property, except in an outdoor Designated Smoking Area, if one exists.
3. A clause providing that it is a violation of the rules and regulations for the homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to violate any law regulating smoking while anywhere on the property. Such clause shall be substantially consistent with the following:
It is a violation of these rules and regulations for a homeowner or any other Person subject to the control of the homeowner or present by invitation or permission of the homeowner to violate any law regulating smoking or vaping of tobacco or cannabis products while anywhere on the property.
C. Whether or not an HOA board complies with subsections (A) and (B) of this section, the clauses required by those subsections shall be implied and incorporated by law into all rules and regulations of the common interest complex to which subsections (A) and (B) of this section apply and shall become effective as of the earliest possible date on which the HOA board could have amended such rules and regulations pursuant to subsections (A) and (B) of this section.
D. A homeowner who violates a smoking provision of the rules and regulations for a common interest complex, or who knowingly permits any other person subject to the control of the homeowner or present by invitation or permission of the homeowner, shall be liable for the violation to:
1. The HOA board; and
2. Any occupant of the common interest complex who is exposed to smoke or who suffers damages as the result of the violation.
E. This chapter shall not create additional liability in an HOA board to any person for a homeowner’s violation of any smoking provision in the rules and regulations for a common interest complex if the HOA board has fully complied with this section and BGMC 17.06.100.
F. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future. (Ord. 901 § 2, 2019).
17.06.120 Nonsmoking designations for existing units of a rental complex.
A. All existing units of a rental complex, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of June 1, 2021.
B. Prior to the effective date of a new or amended lease, or at least six months prior to June 1, 2021, whichever occurs earlier, a landlord shall provide each tenant with:
1. A written notice clearly stating that all units, including the tenant’s unit, are designated nonsmoking units and that smoking is prohibited in a unit as of June 1, 2021; and
2. A copy of this chapter. (Ord. 901 § 2, 2019).
17.06.130 Required and implied lease terms for all new and existing units in rental complexes.
A. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month to month after December 1, 2019, 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 rental complex, including, for example, new units and existing units, entered into, renewed, or continued month to month after December 1, 2019, shall be amended to include the following provisions:
1. A clause providing that as of June 1, 2021, or an earlier date if the landlord so determines, it is a material breach of the lease or other rental agreement to allow or engage in smoking in the unit. Such a clause shall be substantially consistent with the following:
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 or vaping of any tobacco or cannabis products in the unit as of June 1, 2021 [or an earlier date if the Landlord so determines].
2. A clause providing 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 engage in smoking in any common area of the property other than a designated smoking area. Such clause shall be substantially consistent with the following:
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 or vaping of any tobacco or cannabis products in any common area of the property, except in an outdoor area designated for smoking or vaping, if one exists.
3. A clause providing 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 clause shall be substantially consistent with the following:
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 or vaping of any tobacco or cannabis products while anywhere on the property.
4. A clause expressly conveying third-party beneficiary status to all occupants of the rental complex as to the smoking provisions of the lease or other rental agreement. Such clause shall be substantially consistent with the following:
Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking or vaping of any tobacco or cannabis products. 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. Whether or not a landlord complies with subsections (A) and (B) of this section, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (A) or (B) of this section applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (A) or (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 rental complex, 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 landlord; and
2. Any occupant of the rental complex who is exposed to smoke or who suffers damages as a result of the breach.
E. This chapter shall not create additional liability for 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 rental complex if the landlord has fully complied with this section and BGMC 17.06.120.
F. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. (Ord. 901 § 2, 2019).
17.06.140 Procedures and requirements for mandated submissions.
A. Submissions required by this chapter must be received by the economic development department on or before any applicable due date. The submissions shall include all material and information required by this chapter and such other materials and information as the economic development manager deems necessary for the administration and enforcement of this chapter.
B. All material and information submitted pursuant to this chapter constitute disclosable public records and are not private or confidential. (Ord. 901 § 2, 2019).
17.06.150 Smoking and smoke generally.
A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this chapter or other provisions of this code, (2) any failure by any person to restrict smoking under this chapter, or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
B. For all purposes within the jurisdiction of the city, nonconsensual exposure to smoke is a nuisance, and the uninvited presence of smoke on property is a nuisance and a trespass.
C. As set forth in Health and Safety Code Sections 11362.3(b) and 11362.79(a), smoking of cannabis and cannabis products is prohibited where smoking of tobacco is prohibited. (Ord. 901 § 2, 2019).
17.06.160 Penalties and enforcement.
A. Any person violating any of the provisions of this chapter shall constitute a misdemeanor punishable pursuant to Chapter 1.12 BGMC, unless prosecuted as an infraction at the discretion of the city attorney or city prosecutor. The city attorney, city prosecutor, any peace officer or code enforcement officer may enforce this chapter.
B. Under no circumstances shall the city have any responsibility or obligation to enforce or seek any legal redress, civil or criminal, for any violation of this chapter. 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. 901 § 2, 2019).
17.06.170 Private enforcement.
A. Any person, including a legal entity or organization or a government agency acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this chapter. Upon proof of a violation, a court shall award the following:
1. Damages in the amount of either:
a. Upon proof, actual damages; or
b. With insufficient or no proof of damages, $500.00 for each violation of this chapter (hereinafter “statutory damages”). Each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no person 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 by another person for statutory damages and based upon the same violation has been adjudicated, whether or not the person bringing the subsequent claim was a party to the prior adjudication.
2. Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the public health.
B. The person may also bring a civil action to enforce this chapter by way of a conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional judgment or an injunction.
C. Notwithstanding any legal or equitable bar against a person seeking relief on its own behalf, a person may bring an action to enforce this chapter solely on behalf of the general public. When a person brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the person from bringing a subsequent action based upon the same facts but seeking relief on his, her, or its account.
D. Nothing in this chapter prohibits a person from bringing a civil action in small claims court to enforce this chapter, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of such court. (Ord. 901 § 2, 2019).