Chapter 9.06
SMOKEFREE PUBLIC PLACES AND MULTI-UNIT HOUSING
Sections:
9.06.020 Prohibition of smoking in city facilities.
9.06.030 Prohibition of smoking in enclosed areas.
9.06.040 Smoking restrictions in units of multi-unit residences.
9.06.050 Prohibition of smoking in unenclosed areas.
9.06.060 Reasonable smoking distance required.
9.06.070 Nonsmoking buffer zones.
9.06.080 Required and implied lease terms for all units in multi-unit residences.
9.06.090 Notice and signage requirements.
9.06.110 Other requirements and prohibitions.
9.06.120 Penalties and enforcement.
9.06.010 Definitions.
The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
A. “Adjacent unenclosed property” means any unenclosed area of property, publicly or privately owned, that abuts a multi-unit residence, but does not include property containing detached single-family homes.
B. “Business” means any sole proprietorship, partnership, joint venture, corporation, association, landlord, or other entity formed for profit-making purposes. A business also includes owner-operated entities with no employees in which the owner is the only worker.
C. “Cannabis” has the meaning set forth in California Business and Professions Code Section 26001(f), as that section may be amended from time to time.
D. “Common area” means every enclosed area and 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, but not limited to, 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.
E. “Dining area” means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and that is designed, established, or regularly used for consuming food or drink, including but not limited to restaurants.
F. “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.
G. “Employer” means any business or nonprofit entity that retains the service of one or more employees.
H. “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 vertical constraint to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or
2. Four walls or other vertical constraints to airflow, including, but not limited to, vegetation, that exceed six feet in height, whether or not those boundaries include vents or other openings.
I. “Multi-unit residence” means property containing two or more units, including, but not limited to, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term health care facilities. Multi-unit residences do not include the following:
1. A hotel or motel that meets the requirements of California Civil Code Section 1940(b)(2);
2. A mobile home park;
3. A campground;
4. A marina or port;
5. A single-family home, except if used as a health care facility subject to licensing requirements; and
6. A single-family home with a detached or attached in-law or second unit permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2, or an ordinance of the city adopted pursuant to those sections, except if the single-family home or in-law/second unit is used as a health care facility subject to licensing requirements.
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, political, social, or similar purposes, the net proceeds 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 chapter.
K. “Nonsmoking area” means any enclosed area or unenclosed area 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. A person with legal control over the area.
L. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.
M. “Place of employment” means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation.
N. “Private smokers’ lounge” means any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.
O. “Public place” means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.
P. “Reasonable distance” means a distance of 20 feet in any direction from an area in which smoking is prohibited.
Q. “Recreational area” means any area including streets and sidewalks publicly or privately owned 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, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, roller- and ice-skating rinks, skateboard parks, amusement parks, and beaches.
R. “Retail or wholesale tobacco shop” means any business establishment, the main purpose of which is the sale of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories.
S. “Service area” 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 to make a transaction, whether or not such service or transaction includes the exchange of money. The term “service area” includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.
T. “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, such as, for example, smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic device, and cannabis smoke.
U. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for 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, and includes, but is not limited to tobacco smoke, vapors from an electronic device, and cannabis smoke.
V. “Tobacco product” means:
1. Any product containing, made, or derived from 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, little cigars, chewing tobacco, pipe tobacco, snuff; and
2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.
Notwithstanding any provision of subsections (V)(1) and (2) of this section to the contrary, “tobacco product” includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.
W. “Unenclosed area” means any area that is not an enclosed area.
X. “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. “Unit” includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy (“SRO”) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit. (Ord. 19-13 § 2).
9.06.020 Prohibition of smoking in city facilities.
Smoking is prohibited in all enclosed areas, including buildings and vehicles, owned, leased, or operated by the city. (Ord. 19-13 § 2).
9.06.030 Prohibition of smoking in enclosed areas.
Smoking is prohibited in the enclosed areas of the following places within the city:
A. Places of employment;
B. Public places;
C. Common areas of multi-unit residences;
D. Retail or wholesale tobacco shops; and
E. Private smokers’ lounges. (Ord. 19-13 § 2).
9.06.040 Smoking restrictions in units of multi-unit residences.
Smoking is prohibited in all units of a multi-unit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, or patio. Smoking in a unit of a multi-unit residence is a violation of this chapter 90 days after the effective date of the ordinance codified in this chapter. (Ord. 19-13 § 2).
9.06.050 Prohibition of smoking in unenclosed areas.
A. Smoking is prohibited in the unenclosed areas of the following places within the city:
1. Recreational areas;
2. Service areas;
3. Dining areas;
4. Places of employment;
5. Any private or public sidewalks located within a commercial zone; and any public place located within a commercial zone.
6. Common areas of multi-unit residences, provided, however, that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area:
a. Is located a reasonable distance from 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 property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than 10 percent of the total unenclosed area of the multi-unit residence for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. 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 law, or federal law;
7. Other public places, when being used for a public event including, but not limited to, a farmers market, parade, craft fair, festival, or any other event open to the general public.
B. 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.
C. The police chief or his/her designee shall conduct an ongoing educational program to explain and clarify the purposes and requirements of this chapter as well as to provide guidance to persons, employers, and nonprofit entities about compliance. However, lack of receiving or participating in such education program shall not be a defense to a violation of this chapter. (Ord. 19-13 § 2).
9.06.060 Reasonable smoking distance required.
A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.
B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under BMC 9.06.040.
C. The prohibitions in subsections (A) and (B) of this section shall not apply to unenclosed areas of private residential properties that are not multi-unit residences. (Ord. 19-13 § 2).
9.06.070 Nonsmoking buffer zones.
A. Smoking is prohibited in adjacent unenclosed property located within 20 feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi-unit residence.
B. Subsection (A) of this section does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination. (Ord. 19-13 § 2).
9.06.080 Required and implied lease terms for all units in multi-unit residences.
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 after the effective date of the ordinance codified in this chapter, shall include the provisions set forth in subsection (B) of this section on the earliest possible date allowable by law.
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 after the effective date of the ordinance codified in this chapter, shall be amended to include the following provisions:
1. A clause providing that as of the effective date of the ordinance codified in this chapter, it is a material breach of the agreement to knowingly or intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such as balconies, porches, or patios.
2. A clause providing that it is a material breach of the agreement for tenant to knowingly and intentionally allow, or engage in, smoking in any common area of the multi-unit residence other than a designated smoking area.
3. A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior.
4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the lease or other rental agreement.
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 apply 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, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence shall be liable for the breach to (1) the landlord; and (2) any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of the breach. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations if the landlord has fully complied with this section.
E. 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. 19-13 § 2).
9.06.090 Notice and signage requirements.
A. Every landlord and homeowner association shall deliver the following, on or before the effective date of the ordinance codified in this chapter plus six months, to each unit of a multi-unit residence:
1. A written notice clearly stating:
a. All units are designated nonsmoking units and smoking is illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio, as of the effective date of the ordinance plus six months; and
b. Smoking in all common areas, except for specifically designated smoking areas, is a violation of this chapter as of the effective date of the ordinance codified in this chapter.
2. A copy of this chapter.
B. As of the effective date of the ordinance codified in this chapter, every landlord shall provide prospective tenants with written notice clearly stating that:
1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of effective date of the ordinance codified in this chpater; and
2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of effective date of ordinance codified in this chapter.
C. As of the effective date of the ordinance codified in this chapter, every seller of a unit in a multi-unit residence shall provide prospective buyers with written notice clearly stating that:
1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of the effective date of the ordinance codified in this chapter; and
2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of the effective date of the ordinance codified in this chapter.
D. The person or persons with legal control over common areas shall post clear and unambiguous “No smoking” signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. In addition, the person or persons with legal control over the multi-unit residence shall post signs in sufficient numbers and locations in the multi-unit residence to indicate that smoking is prohibited in all units. The person or persons with legal control over the common areas shall maintain such signs. The absence of signs shall not be a defense to a violation of any provision of this chapter. “No smoking” signs are not required inside or on doorways of units, except for hotels or motels which meet the criteria listed in California Civil Code Section 1940(b)(2).
E. No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as provided in BMC 9.06.050, 9.06.060, and 9.06.070. (Ord. 19-13 § 2).
9.06.100 Nuisance – Other.
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 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 occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance.
C. Pursuant to California State law, Health and Safety Code Sections 11362.3 and 11362.79, smoking cannabis is prohibited wherever smoking tobacco is prohibited.
D. Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. (Ord. 19-13 § 2).
9.06.110 Other requirements and prohibitions.
A. No person, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law.
B. No person, employer, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as ashtrays or ash cans, within an area under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which 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.
C. A person, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this chapter shall post a clear, conspicuous, and unambiguous “No smoking” or “Smokefree” sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in BMC 9.06.050. For purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the city. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.
D. No person, employer, or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter.
E. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation.
F. Pursuant to California State law, Health and Safety Code Sections 11362.3 and 11362.79, cannabis smoking is prohibited wherever smoking is prohibited. (Ord. 19-13 § 2).
9.06.120 Penalties and enforcement.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available under this code, at law, and/or in equity.
B. Each incident of smoking in violation of this chapter is an infraction subject to a $100.00 fine or otherwise punishable pursuant to this code. Enforcement of this chapter shall be the responsibility of the police department. In addition, any peace officer or code enforcement official also may enforce this chapter.
C. Violations of this chapter are subject to a civil action brought by the city punishable by a civil fine not less than $250.00 and not exceeding $1,000 per violation.
D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
E. Any violation of this chapter is hereby declared to be a public nuisance.
F. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
G. Any person acting for the interests of itself, its members, or the general public (hereinafter “private enforcer”) may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief.
H. 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. 19-13 § 2).
9.06.130 Other laws.
A. It is not the intention of this chapter to regulate any conduct where the regulation of such conduct has been preempted by the state of California.
B. Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. (Ord. 19-13 § 2).