Chapter 8.35 SMOKING

(1) The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (a) any provision of this chapter or of this Code, (b) any failure by any person to restrict smoking under this chapter, or (c) 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.

(2) 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.

(3) Nothing in this chapter is intended to preclude a person or entity that owns or controls a multiunit residence from prohibiting smoking under its control.

(4) This article shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

(b) Construction and severability. It is the intent of the City Council to supplement applicable state and federal law and not to duplicate or contradict such law and this chapter shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable.

(Code 1965, § 4940; Code 2002, § 38-31. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 19-7, § 6 (Exh. A))

8.35.020 Definitions.

The following words and phrases, whenever used in this article, shall be construed as hereinafter set forth, unless it is apparent from the context that they have a different meaning:

Adjacent unenclosed property. Any unenclosed area of property, publicly or privately owned, that abuts a multiunit residence, but does not include property containing single-family detached dwelling units.

Bar. An area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (Department of Alcoholic Beverage Control Type 61, 42, or 48 licenses). That area of a restaurant which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages shall also be considered a bar. An area in which food service is only incidental shall: (1) not exceed 40 percent of a restaurant’s total seating capacity; or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40 percent. The operator of each restaurant shall designate by which method it determines its bar area.

Cannabis. Defined as set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

Common area. Every enclosed area and every unenclosed area of a multiunit residence that residents of more than one unit 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.

Distribute. To give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue, or offer to give, sell, deliver, dispense, or issue.

Effective date. February 6, 2020.

Electronic smoking device. An electronic device that can be used to deliver an inhaled dose of nicotine or other substances, including any component, part, or accessory of such a device, whether or not sold separately. “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, a vaporizer or vape pen, or any other product name or descriptor.

Employee. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her service for an employer.

Employer. Any person, partnership, or corporation, including a municipal corporation or public entity, who employs the services of one or more persons.

Enclosed or enclosed area. 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 constraints 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, regardless of composition, including, but not limited to, vegetation that exceeds six feet in height, whether or not those boundaries include vents or other openings.

Existing unit. Any unit which is not a new unit.

General public. Shoppers, customers, patrons, patients, students, clients, and other invitees of a commercial enterprise or nonprofit entity.

Landlord. Any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit residence that is leased to a residential tenant. For purposes of this chapter, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.

Multiunit residence. Property containing two or more residences, or any residences sharing common walls or otherwise attached. Multiunit residences do not include the following:

(1) A hotel or motel that meets the requirements of California Civil Code Section 1904(b)(2);

(2) A recreational vehicle, mobile home, or manufactured home not located in a mobile home park;

(3) A single-family detached dwelling unit, except if used as a family day care home or health facility, subject to licensing requirements;

(4) A single-family detached dwelling unit with a detached or attached accessory dwelling 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 detached dwelling unit or accessory dwelling unit is used as a family day care home or a health care facility, subject to licensing requirements.

(5) Long-term health care facilities, as defined in Section 1418 of the Health and Safety Code.

New unit. A unit that has been issued a certificate of occupancy on or after the effective date and any unit that is let for residential use for the first time after the effective date.

Nonsmoking area. 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.

Park. Public park or recreation area as defined in Section 18.20.030.

Person. Any natural person, partnership, cooperative association, corporation, personal representative, receiver, trust, trustee, assignee, or any other legal entity, including government agencies.

Public place. Any area, whether publicly or privately owned, to which the public has access by right or invitation, express or implied, whether by payment of money or not, and regardless of any age requirement.

Place of employment. Any area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A single-family detached dwelling unit is not a place of employment, unless it is used as a child care or health care facility.

Residence. A personal dwelling space, even one lacking cooking facilities or private plumbing facilities, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio. “Residence” includes, without limitation, a dwelling, dwelling unit, or housing unit, a personal dwelling space in a residential facility (including, but not limited to, group housing, residential care facilities, residential facilities for seniors, assisted living, supportive housing, transitional housing), emergency, homeless shelter, and a recreational vehicle, mobile home, or manufactured home.

Smoke. 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. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic smoking device, and cannabis smoke.

Smoking. Inhaling, exhaling, burning, lighting, operating, holding, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, cannabis, electronic smoking device, or any other device that delivers nicotine, cannabis, or other substances, whether natural or synthetic, to a person.

Smoking product. Any of the following are considered to be a smoking product:

(1) Any product that is intended or used 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, cannabis, or other synthetic or organic materials.

(2) Any electronic smoking device.

(3) Any component, part, or accessory of a smoking product, whether or not sold separately.

“Smoking 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.

Sports and entertainment, assembly. A facility as defined in Section 18.20.020.

Sports and recreation facility. A public or private facility as defined in Section 18.20.020.

Unenclosed or unenclosed area. Any area that is not enclosed or is not an enclosed area.

Unit. Any residence in a multiunit residence. Unit includes, without limitation, an existing unit and a new unit.

Vending machine. Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin, paper bill, or other thing representative of value, which dispenses or releases a smoking product and/or smoking accessories.

(Code 1965, § 4941; Code 2002, § 38-32. Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A))

Cross references: Definitions generally, § 1.05.100.

Article II. Smoking in Public Places and Places of Employment

8.35.030 Prohibition of smoking in city-owned facilities.

(a) Smoking is prohibited in all buildings, including within 25 feet of any exit, entrance, or operable window of a building, vehicles, and other enclosed areas occupied by city employees, owned or leased by the city, or otherwise operated by the city.

(b) Smoking is prohibited in any unenclosed area owned or leased by the city, including parks, parking lots, corporation yards, and the grounds of any building owned or leased by the city. The City Manager or designee may designate a smoking area.

(Code 1965, § 4942; Code 2002, § 38-33. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 19-7, § 6 (Exh. A))

8.35.040 Prohibition of smoking in downtown Concord.

(a) Purpose. The intent and purpose of prohibiting smoking at the identified locations includes, but is not limited to, protecting the public health, safety, and welfare by reducing the number of locations in downtown Concord where exposure to secondhand smoke can occur.

(b) Smoking is prohibited in the following places:

(1) All areas of downtown Concord accessible to the general public, except within smoking areas designated pursuant to subsection (c) of this section.

a. For the purposes of this section, “downtown Concord” means that portion of downtown within Parking Assessment District No. 60, as established by Ordinance No. 81-1211, adopted by the City Council on July 27, 1981, as generally shown on the map in Exhibit A.

EXHIBIT A. PROHIBITION OF SMOKING IN DOWNTOWN CONCORD

Boundaries of downtown Concord for the purposes of this section.

b. This prohibition applies to the sidewalks along public and private streets within and around the perimeter of the area defined in subsection (b)(1)a. of this section, pedestrian alleys, pedestrian paseos and plazas, walkways providing access from parking lots and structures to stores or sidewalks, and all other pedestrian paths or areas that are accessible to the general public.

c. Smoking is further prohibited in any unenclosed areas within 25 feet of any pedestrian path or area identified in subsection (b)(1)b. of this section.

(2) Transit vehicles and stations. Smoking is prohibited in all transit vehicles and at all transit stations, except within smoking areas designated pursuant to this article.

a. For the purposes of this section, transit vehicles include all buses, shuttles, and similar transit vehicles.

b. For the purposes of this section, “transit stations” means all enclosed and unenclosed multi-modal platforms, sidewalks, shelters, benches, and areas where people wait for trains, buses, taxis, or other public transit, and ancillary areas such as restrooms, vending machine or kiosk areas, bicycle parking areas, and pedestrian paths and walkways.

(c) Locations within downtown Concord where smoking is permitted, even when smoking would otherwise be prohibited per this section:

(1) Single-family detached dwelling unit. To the extent not otherwise prohibited by law, smoking is permitted inside single-family detached dwelling units and unenclosed areas associated with the single-family detached dwelling unit, except when a single-family detached dwelling unit is being used for child care or as a health care facility, subject to applicable licensing requirements.

(2) Private vehicles. Smoking is permitted inside a private vehicle, unless otherwise prohibited by this Code or state law.

(3) Designated smoking areas. The owner or operator with control over any privately owned property may designate an area where smoking is permitted in a location where smoking would otherwise be prohibited under this article, provided that:

a. The smoking area is as small as is practicable to accommodate the number of smokers that are expected to use the area. Notwithstanding this criteria, an owner may not designate a smoking area that would be smaller than 50 square feet, or with a dimension on any side less than five feet.

b. Designated smoking areas within outdoor dining areas shall not exceed 40 percent of the total floor area utilized for outdoor dining. Within outdoor dining areas, designated smoking areas must be separated from nonsmoking areas with a physical barrier that prevents secondhand smoke from passing between the two areas. The physical barrier shall be the lesser of (1) at least seven feet in height, or (2) extend to the ceiling or covering of the outdoor dining area. The owner may use a ventilation system in place of a physical barrier, provided such owner demonstrates to the satisfaction of the City Manager, or his or her designee, that the proposed ventilation system will be at least as effective as a physical barrier in preventing secondhand smoke from passing between designated smoking areas and nonsmoking areas. In addition, any such designated smoking area shall not be visible from the property frontage.

c. The smoking area is not located within five feet of any entrance or exit, or walkway to such entrance or exit, of any building or facility open to the public.

d. The smoking area is posted with one or more conspicuously displayed signs that identify the area as a designated smoking area.

e. The City Manager or his or her designee may require that any designated smoking area be modified or removed if, in the sole and absolute discretion of the City Manager or his or her designee, it does not satisfy the criteria of subsection (d)(3) of this section.

(d) Posting of signs.

(1) Time of posting. Every business or property subject to this chapter shall post the signs required by this section within 30 days of the effective date of the ordinance codified in this chapter. Every business or property which becomes subject to the provisions of this section after the effective date shall post the required signs immediately upon commencing operations.

(2) Sign locations.

a. Every outdoor dining area, outdoor shopping area, and outdoor shopping center where smoking is prohibited by this section must have one or more conspicuously displayed signs stating that smoking is prohibited within downtown Concord. Multiple signs must be provided as appropriate for larger areas to ensure that signs are readily visible to all users of the area.

b. Every entrance to a building or other enclosed space that is open to the general public must have at least one conspicuously displayed sign stating that smoking is prohibited within downtown Concord per this section.

c. The City Manager will cause the installation of conspicuously displayed signs indicating that smoking is prohibited at appropriate locations in all unenclosed city facilities and transit facilities and at the entrance to all enclosed city facilities and transit facilities where smoking is prohibited under this section.

d. The City Manager will cause the installation of conspicuously displayed signs indicating that smoking is prohibited at appropriate locations on public sidewalks and other public pedestrian areas in the downtown Concord.

e. Signs required under this section are exempt from the sign requirements in the Development Code.

(3) Sign content and materials.

a. The signs required herein must have text and/or graphics to clearly indicate that smoking is prohibited in the area and include an appropriate Municipal Code citation.

b. Any text must be clearly contrasted with the background and must be a minimum of one inch tall. The text must state “No Smoking,” “Smoke Free Area,” or another phrase to clearly indicate that smoking is prohibited.

c. Any graphics must be substantially similar to 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.

d. All signs located in unenclosed areas must be made of permanent, weather-resistant materials.

(Code 1965, § 4943; Code 2002, § 38-34. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 13-6; Ord. No. 19-7, § 6 (Exh. A))

8.35.050 Regulation of smoking in enclosed and unenclosed areas.

(a) Smoking is prohibited in the following places within the city:

(1) Enclosed places of employment, in accordance with California Labor Code Section 6404.5.

(2) Enclosed public places.

(3) Parks.

(4) Within 25 feet of a playground or tot lot sandbox area, including the disposal of tobacco-related waste, such as cigarette butts, in accordance with California Health and Safety Code Section 104495.

(5) All enclosed and unenclosed common areas, on or after the effective date, other than in a designated smoking area established pursuant to Section 8.35.100, is a violation of this chapter.

(6) A new unit, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, garages, carport areas or patio, on or after the effective date, is a violation of this chapter.

(7) An existing unit, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, garages, carport areas or patio, on or after January 1, 2021, is a violation of this chapter.

(8) A recreational vehicle, mobile home, or manufactured home located in a mobile home park.

(9) Sports and entertainment, assembly and sports and recreation facility, except a designated smoking area may be provided, which shall be segregated from nonsmoking areas.

(10) Single-family detached dwelling unit, when used as child care or health care facilities.

(b) Notwithstanding any other provision of this section, any owner, operator, manager, or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment.

(Code 1965, § 4944; Code 2002, § 38-35. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A))

8.35.060 Permissible smoking areas.

Notwithstanding any provision of this article to the contrary, the following areas shall not be subject to the smoking restrictions of this article:

(1) A single-family detached dwelling unit except when used as a family day care home or health care facility, subject to licensing requirements.

(2) Inside an accessory dwelling unit, attached to or detached from a single-family dwelling unit, permitted pursuant to California Government Code Section 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections, except if the single-family detached dwelling unit or accessory dwelling unit is used as a family day care or health care facility, subject to licensing requirements.

(3) A recreational vehicle, mobile home, or manufactured home not located in a mobile home park.

(4) Hotel and motel rooms rented to guests; provided, however, that each hotel and motel designates not less than 80 percent of its guestrooms as nonsmoking rooms and removes ashtrays from these rooms.

(5) Retail or wholesale tobacco shops and private smokers’ lounges that deal exclusively in the sale of tobacco and smoking paraphernalia.

(Code 1965, § 4946; Code 2002, § 38-37. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A). Formerly 8.35.070)

8.35.070 Posting requirements.

(a) “Smoking” or “No Smoking” signs, whichever are appropriate, 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 diagonal bar across it) shall be clearly, sufficiently, and conspicuously posted in every building or other place where smoking is controlled by this article, by the owner, operator, manager, or other person having control of such building or other place.

(b) Every hotel or motel regulated by this article will have posted at its entrance a sign clearly stating that nonsmoking rooms are available, and every patron shall be asked as to his preference.

(Code 1965, § 4947; Code 2002, § 38-38. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A). Formerly 8.35.080)

8.35.080 Vending machines.

Vending machines as defined in Section 8.35.020 may be located only on those premises which have either a Type 61, Type 42, or Type 48 license from the Department of Alcoholic Beverage Control. Vending machines must be located at least 25 feet from any entry into the premises.

(Code 1965, § 4948; Code 2002, § 38-39. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A). Formerly 8.35.090)

8.35.090 Distribution of free samples and coupons; out-of-package sales.

(a) Distribution of free samples and coupons.

(1) No person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute, direct, authorize, or permit any agent or employee to distribute: (a) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (b) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building.

(2) No agent or employee of any person, firm, association, or corporation in the business of selling or otherwise distributing cigarettes or other tobacco or smoking products for commercial purposes shall, in the course of such business, distribute: (a) any cigarette or other tobacco or smoking products, including any smokeless tobacco products; or (b) coupons, certificates, or other written material which may be redeemed for smoking products without charge, to any person on any public street or sidewalk; in any public park, playground, or on any other public ground; or in any public building.

(3) For purposes of this section, “public ground” and “public building” include sports and entertainment, assemblies and sports and recreation facilities as defined in Section 8.35.020, except a bar, whether enclosed or unenclosed, for which a charge is made for admission, whether publicly or privately owned.

(b) Out-of-package sales. No person shall sell, or offer for sale, cigarettes, smoking products, or smokeless tobacco not in the original packaging provided by the manufacturer.

(Code 1965, § 4949; Code 2002, § 38-40. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A). Formerly 8.35.100)

Article III. Prohibiting Smoking in and Around Multiunit Residences

8.35.100 No smoking permitted in common areas except in designated smoking areas.

Smoking in a common area other than in a designated smoking area established pursuant to this chapter is a violation of this chapter.

(a) A person with legal control over a common area, such as a landlord or homeowners’ association, may designate a portion of the common area as a designated smoking area provided the designated smoking area complies with subsection (b) of this section at all times.

(b) A designated smoking area:

(1) Must be an unenclosed area;

(2) Must be at least 25 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;

(3) Must be located at least 25 feet from any nonsmoking area. The location of nonsmoking areas may change due to the new enactment of a law, execution of an agreement, or other event that affects the area’s nonsmoking designation. If an event occurs that changes a nonsmoking area, a person with legal control over a designated smoking area located less than 25 feet from that nonsmoking area must modify, relocate, or eliminate that designated smoking area so as to maintain compliance with the requirements of this subsection (b). In the case of a nonsmoking area on a neighboring property established 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 with legal control over the property to designate a smoking area within 25 feet of the nonsmoking area unless that person has actual knowledge of, or a reasonable person would know of, the private agreement or designation;

(4) Must be no more than 10 percent of the total unenclosed area of the multiunit residence for which it is designated;

(5) Must have a clearly marked perimeter;

(6) Must be identified by conspicuous signs; and

(7) Must not overlap with any enclosed or unenclosed area where smoking is prohibited by this chapter or other law.

(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 ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within any area that is not a designated smoking area.

(Ord. No. 19-7, § 6 (Exh. A))

8.35.110 Nonsmoking buffer zones.

(a) Smoking is prohibited in adjacent unenclosed property located within 25 feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a unit.

(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. No. 19-7, § 6 (Exh. A))

8.35.120 Required and implied lease terms for all new and existing units in multiunit residences.

(a) Existing units. Every lease or other rental agreement for the occupancy of any existing unit entered into, renewed, or continued month to month on or after January 1, 2021, shall include the provisions set forth in subsection (c) of this section on the earliest possible date allowable by law.

(b) New units. Every lease or other rental agreement for the occupancy of any new unit entered into, renewed, or continued month to month on or after the effective date shall include the provisions set forth in subsection (c) of this section.

(1) A clause providing that 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, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control of the tenant to engage in smoking in the unit or 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 multiunit residence other than a designated smoking area, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists. In addition, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control 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 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, substantially similar to the following:

It is a material breach of this agreement for tenant to violate any law regulating smoking while anywhere on the property. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control 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 multiunit residence as to the smoking provisions of the lease or other rental agreement, substantially similar to the following:

Other occupants of the property are express third-party beneficiaries of those provisions in this agreement regarding smoking. As such, other occupants of the property may enforce such provisions by any lawful means, including by bringing a civil action in a court of law.

(d) 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.

(e) 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 shall be liable for the breach to (i) the landlord; and (ii) any occupant of the unit 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.

(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. No. 19-7, § 6 (Exh. A))

8.35.130 Notice and signage requirements.

(a) Every landlord shall deliver the following notices to (1) each existing unit on or before July 1, 2020, and (2) any new unit as of the effective date:

(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 January 1, 2021, for any existing unit and as of the effective date for any new unit; and

b. Smoking in all common areas is a violation of this chapter.

(2) A copy of this chapter or a web address to this chapter on the city’s internet website.

(b) As of July 1, 2020, 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; and

(2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.

(c) As of January 1, 2021, for any existing unit and as of the effective date for any new unit, every seller of a unit in a multiunit 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; and

(2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.

(d) The person or persons with legal control over common areas shall post clear and unambiguous “No Smoking/No Vaping” signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. 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/No Vaping” signs are not required inside or on doorways of units.

(e) No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as provided in Section 8.35.100, No smoking permitted in common areas except in designated smoking areas.

(Ord. No. 19-7, § 6 (Exh. A))

Article IV. Cannabis

8.35.140 Cannabis.

Pursuant to California State law, Health and Safety Code Sections 11362.3 and 11362.79, smoking cannabis is prohibited wherever smoking tobacco is prohibited. In addition, smoking cannabis is prohibited in the following places:

(a) In or upon all property owned, leased, or operated by the city, expressly including any park, street, sidewalk, trail, bike path, alley, highway, parking lot or parking structure, or in any other public place as defined in this chapter and by state law. (See, Cal. Health and Safety Code § 11362.3(a)(1).)

(b) Within 1,000 feet of a school, day care center, or youth center while children are present at such school, day care center, or youth center, except in or upon the grounds of a single-family detached dwelling unit if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(c) In or upon the grounds of a school, day care center, or youth center, regardless of whether children are present. (See Cal. Health and Safety Code § 104559; Labor Code § 6404.5.)

(d) While driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation. (See, Cal. Health and Safety Code § 11362.3; Vehicle Code § 23152.)

(e) Smoking or ingesting cannabis is prohibited in any public place, as defined herein.

(Ord. No. 19-7, § 6 (Exh. A))

Article V. Nuisance and Enforcement

8.35.150 Nuisance.

(a) Any violation of this chapter is hereby declared to be a public nuisance pursuant to Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances).

(b) Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall constitute a violation of this chapter.

(c) 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.

(d) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this chapter.

(f) No person or employer shall discharge, refuse to hire, or in any manner retaliate against any person, employee, or applicant for employment because such person exercises any rights afforded by this article.

(Ord. No. 19-7, § 6 (Exh. A))

8.35.160 Enforcement.

(a) Private right of enforcement. 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 to enforce this chapter by way of a conditional judgment or an injunction to prevent future such violations and may sue to recover such actual or statutory damages as they may prove. In any such action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party may recover attorneys’ fees.

(b) City discretion. In addition to the civil, criminal, and administrative remedies available, the City Attorney or Chief of Police, in their sole discretion, may abate the violation including under the procedure set forth in Section 8.25.080, may issue citations and fines under Section 8.25.070, and may pursue any and all legal and equitable remedies for the recovery of fines, costs, and/or associated charges owed to the city as set forth in Chapter 8.25 (Neighborhood Preservation), Article I (Public Nuisances). Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines and abatement charges have been recovered.

(c) Nothing in this chapter shall create a right of action in any person against the city or its agents to compel city or other public entity enforcement of this chapter against private parties. Neither the city, any member of the city, or any other officer, official, employee, or agent of the city shall be liable for any person’s breach of this chapter, any other breach of this chapter, or the city’s failure to enforce all or any portion of this chapter.

(Ord. No. 19-7, § 6 (Exh. A))